DAVID GREENE, HOST:
So will Robert Mueller and Donald Trump sit down face to face? There is one big unanswered question. Last month, President Trump told reporters he was, quote, "looking forward to" being interviewed by the special counsel, who is of course investigating possible collusion between the Trump campaign and Russia. As far as we know, no interview has been scheduled at this point. And in fact, according to reporting from The New York Times, the president's lawyers are advising Trump against doing this interview.
This relationship between a president and a special counsel is something very familiar to our next guest. Neal Katyal helped write the rules governing special counsels about two decades ago. He was later an acting solicitor general under President Obama, and he joins us this morning.
Welcome back to the program.
NEAL KATYAL: Thank you.
GREENE: So these reports that the president's lawyers are discouraging an interview with Mueller - does this surprise you at this point?
KATYAL: Well, it does surprise me in the sense that the president himself has said repeatedly he wants to testify under oath. He's contrasted himself with Hillary Clinton, who he claims did her interviews without being under oath and so on. And now there's all of a sudden a switch. Now why is there a switch? Well, The New York Times is reporting, essentially, that his lawyers can't trust their client - that his capacity to stretch the truth is such that they're worried about him going in and interviewing with a law enforcement officer, which is an astounding proposition.
GREENE: Well, if this is the case and, let's say, Mueller requests or has requested this interview and the president follows his lawyers' advice and - or reported advice and does not agree to the interview, does Mueller have any legal authority to compel the president to cooperate?
KATYAL: He certainly does. He can subpoena the president to cooperate and force him to testify. And ordinarily, you wouldn't be - you can't always force someone to testify - any individual - because they have the Fifth Amendment privilege against self-incrimination. But the president's own legal theory is, I'm the president. I can't be indicted. I can't be subject to criminal prosecution while I'm a sitting president. He doesn't have that argument available to him under his own reasoning. So I do suspect that there would be a fight - a courtroom fight. It would go to the Supreme Court. And I don't think that there's much of a chance that the president could win that fight. That is, in our American system, particularly since Watergate, the Supreme Court has said no one is above the law, including the president of the United States and has forced the turnover of materials in that case.
And presidents routinely testify in criminal cases. You know, George W. Bush did it with Valerie Plame. Bill Clinton did it three times with Ken Starr. Gerald Ford did it with respect to a testimony about a Charles Manson follower. And Ronald Reagan, I think, is perhaps the most important precedent. You know, during Iran-Contra, we had very similar allegations that the prosecutor was biased politically - Lawrence Walsh, the independent counsel - and that the president was exercising his core constitutional foreign policy powers. But the investigator - Lawrence Walsh said, no, you got to turn over your stuff, including private personal diaries. And the president's spokesperson, Marlin Fitzwater said these are, quote, "very personal in nature"; we won't turn them over, executive privilege - all sorts of stuff. When Reagan found out about that, here's what he did. He overruled all of his lawyers and said, absolutely, we're going to turn it over...
GREENE: He turned them over.
KATYAL: ...And sent out - yeah. And sent out Fitzwater to say, quote, "the president wants to get to the bottom of the matter and fix what went wrong." Get to the bottom of the matter and fix what went wrong - can you imagine Donald Trump saying either of those two sentences?
GREENE: Well, I mean, it's - you can speculate on that. I'm not going to speculate.
KATYAL: (Laughter).
GREENE: But I just - I mean, it's - but President Trump could take this fight all the way to the Supreme Court, and it could last a long, long time. I mean that is safe to say.
KATYAL: Well, I don't think it'll - I don't think it'll last a long, long time. That is, in the Nixon tapes case, when that fight happened, it was all resolved in a matter of a couple of months. The Supreme Court is very capable of acting quickly when it needs to.
GREENE: When it's something this important.
KATYAL: And this is a circumstance - yeah.
GREENE: Well, can I ask you - the president on Twitter last week noted, in his mind, that the word obstruction is now being used when people refer to this investigation. He said, quote, "that collusion is dead." I mean, he denies both obviously, but I think he's making the point that the investigation has expanded beyond its original purview and people are out to get him. Is there an argument there that Mueller and maybe this investigation has gone beyond its original intent?
KATYAL: Well, I'm sure the president does feel like the investigation is out to get him. And I think the reason for that is that every time we learn something from Mueller - who's a consummate professional and who's acted quietly, as law enforcement investigators do - the only time we learn open things are when he, for example, brings an indictment or a plea arrangement.
And now he's got, you know, the president's own top national security adviser, Flynn, pleading guilty, saying, I committed a crime. He's got Manafort, the president's chief campaign officer, indicted for other stuff with Russia. So you know, I do think that the - you know, he's got Papadopoulos and so on and Gates. And I think that, you know, the picture that's painted is one that is very scary to a president who, after all, is the boss of all of these different individuals. I don't see...
GREENE: But if we go back to - I'm sorry to interrupt. If we go back to Ken Starr and the investigation of President Clinton, didn't sort of the scope of that sprawling investigation actually prompt the rewriting of the laws to prevent investigation from just being able to go in any direction?
KATYAL: Well, it's definitely true that law enforcement investigations expand over time in appropriate ways. That's because once you start investigating something, you realize - hey, it's not A. It's B. So when we wrote the regulations, yes, we were concerned about a special counsel doing that on their own, expanding the investigation. And so what we did was we put into the law a rule that said if you want to expand your investigation, you have to get the permission of the attorney general - or, here, the acting attorney general, Rod Rosenstein.
And we know from December testimony with Rosenstein that that's exactly what Mueller has done. Mueller has not said, oh, I'm going to go investigate on my own and expand it. But rather, in circumstances of doubt - this is what Rosenstein testified - Mueller would go and ask for approval to expand the investigation.
GREENE: Neal Katyal, former acting solicitor general under President Obama - thanks so much for joining us. We really appreciate it.
KATYAL: Thanks for having me. Transcript provided by NPR, Copyright NPR.
