The Risk for President Trump (and Anyone Else) If He Answers Written Questions from a Prosecutor

November 20, 2018

Close up of pen writing a letterBy: Sara Kropf

Last week, news hit that Donald Trump had received written questions from Special Counsel Robert Mueller. More interesting, President Trump asserted he answered them “very easily.”

Here’s what he said during the interview:

I write the answers. My lawyers don’t write answers. I write answers. I was asked a series of questions. I’ve answered them very easily — very easily. I’m sure they’re tripped up, because you know they like to catch people.

He made clear that he hasn’t submitted his answers yet, so there’s still an open question as to whether he will end up answering them at all since it’s a legal minefield to do so.

Trump has a sophisticated legal team working with him at this point, so I’m not sure his statement is completely accurate.

Let’s unpack all the issues with what he said.

Written Questions Are Not Normal

We can start with the basics: Prosecutors do not normally allow people to answer written questions rather than sit for an interview or appear before the grand jury.

Written questions allow the person to consider his answer for some time. They allow the person to cross-check emails and other documents, such as cell phone records or bank statements, for information before answering. They also allow the person to draft and edit the answer as many times as necessary to get the answer just right. And all this can be done with the help of a lawyer every step of the way.

This process is directly contrary to what prosecutors get in a live interview. Even the fairest prosecutors will ask unexpected questions during an interview. Not only do they want to hear the answer, but they also want to see the person’s immediate reaction to those unexpected questions. They look for defensiveness or worry.

Heck, I’ve had clients outright panic when the prosecutor asks just the right wrong question.

[Side-note: If that happens and you see the interview going downhill fast, calmly put your hand on your client’s harm (to shut her up ASAP) and tell the prosecutor that you need a moment to talk with your client in the hallway. Look, the prosecutor knows exactly what’s going on (that you are terrified of your client’s unvarnished answer). But revealing that concern is much less of a problem than having your client commit an unforced error that might sink your defense entirely.]

How your client looks when he answers questions is almost as important as what he says. Written questions prevent a prosecutor from seeing the witness’ face and body language in person. Instead, the prosecutor will get vague, highly-lawyered responses and will not have the chance to ask immediate follow-up questions to test the answers.

If have ever seen answers to interrogatories in civil litigation, then you know exactly what I mean.

Written questions are mostly likely to be used by a prosecutor when there’s some serious challenge to obtain the interview voluntarily, such as a witness who is outside the subpoena power of the grand jury or is overseas. (Or is President of the United States, but that hasn’t been an issue so far in my practice.)

Lies in Writing Are Still Lies

Presumably, President Trump must submit these answers under oath. There will be some language on the document that says that they are true and correct “under penalty of perjury.” He’ll have to sign the document.

If the Special Counsel allow the answers to be signed only by counsel –which seems very unlikely—then it would make a prosecution for perjury nearly impossible. That’s why we do attorney proffers to avoid having our clients face the music.

Once the answers are under oath, then lying is a felony.

It’s perjury under 18 U.S.C. § 1621 (Perjury Generally):


(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;

is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

Because the answers are in response to questions ostensibly from a grand jury, lying is also problematic under 18 U.S.C. § 1623 (False Declarations Before Grand Jury or Court):

(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined under this title or imprisoned not more than five years, or both.

Lying could be a false statement under 18 U.S.C. § 1001:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. . .

It could also be considered obstruction of justice.

Really, the possibilities here are endless.

Trump Is Not Writing His Own Answers

No, President Trump is not writing his own answers. I mean, hell no. Maybe he wrote a first draft? Maybe he scribbled some notes? That’s a possibility.

But there’s zero chance that whatever Trump wrote down will be zipped off to the government without some serious editing by his legal team. If they didn’t edit his answers, that would be per se malpractice.

I don’t say that because President Trump has a problem with telling the truth. I say that because any decent lawyer would not allow her client to answer written questions without editing what her client wrote. There are so many pitfalls in word choice. Say “I directed Jane Smith to make that journal entry” instead of “Jane Smith made that journal entry as my direct report,” and you may find yourself in hot water rather than merely tepid water.

What are President Trump’s lawyers doing right now to make sure his answers are correct?

  • Reading his his emails
  • Reviewing his texts
  • Checking his call records
  • Cross-checking his calendar against these communications
  • Talking to other lawyers in a joint defense arrangement to find out what their clients have told the Special Counsel
  • Trying to look at any documents that the Special Counsel has in advance (good luck with that, guys)
  • Talking to President Trump to probe the truthfulness of his answers

If his lawyers determine that some of the answers post legal risk no matter how he answers them, then he could simply decline to answer some of them, saying that they are irrelevant or just not providing an answer.

But, it’s important to keep in mind that if President Trump decides to answer questions on a topic, then he can’t later decide to assert his Fifth Amendment rights to answer more questions about that topic if his testimony is somehow compelled. He will have waived that right. His lawyers have to tread very carefully with respect to this issue.

All that Work Still May Not Be Enough

No matter how much work President Trump’s lawyers do to ensure the accuracy of his answers, it may still not be enough.

If there are five witnesses who have already testified under oath that President Trump was briefed on Russian interference with the election at a specific meeting in Trump Tower on a specific date, then his answer that he wasn’t briefed at that meeting is problematic. The Special Counsel could easily consider it perjury or a false statement.

It is particularly difficult to defend against allegations that rely not on documents but on what was said during a phone call or a meeting. The government can bring to bear its vast power to “encourage” other witnesses to testify against the defendant about what happened on a call or in a meeting. And good luck convincing the government that those five witnesses are lying rather than your client.

Good luck convincing a jury of the same thing.

(Particularly when your client has some difficulty telling the truth anyway. Hey, we’ve all been there.)

Those five witnesses may have a reason to lie—to get a better plea deal. But so does your client—to avoid jail.

All in all, answering any questions at all–written or in an interview–is a perilous choice. President Trump no doubt feels public pressure and political pressure to do so, but a typical client in his chose would almost certainly decline the offer to answer them.

Published by Kropf Moseley

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