What in the hell is going on with this weird Mueller investigation? Am I the only one wondering that? Here we are, just a couple of weeks away from the one-year anniversary of Mueller's appointment, and we still don't have any idea what crime, if any, the guy might be investigating. "Collusion with Russia"? -- not a crime. "Obstruction of justice" by the President, in asking Comey to "go easy" on Flynn (or even in explicitly directing Comey not to investigate Flynn, or not to investigate someone else, if that occurred) -- not a crime. Indictments and guilty pleas come down, and one after another they are for nothing more than "lying" to Mueller and his people (Flynn, Papadopolous, van der Zwaal) -- in other words, crimes that Mueller and his people themselves created and would never have existed if there had been no investigation. Except of course for things that occurred way before the 2016 election and had nothing to do with it (Manafort, Gates), or the meaningless joke of indicting thirteen Russians who will never show up in the U.S. to face the charges.
Well, we have learned one thing from this: Do not talk to Mueller under any circumstances. The main focus of his whole endeavor is to maneuver people into inconsistencies with other people's testimonies or recollections, however trivial, in order to manufacture indictments for lying to the prosecutors. It's a dirty game in which no sane person would participate.
Which leads me to this morning's big New York Times story. Mueller and his team have prepared a list of some 44 questions that they would like the President to answer, and the list has been provided to the Times. Now we'll finally find out what this is all about!
Before getting to that, I'll address the obvious first question of, who leaked this to the Times? The obvious answer is someone on Trump's legal team. By the way, there's nothing illegitimate about that as far as I know. Prosecutors are under an ethical obligation to maintain confidentiality about their investigations; but the idea behind that is to protect the subjects, who may be exonerated, and should not have their reputations impugned unless or until there is an indictment. The subjects themselves are completely entitled to tell the public about what is going on (absent some sort of gag order from a court, which can happen occasionally, but in my view is almost always unconstitutional).
And why would someone on the Trump legal team leak these questions? The simple answer is, if they are absurd. And, in fact, they are absurd. Take a look at the questions, and see if you disagree. And by the way, don't get the idea that you might finally be able to figure out what this investigation is about by looking at these questions. This is the most directionless of possible flailing around that you could ever imagine. Russia! Flynn! Comey! Something! Anything! There is no clue here anywhere of what that might be a crime is being investigated. The overwhelming question that comes to mind on reading these things is, why are some seventeen of the top prosecutors in the Justice Department wasting their own -- and the President's -- time on this meaningless flailing?
Let's start with the most inexplicable thing: there are endless questions here that are essentially about what was going on in the President's mind at some point in time. What were his reasons for x? Or his motives? Or what was he thinking? Or what was his reaction? I admit that I didn't do criminal work in my career, but over on the civil side we generally regarded these kinds of questions to a witness as a complete waste of time. First, people don't have one, but many, and indeed often dozens, of reasons why they do something, all of which can be true at the same time. Second, you can't disprove what somebody says was going on in his own head unless somehow he has already contradicted himself in a recorded statement -- and even in that case, as to motive, he can always say, I had both the motive I mentioned then and also the one I'm mentioning today. Third, nobody ever admits the guilty motive, except in a confession or plea deal. The crime of murder requires intent as an element, but the defendant will never say "yes, I intended to kill him." You prove intent by the facts that he bought the gun, and loaded it, and walked up to the victim and pulled the trigger.
So then, why questions like these:
What was your reaction to news reports on Jan. 12, 2017, and Feb. 8-9, 2017?
What was your opinion of Mr. Comey during the transition?
What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?
What was the purpose of your calls to Mr. Comey on March 30 and April 11, 2017?
What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
What was the purpose of your May 12, 2017, tweet?
What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
This is just the start of a couple of dozen of same. As useless as these question are, you still can't help getting the impression that these guys must have the idea that when the President tries to exert even the slightest influence on an ongoing investigation, that must be "obstruction of justice." What else could these question possibly be relevant to? And, by the way, the Times certainly has exactly that impression:
Robert S. Mueller III, the special counsel investigating Russia’s election interference, has at least four dozen questions on an exhaustive array of subjects he wants to ask President Trump to learn more about his ties to Russia and determine whether he obstructed the inquiry itself, according to a list of the questions obtained by The New York Times.
Do these people know that the Constitution gives the power of prosecutorial discretion, along with all other executive power, to the President? It certainly appears that they do not.
Now try something even more absurd: endless questions about the President's oversight over people who work for him and communications with them. For example, as to Attorney General Sessions
What did you think and do regarding the recusal of Mr. Sessions?
Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
What did you think and what did you do in reaction to the news of the appointment of the special counsel?
What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
Here are my questions: How could it possibly be a crime for the President to take charge and run the executive departments? Isn't that what he was elected to do? Is the President entitled to have an Attorney General who works for him, as opposed to one who is working to undermine him from day one? If the Attorney General becomes "independent" from the President, isn't that the same as the election being overturned by the bureaucracy? And finally, I love the concern of Mueller that the President might have considered firing him. Without doubt, in Mueller's mind, that is the most heinous federal crime of all, although it can't be found in the statute books.
I'll let you read the rest, if you have the stomach for it. Endless questions about the President's relations with his family. Some questions about Russia, including things long pre-dating the campaign. The chance of any of this going anywhere is about zero. That is, unless the President makes the mistake of answering the questions and somehow contradicts something he or someone else has said about some conversation. Then, you should expect the "lying to the FBI" charge.
Here's my suggestion of a strategy. Show up for an interview, but when they ask questions, don't answer, and instead ask your own questions. If they make any mis-step in their answers, start a prosecution for "lying to the President." That's definitely a crime under 18 U.S.C. Section 1001.