Their goal is to move past a standoff that threatens to drag out Mueller’s investigation, and appears to be part of a larger strategy to negotiate with the special counsel through the media. Ultimately, their success depends on Mueller’s willingness to cut a deal — and there is no indication so far that he’d be open to any such proposal.
“We said we wanted the questions limited to Russian collusion,” one of the sources with knowledge of the President’s legal strategy tells CNN. Since that aspect of the investigation deals with the Trump campaign and transition team’s interactions with Russians, it would exclude questions about Trump’s actions once in office. And even within the pre-presidency category, Trump’s lawyers want to narrow what questions the prosecutors can ask.
The focus on Trump’s conduct prior to assuming the presidency also would exclude questions about the firing of then-FBI Director James Comey and possible obstruction of justice.
One possibility Trump’s lawyers are discussing is a combination of in-person and written answers: a limited Trump interview on Russia pre-presidency matters plus written answers to questions regarding obstruction. Trump’s lawyers are insisting on an audio recording of any interview with the President, so there is no question exactly what was said.
However, the sources caution that Mueller has suggested he is not inclined to agree to written answers to questions.
Mueller’s office declined to comment for this story.
‘Inching’ toward a solution
The sources say nothing is resolved yet, but negotiations are ongoing. One source described the discussions as “inching forward.”
Last month, Trump’s attorneys were preparing to deliver their pre-presidency idea to the special counsel on the same day that the FBI raided the office of Trump’s personal lawyer, Michael Cohen. The raid caught Trump’s team off guard, and when his attorneys met with Mueller later that day, they held off with their proposal.
Trump’s attorneys are seeking to avoid any in-person questions about obstruction. They believe that Trump could not have obstructed justice by firing Comey because the President has the authority to fire anyone he wants. And they point to the President’s Article II constitutional powers to run the executive branch without interference.
Although offering to answer written questions about topics during the Trump presidency may seem to run counter to that viewpoint, it appears to be a negotiating tactic to try to reach a deal.
One source describes the offer of written questions as a way for both sides to “avert a fight” that could go all the way to the Supreme Court.
Still, if Mueller remains opposed to written questions and is determined to ask the President questions that deal with his time in office, that court fight may be unavoidable.
The election factor
Trump’s team believes that Mueller hopes to wrap up the case before the midterm election. If there is no agreement, the investigation involving the President may have to extend beyond the election.
And one source says all agree “there should be no bombshells before an election.”
Trump’s legal team is also keeping an eye on another looming issue: a nearly completed Justice Department inspector general report is expected to harshly criticize Comey and other top officials at the FBI and the Justice Department over the handling of the Hillary Clinton email investigation. A report that paints Comey in a negative light, they believe, is helpful to their argument that the President acted appropriately to fire the former FBI director.
The Trump team has been making the case that Trump should not be required to testify about alleged obstruction of justice since 2017.
In multiple letters sent to the special counsel, the team laid out its response to issues they thought the special counsel was examining in 2017 and 2018. The first letter focused on what Trump’s team sees as Comey’s lack of credibility as a potential witness. Sources did not provide further details of that letter.
Other communications to Mueller focused on constitutional issues regarding compelling presidential testimony, the question of whether there could even be an obstruction charge and a response to topics provided by Mueller.
Former Trump attorney John Dowd felt so strongly that Comey lacked credibility as a witness that he also sent a letter to Deputy Attorney General Rod Rosenstein suggesting that he needed to take a look at Comey’s credibility before proceeding with an investigation of the President. The letter not only mentioned Comey’s conduct during the investigation into Clinton’s email server but also his behavior with the President. Dowd said he received a perfunctory response.
“They did nothing about it,” Dowd told CNN.