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Mueller appears to have made some serious concessions. But why?

It was around eight months ago that special counsel Robert Mueller first said he wanted to question President Donald Trump about the Russia investigation and potential obstruction of justice. And for eight months since, the president has stalled, offering a shifting set of excuses for refusing to commit to the interview.

But on Monday night, the New York Times and Washington Post reported an intriguing new development in this saga: Mueller’s team has sent a letter to Trump making two apparent concessions. First, the special counsel will accept Trump’s answers in writing (rather than in person), and second, he’s scaled back these questions to focus on Russia rather than obstruction.

Now, the Post’s Carol Leonnig writes that Mueller hasn’t ruled out an eventual in-person interview, and that he may revisit the topic of obstruction later. But his near-term demands to Trump, it seems, are answers in writing on the central topic of Russian interference with the 2016 campaign.

That’s interesting because it seems to concede to two major arguments from Trump’s legal team about why the president shouldn’t do an interview. The president’s lawyers have argued that his rambling, off-the-cuff style would put him at risk of making misstatements during in-person questioning. They’ve also claimed that they have various objections to having Trump answer questions about obstruction of justice (executive privilege concerns, worries that Mueller will believe Comey over Trump, and worries about a “perjury trap”).

Rather than slamming Trump with a subpoena to try to compel him to answer questions, it seems that Mueller has considered these arguments and said: okay. For now, he’ll accept written answers, and he’ll table the obstruction issue. What he wants to know is: Can Trump answer questions about Russian interference honestly, when he and his lawyers have ample time to consider their responses?

We should keep in mind that these leaks are almost surely coming from Trump’s own team, so there could be some self-serving spin involved about what Mueller’s letter said. Still, assuming the basics of the report are accurate, these seem like significant concessions — ones that could be telling about what’s really at the heart of Mueller’s probe.

What’s this all about: obstruction of justice, or conspiracy with Russia?

Since Trump’s dramatic firing of Comey and Mueller’s appointment back in May 2017, close watchers of the special counsel’s investigation have been divided on where Trump’s greatest legal jeopardy lies.

One school of thought has been that, when it comes to the president’s own legal exposure, it’s probably all going to come down to obstruction of justice.

After all, Trump’s pressuring of Comey, inconsistent explanations for firing Comey, and pressuring of Jeff Sessions are all well-documented. His personal involvement in all is clear (unlike the murkier question of whether he knew about or was involved in Russian interference). Mueller has clearly focused a great deal on obstruction, and some commentators have said that even just taking what we know publicly, the obstruction of justice case against Trump looks “damning” (though others disagree).

Furthermore, it’s widely believed that Trump has been lying when he’s repeatedly said he never asked Comey for loyalty or urged Comey to let the Flynn investigation go. (After all, Comey documented the interactions immediately in memos.) If Trump were to repeat those obstruction-related lies to Mueller, he could also be at risk of perjury.

For these reasons, top Russia reporters at outlets like the New York Times have been laser-focused on the obstruction issue. And Trump’s team seems to support this theory, too — essentially claiming that Mueller has failed to implicate the president in actual collusion with Russia, so he’s just trying to “get” Trump on a dubious, stretched obstruction of justice case or a related perjury infraction.

But the other school of thought among investigation-watchers is that the real heart of the Mueller investigation — and Trump’s legal risk — is still about conspiracy with Russia to interfere with the election.

For instance, independent journalist Marcy Wheeler, who blogs at EmptyWheel, has been arguing for months that commentators and reporters have been overrating the importance of obstruction as part of Mueller’s probe, while underrating both Mueller’s focus on and Trump’s jeopardy over Russian interference. (Wheeler herself has been interviewed by the FBI in relation to the investigation.)

The state of the public evidence regarding conspiracy is weaker — there’s no known “smoking gun” on exactly what this hypothetical conspiracy entailed, or proving Trump’s personal involvement. But there certainly is a lot of smoke, ranging from Donald Trump Jr.’s Russian meeting, to Russia’s email hacking and social media efforts, to the effort to build a Trump Tower Moscow, to Paul Manafort’s outreach to a Russian oligarch, to reported efforts to lift sanctions on Russia. Mueller has said he wants to ask Trump about all of these matters.

This move by Mueller may suggest that Russian interference — and whether Trump was involved in it — remains the special counsel’s main interest

So now we have this new letter from Mueller to Trump’s team. According to the Times’ Maggie Haberman and Michael Schmidt, it says the special counsel will accept “written answers from Mr. Trump on questions about whether his campaign conspired with Russia’s election interference.” Any questions on obstruction, it seems, will be tabled for now.

These apparent concessions come as a bit of a surprise. All year, Mueller has made it clear that he wanted to interview Trump, in person, on both conspiracy and obstruction questions. Many have expected that, if Trump kept refusing, Mueller would simply subpoena him. (A court showdown would ensue, but Mueller was expected to win it.)

Rather than force a confrontation, though, Mueller has apparently made some serious concessions in tabling obstruction questions and agreeing to accept written answers.

It seems unlikely that Mueller has simply caved on issues of central importance to him. Rather, I expect he is conceding on what he feels comfortable conceding, to try and get what he really wants: Trump’s answers on Russia. (Wheeler’s interpretation is that Mueller is “ready to get Trump on the record on his involvement in the Russian conspiracy.”)

Plus, if Trump refuses to answer even these more limited questions in writing, Mueller has the option of using the subpoena — and this refusal would strengthen any arguments that the president has something to hide here.

Author: Andrew Prokop


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