A New York Times report of April 30, 2018, lists questions Special Counsel Robert Mueller wishes to pose to President Trump. Many of the topics appear to b outside Constitutional boundaries, meaning that Mueller may ask, but the President is under no obligation to answer.
The Times reporters paraphrased the questions from materials leaked to them.
Questions related to Michael T. Flynn, the former national security adviser
What did you know about phone calls that Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?
The Special Counsel is not empowered to investigate suspected crimes by one who is now President. That task belongs to Congress alone. Mueller is not permitted to lodge an obstruction case against a President, and hence has no standing in his attempts to compel testimony.
If Trump's testimony is needed in the Flynn prosecution, that point should be made clear and he should then answer written questions from Mueller, thus preserving presidential prerogative, a compelling constitutional point.
These questions revolve around whether Trump tried to obstruct justice to protect Flynn from prosecution. His phone calls with Kislyak are at the heart of that inquiry.
What was your reaction to news reports on Jan. 12, 2017, and Feb. 8-9, 2017?
In January, the Washington Post columnist David Ignatius revealed Flynn’s phone calls with Kislyak. Ignatius questioned whether those conversations had violated a law prohibiting private citizens from attempting to undermine American policies. In February, The Washington Post revealed the "true nature" of Flynn’s conversations with Kislyak.
Mueller wants to know, among other things, whether Trump feared that his national security adviser had broken the law and then tried to shield him from consequences.
Mueller has no standing to inquire into the state of mind of a President, or into his state of mind before election, once he is elected.
What did you know about Sally Yates’s meetings about Flynn?
Yates, the acting attorney general for the first weeks of the Trump administration, twice warned the White House that Flynn was lying, and those lies made him vulnerable to Russian blackmail. No one from the White House has ever said how much Trump knew about those warnings.
Though it may well be that federal lawmakers are keenly interested in this point, that question belongs in their constitutional arena. Mueller has no standing to determine why a President acted as he did while carrying out constitutionally protected duties and privileges.
How was the decision made to fire Flynn on Feb. 13, 2017?
Mueller is completely off base here. The President only answers to Congress, and then only during impeachment proceedings, on his hiring and firing decisions, and ultimately to voters, but certainly not to a functionary of the Justice Department.
After the resignations, what efforts were made to reach out to Flynn about seeking immunity or possible pardon?
Although this sounds like a plausible obstruction issue, it is yet beyond Mueller's constitutional purview. Congress has all the powers it needs to investigate this matter and to hold the President accountable, if it so wishes. The Constitution grants the President full, and unmitigated, power of pardon -- except in cases of impeachment.
Questions related to James B. Comey, the former F.B.I. director
What was your opinion of Comey during the transition?
The questions about Comey relate to whether Trump fired Comey last year to shield Flynn, or anyone else, from prosecution. Trump has denied that, saying he fired Comey because of his mishandling of the F.B.I.’s investigation into Hillary Clinton’s use of a private email server.
This question is important because, if Trump truly was upset about the Clinton investigation, he would have shown an early distaste for Comey.
Mueller is attempting to determine whether the President was at least morally culpable of obstruction when he carried out his constitutionally protected right to fire Comey. Mueller has no standing, under the Constitution, to demand such information, as this is altogether the responsibility of Congress.
What did you think about Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?
The briefing revealed that American intelligence agencies had concluded that Russian operatives meddled in the election to hurt Clinton and to boost Trump. Trump has repeatedly cast doubt on these conclusions and said he believes the Russian president, Vladimir V. Putin, who denies any interference.
This question points to the potential that Trump fired Comey in order to obstruct a national security investigation. Mueller again has no standing. Trump had a constitutional right to fire Comey, no matter whether the "intelligence community" was suspicious and he also had constitutional rights to call off any national security investigation he pleased, without having to give anyone a reason -- a privilege that has been exercised by a number of past presidents. If Congress is sufficiently convinced that Trump was moving to undermine America's national security, it has the remedies: investigate and if necessary proceed with impeachment.
What was your reaction to Comey’s briefing that day about other intelligence matters?
This question addresses documents written by a retired British spy, Christopher Steele, who said that Russia had gathered compromising information on Trump. The documents, which became known as the Steele Dossier, also claim that the Trump campaign had ties to the Russian government. Comey privately briefed Trump about these documents
Under the Constitution, the President has full responsibility for national security, and need answer no inquisitor in those matters. Congress may hold him to account if it so wishes.
What was the purpose of your Jan. 27, 2017, dinner with Comey, and what was said?
A few weeks after his briefing, Comey was called to the White House for a private dinner. Comey’s notes say that Trump raised concerns about the Steele Dossier and said he needed loyalty from his FBI director. This question touches on Trump’s "true motivation" for firing Comey: Was he dismissed because he was not loyal and would not shut down an FBI investigation?
As chief law enforcement officer and chief executive, a President has carte blanche to hire and fire at will. He is not answerable to Justice Department functionaries. Further, a President may shut down any national security investigation he wishes -- at peril of Congressional impeachment proceedings. Mueller has no standing.
What was the purpose of your Feb. 14, 2017, meeting with Comey, and what was said?
That was a key moment. Comey testified that the President told him, “I hope you can see your way clear to letting this go, to letting Flynn go.” Trump has denied this.
As a President cannot be a target of a criminal inquiry until and unless he is removed by the Senate, Mueller has no need for this information and hence no standing.
What did you know about the F.B.I.’s investigation into Flynn and Russia in the days leading up to Comey’s testimony on March 20, 2017?
Comey’s testimony publicly confirmed that the FBI was investigating members of the Trump campaign for possible coordination with Russia. Mueller wants to know what role that revelation played in Comey’s firing.
As a President cannot be a target of a criminal inquiry until and unless he is removed by the Senate, Mueller has no need for this information and hence no standing.
What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.
In the aftermath, The Post reported, Trump asked the United States’ top intelligence official, Daniel Coats, to pressure Comey to back off his investigation. Mueller wants to ask Trump about his contacts with Coats as well as the CIA’s director at the time, Mike Pompeo, and the National Security Agency’s director, Michael S. Rogers. The conversations could reflect Trump’s growing frustration with Comey — not about the Clinton case, but about his refusal to shut down the Russia inquiry.
As a President cannot be a target of a criminal inquiry until and unless he is removed by the Senate, Mueller has no need for this information and hence no standing.
What did you think and do in reaction to the news that the special counsel was speaking to Rogers, Pompeo and Coats?
It is not clear whether Mueller knows something specific about Trump’s reaction to these interviews, but the question shows that Mueller is keenly interested in how Trump responded to each step of his investigation.
Again, it is apparent that Mueller is focusing on the President, rather than an associate, on obstruction of a national security investigation. Again, Mueller has no standing, as a President cannot be a target of a criminal inquiry. Again, a President has an unfettered right to shut down a national security investigation -- though Congress may proceed against him if high crimes or treason are suspected. If Mueller suspects treason, he may so advise Congress, but he may not compel a President's testimony.
What was the purpose of your calls to Comey on March 30 and April 11, 2017?
Comey said that Trump called twice to ask him to say publicly that he was not under FBI investigation. In the second call, Comey said, the President added: “I have been very loyal to you, very loyal. We had that thing, you know.”
As a President cannot be a target of a criminal inquiry until and unless he is removed by the Senate, Mueller has no need for this information and hence no standing.
What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
While the White House ultimately said Comey was fired for breaking with Justice Department policy and discussing the Clinton investigation, Trump expressed no such qualms in an interview with Ms. Bartiromo of Fox Business Network. “Director Comey was very, very good to Hillary Clinton, that I can tell you,” he said. “If he weren’t, she would be, right now, going to trial.”
Again, personnel matters are under the complete authority of the President, and he is not required to be consistent in his explanations.
What did you think and do about Comey’s May 3, 2017, testimony?
In this Senate appearance, Comey described his handling of the Clinton investigation in detail. Comey was fired soon after. Mueller’s question suggests he wants to know why Trump soured.
Again, personnel matters are under the complete authority of the President, and, under the Constitution, he is not required to account for his state of mind.
Regarding the decision to fire Comey: When was it made? Why? Who played a role?
Over the past several months, Mueller has asked White House officials for the back story, and whether the public justification was accurate. He will be able to compare Trump’s answers to what he has learned elsewhere.
Again, personnel matters are under the complete authority of the President, and, under the Constitution, he is not required to divulge what advice influenced his thinking.
What did you mean when you told Russian diplomats on May 10, 2017, that firing Comey had taken the pressure off?
The day after Comey’s firing, Trump met with Russian officials in the Oval Office. There, The Times revealed, Trump suggested he had fired Comey because of the pressure from the Russia investigation.
“I just fired the head of the F.B.I. He was crazy, a real nut job,” Trump said. “I faced great pressure because of Russia. That’s taken off.”
The President has a free hand on foreign policy and on national security. He is not obliged to say things or behave in a way that FBI or Justice Department officials would prefer. If Congress finds such reports disturbing, it has the remedies.
What did you mean in your interview with Lester Holt about Comey and Russia?
Shortly after firing Comey, Trump undercut his own argument when he told NBC News that he had been thinking about the Russia investigation when he fired Comey.
"I was going to fire Comey knowing there was no good time to do it. And in fact, when I decided to just do it, I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election that they should've won."
A President owes no explanations to a federal functionary on his personnel decisions. If disturbed, Congress has remedies.
What was the purpose of your May 12, 2017, tweet?
After The Times revealed the President’s private dinner with Comey, Trump responded on Twitter.
Comey appeared unworried. “Lordy, I hope there are tapes,” Comey said. The White House ultimately said there were no tapes.
A President owes no explanations to a federal functionary on his personnel decisions. If disturbed, Congress has remedies.
What did you think about Comey’s June 8, 2017, testimony regarding Flynn, and what did you do about it?
After he was fired, Comey testified about his conversations with Trump and described him as preoccupied with the FBI's investigation into Russia. After the testimony, Trump called him a liar.
A President owes no explanations to a federal functionary on his personnel decisions. If disturbed, Congress has remedies.
What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Comey?
Sarah Sanders, the White House press secretary, said that Comey had testified falsely to Congress and suggested that the Justice Department might investigate. Trump followed up with tweets suggesting that he should be investigated for rigging an inquiry into Clinton. Such comments reinforced criticism that Trump views the Justice Department as a sword to use against his political rivals.
A federal functionary, such as Mueller, is, as the Constitution makes plain, not authorized to inquire into the frame of mind of a President, although certainly Congress has that right.
What is the reason for your continued criticism of Comey and his former deputy, Andrew G. McCabe?
Comey and McCabe are among Trump’s favorite targets. McCabe is a lifelong Republican, but Trump has criticized him as a Clinton loyalist because McCabe’s wife, a Democrat, ran unsuccessfully for office in Virginia and received donations from a Clinton ally. This question suggests that Mueller wants to know whether Trump’s criticism is an effort to damage the F.B.I. while it investigates the president’s associates.
A federal functionary, such as Mueller, is, as the Constitution makes plain, not authorized to inquire into the frame of mind of a President, although certainly Congress has that right. Mueller seems to be implying that a President may not undermine an investigation of his associates. Yet, if the President believes the investigation to be politically motivated, it is understandable he would respond politically. Be that as it may, Mueller has no standing here because he is not empowered to level charges against a President and further, his office has not been designated by Congress to investigate purported presidential impropriety on its behalf. Ergo, Mueller has no standing whatsoever in any adversarial proceeding vis a vis the President.
Questions related to Attorney General Jeff Sessions
What did you think and do regarding the recusal of Sessions?
Trump has criticized Sessions’s recusal from the Russia investigation. The Times reported that Trump humiliated him in an Oval Office meeting and accused him of being disloyal. Sessions ultimately submitted his resignation, though Trump did not accept it. Along with the next two questions, this inquiry looks at whether Trump views law enforcement officials as protectors.
The idea that a President might see law enforcement employees as his protectors has a strong whiff of scandal. But such an attitude is not of itself criminal. At any rate, if Congress is scandalized, Congress may act. Mueller has no standing.
What efforts did you make to try to get him to change his mind?
The Times has reported that Trump told his White House counsel, Donald F. McGahn II, to stop Sessions from recusing himself. McGahn was unsuccessful, and Trump erupted, saying he needed an attorney general who would protect him.
The idea that a President might see law enforcement employees as his protectors has a strong whiff of scandal. But such an attitude is not of itself criminal. At any rate, if Congress is scandalized, Congress may act. Mueller has no standing.
Did you discuss whether Sessions would protect you, and reference past attorneys general?
Trump has spoken affectionately about past attorneys general who he said were loyal to their presidents. He cited Robert F. Kennedy and Eric H. Holder Jr. as examples. “Holder protected the president,” he said in a Times interview in December. “And I have great respect for that.”
There seems to be a controversy over the philosophy of governance here, with Mueller taking a puritanical view as against Trump's different understanding.
If Congress is scandalized, Congress may act. Mueller has no standing.
What did you think and what did you do in reaction to the news of the appointment of the special counsel?
In a twist, Mueller’s very appointment has become part of his investigation. Trump has repeatedly denounced the inquiry as a “witch hunt.” Trump blames the appointment on Sessions’s recusal.
The employee is asking his boss his opinion as to his appointment. Mueller does not have Constitutional standing. Trump does.
Why did you hold Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
Trump rejected Sessions’s resignation after aides argued that it would only create more problems. The details of those discussions remain unclear, but Trump’s advisers have already given Mueller their accounts of the conversations.
As Mueller has no standing to level criminal charges against the President, why does he need this information? Further, as there was no prospect of criminal action against his advisers, Mueller went beyond the Constitutional pale in interrogating them.
What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
Priebus, who was Trump’s chief of staff, has said he raced out of the White House after Sessions and implored him not to resign. Mueller has interviewed Priebus and would be able to compare his answers with those of Trump.
As Mueller has no standing to level criminal charges against the President, why does he need this information? Further, as there was no prospect of criminal action against his advisers, Mueller went beyond the Constitutional pale in interrogating them.
What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
Again, Mueller’s investigation intersects with its own existence. The Times reported that, in June 2017, Trump ordered McGahn to fire Mueller. McGahn refused. Though Trump’s own advisers informed Mueller about that effort, Trump denied it: “Fake news,” he said. “A typical New York Times fake story.”
As Mueller has no standing to level criminal charges against the President, why does he need this information? Further, as there was no prospect of criminal action against his advisers, Mueller went beyond the Constitutional pale in interrogating them.
What was the purpose of your July 2017 criticism of Sessions?
Trump unleashed a series of attacks on Sessions in July.
As Mueller has no standing to level criminal charges against the President, why does he need this information?
Campaign Coordination With Russia
Donald Trump Jr. arranged a meeting with a Russian lawyer at Trump Tower in June 2016.
When did you become aware of the Trump Tower meeting?
This and other questions relate to a June 9, 2016, meeting at Trump Tower with a Russian lawyer who offered political dirt about Clinton. Trump’s eldest son, Donald Trump Jr., arranged the meeting. He said he did not tell his father about it when it happened.
Although it sounds plausible that obstructing a national security investigation is a crime, once a President is President, he or she has full authority over national security and has a constitutional prerogative to shut it down or influence it how he or she will. If a purported security breach occurred before a President took office, a President is nevertheless immune from Justice Department prosecution, although Congress may take remedial action. So Mueller has no standing and hence no need for the information.
What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?
When The Times found out about the meeting, Trump helped draft a misleading statement in his son’s name, omitting the true purpose of the meeting. After The Times obtained the younger Trump’s emails, he published them on Twitter.
A President need not account for his political or administrative decisions to a federal functionary, such as Mueller. Thus Mueller has no standing.
During a 2013 trip to Russia, what communication and relationships did you have with the Agalarovs and Russian government officials?
The Trump Tower meeting was arranged through the Russian singer Emin Agalarov, his billionaire father, Aras Agalarov, and a music promoter.mMueller is scrutinizing the nature of connections between the Agalarovs, Trump and Russian officials.
This matter would only be pertinent if Congress voted to remove Trump and he then faced federal prosecution for purported Russian misdeeds. Otherwise, on a fair reading of the Constitution, Mueller has no standing.
What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?
Mueller is referring to a failed effort to build a Trump Tower in Moscow. Sater, a business associate, proposed the idea to Cohen, the longtime personal lawyer to Trump. Emails show that Sater believed that the project would showcase Trump’s deal-making acumen and propel him into the presidency.
Here, Mueller would have to convince a judge -- and perhaps the Supreme Court -- that Trump's testimony was essential in prosecution of a crime suspected of being committed by one or more of the three or by someone else involved with them. Yet his lawyers could argue that, in order to protect the President's Constitutional mandate, he need only answer written questions on this matter. So far, however, the only issue we know about is a mind-reading expedition by Mueller, something to which he is absolutely not entitled in a plain-language reading of the Constitution.
What discussions did you have during the campaign regarding any meeting with Putin? Did you discuss it with others?
Journalists and lawmakers have uncovered several examples of Russian officials trying, through intermediaries, to arrange a meeting between Trump and Putin. Senior campaign officials rejected some overtures, but Trump’s involvement has been a mystery.
This could be an appropriate question for a Congressional impeachment inquiry, but Mueller has not been designated by Congress to act on its behalf.
What discussions did you have during the campaign regarding Russian sanctions?
Even as the Obama administration stepped up sanctions on Russia, Trump struck a laudatory tone toward Putin.
Once President, Trump assumed complete authority over foreign policy. If Mueller suspects inappropriate activities before the Trump presidency, he may refer that matter to Congress but he has no standing to seek such information from a President.
What involvement did you have concerning platform changes regarding arming Ukraine?
A portion of the Republican platform was changed in a way more favorable to Russia.
Whatever involvement Trump may or may not have had, no crime is shown on its face here. And anyway, a federal functionary may not level criminal charges against a President and hence has no bona fide need for such information.
During the campaign, what did you know about Russian hacking, use of social media or other acts aimed at the campaign?
This is a key question. Trump praised the release of hacked Democratic emails and called on Russia to find others. Mueller’s investigation has unearthed evidence that at least one member of Trump’s campaign — George Papadopoulos — was told that Russia had obtained compromising emails about Clinton. But Trump has repeatedly said there was “no collusion” with the Russian government.
Trump joked on the campaign trail that Russia should find more Clinton emails, considering how difficult it had been to prize them out of the federal government. The emails and other hacked data that were revealed showed no proof of Russian involvement, though there was suspicion. No presidential campaign is likely to look a gift horse in the mouth when someone offers damaging information on a rival. But all that is irrelevant because a federal functionary may not level criminal charges against a President and hence has no bona fide need for such information.
What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?
This is one of the most intriguing questions on the list. It is not clear whether Mueller knows something new, but there is no publicly available information linking Manafort, the former campaign chairman, to such outreach. So his inclusion here is significant. Manafort’s longtime colleague, Rick Gates, is cooperating with Mueller.
If Mueller has evidence of some campaign violation by Manafort or someone other than the President, he may seek Trump's testimony. In order to safeguard his Constitutional mandate, Trump's lawyers will likely require submission of written questions.
What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?
Stone, a longtime adviser, claimed to have inside information from WikiLeaks, which published hacked Democratic emails. He appeared to predict future releases, and was in touch with a Twitter account used by Russian intelligence. This question, along with the next two, show that Mueller is still investigating possible campaign cooperation with Russia.
Stone denies predicting future releases. At any rate, we have here not only the Constitutional prerogatives of a President, but also the matter of the First Amendment guarantee of freedom of the press. Stone, a longtime GOP operative and advocacy journalist, had an absolute right to free speech and WikiLeaks had an absolute right of freedom of the press, although some argue that it could be held in violation of law for publishing "stolen" data, as The New York Times does regularly.
We should caution that if Mueller has probable cause of a campaign or other violation by someone other than the President, he may seek the President's testimony, which likely would be limited to responses to written questions.
What did you know during the transition about an attempt to establish back-channel communication to Russia, and Jared Kushner’s efforts?
Kushner, Trump’s son-in-law, has testified that the Russian ambassador proposed getting Flynn in contact with Russian officials to discuss Syria. In response, Kushner said, he proposed using secure phones inside the Russian Embassy — a highly unusual suggestion that was not accepted.
If Mueller has probable cause of a campaign or other violation by someone other than the President, he may seek -- but could face a Supreme Court fight -- the President's testimony, which likely would be limited to responses to written questions.
What do you know about a 2017 meeting in Seychelles involving Erik Prince?
The meeting was convened by Mohammed bin Zayed Al-Nahyan of the United Arab Emirates. It brought Prince, an informal adviser to Trump’s team, together with a Russian investor close to Putin.
If Mueller has probable cause of a campaign or other violation by someone other than the President, he may seek -- but could face a Supreme Court fight -- the President's testimony, which likely would be limited to responses to written questions.
What do you know about a Ukrainian peace proposal provided to Cohen in 2017?
Cohen, the lawyer, hand-delivered to the White House a peace proposal for Ukraine and Russia. This unusual bit of backdoor diplomacy is of interest because it involved a Ukrainian lawmaker who said he was being encouraged by Putin’s aides. Cohen has said he did not discuss the proposal with Trump.
As Mueller has no authority to seek indictment of a President, he is not entitled to this information.
