This week in the Russia investigations: President Trump says he, and not his lawyers, completed written questions for the special counsel. Now, the ball is back in Robert Mueller’s court.
President Trump says he has finished his open-book, take-home exam.
It was no sweat, he said, but he also told reporters on Friday that he fully expects some of the questions were “tricked up” — written sneakily to lure him into what his attorneys have called a “perjury trap.”
That’s the legal shorthand for an ostensible ambush in which a prosecutor asks a witness a question about which he already has evidence, and if the witness lies under oath: Snap!
Commentators have argued that the way to avoid being caught in this “trap” is for a witness to tell the truth, but the president and his attorneys don’t buy that: “Truth,” as lawyer Rudy Giuliani once argued, “isn’t truth.”
What might it mean in practical terms if, in fact, Trump obfuscates or elides or evades or prevaricates or misleads? Depending on the particulars, there could be big consequences.
“I” for incomplete
Suppose Trump simply doesn’t answer one (or more) of Mueller’s questions. He can’t convey an untruth if he doesn’t convey anything. What then?
Will the special counsel’s office ask for a follow-up? Or might the special counsel ask to hear from Trump in person — and if Mueller does that, might he ask for a subpoena to compel Trump to respond?
The prospect of a legal showdown between Trump and Mueller has lingered offstage for months in this saga. Trump has never foreclosed the possibility he might talk in person with the special counsel’s investigators, even though his own attorneys have advised him against it.
If that is the next inflection point here, this could bring the next crossroads in the Russia imbroglio. Trump and Mueller could litigate the point in what may become a landmark legal ruling.
Mueller, however, may not want to go down that road. He might be afraid he would lose a court fight over a subpoena; he might be afraid he would win. The special counsel’s office could instead simply accept what it gets from Trump under the terms already negotiated.
If Trump did fall into the “perjury trap,” if there is one, that will bring Mueller to a decision point of his own.
Can’t walk out?
Suppose the “trap” springs. What then? Proving “perjury” doesn’t just mean investigators caught someone in an untruth or factual error innocently. Authorities must prove the person involved lied deliberately.
Proving what Trump was thinking when he acted is one reason why the “obstruction of justice” track of the Russia imbroglio is as fraught as “collusion” track for Mueller’s office.
Prosecutors would need to establish that the president, for example, intended to frustrate the investigation when he asked then-FBI Director James Comey to lay off then-national security adviser Mike Flynn or when Trump fired Comey.
Trump’s attorneys say he wasn’t acting maliciously and, more broadly, that he virtually cannot commit the crime of obstruction of justice. Trump’s powers under the Constitution give him the privilege to fire anyone he likes in the executive branch, they argue.
So a sprung “trap,” if Trump is right, may not mean anything. Or it could be a vital brick in whatever ziggurat that Mueller and his office are assembling.
Not knowing what is taking place inside the special counsel’s office is one of the most vexing aspects of one of the most confusing stories in recent history.
Major national media outlets have brimmed over the past few weeks with reports that suggest more indictments are just around the corner, that there could be “dozens” of them and that even some of Trump’s own family members might be implicated.
Through it all, however, the only political figure in Washington less talkative than Mueller has been King Neptune. Notwithstanding all the TV graphics and Twitter posts and digital smart takes, no one on the outside really knows what the special counsel has up his sleeve.
Not all of the work product of the Justice Department is so tightly controlled.
In fact, as terrorism researcher Seamus Hughes revealed this week, there has been a court document on file for weeks in the federal district court for the Eastern District of Virginia that alluded to possible criminal charges for WikiLeaks boss Julian Assange.
The Justice Department didn’t comment on whether that reference meant there truly is a criminal complaint or an indictment relating to Assange somewhere inside the courthouse in Alexandria, Va., where Paul Manafort was convicted.
But that would not be surprising.
Assange has been a stone in the U.S. government’s shoe for years, dating back to WikiLeaks’ publication of Defense and State Department secrets leaked from within the family.
In those days, he enjoyed alt-celeb status for, in the eyes of his supporters, blazing a bold new path for openness. WikiLeaks released secrets on its own with no intermediaries and also entered into partnerships with news organizations.
Then came the allegations of sexual misconduct that, along with Assange’s fears about his enemies in Washington, prompted him to seek refuge in the Ecuadorian Embassy in London in 2012. And there was the drift into the orbit of Russia with Assange’s show on the Russian TV network also linked to its now years-long campaign of “active measures” against the West.
By 2016, Assange was in the right place, geographically and politically, to become an integral part of that work, although the full details aren’t clear.
Prosecutors say the Russian military intelligence officers who stole data from American cyber victims then gave it to Assange for him to release — the terms in the indictment are clear, although neither Assange or WikiLeaks are specifically named.
Assange denied the sexual assault allegations and denied that the material WikiLeaks released in 2016 came from Russia.
Lawyers on a tightrope
Even so, if prosecutors in Alexandria, Va., did ask a grand jury to charge Assange, they have no shortage of complaints to make, but if any prosecution goes forward, it could wind up being quite delicate.
For one thing, there’s Assange’s physical situation: Although the government of Ecuador, which has been sheltering him, now may be losing its patience, it also has said he is free to keep holing up in its London embassy. So unless that changes, he may not be available to appear in U.S. court to defend himself.
That raises the stakes for the State and Justice departments: Might unsealing charges shake the tree hard enough to release this kitten? Or is it smarter to get Assange out into the open some other way, let the British arrest him and then ask them to toss him over when they’ve finished with him?
And if all those arrangements are settled, what charges should the United States bring?
Assange’s supporters — and his attorney — argue that he not only hasn’t broken any law, but he also hasn’t done anything wrong. All he has done all along is circulate and amplify truthful information, supporters say. Assange, as the argument goes, is a journalist and the West supports the freedom of the press.
If Assange is charged, his defense may boil down to: I’m a journalist, not a spy.
Maybe the Trump administration, not known for the warmth of its views toward the press, does not care. Or maybe the Justice Department believes it can walk the line between respecting the First Amendment and finally shutting down Assange, which people in the military and intelligence worlds believe is long overdue.
Or maybe, as the court filing could suggest, all these decisions have already been made and we’re just waiting for the show to start.