Important clarity emerged from the past week’s news of the release of the transparently political House Intelligence Committee report, the Mueller (actually Jay Sekulow) questions, the Michael Cohen telephone pen register, the bizarre Rudy Giuliani TV immolation of himself and Trump, the resignation of White House lawyer Ty Cobb, and the hiring of new lawyer Emmet Flood. We confirmed that the White House is in chaos and is being led by someone who tweets from the hip. More important, the choices for the next months came into brighter focus.
I have long been of the view and have written repeatedly that Trump most certainly would not submit to a voluntary interview with Mueller’s team. To do so would be suicidal. Mueller’s team knows more about the Trump campaign and presidency than Trump does. The list of questions released by The New York Times, a list that was constructed by Trump lawyer Jay Sekulow after meeting with Mueller’s team, revealed the breadth of Trump’s problems. Trump is notoriously undisciplined and is more likely than not to lie when he speaks. Lying to federal investigators is a crime, regardless whether an oath has been administered or a subpoena issued. A voluntary interview simply is not an option for Trump.
The repeated reports (all of which came from Trump sources) that Trump’s team and Mueller were negotiating the terms of an interview seemed to have two purposes, neither of which was to produce an interview. Leaks of discussions eased the political pressure on Trump by making him look eager to cooperate with the special counsel. They also served Trump’s purpose of delay. Despite Trump’s protestations that he wants a speedy resolution to the investigation, he benefits from delay if Mueller is headed toward a damning report and Trump toward impeachment or, at least, political paralysis. Continuing to function as president requires either that he shut down the Mueller investigation prematurely or that he keep it going as long as possible without resolution.
It likely is too late to shut down the investigation effectively and attempting to do so would engender a strong political response. Trump and his allies in the House and Fox News have been working overtime to convince the public of the illegitimacy of the investigation. While they have had frightening success, the attempt would still be risky for Trump. Time is the friend of the propagandists. The longer Mueller takes, the longer they have to turn public opinion and the longer Trump can remain in office.
The departure of the accommodating Ty Cobb and the hiring of Emmet Flood, who helped Bill Clinton beat impeachment and is more likely to assume an adversarial litigation posture toward Mueller, clarifies that Trump is ready for battle. We are unlikely to hear more discussion of a voluntary interview. Instead, the focus will shift to Mueller’s power to compel Trump’s testimony by grand jury subpoena.
Mueller likely has the power to compel Trump to appear before the grand jury. The Supreme Court ordered Nixon to produce the Watergate tapes in response to a trial subpoena, establishing the principle that no person’s testimony is beyond the reach of the law. That case, however, involved the production of tapes, rather than a live appearance by a sitting president in a grand jury.
Trump will fight a subpoena. He will challenge the legitimacy of Mueller’s appointment and the scope of the investigation. He’ll argue that preparing and sitting for grand jury testimony will interfere with performance of his constitutional duties. The Supreme Court rejected a similar claim by Bill Clinton regarding the civil case filed by Paula Jones. Trump will have a hard time convincing the court that there is less urgency in proceeding with a criminal process than an individual’s civil claim. He may also try to raise claims of executive privilege, arguing that inquiry into his intent and decision-making process intrude impermissibly into protected territory. He should have difficulty raising a preemptive, blanket objection, since some relevant questions will seek non-privileged information.
Mueller, therefore, is likely to prevail, but only after prolonged litigation that will reach the Supreme Court. Many commentators have assumed that since Mueller has the power he will exercise it. Months ago, I urged careful consideration of the costs and benefits of engaging in this fight, stating:
It seems unlikely his testimony would advance the investigation significantly. Mueller has substantial information from other sources and from Trump’s intemperate and revealing tweets and public statements. Trump’s contempt for truth could engender false statement crimes, but that possibility alone is not a reason to haul him in. Those crimes can provide important leverage to force cooperation by lesser players, such as George Papadopoulos and Michael Flynn, but without an underlying crime they will not suppot action against Trump. Despite the Nixon precedent, Trump may assert executive privilege regarding his conversations with aides. And, of course, he can assert the Fifth Amendment in refusing to answer any question that might incriminate him. Although taking the Fifth could be politically embarrassing, grand jury secrecy might prevent the public from learning of it.
Ultimately, Mueller will have to decide whether this battle is worth prolonging the investigation and allowing Trump and his allies more time to delegitimize our institutions of law enforcement.
Meanwhile, the Southern District of New York’s investigation of Michael Cohen has become the wild card that may redirect our attention. Given the trove of evidence discovered through records and emails and, as just revealed, a pen register, the investigation of Cohen may re-center much of the investigation. Stay tuned.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.