It's Mueller's burden to prove the necessity of an interview with President Trump

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The burden should be on Mueller to demonstrate the necessity of questioning the president in any form, not on the president to provide reasons for not submitting to questioning. Being president is reason enough.

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See, there are two Trumps to consider here. There is the very eccentric and volatile man who is the subject of Mueller’s vague and having no shape investigation. And there is the president of the United States, who has responsibilities to that vital public office. Here, the interests of both happen to align.

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If you’re Trump’s lawyer watching this, you’re saying to yourself, “No way I let this guy testify.” When he feels threatened, his impulse is to deny now and clean it up later (e.g.: I didn’t tell Comey to drop the Flynn investigation, but even if I had done so it would have been appropriate . . . ). In politics, you’re apt to be safe with this sort of thing — if the ultimate clean-up is plausible, people tend to forget the original dissembling. But in a courtroom, or an interview with prosecutors and FBI agents, a false denial or even a bumbling misstatement can get you indicted.

The burden should be on Mueller to demonstrate the necessity of questioning the president in any form, not on the president to provide reasons for not submitting to questioning. Being president is reason enough.

Trump is litigious and cocky. He has been in lots of lawsuits and has taken the measure of lots of lawyers. He may be very confident that he can handle an interview. He may be certain he has not colluded with Russia and thus convinced there’s no need to worry.

Trust me, though: He has not been sweated before like he would be in a special-counsel interview. It would be a mistake to assume that because Mueller’s team overflows with Democratic partisans, they are just like the political hacks Trump jousts with all the time. These particular prosecutors are extraordinarily good at what they do. They are not going to be cowed or charmed. If Trump agrees to speak to them, he will not be able to control the direction of the questioning; and if he loses his cool and says things that are dubious or flatly untrue, they will clean his clock.

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In other words: Trump the man could walk out of an interview with Mueller in real jeopardy, despite walking into it in nothing more than a bad mood. Which brings us to our other client: Trump the president.

A president of the United States should never be the subject of a criminal investigation, and should never be asked to provide testimony or evidence in a criminal investigation, in the absence of two things: solid evidence that a serious crime has been committed and a lack of any alternative means to acquire proof that is essential to the prosecution.

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As we have noted here since before Mueller was appointed, the Justice Department has improperly assigned a prosecutor in the absence of grounds to believe a crime has been committed. “Collusion with Russia” is not a crime, and there are presently no grounds to believe the president conspired with Putin’s regime to violate any American law.

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Every other independent-counsel investigation in which an American president has been a subject was triggered by an actual crime. Those presidents were on notice of the contours of the probe, and of the criminality that rendered it appropriate for a prosecutor to be appointed and for a president to be questioned. That is not the case in Mueller’s probe. It has been formally described as a counterintelligence investigation, which is a national-security inquiry about a foreign country’s designs against the United States, not a criminal investigation targeting an American for prosecution on a known offense.

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