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Will Trump Submit To An Interview With Special Counsel Mueller?

STEVE INSKEEP, HOST:

Does President Trump really have to answer questions from a special counsel? His new lawyer fielded that question on ABC.

(SOUNDBITE OF TV SHOW, "THIS WEEK'")

RUDY GIULIANI: We don't have to. He's the president of the United States. We can assert the same privileges other presidents have.

INSKEEP: That's Rudy Giuliani speaking over the weekend. The president does have privileges - there's no doubt. But special counsel Robert Mueller has the power to issue subpoenas. Matt Olsen once worked as a senior adviser for Mueller when Mueller directed the FBI. He's had a long career in senior positions in the Justice Department, is now in the private sector and is in our studios. Mr. Olsen, welcome back.

MATT OLSEN: Good morning, Steve.

INSKEEP: Is it clear to you that Mueller can subpoena the president of the United States?

OLSEN: Yeah, it is almost certainly clear that the - that Mueller has that authority to issue a subpoena, and the president would have to comply with it. There's a Supreme Court case basically right on point from the Watergate-era, U.S. v. Nixon. Nixon said, I don't have to comply. He challenged it. And the Supreme Court rejected that argument.

INSKEEP: Is there not some room for the president to claim executive privilege, or, I don't have time - I'm busy running the country - anything like that?

OLSEN: There are a couple of arguments. The executive privilege argument can be asserted as to certain matters, confidential, sensitive national security matters. But again, the Supreme Court rejected that idea that there was a blanket privilege, said that the administration of justice trumps such an assertion. I don't have time...

INSKEEP: (Laughter) No pun intended there, I assume.

OLSEN: Yeah. No pun intended, exactly. The I-don't-have-time argument - it's burdensome - that argument was made by President Clinton in the Paula Jones civil litigation. Again, the Supreme Court said, no, you have to respond in that, a civil case, and have to be part of that litigation.

INSKEEP: OK. So get us into Robert Mueller's mind. We understand from what has been reported that they've been discussing questioning the president. Why doesn't Mueller just go ahead and subpoena him? Why are they negotiating over the exact terms and form under which this would be done?

OLSEN: Well, it is true the president is not just any typical witness. Right? So there always is going to be, in circumstances like this, an effort to reach an accommodation. It's in both parties' side. Mueller doesn't really want to necessarily go through the pain of the litigation that would likely ensue. And for the president, there is real risk in being subpoenaed. He'd rather do this under rules that he can set. For example, if he sets the rules, he may be able to have his lawyer present. In a typical case going before the grand jury, a witness is all alone, without his lawyer present.

INSKEEP: Without his lawyer. So that could possibly be the circumstance - at least, that can be the threat here that can be discussed. Rudolph Giuliani said another thing over the weekend, and this gets to the question of whether Trump agrees to testify or not. You're saying he doesn't really have a choice ultimately. But Giuliani said every lawyer in America thinks he would be a fool to testify. I've got a client who wants to testify. Looking at this from the outside, do you think that the president would be a fool to agree to answer questions?

OLSEN: I think you have to think about what Mueller has done over the past several months with his team. And they've basically stockpiled an arsenal of facts from witnesses, from witness defendants who are now cooperating, from reams of documents. There's very little they don't know. So it would be very risky - I think - for the president to go in, certainly if he thinks that he can go before the grand jury and try to deceive the grand jury, because there's so much facts that the special counsel knows already.

INSKEEP: OK. So you're saying the president ultimately has no choice but to answer questions. Nevertheless, it's very risky for him, you think. And that comes to the next thing that Giuliani said. He's concerned about Mueller trying to trap his client into perjury. If I can just ask the question, how would you avoid committing perjury when questioned by the FBI?

OLSEN: Well, you really have two choices. You tell the truth, or you take the Fifth Amendment. And the president, like any witness, has the right to not answer a question if it would incriminate him. But an important point here is that you cannot just assert a blanket Fifth-Amendment I'm not going to testify. That has to be asserted on a question-by-question basis. So there's certainly a lot of questions that the president could be asked that he wouldn't have a Fifth Amendment privilege. But that's his only route, either truthful testimony or Fifth Amendment.

INSKEEP: Wouldn't have a Fifth Amendment privilege, meaning that he might have to take the Fifth - there was that list of 48 supposed questions or whatever, 40-some questions - he might have to take the Fifth 40-some times, and then you'd have to argue over whether he actually had the right to take the Fifth every single time. Is that what you're saying?

OLSEN: Essentially, that's how this would play out. He would have to determine whether to take the Fifth on a question-by-question basis.

INSKEEP: Matt Olsen, I want to ask you about one other thing while I have you because you have held very senior positions in counterterrorism, which means you've worked with people at the CIA. And the CIA is waiting to find out who their next director will be. The president's nominee, as many people will know, is Gina Haspel. She faces a hearing this week.

And The Washington Post reported that she offered to withdraw because there are so many questions about her past involvement commanding, for example, a secret location in Thailand where waterboarding took place, being involved in some way - and we can discuss the details of that - in destroying videotapes of that waterboarding. How should we think about someone like Haspel, who has this past that goes back to the CIA's history of waterboarding and torture?

OLSEN: Well, I think you have to think back - I mean, the CIA program involving torture was a dark time in our country's past. And I think Haspel's got a great reputation in the agency. She, by all accounts, is a really strong leader. I do think there are legitimate questions about her role in that program that it will be important for her to answer during her hearing and for the American people to hear.

INSKEEP: Mr. Olsen, thanks very much for coming by.

OLSEN: Thanks, Steve.

INSKEEP: Matt Olsen is a former U.S. attorney, also worked directly under Robert Mueller when he was FBI director. Transcript provided by NPR, Copyright NPR.


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