It should never lightly be assumed that the president and his lawyers are working from the same strategic plan, but on the evidence of recent days, they may have decided on their defense against the Russia probe. Having concluded that the president will not gain anything by further cooperation with special counsel Robert Mueller, they will systematically condemn the Mueller inquiry as an unconstitutional assault on the presidency and resist with an aggressive assertion of Donald Trump’s rights and prerogatives as executive—that is, they are preparing to “constitutionalize” the conflict. This showdown may open formally with the president’s refusal of an interview, after which Mueller may issue a subpoena and the president may decline to comply with it.
Donald Trump would be turning the clock back to the 1970s and taking up the battle that Richard Nixon waged for a presidency effectively immune from the criminal justice system for as long as the incumbent holds the office. Nixon flinched. He made his case, lost, turned over the incriminating tapes, and eventually accepted the inevitable and resigned. Trump is made of different material, and unlike Nixon—a former congressman, senator, and vice president, prior to his election to the presidency—he has no experience with, or understanding of, the constitutional or institutional implications of his actions. To the degree that he does, this “norm-busting” president may just not care.
Trump’s lawyers may feel they have no choice except to shift the ground of battle to Congress, away from the legal process: While they face the good possibility of a Democratic House in January, they may consider the odds very much in their favor of retaining the support they need in the Senate to defend against a two-thirds vote to convict. (They may also think an impeachment in a hostile House is likely in any case on a variety of charges.) The costs to them of engaging in this legislative forum, more “political” in character, may seem far more manageable than fighting off Mueller in the courts. And the hiring of Emmet Flood, who has impeachment experience, and the departure of Ty Cobb, who appears to have counseled cooperation with the special counsel, may be a further indication of the direction of their thinking.
The evidence for this strategic shift is mounting. On Wednesday, the president tweeted former U.S. attorney and Fox News legal commentator Joseph diGenova’s view that the Mueller questions—at least those directed to the president’s intent into James Comey’s firing—constituted an “outrageous” intrusion into the “President’s unfettered power to fire anyone.” He has cited his former lawyer, John Dowd, as attacking Mueller for “screwing with the work of the president of the United States.” In expressing his frustration with Deputy Attorney General Rod Rosenstein, Trump has proclaimed that he may have to use the “powers granted to the presidency,” in unspecified fashion, to fix the problem he sees plaguing the executive branch.
It is in this context that the administration seems poised to make much of the Office of Legal Counsel opinion, the most recent of which was issued in 2000, that concluded that a president cannot be indicted while in office. The opinion argued that a criminal indictment would severely destabilize the presidency, disrupting the capacity of the executive to function. Under OLC’s view, the damage would extend beyond burdens on the president’s time and attention. An indictment necessarily and unacceptably stigmatizes the president—staining his standing both domestically and worldwide, and undermining the credibility essential to the performance of his duties. Hence, the “burdens” of criminal indictment borne by a president “would be so intrusive as to violate the separation of powers.”
The president and his lawyers are complaining in similar terms about the cost to the presidency from the Mueller investigation. So they have begun to draw on the OLC rationale to challenge any subpoena from the special counsel. They seem ready to argue that presidents are free to cooperate in a criminal inquiry, as did President Bill Clinton, but cannot be compelled to do so.
Rudy Giuliani, the latest addition to the president’s legal team, now argues that the logic of the OLC opinion applies as much to the active investigation as it does to indictment of a sitting president: “It’s quite clear that you can neither indict or otherwise use the criminal process” against him, because “the president should not be distracted.” And indeed the Trump lawyers can be expected to cite the OLC’s observation that “As a matter of constitutional practice, it remains the case today that no president has ever so much as testified, or been ordered to testify, in open court, much less been subject to criminal proceedings as a defendant.”
In harmony with his lawyer’s point, the president is pleading distraction. Mueller’s “Witch Hunt,” he has tweeted, is a “set up and trap” laid in the middle of delicate and urgent matters of state, such as negotiations with North Korea over nuclear war and with China over trade. His point is Dowd’s: The special counsel is “screwing with the work of the president of the United States.” Trump seems ready to push the point as hard as possible in contending that Mueller cannot create these distractions, or “screw” with his work, by issuing the threatened subpoena or “otherwise us[ing] the criminal process” against him.
The immunity from legal process that the president could claim on this reasoning would mesh well from his perspective with the contention that he cannot be compelled to answer for the exercise of his Article II authority in firing James Comey and, perhaps soon, Rod Rosenstein. In this view, it is twice the constitutional offense not only to subject the presidency to the disruptions of a criminal investigation but to question an executive’s claimed constitutional authority to dismiss (as he pleases and for any reason) a subordinate official.
This line of argument is wrong, but to the extent that the OLC opinion plays into it, the question is raised whether Mueller is even bound by that opinion. As special counsel, he is required by the relevant regulations to comply with “rules, regulations, procedures, practices and policies.” Some assume that in a “by the book” prosecution, Mueller would interpret this language as conclusive in barring an indictment. Once he accepts that the OLC binds him, he would be somewhat more vulnerable to the argument that other uses of the criminal process against the president, such as a subpoena, may also be impermissible.
Andrew Crespo has advanced the argument that Mueller may be free to ignore the opinion. He notes that the reference in the regulation to rules, practices, procedures, or policies seems to point to administrative matters, not contestable legal analyses. The obligation to adhere to administrative requirements does not have anything to do with accepting erroneous legal interpretations—especially where the constitutional arguments are erroneous and Mueller is sworn to uphold the Constitution. What’s more, Crespo explains that, as a matter of historical practice, other special counsels and prosecutors have concluded that they were free to arrive at their own judgments about indictability.
There is an additional, fundamental reason why a special counsel might determine that he has the authority to bring charges against a sitting president without regard to the OLC opinion. The OLC opinion seems fundamentally inconsistent with the core teachings of United States v. Nixon and later Clinton v. Jones, because it would effectively dislodge the courts from their role as final arbiters of the question of the president’s indictability. If the OLC opinion bars all federal prosecutors, including independent counsel, from bringing charges against the president, then the courts will be denied the role they clearly established for themselves and took away from the executive, in Nixon and Clinton, to resolve the outstanding question of a sitting president’s accountability in the criminal justice process.
It is useful to recall how strongly President Nixon’s lawyers argued—and unsuccessfully—to the contrary: that the president’s conversations with his aides, even if in furtherance of a criminal conspiracy, were immune to judicial process. Before the Supreme Court, the president’s counsel, James St. Clair, went so far as to insist that, regardless of the contents of the tapes, the president was not obligated to surrender them in compliance with a subpoena. When asked at oral argument whether a taped conversation about Watergate was somehow related to the performance of the president’s official duties, and was therefore cloaked in privilege, the president’s counsel answered flatly, “Yes.”
Nixon’s counsel contended that only Congress, by impeachment, could redress criminal wrongdoing alleged against a sitting president. The special prosecutor had no authority to collect this evidence for a criminal proceeding in the face of the president’s invocation of executive privilege. The president’s lawyer, St. Clair, argued in his main brief to the court that “the assertion of a privilege by a president is necessarily absolute and unreviewable.”
Of critical importance was how the court rejected this assertion. The court granted that the president was entitled to protection for confidential communications but only when weighed against other interests, such as the interest in the administration of justice; but it was the judiciary that would exercise jurisdiction to perform this balancing test. As constitutional scholar Philip Kurland wrote a few years later, the decision runs like a “tennis match … first … on the side of the privilege and then on the side of the subpoena … until ultimately it is game, set, and match—to the referee.” The court was that referee, determining and pronouncing that the president’s “generalized interest in confidentiality” is not sufficient to overcome the “fundamental demands of due process of law in the fair administration of justice.”
Moreover, and directly relevant to our question, the court turned away the attack on the authority of the special prosecutor to issue the subpoena for the tapes and litigate its enforcement. Contrary to the president’s legal team’s theory, the court found that the conflict between the president and the special prosecutor was not an “intra-executive” quarrel in which the judiciary could not intrude. Because the special prosecutor was operating under an express grant of independence, he could investigate the president and demand his evidence—even self- incriminating evidence.
For the Nixon court, this was not an abstract issue without implications for the president’s exposure to prosecution. Prior to the case, the Watergate grand jury had named Nixon as an unindicted co-conspirator. The court was well aware, as the special prosecutor regularly reminded the justices, that President Nixon’s own legal exposure was at issue in the content of the subpoenaed tapes. In his main brief to the court, the special prosecutor asked: “Shall the evidence from the White House be confined to what a single individual, highly interested in the outcome, is willing to make available?” The court, as referee, answered decisively in the negative.
Later, in Clinton v. Jones, the court affirmed that the courts would decide the question of the president’s protections from legal process while in office (in this instance, relating to actions committed prior to assuming the presidency). It resoundingly upheld the proposition that “federal courts have the power to determine the legality of [the president’s] unofficial conduct,” and it could do so even when the resulting burden on the president was “significant.” It concluded that the president’s interests as executive could be accommodated through appropriate case management. While the case involved claims against the president for private conduct prior to assuming office, the court noted that this obligation to protect the “integrity of the judicial system” would extend as well to the “powerful interest” in the “fair administration of criminal justice.”
OLC’s mistake in the 2000 opinion was not only that it incorrectly conducted the balancing of interests in a criminal enforcement matter. More important, it took upon the executive branch the responsibility for a “balancing” that the court has clearly reserved for itself. So, if considered binding, the opinion shreds the authority of the special counsel, operates to preclude the question from reaching the courts, and insulates the president with the argument that because he cannot be “distracted” by prosecution, he is also protected from aggressive prosecutors. It substitutes the executive’s judgment for a clear line of judicial authority that insists on the federal courts “power to determine the legality of [the president’s] unofficial conduct.”
The special counsel on this point has the choice of following the Nixon–Jones precedent or following the OLC opinion, which cannot, on the critical point, be reconciled. No one would dispute that the special counsel, faced with a conflict between settled constitutional law and DOJ “rules, regulations, procedures, practices and policies,” would have to follow the law. The Nixon case establishes that this question of the extent to which the president is subject to the criminal law enforcement process must ultimately go to the judiciary, not to the executive, for decision, and a special counsel, appointed precisely to address executive self-interest, must be able to raise it.
It is for this reason, among others, that a special counsel should not consider himself bound by an opinion of executive branch lawyers that turns on its head, and to the executive’s advantage, what the courts have made plain about their role in adjudicating the scope of presidential immunities from legal process. The special counsel is charged under the regulations with investigating and prosecuting federal crimes. If the special counsel has cause to believe that the president committed such, he should pursue the testimony that he needs and bring charges if the evidence supports them.
The president has the option, of course, of invoking his Fifth Amendment rights.
Or, as appears increasingly possible, Trump and his lawyers can turn for inspiration to the Nixon presidency and the Watergate era and make his case for the president’s immunity from criminal investigation and prosecution. There is little reason to believe that the results will be any different 44 years later.
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