A question was posed by an honorable Nebraska fellow as to how an old trench lawyer might view the efficacy of a president having a chat with a special counsel charged with investigating him. While I may lack the inscrutable tactical acumen of former United States Attorney, Rudy Giuliani, who foretold that he would have this wrapped up* in “a week or two,” a few considerations come to mind.
It’s often beneficial to agree to an interview.** It allows a target or subject the opportunity to do so at his relative convenience and to fully prepare in advance for the interview. There is much to be gleaned from the questions asked, the tone of the interrogation, even the people at the table. Everything from who does the questioning to the “tells” of those taking notes provides insight into what they’re truly interested in, what they’re trying to get out.
Understand that there are invariably questions posed which they already know the answer to, or at least believe they do, so as to create the “perjury trap.” Often, these questions are posed in a tricky way, often overbroad or impossible to answer with complete accuracy. Any crack in the response can be exploited as a lie by a reasonably competent prosecutor. Still, knowing this going in makes it far easier to address.
Since it’s a voluntary interview, done with the informality of a nice talk across a big table, there are two huge benefits for the defense. There is opportunity for discussion, for questions, when a question is posed. If the question is overbroad, the lawyer can raise the point, jumping in to challenge the question and ask the interrogator to narrow it, to provide meaningful time frames or limitations so that the question is answerable.
More significantly, the defense lawyer can do a Nancy Reagan and just say no. It’s a voluntary interview, and if a question is posed that the lawyer deems either inappropriate or potentially disastrous, he can tell the interrogator so and direct his client not to answer. Whether it’s a “leap to your feet and scream j’accuse” situation or a calm, “well, that’s a question that we believe to be improper,” the opportunity is there.
Does that mean you’ve just undermined the entire purpose of the interview, a grand jury subpoena pushed across the table? Not at all. There will be a great many questions posed, and perhaps a few refused. Is it worth it to go nuclear? Has there been more than sufficient cooperation that a few refused questions won’t make the other side escalate the situation? Can they refine their question, their tone, such that they can get the information they seek without asking it in such an accusatory or problematic way? Usually so.
And what if things do get out of control, a meltdown or two by angry prosecutors at their subject’s intransigence when they really want answers? Often, it’s just a game being played, such as threats made of dire consequences for refusal to comply. They have the subect’s attention, and get to poke their victim without being filtered through his lawyer. Does he really want to spend the rest of his life in prison? Maybe a prison rape story, or discussion of the health benefits of Nutriloaf?
This is where the defense lawyer can do his magic, calling out the obvious effort to scare the subject into acquiescing. Prosecutorial threats are a well-worn method of getting people to do, to say, what they want. Defense lawyers have heard it all before and aren’t particularly inclined to start shaking uncontrollably. More to the point, they stare into the eyes of the tough, flea-bitten prosecutor and tell him to do whatever he’s got to do. That’s where they back down, turn down the volume from eleven, because the defense has a nuclear option of its own.
The defense lawyer slowly rises from his seat, grabs his briefcase and announces, “we’re done.” As the subject’s presence is voluntary, the defense can end the interview whenever it wants. Play the game too hard and they walk away. Bear in mind, the prosecution wants that free interview more than the defense does, and they get nothing if the subject walks out the door.
There are a few conditions that make a voluntary interview a sound tactical choice: that the subject is teachable as to how to answer questions, will follow directions, most importantly to stop talking when the lawyer’s mouth opens, and not lie. Can the subject control his impulses? Can the subject express himself in reasonably comprehensible terms? Can the subject stop talking when told to stop talking?
These are all surprising difficult questions for the best of clients under the best of circumstances. No matter how much time and effort is put into preparing a client, there will be mistakes made. There always are. But most are willing and able to follow instructions, to learn, to listen, to let their lawyer do his job.
So will this work for Donald Trump?
*Bob Mueller would have to be made of ice to resist Rudy’s warmth and charm.
**Most voluntary interviews include a “proffer agreement,” what we delightfully call a “Queen for a Day,” which precludes the affirmative use of anything said during the interview, but does not protect the subject from lies or use of his statements should he testify differently later. Whether Trump would get a Queen for a Day is unclear, given that we’re in relatively virgin territory interrogating a president.