Former New York mayor Rudolph W. Giuliani was hired to represent President Trump as the president navigates special counsel Robert S. Mueller III’s investigation into the 2016 campaign. This has proved to be a tricky position for other attorneys, given the stakes involved in Mueller’s probe and the volatility of the client. The job entails trying to coax Mueller into a favorable position while publicly mirroring Trump’s views of the situation, a bit like trying to sell someone a car while you yell through a bullhorn that they’re morally repugnant.
In his newsmaking trip to the friendly confines of Sean Hannity’s show Thursday night, Giuliani’s bullhorn-yelling took the form of trying to explain why Mueller would never be able to issue a subpoena forcing the president to answer questions. (The Washington Post reported this week that Mueller had threatened to do so.)
“If they’re objective, we can work something out,” he said of Mueller’s team. “If they’re not, then we have to shake hands and basically go into a litigation over, do they have the power to subpoena? And I think they lost that power.” It wasn’t entirely clear how they’d “lost that power,” though Giuliani did say it was a “tainted investigation.”
Later, though, Giuliani claimed that Mueller never had subpoena power.
Here’s what he told Hannity.
If they issue a subpoena, that will be — that will be unprecedented in the sense that it’s pretty clear that a president can’t be subpoenaed to a criminal proceeding about him. Now, why is that? And fortunately — or maybe unfortunately — we have the real-life circumstance going on that the Founding Fathers thought about, which is a president cannot be distracted by a criminal investigation. You can always prosecute him after. They can get him when he leaves the White House. You can always prosecute him after.
If Mueller said to me tomorrow, “Bring him in, two hours, like you want, no questions that you don’t want,” we are pretty much ready to clear him. I could not go to the president and say, “Take two days off to get ready for that and screw the whole thing with North Korea.” I — how can any American do that? He’s our president.”
He added, “That’s why the Founding Fathers created this immunity from prosecution and subpoena.”
Louis Seidman, Carmack Waterhouse professor of constitutional law at Georgetown University, said this when reached by email: “To put no fine point upon it, this is complete nonsense. There is nothing in the Constitution that says or implies that ‘a president cannot be distracted by a criminal investigation.’ ”
He noted the case of United States v. Nixon in 1974, in which the Supreme Court specifically determined that President Richard Nixon could be subpoenaed in a criminal case. The two cases aren’t identical — cases rarely are — but Seidman argued that the differences (type of subpoena, evidence sought) weren’t significant.
In February, when the issue of subpoenaing Trump was first raised, I spoke with Seidman and another legal expert to determine how such a subpoena might play out. An effort by Trump to ignore or quash the subpoena would probably end up back at the Supreme Court. Both experts I spoke with assumed Trump would lose that fight.
So Giuliani’s argument that a subpoena can’t be issued seems questionable. What about his claim that the president’s time needs to be protected?
As it turns out, that’s been settled, too. Former Obama administration official Ronald Klain noted on Twitter that this precise question came up in Clinton v. Jones, when President Bill Clinton hoped to argue that responding to questions from Paula Jones, a woman who claimed to have had a relationship with Clinton, was an intrusion on his important full-time job.
Justice Antonin Scalia expressed a great deal of skepticism about that claim.
But we see Presidents riding horseback, chopping firewood, fishing [laughter in the courtroom], playing golf and so forth and so on. Why can’t we leave it to the point where, if, and when a court tells a President to be there or he’s going to lose his case, and if and when a President has the intestinal fortitude to say, ‘I am absolutely too busy’ — so that he’ll never be seen playing golf for the rest of his Administration [laughter] — if and when that happens, we can resolve the problem. But really, the notion that he doesn’t have a minute to spare is just not credible.”
President Trump has been known on occasion to play golf.
What’s not clear from Giuliani’s remarks is which hat he was wearing as he offered them. Was he simply talking to Hannity’s audience, making the case yet again that the investigation into Trump was unfair and Mueller’s power limited? Or was he presenting the position of Trump’s legal team, that Mueller lacks the power to subpoena the president, even if he deserved it? Should Mueller decide to issue that subpoena, we’ll get an answer to that question.
We’ll note that one of Giuliani’s claims is indisputably true: Trump could face prosecution once he leaves office.