Special counsel Robert Mueller has work left to do in the probe into Russian election meddling—but if he can’t complete it before the midterm election season, he could have to put it on hold, under federal guidelines.
WASHINGTON—President Donald Trump’s legal team is striking a more combative tone with Robert Mueller, suggesting publicly that the president may decline to cooperate with the special counsel’s prosecutors.
That tougher stance comes as the Mueller probe already faces a time crunch because of the approaching midterm elections.
Rudy Giuliani, the former New York City mayor who recently joined the president’s defense team, said Sunday he was reluctant to have Mr. Trump agree to an interview with the prosecutors or testify before a grand jury for fear that what he called a “trap” could lead the president to commit perjury under oath.
A decision to not comply with a grand jury subpoena likely would set off a legal battle that would be decided by the Supreme Court.
“We don’t have to,” Mr. Giuliani said about complying with a subpoena, speaking Sunday on ABC’s “This Week.” “I’m gonna walk him into a prosecution for perjury, like Martha Stewart did?”
Mr. Giuliani also left open the possibility the president could invoke his Fifth Amendment right to refuse to testify.
Mr. Giuliani is one of several lawyers to join Mr. Trump’s team in recent weeks. With those attorneys still reviewing documents, no decision is imminent on whether to have the president sit for an interview with Mr. Mueller, said a person familiar with the legal team’s deliberations.
For Mr. Mueller, the clock is ticking. With six months until November’s midterm elections, the investigation into Russian meddling in the 2016 campaign will soon run into a dead zone of sorts, in which former prosecutors say they expect Mr. Mueller either to wrap up or lie low and take no visible steps until after November.
Though Mr. Mueller doesn’t face any specific legal deadline, the fall midterms amount to a political one, according to experts and prosecutors. He will reach a point this summer when Justice Department habits dictate he would have to go dark so he doesn’t appear to be trying to sway voters’ decisions, which would be at odds with Justice Department guidelines for prosecutors.
Many Democrats said then-Federal Bureau of Investigation Director James Comey didn’t properly observe those guidelines when he disclosed less than two weeks before the 2016 election that the FBI had reopened an investigation into then-Democratic presidential candidate Hillary Clinton’s email use.
Any action by Mr. Mueller that implicates or exonerates Mr. Trump and his associates in working with Russia or obstructing justice could play into whether Democrats take control of one or both houses of Congress.
Democrats have promised extra scrutiny of the Trump administration if voters pull the lever for their party in November, while Republican candidates have largely sided with Mr. Trump, and some have echoed the president’s message that the prosecution is a “witch hunt.”
Mr. Mueller has a lot still to do—prepare several reports, bring expected charges against alleged Russian hackers behind the breach of the Democratic National Committee and make decisions on whether to prosecute other cases. Perhaps the most politically sensitive issue he has yet to resolve is whether the special counsel’s office will demand an interview with Mr. Trump.
If he can’t get all those things done in the next few months, his probe is likely to stretch into 2019.
On Friday, Mr. Trump said he wants to agree to an interview with Mr. Mueller but that his lawyers have counseled him otherwise.
Agreeing to a voluntary interview would allow Mr. Trump’s lawyers to set conditions, including the length of the talk, the topics raised and whether Mr. Trump could be accompanied by counsel. If he refused and was subpoenaed, the interview conditions would be much less favorable to Mr. Trump.
“When you volunteer, at least maybe you can constrain the questions. When you’re subpoenaed, a subpoena is broad. Your lawyer isn’t present. This is a tough decision for the president’s team to make,” Harvard law professor Alan Dershowitz, who has defended Mr. Trump in television appearances, said Sunday on NBC’s “Meet the Press.”
Mr. Mueller raised the possibility of issuing a grand jury subpoena in a March interview with the president’s previous attorneys, The Wall Street Journal has reported.
The probe to date has produced five public guilty pleas—largely for lying to investigators or for conduct unrelated to the 2016 campaign. A sixth defendant, former Trump campaign chairman Paul Manafort, is scheduled to face trial on bank and tax-fraud charges stemming from alleged misconduct that largely predated the presidential election. Mr. Mueller has also charged 13 Russians with election interference.
But Mr. Mueller has begun to refer some new matters to other U.S. attorneys’ offices, including the investigation into the president’s lawyer, Michael Cohen, suggesting the special counsel’s office is trying to avoid taking on new matters that could prolong its primary investigation.
Attorney General Jeff Sessions, who is recused from the Mueller investigation, said in late April that he understood Mr. Trump’s unhappiness with how long Mr. Mueller’s investigations seems to be taking. “This thing needs to conclude,” Mr. Sessions told a House budget hearing.
According to the handbook for federal prosecutors, the U.S. Attorneys’ Manual, Justice Department employees are barred from using their official authority “to interfere with or affect the result of an election.”
The rules aren’t explicit, but a March 2012 memo from then-Attorney General Eric Holder also instructed Justice Department employees to be “particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.” Specifically, he told law-enforcement officers and prosecutors to never time investigative steps or criminal charges “for the purpose of affecting any election” or to give “an advantage or disadvantage to any candidate or political party.”
Preet Bharara, the former U.S. attorney in Manhattan, said if an investigation becomes public during a politically sensitive time, prosecutors should seek to resolve it as quickly as they responsibly can.
“I think it is the obligation of every reasonable prosecutor to minimize the duration of that cloud or cause lightning to strike as quickly as possible,” Mr. Bharara said.
Mr. Comey weighed those considerations and opted to alert Congress 11 days before the 2016 election about the bureau’s look at newly discovered Clinton emails. Two days before polls closed, Mr. Comey told Congress the agency had reviewed the new evidence and found no reason to change its earlier recommendation that Mrs. Clinton face no charges related to her email practices, but many Democrats blamed Mr. Comey’s initial disclosure for Mrs. Clinton’s loss.
In a recent onstage interview with the website Axios, Mr. Comey was asked about whether he would have any advice to Mr. Mueller about “coming out and saying something.”
“It’s worked well for me,” Mr. Comey deadpanned.
“There aren’t any rules around how we act in the run-up to an election…there’s a norm, you avoid any action in the run-up to an election that might have an impact, if you can,” Mr. Comey said, adding that he was “sure” Mr. Mueller would “operate with that norm in mind.”
When Mr. Trump fired Mr. Comey in May 2017, he initially cited a memo from Deputy Attorney General Rod Rosenstein criticizing Mr. Comey’s public actions around the Clinton investigation as a “textbook example of what federal prosecutors and agents are taught not to do.”
The problem isn’t unique to presidential elections. The Manhattan U.S. attorney’s office investigated New York City Mayor Bill de Blasio in 2016, and that summer people close to the mayor asked prosecutors if they could wrap up the probe or bring any charges by the fall, so the investigation wouldn’t spill over into his re-election campaign in 2017. Prosecutors didn’t announce until March 2017 that they had decided against charging Mr. de Blasio or his aides or allies. Mr. de Blasio won re-election that November.
—Gabriel T. Rubin and Michael C. Bender contributed to this article