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Congressman Joaquin Castro was frustrated and angry. The Texas Democrat had just learned that the Republicans were pulling the plug on the tortured, bastardized House Intelligence Committee investigation into Russian interference with the 2016 presidential election. “I just saw—on the news—that Mike Conaway is announcing that they’re wrapping up the investigation and the committee is just going to do a report,” Castro, a member of the committee, says. “There are unanswered questions on collusion, money laundering, and obstruction. Not following any of these leads is an abject failure for the American people. So thank God that Bob Mueller and the Senate are still conducting their investigations.”
The Senate probes have plenty of their own partisan constraints. Mueller, however, has been barreling ahead. In mid-February the special counsel unveiled the indictment of 13 Russians and 3 Russian-related companies, charging them with waging a sprawling effort to plant thousands of bogus Internet items and stage sham rallies in support of the Trump campaign. Last month’s indictment, though, did more than identify alleged foreign criminals: it laid a foundation for Mueller’s next big move. He’s likely to target another batch of Russians, this time for hacking into the Democratic National Committee, Republican National Committee, and Clinton campaign computers—and outside investigators expect Mueller will also name Americans who may have helped the Russians distribute the hacked materials.
Castro has a unique window onto the special counsel’s possible course and sees careful calculation in its unfolding. “By indicting the 13 Russians first,” he says, “Mueller laid the groundwork to show that there is this malignant force out there that was interfering with the American elections. Once everybody can appreciate that, then he moves forward and says, ‘O.K., these are the Americans that were helping these bad people.’”
Possible big-name targets—all of whom have consistently denied conspiring with or aiding the Russian election-meddling—include Roger Stone Jr., the longtime Trump adviser; Guccifer 2.0 correspondent, and gleeful dirty trickster; Cambridge Analytica, the data-mining company; and Brad Parscale, who ran the Trump campaign’s social-media operation. But Mueller has so far proven adept at finding previously arcane operatives and forcing them to plead guilty—including foreign-policy adviser George Papadopoulos, Dutch attorney Alex van der Zwaan, and Rick Gates, the right-hand man to Paul Manafort, Trump’s former campaign chairman who has financial ties to Eastern Europe.
“The big question here is whether the Russians had any help in distributing the hacked material,” Castro says. “And it’s really any guidance or direction or information sharing or data sharing with any Americans. These are very sophisticated folks, so it doesn’t take a lot of interaction necessarily to get them springing into action. They don’t need 10,000 e-mails going back and forth. You just need to point them in the right direction. Mueller is very good at uncovering people who had a role who are not obvious—middlemen or obscure operators. So I assume he’s got those to come. And getting those guys to turn on their superiors, that could be key. If you’re looking just for a paper trail with the main cast of characters, you may not find it. But you’ve got all these underlings who may have been given a direction, ‘Hey, go figure this out.’ Parscale had 100 people under him here in San Antonio for the digital operation.” Including helpers from Twitter, Facebook, and Google. “We’ve heard that the Trump campaign went through dozens of Facebook embeds until they settled on people who they found ‘loyal,’” one House investigator says. “Has Mueller talked to them, or to the Google and Twitter embeds? Seems logical.” (The special counsel’s office and Twitter declined to comment; Facebook and Google did not return requests for comment.)
Whoever Mueller names in the next indictment will also be contending with a new, sinister extra-legal worry. The poisoning of former Russian spy Sergei Skripal and his 33-year-old daughter in England has sent chills through the ranks of witnesses and possible cooperators—just as it was intended to do. “When countries do a spy swap, you’re basically agreeing that we’re going to let you take this person, and they’re allowed to live in your country,” says Michael Carpenter, a former deputy assistant defense secretary with an expertise in Russian affairs. “It’s not, ‘We’re going to let you take this person but we’re going to continue to try and kill them.’ That’s an unwritten rule of spycraft.”
When it comes to the 2016 American presidential election, however, the Putin regime looks increasingly unwilling to follow rules of any kind. “I suspect Skripal was talking to Christopher Steele or someone on Christopher Steele’s team,” Carpenter says, referring to the former British spy who in 2016 compiled the “dossier” of alleged ties between Trump and Russia. “That is why this got Putin’s ire up, and so that’s why they went after him. The Kremlin’s No. 1 goal here is to intimidate anyone that may have talked to Steele or any of his associates, or who might cooperate with Mueller. Yeah, it’s pretty ominous. It’s a really, really bad development.”
This post has been updated to restore part of a quotation from Joaquin Castro.
Special counsel Robert Mueller wants to talk to President Donald Trump as part of his probe into Russia’s meddling in the 2016 presidential election.
Trump’s lawyers are urging him not to sit down with Mueller, and so far it appears Trump is taking their advice. But if Mueller decides to press the issue, he’ll likely have to subpoena a sitting president, which is extremely rare in US history. (The last time was in 1998 when President Bill Clinton was subpoenaed as part of the Lewinsky investigation. Before that, Richard Nixon was subpoenaed in 1974 to force him to hand over tape recordings and other materials related to the Watergate scandal).
The likelihood that Trump will be forced to testify might have increased after a New York Times report revealed on Thursday that Mueller has subpoenaed the Trump Organization to turn over documents related to Russia. That same report also said that Trump’s lawyers are already in negotiations with Mueller’s office about how to handle any potential interview.
I reached out to nine legal experts to ask if an independent counsel like Mueller has the constitutional authority to force Trump to testify. And if the fight between the White House and Mueller ends up before the Supreme Court, I wanted to know how they thought the Court would rule.
Their full responses, lightly edited for clarity and style, are below.
Jessica Levinson, law professor, Loyola Law School
I think it is highly likely that anyone, including the president, can be subpoenaed by a grand jury in a criminal case and must respond to that subpoena.
I consider this case all but settled by Clinton v. Jones. In that case, President Clinton sought to stay a sexual harassment case filed against him until at least the expiration of his term in office. The US Supreme Court ruled against President Clinton.
The Court found that a sitting president is not entitled to absolute immunity from civil litigation based on acts that occurred before taking office. Put another way, the president may only be entitled to immunity from civil litigation under exceptional circumstances.
Now, of course, Clinton v. Jones presents a somewhat different question than the one presented here with respect to President Trump. Clinton v. Jones involved a civil suit, not a criminal investigation. But it would seem that the need to ensure that the president cooperates with a criminal investigation is even higher than that need with respect to a private civil suit.
If this issue made its way to the Supreme Court, my guess is that the Court would rely on past precedent, including Clinton v. Jones, and find that the president must respond to a subpoena.
Diane Marie Amann, law professor, University of Georgia
The Supreme Court has never answered this precise question. Rules authorizing federal subpoenas — that is, court orders to testify or produce documents — do not expressly exempt the president. And in 1998, President Clinton was subpoenaed in connection with the independent counsel’s Whitewater-Lewinsky inquiry.
The bigger question, it seems, is the extent to which a president may challenge such a subpoena. As a legal matter he, like all witnesses, could invoke the Fifth Amendment privilege against self-incrimination or some other testimonial privilege. But the political risks of doing so are much greater for a president than for other witnesses.
“Trump will have a hard time getting the federal courts to quash a subpoena, but the court fight would certainly drag on for months and prevent the Mueller investigation from wrapping up anytime soon.” —Jens David Ohlin
Andy Wright, law professor, Savannah Law School
A subpoena of a sitting president to appear before a grand jury is legally sound if the investigation warrants it, but it raises constitutional sensitivities. Respect between co-equal judicial and executive branches suggests voluntary cooperation by the president is better than legal compulsion. Cooperation has largely been the tradition.
Presidents Ronald Reagan, Bill Clinton, and George W. Bush all gave evidence in federal criminal investigations. President Trump has flouted other separation of powers traditions, so we may be headed toward a constitutional showdown.
In July 1998, independent counsel Ken Starr served President Clinton a subpoena calling for his testimony before the grand jury in the Monica Lewinsky matter. President Clinton agreed to testify voluntarily under certain conditions including video conference testimony rather than a courthouse perp walk.
Starr accepted those conditions in return for Clinton’s agreement not to challenge the subpoena on constitutional grounds. That August, President Clinton testified via video conference.
Lisa Kern Griffin, law professor, Duke University
It seems clear from the Supreme Court’s unanimous decision in the 1974 Nixon case that the special counsel can subpoena a sitting president. The president is not “above the law.” And his general interest in confidentiality — absent some claim of secrecy related to national security — is insufficient to shield evidence or testimony essential to a criminal process.
The distinction between the Nixon case and the present situation is that the Court ruled the production of evidence (the Watergate tapes) was mandatory and it did not address witness testimony. Nonetheless, the reasoning seems to apply, and the president’s constitutional objection to the subpoena would more likely arise from his Fifth Amendment protection against compelled self-incrimination.
Susan Bloch, law professor, Georgetown University
The judiciary’s response to a president’s refusal to respond to a subpoena will depend on several factors. Specifically, we need to know:
1) Who is asking for the subpoena — a court, a special counsel, or Congress?
2) What are they seeking — testimony or documents?
3) Why are they seeking the information?
The final question is what happens if the president refuses to comply with a lawful court order enforcing a subpoena. Typically, contempt of court is the appropriate judicial response for an ordinary person defying such an order.
But what if the president defies such an order? Fortunately, we have never experienced such a constitutional crisis, but the general consensus is that impeachment is the appropriate next step. That, of course, is a political — not a judicial — remedy and thus depends on the willingness of Congress to go down that path.
“I think it would be enormously difficult to argue that President Trump need not respond to a grand jury subpoena.” —Jessica Levinson
Peter Shane, law professor, Ohio State University
Whether a sitting president may be subpoenaed may depend upon the nature of the subpoena (i.e., for documents or for testimony) and upon the issuing institution (i.e., a grand jury, a court, or a congressional committee).
With regard to judicial or grand jury subpoenas for either documents or testimony, the Supreme Court has established that presidential compliance may be constitutionally required. As the Court wrote 20 years ago in the Paula Jones case:
Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty. President Monroe responded to written interrogatories, President Nixon … produced tapes in response to a subpoena duces tecum, President Ford complied with an order to give a deposition in a criminal trial, and President Clinton has twice given videotaped testimony in criminal proceedings. Moreover, sitting Presidents have also voluntarily complied with judicial requests for testimony. President Grant gave a lengthy deposition in a criminal case under such circumstances, and President Carter similarly gave videotaped testimony for use at a criminal trial.
I have little doubt that the courts would apply a similar balancing-of-interests approach in upholding a congressional subpoena for presidential documents. There is no clear authority, however, on compelling presidential testimony before Congress. The Justice Department has repeatedly asserted an absolute presidential immunity from congressional compulsion to testify.
Jens David Ohlin, law professor, Cornell University
Trump will have a hard time getting the federal courts to quash a subpoena, but the court fight would certainly drag on for months and prevent the Mueller investigation from wrapping up anytime soon.
Trump might try to assert executive privilege. For that argument, he’ll be stymied by the Nixon case precedents, which held that executive privilege is not absolute and can be overcome by a finding that the information is important and cannot be obtained elsewhere.
Since much of Mueller’s case will turn on Trump’s state of mind, that evidence — by definition — cannot be obtained from anyone else.
“But what if the president defies such an order? Fortunately, we have never experienced such a constitutional crisis, but the general consensus is that impeachment is the appropriate next step.” —Susan Bloch
Steven Duke, law professor, Yale University
A grand jury subpoena would almost certainly be enforceable against the president. The Supreme Court unanimously held in United States v. Nixon, 418 US 683(1974), that Nixon was required to comply with a grand jury subpoena for the Oval Office tapes.
The Court also unanimously held in Clinton v. Jones, 520 US 681(1997), that Clinton could be required to submit to a deposition in a civil case brought against him by Paula Jones.
In light of these two opinions, a majority Supreme Court opinion denying the enforceability of a grand jury subpoena for the testimony of President Trump is almost impossible to imagine.
Keith Whittington, politics professor, Princeton University
In the Watergate tapes case, the Supreme Court ruled that a federal court could issue a subpoena to a president to produce documents needed in a criminal investigation. It is generally accepted that presidents should normally comply with such an order.
The Court allowed the Paula Jones lawsuit to proceed against President Bill Clinton while emphasizing that judges should give the president the “utmost deference” while managing those proceedings. The Clinton experience has certainly led some to question the Court’s judgment that litigation would not unduly interfere with the ability of the president to conduct the nation’s business.
The problem of a judge issuing a subpoena to a president for testimony arose early in the nation’s history, and President Thomas Jefferson was emphatic that the president, not a judge, had to have the final say over whether, when, and how a president might offer testimony in a legal proceeding.
The proper independence of the three branches of government meant that the president could not be subjected to the command of a judge, otherwise “the several courts could bandy him from pillar to post … and withdraw him entirely from his constitutional duties.”
Presidents have voluntarily offered testimony while in office, and it is proper that they should do so. Given the unique constitutional responsibilities of the president, however, judges should be reluctant to attempt to require the appearance of a president for a legal proceeding.
If Congress believes that the president is abusing his discretion in this regard, then they have the means to put additional pressure on the president, ultimately including the impeachment power. If the people are dissatisfied with how the president is fulfilling the responsibilities of his office, then they have the means to change course through the ballot box.
“Since July 2017, we have advised the public that the Trump Organization is fully cooperative with all investigations, including the special counsel, and is responding to their requests,” said Alan S. Futerfas, a lawyer representing the Trump Organization. “This is old news and our assistance and cooperation with the various investigations remains the same today.”
The White House press secretary, Sarah Huckabee Sanders, reiterated during her daily briefing that the president was cooperating with the special counsel inquiry and referred further questions to the Trump Organization.
There are few other publicly known examples of Mr. Mueller using subpoenas. In January, he ordered the president’s former chief strategist, Stephen K. Bannon, to appear before a grand jury. Mr. Mueller dropped the subpoena after Mr. Bannon agreed to be interviewed by investigators.
Mr. Mueller could run afoul of a line the president has warned him not to cross. Though it is not clear how much of the subpoena is related to Mr. Trump’s business outside ties to Russia, Mr. Trump said in an interview with The New York Times in July that the special counsel would be crossing a red line if he looked into his family’s finances beyond any relationship with Russia. The president declined to say how he would respond if he concluded that the special counsel had crossed that line.
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Mr. Trump campaigned as a businessman whose deal-making prowess would translate directly into reforming Washington. The argument helped propel him to the White House, but the Trump Organization has been a magnet for criticism from Democrats, ethics watchdogs and some Republicans, who expressed concern that he remained vulnerable to conflicts of interest because he did not separate from the company.
Before Mr. Trump was sworn in, he pledged that he would stay uninvolved in his businesses while in office but insisted it would be too punitive for his business partners for him to divest from the company altogether.
Among the Trump Organization’s holdings are golf clubs, hotels and licensing agreements for the use of the Trump name on properties and other products. While its holdings are complex, the company has always been run like a small, family-owned business; Mr. Trump brought in his three eldest children to help run the enterprise.
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The Trump Organization is not publicly held, making it difficult to determine where it receives its money and invests it. The company has said that it never had real estate holdings in Russia, but witnesses recently interviewed by Mr. Mueller have been asked about a possible real estate deal in Moscow.
In 2015, a longtime business associate of Mr. Trump’s, Felix Sater, emailed Mr. Trump’s lawyer, Michael Cohen, at his Trump Organization account claiming he had ties to President Vladimir V. Putin of Russia and that building a Trump Tower in Moscow would help Mr. Trump’s presidential campaign. Mr. Trump signed a nonbinding letter of intent for the project in 2015 and discussed it at least three times with Mr. Cohen.
A revealing comment about Russia by Eric Trump, the president’s middle son, also drew scrutiny when it emerged last year. James Dodson, a longtime golf writer from North Carolina, said offhand in a radio interview that Eric Trump, who oversees the golf courses for the Trump Organization, told him in 2013 that the Trumps relied on Russian investors to back their golf clubs. Eric Trump has denied those remarks.
Mr. Mueller was appointed in May to investigate whether Mr. Trump’s campaign colluded with the Russians to influence the 2016 election and any other matters that may arise from the inquiry.
A month later, the White House counsel, Donald F. McGahn II, threatened to quit after Mr. Trump asked him to have Mr. Mueller fired because the president believed he had conflict-of-interest issues that precluded him from running the special counsel investigation.
Mr. Mueller is also examining whether the president has tried to obstruct the investigation.
Mr. Trump’s lawyers are in negotiations with Mr. Mueller’s office about whether and how to allow his investigators to interview the president. Mr. Mueller’s office has shared topics it wants to discuss with the president, according to two people familiar with the talks. The lawyers have advised Mr. Trump to refuse an interview, but the president has said he wants to do it, as he believes he has done nothing wrong and can easily answer investigators’ questions.
At the same time, Mr. Trump is considering whether to bring on a new lawyer to help represent him in the special counsel’s investigation. Last week, Mr. Trump spoke with Emmet T. Flood, a longtime Washington lawyer who represented former President Bill Clinton during the impeachment process, about coming into the White House to deal with the inquiry.
