Rudolph W. Giuliani, a new lawyer on President Trump’s team, claimed a broad constitutional immunity for his client from being subpoenaed in a criminal proceeding, a predictable claim but one unsupported by any Supreme Court decision.
He cited the “Founding Fathers” for his assertion, saying they “created this immunity,” something the Supreme Court has never said. The high court has not confronted the question of whether a president must comply with a grand jury subpoena for testimony in a criminal case.
But it has rejected efforts to immunize the president from the demands of courts, civil and criminal.
Giuliani made his assertions Wednesday night on Sean Hannity‘s show on the Fox News Channel. He also said that Trump had made a series of payments reimbursing his attorney Michael Cohen for a $130,000 settlement with Stormy Daniels, despite Trump’s assertion last month that he was unaware of the payment, as The Washington Post reported.
Giuliani said that he would advise the president to resist any questioning by special counsel Robert S. Mueller III that went beyond two and a half hours. “Two and a half hours. We end. Walk out. Give us your questions in advance.”
“I would like to get one not under oath,” said Giuliani, who is a former U.S. attorney and associate attorney general during the Reagan administration. “I’d want it … not videotaped but audiotaped. I’d want to make sure they didn’t misrepresent his answers.”
Giuliani, talking with unusual openness for a criminal defense lawyer about litigation strategy, offered an additional ground for challenging a subpoena. He said the Mueller team has “lost” the power to subpoena the president by conducting “a completely tainted investigation.”
Giuliani also said he would use the president’s North Korea negotiations to claim that the president was too busy to answer questions. “I could not go to the president of the United States and say take two days off to get ready” for a prosecutorial interview “and screw the whole thing with North Korea. How can any American do that?”
The Post’s Carol D. Leonnig and Robert Costa reported earlier this week that Mueller was prepared to issue a subpoena for the president to appear before a grand jury in light of the resistance of Trump’s lawyers to a voluntary interview in connection with the probe of Russia’s interference in the 2016 presidential election.
The Supreme Court has ruled in two cases involving claims of presidential immunity from judicial processes. In United States v. Nixon, the 1974 Watergate tapes case, a unanimous court rejected President Richard M. Nixon’s arguments that he did not have to turn over secretly recorded White House tapes in response to a subpoena.
“Neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” the court said in an opinion written by Chief Justice Warren E. Burger.
The case differed from any that Trump would face largely because it involved a subpoena not for testimony but for tapes.
In Clinton v. Jones, the court ruled in 1997 that President Bill Clinton enjoyed no immunity from a civil suit brought against him by Paula Jones, who alleged sexual advances by Clinton when he was governor of Arkansas. It also declined to defer the litigation until the end of Clinton’s presidency, saying that was not constitutionally required, either.
The administration is expected to challenge any subpoena, regardless of the odds. Giuliani cited no precedent in support of his firmly stated views, though Hannity at one point referenced Harvard professor emeritus Alan Dershowitz.
But even Dershowitz, who has advanced a controversially broad interpretation of the presidential privileges and has been critical of the Mueller probe, has said recently that he does not think Trump would win if he were to contest a subpoena.
“He can argue you can’t subpoena a president in a criminal case in front of a grand jury,” Dershowitz said on Fox News’s “America’s Newsroom” earlier this week. “He would probably lose on that broad issue.”
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