Both sides went into the meeting feeling put upon. Giuliani and the Raskins had a lot of facts to master in short order. Sekulow was still smarting from the Cohen raid, a search obviously generated by the early work of the special counsel. Mueller’s team, meanwhile, felt they had been left standing at the altar in mid-January, when Dowd unceremoniously canceled a tentative Trump interview at Camp David, and their request had been put on hold for the past three months.
Trump’s team had agreed earlier to use this meeting with Mueller to clear the air and introduce themselves as the new lawyers on the case. Then they would ask about Mueller’s continuing demand for a presidential interview.
Giuliani took the lead, as they had determined ahead of time, and opened with pleasantries.
“Thanks for meeting with us. We’re new and we wanted to say hello,” Giuliani said, looking mostly at Mueller. “We’re looking forward to working with you. We want to get a sense of where we are.”
Mueller, as ever, was matter-of-fact. He said he and his deputies were looking forward to working with the refashioned Trump team.
The real meeting got started when Giuliani asked the key question: Why did the special counsel feel entitled to an interview with the president? As his predecessors had, Giuliani cited the Mike Espy decision in which an appellate court found that prosecutors had to prove they could not obtain key information any other way in order to seek an interview with a president.
“We have a lot of work to do to get up to speed,” Giuliani said. “It would help if you would explain to us, under the framework of Espy, what you think you need from the president and are unable to get from the others and the documents?”
“We need to know what the president’s state of mind was,” Mueller replied. “We need to know the nature of his intent when he was undertaking these various actions we’re looking into.”
Mueller showed no emotion. He was the first to respond to Giuliani’s questions, but he did so with short and direct answers, devoid of color or nuance. Sitting across from Mueller, every Trump lawyer was mildly agitated. Each had something to say and jumped in, one after the other, to push back forcefully.
Giuliani replied, saying something to the effect of “You have other ways of determining his intent.” He explained that Mueller and his investigators already had a mountain of evidence, more than prosecutors would in nearly any other case. They had heard Trump’s public explanations and interviewed scores of aides who had spoken to him contemporaneously about why he had taken key actions, including firing James Comey.
Jane Raskin said this approach to learning a subject’s intent didn’t square with the practice of prosecutors in other cases. They routinely charged people with obstructing justice without personally interviewing the suspects.
“Why do you need him to come in and talk about intent?” she asked. “Why?”
“We do,” Mueller said. “He’s the only one who can tell us.”
The special counsel team explained that Trump could have had corrupt, mistaken, or innocent motivations in taking certain steps that impacted the investigation.
“We need to ask him,” one of Mueller’s deputies said.
Trump’s new lawyers picked up some important intelligence in the meeting. Although they never said the word “obstruction,” Mueller’s deputies made clear their questions for Trump were focused on obstruction of justice. They mentioned nothing about coordinating or communicating with Russians.
At some point, the Trump team raised the question of what prosecutors could learn about Trump’s intent from his interview with Lester Holt shortly after the Comey firing. Sekulow had been hot and bothered about the media’s take on the Holt sit-down, and he feared that Mueller’s team was also misreading what Trump said and meant. Journalists had focused on Trump explaining he had fired Comey because of “this Russia thing,” but Sekulow argued they did not consider the full context. In the rest of the interview, Trump made clear he fired Comey out of frustration that the FBI director would not tell the world what he had privately told the president, which was that he was not under investigation. Trump also explained that his advisers warned him that firing Comey would likely lengthen the investigation, but he did it anyway, feeling it was the right thing to do.
“Listen to the rest of the interview,” Sekulow said.
Trump’s lawyers also floated alternatives to a face-to-face interview. Would they take an attorney’s description of Trump’s account instead of a sit-down? The special counsel’s answer was no. Marty Raskin pressed Mueller and his deputies to consider written questions rather than a sit-down. He stressed that had been done with past presidents. Nope, Mueller said. That’s not happening. Dead on arrival.
“We need an in-person interview,” Mueller said.
The argument grew circular, from the Trump lawyers’ perspective. Ipse dixit. Mueller needed the interview because he said so. And the Trump team, as Giuliani later recalled, was determined not to allow the chance. “The fear we always had of his testifying was not that he would lie, not even that he would make good-faith mistakes, but that he would say, ‘I never said that to Cohen,’ Cohen would say he did. Perjury,” Giuliani later explained. “‘I never said that to Comey’; Comey said he did. Perjury.”
There was some discussion at the end about the parameters of a hypothetical in-person interview, if it were agreed to. Where would it happen? Would lawyers be present and permitted to confer with the president? Would it be videotaped? At the time, Trump’s lawyers felt it was entirely possible Mueller would subpoena the president. He wasn’t threatening it in this meeting, but it had hovered over such discussions ever since Mueller first uttered the S-word in his March 5 meeting with Dowd.
The Trump team also raised a pressing question, one that Dowd had never got answered. Did Mueller believe the special counsel was bound by Justice Department opinions that prohibited federal prosecutors from trying to charge a sitting president? In his March meeting, Mueller had told Dowd he did not consider Trump a target of his investigation, which was a good sign but not a conclusive answer.
What came next was awkward. People in the room remember the exact words of Mueller’s response slightly differently. Some believe he replied, “I don’t know.” Others recall him shrugging and saying something to indicate he wasn’t sure. Trump’s lawyers remember having the same reaction to whatever it was that Mueller said: surprise.
Could the special counsel not have thought about two seminal opinions from the Justice Department’s Office of Legal Counsel that prohibited indicting a sitting president, one from 1973 amid Watergate and the other from 2000 following President Clinton’s impeachment? Or was Mueller simply playing coy?
Someone on Mueller’s team then changed the topic, which Trump lawyers considered the subordinate’s effort to create graceful cover for the boss. Then, toward the end of the meeting, in what the Trump team considered an odd non sequitur, Zebley circled back to the Office of Legal Counsel question. He also appeared to be trying to help Mueller in some way.