Robert Mueller and his team and Trump’s legal team have been speaking about the former sitting down to interview Trump. And even though we have seen ledes like this (via the WSJ) —
President Donald Trump’s lawyers are seeking to negotiate a deal with special counsel Robert Mueller that uses an interview with the president as leverage to spur a conclusion to the Russia investigation, according to a person familiar with the discussions.
— I can’t help but wonder if there’s enough legal grist in combining Clinton v. Jones with Morrison v. Olson (which decided on the constitutionality of the office of the special counsel (how this relates to the ability to dismiss the special counsel, let alone how that might relate to obstruction of justice, I don’t quite know)) for Mueller to be able to use to argue his case to gain access if Trump seeks to obstruct beyond a certain as-yet-defined irrevocable and/or unreasonable point. (Perhaps this is another reason why Stormy Daniels’s case lingers so persistently in a national narrative landscape that doesn’t so much resemble a spotlight so much as a spotlight portrayed by a sieve.)
If we assume that there are no substantial factual doubts regarding “the allegations of the complaint” — one is tempted to assume that due diligence has been done in establishing the facts of the case beyond what’s been made public, if what’s been made public is any indication of the work to come — then we can arguably look to precedent in the inner-workings of Nixon v. Fitzgerald, which established that the President is “entitled to absolute immunity from damages liability predicated on his official acts,” noting that this decision takes care to reflect the realities of being this particular elected official. It says nothing about the time of what came before. (As it’s put in Clinton v. Jones: “This reasoning [Nixon v. Fitzgerald] provides no support for an immunity for unofficial conduct.”)
Indeed — there’s even opposition to the sweeping nature of the decision itself, as the District Judge writing in Clinton v. Jones notes—
Nowhere in the Constitution, congressional acts, or the writings of any judge or scholar, may any credible support for such a proposition be found. It is contrary to our form of government, which asserts as did the English in the Magna Carta and the Petition of Right, that even the sovereign is subject to God and the law.
In short: even though Trump’s lawyers have an interest in protecting the legal exposure of the office of President, there seems to be at least one fundamental aspect of this investigation where it doesn’t matter what Trump’s lawyers offer Mueller. Russian interference in the Presidential election occurred before the current occupant was sworn into that office; therefore — as established by Jones v. Clinton — Trump might not have and might not be able to claim Presidential immunity here (though he’s certainly entitled to seek it); therefore, he might be liable — and why risk a subpoena? Indeed — as the decision itself goes on to note —
President Ford complied with an order to give a deposition in a criminal trial … and President Clinton has twice given videotaped testimony in criminal proceedings … sitting Presidents have also voluntarily complied with judicial requests for testimony. President Grant gave a lengthy deposition in a criminal case under such circumstances … and President Carter similarly gave videotaped testimony for use at a criminal trial.
I’m not saying this to make a legal argument so much as to preemptively take a certain political spin on a potential legal argument off the table.