WASHINGTON -- The prospect of President Donald Trump being interrogated by special counsel Robert Mueller stirs the imagination. Lots of documents and testimony have already been collected in the inquiry. What if the president contradicts the record or himself?
Mueller has drawn guilty pleas from Trump campaign intimates for making false statements about contacts with Russians. But that approach isn't easily replicated as Mueller climbs the ladder toward the president.
Bringing a case against Trump -- or a member of his inner circle -- based solely on misstatements to authorities, without establishing an underlying crime, would almost certainly draw fury from Trump supporters. It would stoke Republican suspicions that Mueller is searching desperately for underlying crimes that never occurred. The president's allies and even his own lawyer have raised concerns that the special counsel could be setting what they call a perjury trap.
"Mueller can't afford to do a false statements prosecution" if it's seen as petty, said Sol Wisenberg, a Washington defense lawyer who investigated former President Bill Clinton as part of Independent Counsel Ken Starr's legal team. "If it looks like somebody said something wrong and corrects it a while later I think that won't fly. There has to be some substance to it."
The White House is negotiating with the special counsel's office over terms of a possible Trump interview. His lawyers, though not united, have suggested that the president, who is prone to exaggeration and misstatements, shouldn't agree to a wide-ranging interview, The New York Times reported. One way forward might be for Trump to answer questions with his lawyers present, so he could stop an interview and consult with them before answering.
If there's no agreement on an interview, Mueller could try to subpoena Trump to appear before a grand jury. That could ignite a potential court showdown over the powers of the special counsel to force testimony from a sitting president. For Trump, the danger is that if he loses he might find himself answering questions under oath before a grand jury without a lawyer by his side, increasing the chances that he might contradict himself or others.
The crime of making false statements -- known colloquially among defense lawyers as "1001," its criminal code number -- is a common charge brought in federal investigations, lending credence to the saying that "the cover-up is worse than the crime." Martha Stewart stands as one of the most famous examples, having been sentenced to five months in prison, five months of home detention and a $30,000 fine for lying to federal authorities who were examining her sale of stock in a friend's company.
"1001 is a prosecutor's best friend," said Michael Koenig, a former Justice Department prosecutor now at Hinckley, Allen & Snyder. "It's very simple to explain to a jury. Everyone understands lying. It's not a complicated accounting fraud case where you need to understand nuances of tax law and securities law."
To investigators, lying suggests there is an underlying -- and usually more serious -- crime being covered up. Catching someone lying to investigators is also a standard way to squeeze them into a cooperation agreement, Koenig said.
The threat of a jury trial or more charges prompted the guilty pleas from Michael Flynn, Trump's former national security adviser, and George Papadopoulos, a former campaign aide. Mueller accepted the pleas at an early point in the probe to gain their help in moving deeper into the campaign.