My anonymous friend, who was an Assistant United States Attorney for a quarter century, has advice for President Trump:
I agree with Andy McCarthy’s column that there is no rational legal basis for the President to agree to be interviewed by the Special Counsel. A “subject” should never help a prosecutor to move him from “subject” to “target” by providing information to the prosecutor that he does not have.But the President will be “tarred and feathered” as a political matter by the opposition — both Dems and GOP — and the press if he doesn’t, and he’s made many statements already about his willingness to be interviewed.I think there is a means, however, by which such an interview could take place which minimizes — but doesn’t eliminate — the risk of the President placing himself in greater jeopardy.The President can use the reports of the Special Counsel’s stated need for an interview to set the terms for the interview in a way that take away the opportunity of a federal prosecutor to come out of the interview with more than he went in with. The terms can prevent the interview from veering off into some form of “interrogation” — polite or otherwise — that you would expect when the FBI is involved. In fact, the President should simply not allow the FBI to participate at all. If the Special Counsel only needs information, he doesn’t need the FBI to be there.The SC says he needs information he can only get from the President in order to finish a report to Congress, presumably on the issues surrounding the allegations of “obstructing” the Russia investigation. In order to provide him an opportunity to collect that information, the ground rules for the interview would be as follows:1. Only 4 people would be preset in the room — Mueller personally, the President, the President’s attorney, and a court reporter.2. Mueller cannot take notes. He can listen to the answers and then recount them from memory for his purposes later in preparing his report. This will force the Special Counsel to use extreme caution in the way he uses the information.3. The President will have a court reporter present who is hired as a member of the WH staff, to capture the questions and answers. The transcript is within the exclusive control of the President and all versions of the transcript, written or electronic, remain with the President’s attorney. It’s a safeguard against mischaracterizations of what was said, or leaks that appear in the press about what was said. The President will be free to speak about the interview in the aftermath — just as any American can discuss what DOJ officials ask them during an interview. But the Special Counsel remains bound by DOJ policy that precludes commenting on pending investigations.4. No FBI agents or other prosecutors allowed. The President should be entitled to assume that Mr. Mueller knows the details of his investigation, and therefore he shouldn’t need help. There is no reason the President should accept that Mr. Mueller needs help to ask questions in order to gather the information he says he needs. The way the FBI manufactures a 1001 violation during a “subject” interview is to have two agents present, where one takes detailed notes, and then writes a FD 302 Memorandum of Interview which both agents sign. When they claim the subject of the interview made a false statement, the two agents together are the witnesses to what the subject said during the interview. Not having Agents present means no witnesses that could be used later. DOJ policy does not allow prosecutors to be witnesses in cases they prosecute. So if the Special Counsel comes out of the interview thinking the President has lied to him, it would be a Special Counsel v. President “he said/he said”, and the SC would have to resign his position in order to be a witness to what was said.5. The Special Counsel’s questions must be in writing. The questions cannot call for a narrative response – they must be fashioned in a way that they call for specific and determinate factual responses. The SC must read the questions verbatim, and wait for the answer to be completed before moving to the next question.6. There will be no follow up questions based on the answers. The Special Counsel knows what information he needs for his report so he should be careful in his crafting of the questions so as to make sure they are in the proper form, and precise enough to get the specific information he says he needs. Precluding follow-up questions will prevent the session from turning into a “gotcha” interrogation where the potential for increased jeopardy would arise.7. There will be a 60 minute time limit. This is to focus the Special Counsel’s questioning on the areas he believes are most important, and not provide time for “fishing expeditions” into collateral areas.8. The interview will take place in the WH, where the President controls the room. Any violation of the ground rules will bring an immediate end to the interview. and Mr. Mueller escorted from the WH.Nothing requires POTUS to submit to an interview on the normal FBI/DOJ practices that they commonly employ to make people uncomfortable. The practices they employ are not the result of happenstance — they have developed those practices over many decades, and they are designed to break subjects down and gain confessions, or otherwise develop leverage over them by leading them into inconsistencies.The Special Counsel can reject these ground rules if he wants, but that gives the President the ability to say he offered to provide what the Special Counsel the opportunity to get information he claims he needs for a report, but the Special Counsel declined the offer.Nothing in these ground rules prevents the Special Counsel from getting answers to his questions — he’s just going to have to do under circumstances that are more difficult than he’s normally accustomed to having to endure.