For most attorneys, representing the President of the United States in a federal criminal investigation would be the highlight of their career. Yet Trump’s lawyers keep leaving before the job is done. In any other administration, this would be a big story.
Renato Mariotti?Verified account @renato_mariotti
A President can’t fire employees due to their race or religion. He can’t fire employees in exchange for a bribe. And he can’t fire employees to obstruct an ongoing criminal investigation into his friends.
2/ One way Trump can avoid testifying if he is subpoenaed is by taking the Fifth. He has the absolute right to refuse to testify if his answers would tend to incriminate him, unless Mueller immunized him and he had no liability for committing state crimes.
3/ Obviously taking the Fifth would have some political cost, so to avoid that cost, Trump could try to fight the subpoena in court. No sitting president has ever been subpoenaed to testify in a criminal proceeding, so there is no prior Supreme Court decision on the issue.
4/ One case that is similar is United States v. Nixon, when the special prosecutor obtained a subpoena ordering Nixon to produce documents and tapes. Nixon refused, citing executive privilege. The Supreme Court unanimously ordered Nixon to comply with the subpoena.
5/ The Supreme Court famously concluded that "no person, not even the president of the United States, is completely above the law; and the president cannot use executive privilege as an excuse to withhold evidence that is "demonstrably relevant in a criminal trial."
6/ Another similar case is Clinton v. Jones, a civil lawsuit filed by Paula Jones against Clinton during his presidency about alleged sexual harassment prior to his election as president. Clinton argued that a sitting president could not be sued during his term of office.
7/ The Supreme Court concluded that "the federal courts have power to determine the legality of the President's unofficial conduct," noting that "like every other citizen who properly invokes that jurisdiction, [Jones] has a right to an orderly disposition of her claims."
8/ In Jones v. Clinton, the Supreme Court didn't address whether courts can compel a president to appear at a specific time and place to testify. It also did not address whether courts have the power to determine the legality of a president's *official* conduct.
9/ Later, when independent counsel Kenneth Starr sought to have Clinton's testimony in his criminal investigation, he subpoenaed Clinton to testify before a grand jury--exactly what Mueller suggested he may do here. But in the face of the subpoena, Clinton agreed to an interview.
10/ If Trump fights the subpoena, I expect he will ultimately lose. In the Nixon and Clinton cases, the Supreme Court ultimately found that the president was not above the law. As the Court noted, presidents since Monroe have responded to questions in judicial proceedings.
11/ But this fight would be unprecedented, and no one can say for sure what would happen in the Supreme Court. One thing is certain--the court fight would take months to play out, pushing out the date of Trump's testimony, which could be helpful for political reasons.
12/ This potential legal challenge helps explain why Mueller has gone out of his way to negotiate with Trump's team regarding an interview. An agreement regarding an interview would avoid a time-consuming and costly legal challenge and allow him to continue moving forward. /end |
