As negotiations continue between Robert Mueller and Rudy Giuliani over a potential sit-down interview with President Donald Trump, Giuliani has gone on a public relations tour announcing that he has offered to bring the president in to speak with Mueller, under certain (unspecified but certainly wildly self-serving) conditions. According to Giuliani, it is now up to Mueller to accept or reject those proposed conditions. Some have likened the ongoing back-and-forth to a chess match, but it’s more like the parties are actually playing two different games: Mueller is playing the legal game while Giuliani is playing a political one.
Anytime a prosecutor wants to speak with a person about a criminal matter, there’s an easy way (an interview) and a hard way (a subpoena). In an interview, the subject agrees to come in to the prosecutor’s office, typically with a lawyer, and answer questions from the prosecutor. There is no grand jury or stenographer, and the witness is not placed under oath. Notwithstanding the relatively informal setting, if a subject lies, he can be prosecuted for making false statements. Martha Stewart famously was charged, convicted and imprisoned not because she lied under oath in a grand jury but because she lied to a prosecutor in an interview.
At times, the prosecutor will agree to certain narrow limitations, but nothing remotely resembling the extraordinary conditions Giuliani apparently has proposed to Mueller. Giuliani has reportedly requested that Mueller submit written questions and that the president be permitted to respond in writing. I’ve done hundreds of subject interviews as a federal prosecutor, and never once submitted a single written question. That’s because it is essential to the prosecutor to get a direct, in-person read on the subject. There is no substitute for sitting in the same room as a subject and gauging his responses, body language and demeanor as the questioning progresses. Any written responses to Mueller’s questions would be heavily lawyered, likely to the point of complete uselessness.
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