Trump's lawyers argue Mueller has not met threshold for presidential interview

Posted at 7:11 PM, Jan 30, 2018

President Donald Trump's attorneys are arguing that special counsel Robert Mueller's team has not met the high threshold they believe is needed to interview a president in person, according to sources familiar with the ongoing deliberations.

Despite the fact that Trump himself has said he is "looking forward" and would "love to" meet with Mueller, he did say any interview would be "subject to my lawyers," who believe that Trump should not be required to do that.

Sources said this is an ongoing negotiation and the position by the President's lawyers is not a final stance.

While the White House has cooperated with Mueller's investigation by providing documents and voluntary witness testimony, the President's legal team argues that the President should not be treated like anyone else. Trump's attorneys would like Mueller's prosecutors to show that only the President can give them the information they require. The President's team, one source said, is consulting with the White House counsel's office and other outside legal experts given the implications of any decision about the President's testimony on the office of the President.

The discussions about presidential testimony are ongoing and professional, says one source. But it is now clear where the President's attorneys stand.

Mueller has made clear he is seeking a sit-down interview with the President, CNN reported last week. Mueller has even provided Trump's attorneys with a range of topics he wants to ask about as part of ongoing negotiations regarding an interview with the President, sources familiar with the matter tell CNN.

Trump's lawyer, John Dowd, told CNN last week that he will decide if the President talks to Mueller's investigators.

"I have not made any decision yet," Dowd said.

But even if the President's lawyers object and seek to fight efforts to talk to him, Mueller could ultimately seek to force the issue through a grand jury subpoena. That would prolong the issue and could lead to court battles.

One legal theory comes from a case related to the investigation of Mike Espy, President Bill Clinton's first agriculture secretary, who resigned in 1994 amid an ethics scandal and independent investigation involving gifts. His case attempted to use executive privilege to rebuff an independent criminal investigator's request for documents.

The Espy decision also laid out a legal test that lawyers on both sides could use when a president faces an inquiry. A special counsel that subpoenas the president must seek evidence that's "important to the ongoing grand jury investigation and [must demonstrate] why this evidence is not available from another source."

One significant challenge facing the President's lawyers is there is no clear legal precedent for a president to avoid testifying.