Like a Mobster

It’s hard to keep track of the outrages. But this is a good point. From our former federal public corruption prosecutor reader …

Trump and his Congressional allies seem to be getting a pass from the media on his refusal to cooperate with the Mueller investigation by sitting for an interview and/or testifying to the grand jury. It is easy to chalk this up to yet another outrage that, over time, fades in our memories and seems to become the new normal for the pundit class. Instead, the “will he or won’t he” question has become the classic Trumpian reality show cliffhanger that has set the media narrative around this issue. But let’s be really clear about one thing: it is still an outrage and must be described as such. The man is President of the United States, not a mob boss. This should not be a “will he or won’t he” question. The real question should be “why the hell won’t the President of the United States agree to an interview with federal law enforcement”?

The Justice Department, through the Office of Special Counsel, is conducting a serious criminal and counter-intelligence investigation into whether or not the President’s campaign conspired with the Russian government’s illegal efforts to support the his campaign. The investigation includes whether or not the President himself has corruptly sought to obstruct, influence, or impede the investigation by, among other things, firing the FBI Director who was pursuing the investigation. To exhaust all potential sources of information and to hear from a critical subject/witness, the Special Counsel has taken the routine step of asking to interview the President. He has even bent over backwards to let the President answer some questions in written form. This is no different than prosecutors requesting an interview with a CEO when investigating a major financial institution or defense contractor (trust me, they never agree to written questions). While such interviews are voluntary, for a public company CEO to decline such a request would likely result in his or her firing by the company’s board of directors. Not so here. Instead, we have the President’s party doing nothing to call out the President’s unwillingness to speak to prosecutors and some actively seeking to discredit and derail the investigation. Chuck Todd et al. need to ask every Republican member of Congress, “yes or no, will you call upon the President to sit down for an interview with the Special Counsel or testify to the grand jury? What should Congress do if the President refuses?” We need to get them on the record on this.

One related issue here has been lost, which is the question of whether the President is effectively asserting his 5th Amendment right against self-incrimination. If the risk of prosecution and self-incrimination are too high, of course, it might make sense for a high-ranking corporate executive to decline a voluntary interview with prosecutors and take the risk of being fired. In such situations, prosecutors can then send the person a grand jury subpoena (or threaten one). If the subject’s lawyers tell prosecutors that their client is going to take the 5th if called before the grand jury, it is customary for prosecutors NOT to seek to enforce the subpoena and compel the witness to assert the 5th in front of the grand jury. Is that what has happened here? We don’t know, but it seems necessary and appropriate for journalists and members of Congress to be pressing the White House and the President’s legal team for answers: “Has the President’s lawyers ever indicated to the Special Counsel that the President would take the 5th if he were subpoenaed to testify?” Again, the White House should be on the defensive about this.

I think the answer is that we’ve internalized that Trump is like a mobster, is a mobster.

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