President Donald J. Trump and his lawyers are engaged in a choreographed performance aimed, not at Special Counsel Robert Mueller, but at the voting public. Trump acts as if he is just dying to have a conversation to clear the air with Mueller, while his lawyers argue that there should be limits on any such conversation. Mueller holds the big bat of a grand jury in the event that his conversation with Trump does not take place.
Criminal Law 101 says a lawyer does not let his client talk to the police or prosecutor, unless it’s to present an ironclad alibi or something of that sort. This rule is especially true when it is apparent that the prosecutor is not conducting an open-minded investigation, but is gunning for the client.
If it is a bad idea for any client to speak to the authorities, it is a worse idea for a client like the President. Trump has only a nodding acquaintance with the truth. In his book, The Art of the Deal, he extolls the virtues of “truthful hyperbole” as a means of persuasion. In a conversation with Mueller or testimony before a grand jury, however, “truthful hyperbole” amounts to the crimes of Lying to a Federal Official or Perjury. The lawyer’s concern would not just be tough or trick questions. Imagine the results when, after Trump answers a question on a sensitive subject, the prosecutor remains still, letting the silence hang in the air. Trump will rush to fill the void by talking.
All this gets more complicated though, when the client is a public figure to whom appearances are as important as the exposure to a criminal charge. A politician remaining silent risks damage to his political power and ability to govern effectively.
The Fifth Amendment to the Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This has been held to include the right to refuse to answer questions posed by the police or prosecutors in any forum, including a private interview. Moreover, jurors are routinely charged by the judge before deliberations that, not only does the defendant have a right not to testify but that they may not draw any adverse inference against him because he did not testify. That is, they cannot discuss or even think about “why didn’t the defendant testify?”
That rule does not apply in public discourse, however. Representing any political figure, particularly a President, presents special difficulties with the subject of cooperation with the police or prosecution. A public figure will not want his refusal to answer questions by the authorities to prompt the public to wonder what he has to hide. It is a very logical inference that one who conceals information does indeed have something to hide. We all nod knowingly when a crooked labor leader, business executive, I.R.S. official or organized crime figure “takes the Fifth.”
The President could “reluctantly” refuse to respond to a grand jury subpoena on the “advice of counsel” that the subpoena is unconstitutional. Legal experts are divided, most on a partisan basis, on whether and, if so, to what extent the courts might order his compliance. The President is the only executive in the executive branch mentioned in the Constitution. He is the chief law enforcement officer, just as he is the chief of our foreign policy and commander-in-chief of the military. He hires and fires the Attorney General who advises him on policy and carries the policy out after the President sets it. The President does not obstruct justice in the sense of the criminal offense by prohibiting a prosecution, any more than does the Attorney General who gives such an order to a U.S. Attorney.
The rights and privileges of the President give way to other rights in the Constitution. So protecting the 6thAmendment right of a fair trial for Aaron Burr on treason charges, required Chief Justice John Marshall to order President Thomas Jefferson to respond to a witness subpoena. The Supreme Court required President Nixon to turn over tapes of specific Oval Office conversations, not as part of a general Watergate investigation, but as necessary evidence in the prosecution of the Watergate defendants. In Clinton v. Jones the Supreme Court ruled that a sitting President of the United States has no immunity from civil law litigation, in federal court, against him or her, for acts done before taking office and unrelated to the office. The Clinton v. Jones court expressed concern about interference with the President’s performance of his duties, but naively opined that the lower court could manage things to avoid that. That did not work out very well.
The Court has made clear in those decisions that a prosecutor seeking to enforce a subpoena would have to specify information that could not be obtained from any other source and limit the examination to that. The Court is plainly uncomfortable with the idea of compelling a President to testify. The deference granted to the executive would have to be outweighed by another Constitutional purpose.
Both sides in the legal debate over the Constitutionality of a grand jury subpoena seem to agree that the President could not rely on his 5thAmendment rights, as a practical matter, due to the political fallout that would ensue. I’m not so sure. This is a President who has refused to release his income tax returns in spite of the longstanding practice of Presidents and candidates doing so. Trump has departed from many other Presidential norms too, all without serious injury to his political standing. His favorability ratings have stayed in the 40’s which is where they were when he was elected. It seems his base is not affected.
If ordered to testify, Trump could just say “It is quite clear that Special Counsel’s goal here is to incriminate me, so I am exercising the same right available to all other Americans – not to help him do that.” Political advisers might urge him to avoid doing that as long as he can to avoid the opprobrium of “taking the 5th.” On the other hand, if Trump announced his refusal ahead of time, Mueller might then be constrained from issuing a subpoena. Surely a court would ask him why, when he knew no information could be gained.
Breaking into new ground, Mueller could give Trump immunity from prosecution, eliminating the President’s personal privilege against self-incrimination. The Special Counsel would not be giving up much. He is an employee of the Justice Department. A binding opinion of the DOJ’s Office of Legal Counsel states that the President cannot be indicted, at least while he is in office. The remedy for wrongdoing by a President in the first instance is impeachment and that is no doubt Mueller’s goal, as it was Ken Starr’s before him. Trump’s lawyers could respond that the Special Counsel cannot immunize him against impeachment. Of course the 5thAmendment applies only to criminal proceedings, probably not including impeachment. On the other hand, it is not the function of the Special Counsel to build a case for impeachment.
The President should not talk to the Special Counsel or testify voluntarily. He should just … shut up. Good luck to Trump’s lawyers trying to achieve that.