(Bloomberg) -- Donald Trump’s current team of lawyers lacks the security clearances needed to discuss sensitive issues related to a possible presidential interview with Special Counsel Robert Mueller, according to two people familiar with the matter.
Trump’s former lead lawyer John Dowd had been the only member of the president’s personal legal team with a security clearance, the people said. When Dowd quit in March over disagreements with Trump on legal strategy, Jay Sekulow became the lead lawyer on the investigation and is still waiting for his clearance.
The lack of security clearances could further complicate already sensitive talks with Mueller’s team. Prosecutors for Mueller made clear to Trump’s lawyers before Dowd left the legal team that the special counsel would consider a subpoena compelling the president to testify before a grand jury if he refuses to participate in a voluntary interview, Dowd told Bloomberg News.
Mueller believes he has legal standing to subpoena a sitting president, even though such a move has never been fully tested, according to the two current U.S. officials. Unlike an interview, Trump couldn’t bring his lawyers into a grand jury room.
If Trump agrees to an interview, the topics that could require security clearance for the president’s lawyers include a meeting he had with Russian officials the day after the president fired FBI Director James Comey. That was on a list of more than 40 potential questions that Trump’s legal team compiled based on their discussions with Mueller.
The leak of the questions, which were reported by the New York Times, could disrupt the negotiations over a Trump interview, which have been going on since last year. Several Trump advisers and associates, including his former lawyer Dowd, are said to be opposed to having Trump meet with the special counsel.
Joined by Giuliani
Sekulow has continued talking with Mueller’s team since Dowd’s departure. Trump’s newest lawyer, former New York City Mayor Rudy Giuliani, joined in a session last week. The lawyers have been trying to negotiate ways to narrow the scope of a possible interview, which Mueller requested at the end of last year.
Ty Cobb, the White House lawyer handling requests from Mueller, has a security clearance. But he’s stepping down at the end of this month, the White House said Wednesday. In any case, his role is to represent the office of the presidency, not Trump personally. He hasn’t been directly involved in discussions with Mueller about an interview.
Mueller is investigating Russian interference in the 2016 presidential campaign, whether anyone close to Trump colluded in it and whether Trump obstructed justice by firing Comey.
Trump’s legal team is well-aware Mueller could issue a subpoena, a possibility they have calculated in their strategy on negotiating an interview, according to people familiar with the team’s thinking. They have discussed a possible defense against a subpoena, including citing a 1990s ruling involving President Bill Clinton that set a standard for when a president can invoke executive privilege
Trump and his aides took comfort in recent assurances provided by Deputy Attorney General Rod Rosenstein that the president isn’t a target of the Mueller investigation or of a separate probe into Trump’s longtime lawyer, Michael Cohen, according to people familiar with the matter.
But the questions published on Monday make clear that Mueller is still examining the president’s conduct.
In response to publication of the questions, Trump wrote on Twitter that “it would be very hard to obstruct justice for a crime that never happened” and that Mueller was investigating a “made up, phony crime.”
It’s common practice for prosecutors to inform defense attorneys about the subjects they plan to pursue during a voluntary interview and for defense lawyers to try to limit the extent of questioning, said Harry Sandick, a former prosecutor with the U.S. Attorney for the Southern District of New York.
“You always try to negotiate down to make it easier for your client,” said Sandick, now a partner with Patterson Belknap Webb & Tyler LLP in New York. “Whether it’s a good idea for President Trump depends entirely on whether he can give truthful answers to the questions listed without incriminating himself.”
From the start, Trump’s legal team has been out-manned by Mueller’s. While Mueller had a team of more than a dozen seasoned prosecutors at the prime of their careers, Trump’s team was led by Dowd, who had decades of experience with large-scale investigations but was in solo practice and nearing retirement. Sekulow brought a background in constitutional law but had no experience with a major criminal probe. Neither had the resources of a major law firm to draw on.
Sekulow struggled to find another lawyer with experience in white-collar investigations to help after several high-profile lawyers turned down the work because of conflicts of interest or concerns about the negative publicity that could come from being involved.
About a month after Dowd’s departure, Sekulow said Giuliani would be joining the legal team, along with Florida-based white-collar defense lawyers Martin and Jane Raskin. Giuliani and the Raskins didn’t respond to a request for comment on whether they have also sought security clearance.
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