Special counsel Robert Mueller’s threat to subpoena President Trump in the Russia investigation sets up a potentially historic clash that could reach the Supreme Court, legal experts say — and it’s not clear who would prevail.
Mueller has been negotiating an interview with Trump for weeks, but the president’s legal team has been wary of granting the request, reportedly seeking to place conditions on the questions asked and the format and length of the encounter.
Trump in the past has said he wanted to talk to Mueller as a way of wrapping up an investigation that the president has termed a “witch hunt,” but he soured on the prospect after the FBI raided the offices of his longtime personal attorney, Michael Cohen.
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Since then, according to The Washington Post, Mueller has floated the prospect that he could subpoena the president to force him to appear.
Ty Cobb, a member of Trump’s legal team who is now on his way out of the White House, told ABC News on Wednesday that it is an “open question” whether a special counsel can compel a sitting U.S. president to testify.
But legal experts say a 1974 Supreme Court case requiring President Nixon to turn over the Watergate tapes to a federal court has already settled the question of whether a president can be subpoenaed.
“The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III,” the court found.
In 1997, the Supreme Court also held unanimously that President Clinton could be required to sit for deposition in a civil case brought by Paula Jones.
What those two cases don’t answer is whether the president would prevail if he challenged the order.
The subpoena in Nixon’s case was for documents — not testimony — and although independent counsel Kenneth Starr did serve Clinton with a subpoena in his investigation, they ultimately worked out a deal and Clinton appeared “voluntarily.”
“Not at all obvious that a precedent about subpoena of tapes and documents applies to a subpoena of president himself to appear before a criminal grand jury re his acts in office,” tweeted Jack Goldsmith, former head of the Office of Legal Counsel under the George W. Bush administration. “It might, it might not.”
Perhaps Trump’s strongest legal argument against testifying is to invoke his Fifth Amendment right against self-incrimination, said Steve Vladeck, a national security professor at the University of Texas School of Law.
But the optics of such a move would almost certainly be politically disastrous for the president, who has in the past claimed that only guilty people plead the Fifth.
Trump could seek to battle the subpoena on a point-by-point basis, asserting executive privilege over some questions. But that would leave more room for the courts to side with Mueller and would fall far short of a blanket exception from testifying.
“I don’t think that the Nixon case conclusively settles that Mueller would win, but there’s absolutely no question that Mueller would start off in a far stronger position,” Vladeck said.
“As long as the subpoena is valid on its face, the only way I think the president could categorically resist it is to make the kind of claim legally that would be politically impossible.”
Some analysts point to a third option: Backed into a corner by a subpoena, the president could seek to fire Mueller. Aides have so far reportedly convinced him not to take that step, but critics of the president say this is precisely the scenario that makes necessary legislation to shield Mueller from a politically motivated dismissal.
If a grand jury grants Mueller a subpoena against the president and Trump challenges it in court, onlookers expect that he would seek to take his appeal directly to the Supreme Court. The court has granted “cert. before judgment” — which allows a case to leapfrog the appeals court — just a handful of times, including in the 1974 Nixon case.
If Trump asserts his Fifth Amendment rights, Mueller could also garner his testimony by offering the president immunity before the grand jury — something he might do even if he uncovered evidence of wrongdoing on the part of the president, but planned to refer articles of impeachment to Congress rather than prosecute him.
But for now, Vladeck and others say, the specter of a subpoena appears to be nothing more than a negotiation tool for Mueller to secure an interview. Trump may yet consent to sit down with the special counsel to avoid a legal showdown he could lose.
The New York Times earlier in the week published a list of questions compiled by Trump’s legal team that the special counsel indicated in March he wanted to ask the president. The questions are wide-ranging and cover both alleged collusion with Russia and obstruction of justice.
Former New York City Mayor Rudy Giuliani (R) told The Hill on Wednesday that Trump’s legal team was still “several weeks away” from determining whether the president would consent to an interview.
Giuliani, who joined the president’s legal team last month, said the decision would be determined in large part by how “objective” he and his colleagues perceive Mueller to be.
“The more objective [Mueller] is, the more likely we would be willing to cooperate. The less objective, then we would be foolish to do that,” he said.