Fear: Trump in the White House

The broad range of subjects validated what the news was reporting on what Mueller was investigating.

This is horseshit, Dowd thought. Second-year-law-school questions. Many had been answered. To have Trump answer them, of course, would be a catastrophe because Trump could erupt and say absolutely anything. On one level, Dowd thought the broad range of questions suggested that Mueller had nothing and wanted to go on a giant fishing expedition. Setting a perjury trap for the volatile Trump would be child’s play.

“There’s no case here,” Dowd told Mueller.

“I need the president’s testimony,” Mueller said. “What was his intent on Comey?”

“I’m not sure constitutionally you can question that,” Dowd told him. The Article II powers of the president were long acknowledged, even by Comey.

“I want to see if there was corrupt intent,” Mueller said again. This was the very heart of the matter. The obstruction statutes did not make specific acts alone unlawful. The acts had to be done “corruptly” or “willfully,” with the intent of obstructing justice. State of mind was the key. Why had the president acted the way he had? That was why Mueller wanted the president’s testimony, Dowd believed.

“Do you have some evidence that he was paid off?” Dowd asked. Payment for illegal action, suborning perjury or destroying evidence are normally the elements needed to show obstruction. Tapes, sworn testimony of a witness or documents are the best evidence. Unless the prosecutors had it out of the mouth of the subject of the investigation, unless someone torpedoed himself as Dowd was certain the president would do.

“Your own deputy attorney general is a witness for the president,” Dowd said. Rosenstein had written the memo urging that Comey be fired for his conduct in the Clinton email case.

“Matter of fact, he [Rosenstein] took the president’s four-page letter and rewrote it. I rest my case. Then you’ve got the attorney general. Then you’ve got the vice president. Then you’ve got McGahn, everybody around the president. And then you’ve got Comey’s behavior, which both the deputy and the AG had condemned in the Clinton case.

“Intent,” Dowd continued, “all the documents and testimony” answer that. “You asked witnesses what he [the president] said and what he did and when he did it. I submit all that stuff is in real time.” That was all that was needed to show the president’s intent.

Mueller was not buying.

Dowd and Sekulow left the building.

“What do you think?” Sekulow asked.

“He ain’t testifying,” Dowd said. It had been a complete fantasy to think that Mueller would decline prosecution.

Dowd believed he could use the Court of Appeals decision in the independent counsel investigation of Bill Clinton’s agriculture secretary Mike Espy. The court had ruled that executive privilege applied to the president and to his advisers. Prosecutors who wanted to overcome the privilege must show the materials sought contain important evidence that isn’t available elsewhere.

The court ruled that prosecutors had to show a matter under investigation was a serious crime and that no one other than the subpoenaed witness could answer.

Dowd and Sekulow reported back to Trump.

“I have a completely different picture of Mueller now,” Dowd told Trump. The president had been right. “I don’t trust him.”

The 49 questions troubled Dowd. Why not just five?

Why no deference to the president of the United States, who didn’t have time to prepare and then answer questions in the middle of so many world problems? Dowd said this reinforced the decision that the president should not testify.

“Yeah,” Trump said. “They got answers to all of them.”

Cobb began saying publicly that the president really wanted to testify and answer a few questions.

“Mr. President,” Dowd said, “it ain’t a few. There’s 49 of them. That’s not my advice.”

“What are people going to say?” Trump asked. “How’s it going to look in the press?”

“Mr. President, it’s a trap. They don’t have a legal or constitutional reason to talk to you.” He mentioned lawyers who had represented Trump in the past. “If you don’t want to take my word for it,” call them.

Trump called Dowd from Air Force One later in March.

“Mr. President, you just need to take my advice,” Dowd said. “Otherwise we’re going to have a major disaster. There’s no way you can get through these. You remember our meeting when you read our letter? You remember you were comfortable, you understood the strategy? Mr. President, we have won this thing hands down. The 49 questions, you agree, have already been answered. You’ve got people here that answered them. You’ve got lawyers that answered them. You’ve got staff. I mean, Priebus, Bannon, all of them gave testimony acceptable to the special counsel. He has no quarrel with it.

“Mr. President, there’s no poison in the well. No one has lied. No documents are missing. There’s no president in our history that’s done what you’ve done. Why can’t I get you to just be proud of that and sit on it?