Privilege and Precedent

This last possibility is something that Trump’s critics greatly underestimate. The popular analysis is that the Supreme Court’s decisions in U.S. v. Nixon (1974) and Clinton v. Jones (1997) require the president to obey a subpoena to testify before Mueller’s grand jury. Harvard’s Laurence Tribe exemplifies those who hold such presumptions. “The Supreme Court held in the Nixon Tapes Case that executive privilege cannot overcome a grand jury subpoena,” he told Business Insider in March. “So Trump would have to answer every question or be held in contempt—unless he takes the Fifth Amendment.”

We are far less confident in this reading of Nixon and Clinton and that the Supreme Court would award Mueller an unqualified win. If Mueller subpoenas Trump to testify, and Trump fights, then the Court may well decide to limit the questions that the president must answer, if not quash the subpoena altogether. It would have leeway to deal such a setback to the special counsel within the parameters set in the Nixon and Clinton decisions. And whatever the justices may think of this particular president, they will show more care for the needs of the presidency than have the analysts who favor a total victory for Mueller in any battle with Trump.

Let’s begin with U.S. v. Nixon, in which the Supreme Court rejected President Nixon’s assertion of executive privilege in the face of special prosecutor Leon Jaworski’s subpoena for tapes, documents, and other materials relevant to the criminal trial of the Watergate burglars. The Court unanimously ordered Nixon to turn over to Jaworski the secretly recorded Oval Office tapes that he had subpoenaed. While the Court recognized that executive privilege provides some protection for a president’s confidential communications, it also ruled that this protection must give way to the prosecutor’s need for evidence “demonstrably relevant” to the pending criminal trial of several indicted Nixon co-conspirators.

Analysts like Tribe construe this as a blanket rule enabling the special counsel to subpoena not just Nixon’s tapes, but also the current president’s testimony. “US v. Nixon (1974) held the president must comply with a grand jury subpoena for his Oval Office tapes,” Tribe tweeted recently. “There is no basis for treating a grand jury subpoena for the president’s live testimony any differently.” This ignores the key limits and nuances of the justices’ analysis in the 1974 case. The Court did not conclude that the criminal process always outweighs executive privilege; rather, it concluded only that “the legitimate needs of the judicial process may outweigh Presidential privilege” (emphasis added).

Nixon’s mistake was in asserting too categorical a privilege—too broad in scope and too far removed from the specific case at hand. The Court rejected his assertion of “an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of non-military and nondiplomatic discussion.” And it then struck a careful balance: Absent a showing of military or diplomatic need for executive confidentiality, a subpoena for documents for which there was a “demonstrated, specific need . . . in a pending criminal trial” must be obeyed.

It is not hard to see defenses that Trump’s lawyers could mount. They could attempt to distinguish the two investigations by stressing that the case against Trump actually involves diplomatic sensitivities. It is, after all, a Russia investigation. And they could argue that U.S. v. Nixon only requires them to disclose documents for which the special counsel can provide a “demonstrated, specific need” in a “pending criminal trial.” Requesting information for matters not directly tied to an already-filed indictment could fall short.

And whereas Tribe and others discount the difference between a trial subpoena for tapes and a grand jury subpoena for testimony, the distinction seems important to the Court’s own analysis in U.S. v. Nixon for at least two reasons. First, in 1974, the Court stressed that the president’s tapes were to be screened first by the trial judge in camera—that is, secretly—so as to minimize the risk of improper disclosure. Could today’s justices feel confident that presidential testimony would not be leaked by someone, no matter Mueller’s directives or promises? Second, the Court stressed that merely divulging tapes would not expose Nixon to a risk of “being harassed by vexatious and unnecessary subpoenas” by Jaworski or others. Again, could today’s Court feel so confident that Trump would not face a flurry of subpoenas? The ex-New York attorney general’s myriad legal actions against Trump—more than 100, as of last December—suggest otherwise, especially concerning at a moment when the president’s diplomatic and national-security burdens are every bit as sensitive as Nixon’s foreign-policy responsibilities in 1974.

And any president’s preparation for testimony before a grand jury on the broad range of topics allegedly proposed by Mueller’s team would be far more burdensome than simply requiring Nixon to hand over some tapes. The proc­ess of preparing for and giving sworn testimony under questioning by a special counsel who has already indicted Michael Flynn, Paul Manafort, and George Papadopoulos would be time-consuming and arduous.

If Mueller does subpoena the president’s testimony, we should expect a more nuanced outcome than the unqualified victory envisaged by Trump’s most confident critics. Perhaps Mueller would succeed in compelling the president to testify, but only if his questions are tailored narrowly, clearly justified in terms of his investigation’s specific needs, and constructed to minimize their impact on U.S. diplomatic or military sensitivities. It is worth remembering that, as former U.S. attorney Harry Litman observed recently on Lawfare, “no sitting president has ever been forced to provide testimony as a target of a criminal investigation.” Bill Clinton received a subpoena from independent counsel Kenneth Starr, but Starr eventually withdrew it after the two sides struck a voluntary deal for limited testimony.

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Which brings us to Clinton v. Jones, the Supreme Court’s 1997 decision rejecting a presidential claim of immunity from civil suits while in office. Like Nixon, Clinton asserted a categorical privilege: “temporary immunity from civil damages litigation arising out of events that occurred before he took office,” in “all but the most exceptional cases.” Again, the Court rejected the absolutist approach. And again, it took care to define its ruling very specifically rather than giving prosecutors a blank check to subpoena presidents. Citing previous presidents’ cooperation with civil lawsuits, the Court reaffirmed that executive privilege cannot “bar every exercise of jurisdiction over the President” (emphasis added), but stressed that the courts must be cognizant of—and even give “utmost deference” to—the executive’s own responsibilities.

The justices struck a careful balance in 1997: “The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery.” It predicted that its decision, “if properly managed by the District Court,” would not “occupy any substantial amount of [President Clinton’s] time.”

In hindsight, the Court’s confidence can be justly mocked. But regardless of whether today’s Court would emulate the Clinton-era Court’s naïveté, we expect that the justices would at least announce a similar rule: If the president shows that the special counsel’s requests, and the threat of other actions against the president, “could conceivably hamper the President in conducting the duties of his office,” then the lower courts should “manage those actions in such fashion (including deferral of trial) that interference with the President’s duties would not occur.”

Again, the Court’s cautious approach in Clinton v. Jones seems to point towards its strictly managing Mueller’s demands for answers, as well as managing other legal proceedings brought against Trump. Justice Stephen Breyer was particularly sensible of these risks in 1997, which he stressed in an emphatic concurring opinion, and one trusts that he would reason from those concerns if the issue returned to the Court today.

Thus, when critics assert, as Loyola law professor Jessica Levinson recently did to Vox, that “I consider this case all but settled by Clinton v. Jones,” it is less careful analysis than wish fulfillment.

The facts of the current situation, moreover, might well reinforce the justices’ appreciation for the need to carefully calibrate rules governing the president’s susceptibility to legal process.

First, they will be aware that the risk of being indicted by a zealous prosecutor for perjury, even for what might in fact have been an unintentional misstatement of fact, is so great that criminal defense lawyers now routinely advise clients to invoke the Fifth Amendment. The president’s habit of telling bald-faced lies on an almost daily basis would make grand jury testimony especially perilous before a special counsel who has already indicted multiple Trump subordinates. If the Court required President Trump to testify, it would be setting the stage for an unprecedented and politically explosive invocation of his Fifth Amendment right not to testify.

Second, the justices may recognize that Trump’s recent statements and actions suggest a willingness to use his pardon power broadly, to preemptively immunize people within Mueller’s crosshairs—perhaps including his own self. Again, the justices might well act to avoid such a cataclysm.

Neither of us relish taking such considerations into account. The fact that Trump is a persistent liar and that there is genuine risk that he would wield the pardon power as a weapon of self-protection are sad reflections on the character of this president. The Court’s decisions in the Nixon and Clinton cases were emphatically contextual, and so likely would be any Trump-related decision. Such considerations might well incline at least some on the Court to see a decision to order Trump to answer Mueller’s questions as more dangerous to the president’s ability to do his job than anyone foresaw at the time of the Nixon and Clinton decisions.

Again, a Supreme Court win for Trump does not seem to us likely, but it is far from impossible. And a split decision, with two or more justices siding with the president, might embolden Trump. The president might simply defy the order and direct U.S. marshals not to enforce it, setting up a risky constitutional standoff between the executive and judicial branches.

The president may also be immune to an actual indictment while in office, as the Justice Department’s Office of Legal Counsel concluded during both the Nixon and Clinton years. (Other experts strongly disagree.) To the extent that Mueller’s questions are aimed at the president’s own conduct, the Court might conclude that presidential immunity to indictment renders such questions superfluous and thus an unjustified burden on the president. It would further, probably, be deemed improper for a criminal investigator to gather evidence solely for possible use in a House impeachment proceeding.

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For all these reasons, we doubt that the justices would without qualification order Trump to answer every question Mueller wishes to ask. The Court might well put a time limit on any questioning, which Trump could use to run out the clock before the prosecutors get to many of the questions that they want to ask. The president’s latest defense lawyer, Rudy Giuliani, suggested such a limit in his May 2 interview on Fox News: “Some people have talked about a possible 12-hour interview. If it happens, that’s not going to happen—I’ll tell you that. It’d be, max, two to three hours around a narrow set of questions.”

And the justices might limit the subject matter that Mueller could ask about. The president’s lawyers would surely argue that many or even most of Mueller’s proposed questions, especially those inquiring into Trump’s firing of former FBI director James Comey, should be ruled out if Mueller cannot give the Court a “demonstrated, specific need” for answers to those questions—the standard in U.S. v. Nixon.

Trump would no doubt tie his objections to questions about the firing of Comey—and threats to fire Mueller and deputy attorney general Rod Rosenstein—to his power under Article II of the Constitution to fire subordinates. It is so broad, some serious legal experts argue, that even an allegedly corrupt motive, such as firing a subordinate to squelch revelations of misconduct, cannot be obstruction of justice or any other crime.

This is a hotly contested topic. Scholars such as Josh Blackman of the South Texas College of Law in Houston have detailed the argument that the exercise of a core presidential power cannot be obstruction of justice. While others emphatically disagree, some lawyers who are no fans of Trump also caution that it might be unwise for the Court “to demand that any president account to a prosecutor for his intent in making a personnel change,” as William Taylor, a respected criminal-defense lawyer, told us. Taylor added that a “president might have good reason to fire a law enforcement official who persists in an investigation the president thinks is improper or politically motivated.” Indeed, even Comey himself noted to Trump during an early 2017 meeting “that he could fire me any time he wished.” Giuliani has raised this point in public.

In addition, there remains the controversy surrounding the propriety of the investigation itself. Deputy attorney general Rod Rosenstein’s extremely broad original grant of power to Mueller—to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”—has been assailed as improperly reaching beyond suspected crimes of the Trump campaign and beyond the terms of the Justice Department regulation that Rosenstein invoked. U.S. District Judge T. S. Ellis told Mueller aide Michael Dreeben during a May 4 hearing on the charges against former Trump campaign chairman Paul Manafort: “If I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals [or] anything the special prosecutor is authorized to investigate.” “You don’t really care about Mr. Manafort’s bank fraud,” Ellis added. “You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever.”

The composition of the special counsel’s team and the exposure of private anti-Trump comments by two former members have additionally spurred critics to accuse it of partisan bias. Might some justices share that suspicion? And is this the context in which the Court would take the unprecedented step of granting a special counsel unqualified power to subpoena the president’s testimony?

As the Supreme Court showed in the Nixon and Clinton cases, it knows well how to protect the president’s privileges and responsibilities without putting him above the law.