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.
Robert S. Mueller III testifying during a hearing of the U.S. Senate Appropriations Committee on Capitol Hill in Washington in 2013. (Brendan Smialowski/AFP/Getty Images)
This article has been updated.
We will stipulate at the outset that the investigation being conducted by special counsel Robert S. Mueller III and his team is a black box, by design. We get trickles of information about who Mueller’s team is talking to and who’s been called before a grand jury, usually thanks to those people subsequently revealing those conversations publicly. (Sometimes, as in the case of former Trump aide Sam Nunberg, we are informed ahead of time, loudly.)
It’s almost certain that Mueller’s team has talked to scores more people than we know about or can think of simply by the nature of his investigation. At one point, Paul Manafort’s real estate agent testified before the grand jury. Who knew?
So it’s odd that one very prominent name appears not to have talked to Mueller: Donald Trump Jr. Again, it’s unclear. Maybe Trump Jr. has had extended conversations with Mueller’s investigators and we don’t know about it. Given how closely Mueller’s efforts are being watched, though, that seems unlikely. And there are few people who might be able to offer more insight on the Russia investigation than Donald Trump Jr.
We got another reminder of that Thursday, when the New York Times reported that Mueller’s team had subpoenaed Trump Organization records related to potential investments in Russia. The scope of the subpoena isn’t clear, nor is any specific focus of Mueller’s efforts.
We do know, though, that President Trump and the Trump Organization had been looking for a project in Moscow or elsewhere in Russia for years before the presidential campaign. At one point about a decade ago, Trump Jr. and his sister Ivanka traveled to Moscow pursuing a deal. Even after Trump declared his candidacy, the Trump Organization was pursuing a project in the Russian capital, prompting Trump attorney Michael Cohen at one point to reach out to a spokesman for Russian President Vladimir Putin for assistance in moving the project forward.
The Trump Organization, subpoenaed by Mueller, is now run jointly by Trump Jr. and his brother Eric.
In the past, Trump Jr. has bragged about the company’s Russian business ties.
“In terms of high-end product influx into the U.S.,” Trump Jr. said during an interview in 2008, “Russians make up a pretty disproportionate cross-section of a lot of our assets. … We see a lot of money pouring in from Russia.”
In 2011, a woman who worked for a company that facilitated obtaining visas noted on social media that the Russian consulate in New York City had an autographed photo of Trump Jr. on the wall. Contacted by The Post, she said she couldn’t remember specifically what the photo depicted or what the signature said. (Beyond the contemporaneous post, we were unable to confirm the photo’s existence.)
There are few people beyond the president who are as knowledgeable about the Trump Organization’s efforts in Russia as Trump Jr.
Then, of course, there’s the infamous meeting in Trump Tower in June 2016.
The first layer here is the meeting itself. Trump Jr., contacted by a music promoter he’d met when the Miss Universe pageant was held in Moscow, is offered dirt on Hillary Clinton that was collected by the Russian government as “part of Russia and its government’s support for Mr. Trump.”
“If it’s what you say it is, I love it,” Trump Jr. replied. He then asked to speak with the music promoter’s client, Emin Agalarov, before finalizing the meeting time. After calls were placed between Trump Jr. and Agalarov, the meeting was set — though Trump Jr. has claimed that he doesn’t remember actually speaking with Agalarov. Trump Jr. then invited Trump’s then-campaign chairman Manafort and Jared Kushner to the meeting, and both attended.
There are a slew of questions that arise. Did Manafort and Kushner know what the meeting was about? What were they told? Did Trump Jr. speak to Agalarov? What was promised?
That brings us to the other layer. When the Times first reported on the Trump Tower meeting, the response from Trump Jr. was a deeply misleading statement claiming that it was predicated on the issue of adoption. When the emails surfaced proving that this was false, Trump Jr. changed his story. Mueller’s been investigating the initial response to that report to determine whether Trump Jr. or others tried to obstruct justice by misrepresenting what had happened. Hearing Trump Jr.’s description of how that statement was developed seems important.
The FBI is reportedly looking at another question that involves Trump Jr. We learned last year that Alexander Torshin, a deputy governor of Russia’s central bank, repeatedly sought to be connected to the Trumps using connections he’d made at the NRA. The FBI is reportedly investigating whether the NRA took money from Russian interests that was then used to boost Trump’s campaign. Torshin himself leveraged his relationships to reach out to the Trumps, seeking, at one point, to set up a dinner between Trump and Putin. At some point that same month, Trump Jr. and Torshin met briefly at an NRA-related event in Kentucky.
Beyond those specifics, Trump Jr. was also deeply involved in the campaign itself. He was regularly on the trail with the president and involved in key decisions like the firing of Trump’s first campaign manager, Corey Lewandowski. Trump Jr. was also involved in the presidential transition, despite criticism. Even had he not been involved in the business or involved in the Trump Tower meeting or linked to Torshin, that involvement would seem to make him an important point of contact.
So why hasn’t Mueller talked to Trump Jr. — assuming he hasn’t? One reason may be that Trump Jr. is so important. Since Trump Jr. was so involved in so many important parts of the campaign and the business, Mueller may be trying to figure out what he needs to ask Trump Jr. before he asks it.
There are really two possibilities here: Mueller has already spoken with Trump Jr. and we don’t yet know about it — or he will at some point soon. It seems impossible that Mueller won’t want to know what Trump Jr. knows.
Update: Former federal prosecutor Elizabeth de la Vega raised another possibility.
“It’s entirely true, based on public reports so far, that Donald Trump, Jr. appears to have been involved in many significant events that would be of interest to Special Counsel Mueller,” she wrote in a message to The Post. “That very fact suggests a third alternative explanation for Mueller’s failure to interview him thus far: Don, Jr. is a serious subject or, quite possibly a target of the Special Counsel investigation.”
“Federal prosecutors rarely interview targets of an investigation,” she continued. “Instead, they build the case around them, with documents, emails, public admissions and other witnesses.”
This frame from a 1998 video shows George Nader, a businessman convicted of sexually abusing minors and who served time in a Czech Republic prison more than a decade ago.
WASHINGTON — How did George Nader — Lebanese-American businessman, globe-trotting ‘‘fixer,’’ convicted child molester — get caught up in special counsel Robert Mueller’s investigation?
The answer, it seems, can be found in the shadows, where Nader has long operated.
His long history included intrepid back-channel mediation between Israel and Arab countries — and a 15-year-old pedophilia conviction in Europe that has not been previously reported. But Mueller, in his investigation of President Donald Trump, his campaign and possible wrongdoing connected to Russia, is focused on Nader’s role in two high-level get-togethers after the presidential election, according to three people familiar with the case.
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Nader was caught in Mueller’s web a few days before the anniversary of Trump’s inauguration. He was transiting through Dulles International Airport outside Washington, on his way to Trump’s Mar-a-Lago resort, when his plans changed — abruptly and involuntarily.
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Mueller’s investigators stopped him, people familiar with the case said. His electronics were seized and he was then allowed to go see his lawyer. Nader later agreed to cooperate with Mueller’s investigation, said the people with knowledge of the case as it pertains to Nader. They weren’t authorized to speak publicly on the case and demanded anonymity.
Nader is little known to the public, a man who has led a shadowy existence as a go-between across numerous Middle East capitals and who gave testimony to Mueller’s Washington grand jury earlier this month.
Nader joined a meeting at New York’s Trump Tower in December 2016 that brought together presidential son-in-law Jared Kushner, chief strategist Steve Bannon — fired by Trump last August — and Mohammed bin Zayed, crown prince of Abu Dhabi and de facto leader of the United Arab Emirates.
A second meeting occurred a month later in the Indian Ocean archipelago of Seychelles and involved Nader, bin Zayed, former Blackwater boss Erik Prince and Kirill Dmitriev, a Russian banker close to President Vladimir Putin.
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Nader’s record of sexual abuse in Prague appears unrelated to his role in Mueller’s probe in the United States; it is unclear whether Mueller’s investigators knew about it. One of Nader’s lawyers, Sandeep Savla, suggested that information about his record was being leaked to stop him from cooperating.
‘‘This is nothing more than an orchestrated, disgusting scheme by those who are trying to intimidate Mr. Nader into silence. It won’t work,’’ he said. ‘‘Mr. Nader will continue to answer truthfully questions put to him by the special counsel.’’
Kathy Ruemmler, who previously served as White House counsel to President Barack Obama, is among the lawyers representing Nader. She declined to answer questions about her client.
A George Nader was convicted by Prague’s Municipal Court of 10 cases of sexually abusing minors and sentenced to a one-year prison term in May 2003, court spokeswoman Marketa Puci told The Associated Press on Wednesday. She said the crimes occurred between 1999 and 2002. She said Nader served time in a Prague prison, though it isn’t clear how much. He was then ordered expelled.
Puci said Nader was convicted of ‘‘moral corruption of minors, sexual abuse and impairing morals,’’ after abusing underage boys.
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In one case, Nader requested oral sex from a 14-year-old boy in a room at the Hilton Hotel in Prague, Puci said. After the boy refused, Nader masturbated in front of him and paid him 2,000 koruna — worth about $100 today, she said.
The verdict cites other examples of Nader providing money, jewelry, cellphones, clothes and accommodation for sexual services. The AP was able to see a copy of the verdict, which gives Nader’s birthdate as May 15, 1959. Nader was separately accused in Washington, D.C., of child pornography infractions in 1985, but those charges were later dropped. A criminal docket sheet obtained by the AP shows the same birthdate for Nader.
Two people with knowledge of the case confirmed it involved the same Nader now cooperating with Mueller.
Many of Nader’s former contacts and onetime friends have noted in recent weeks how they lost touch with him in the early 2000s.
Nader had worked in recent times as an adviser to bin Zayed, one of the most powerful men in the Middle East, according to people who know Nader. The questioning of Nader in the Mueller probe suggests possible interest in UAE relations with Trump’s transition team or his administration.
Nader’s connections with Trump confidants include Elliott Broidy, a top Republican fundraiser who co-hosted a Tuesday night event attended by the president in Beverly Hills, California.
Earlier this month, several media organizations, including the AP, obtained emails belonging to Broidy, a California-based venture capitalist and the Republican National Committee’s deputy finance chairman. They show Broidy emailing Nader with a summary of Broidy’s talks with Kushner and Trump in the White House in October 2017, touching on matters including the UAE’s bitter dispute with fellow Persian Gulf country Qatar.
Broidy accused Qatar of hacking his emails. The Qataris denied the charge.
‘‘Your government’s actions against U.S. citizens will jeopardize your nation’s relationship with the United States,’’ Broidy wrote in a public letter to Qatar’s U.S. ambassador.
In response, the Qatari government called Broidy’s ‘‘baseless accusations’’ a ‘‘diversionary tactic.’’
