Harry Litman teaches constitutional law at the University of California at San Diego and practices law at Constantine Cannon. He served as deputy assistant attorney general in the Justice Department from 1993 to 1998 and U.S. attorney for the Western District of Pennsylvania from 1998 to 2001.
“We don’t have to comply with a potential Mueller subpoena,” President Trump’s lawyer, Rudolph W. Giuliani, recently declared on ABC. “He’s the president of the United States. We can assert the same privileges other presidents have.”
Giuliani did not attempt to specify what other presidents he had in mind or what privileges he was referring to. Most likely, he had nothing concrete in mind, since there is scanty legal basis for this claim.
The initial problem with Giuliani’s assertion is that no president has ever successfully resisted a lawful subpoena. On the contrary, the precedents point unanimously in the opposite direction.
They begin with Aaron Burr’s 1807 trial for treason, presided over by Supreme Court Chief Justice John Marshall. Marshall approved Burr’s issuance of a subpoena to President Thomas Jefferson for letters sent to the president that ostensibly demonstrated Burr’s treasonous intentions. Jefferson pushed back on the grounds of executive privilege, but eventually a compromise was worked out and the documents were produced.
In justifying his initial resistance, however, Jefferson cited the risk that personal attendance in court could interfere with his responsibilities for running the government. Marshall’s response to the argument contains seeds of support for both Trump and special counsel Robert S. Mueller III. On the one hand, Marshall rejected the notion that the president had special standing to not be subpoenaed. But, in a passage certain to be cited in any challenge by Trump, he recognized the possibility that the president could resist a subpoena by arguing that “his duties as chief magistrate demand his whole time.”
The precedents in support of the Giuliani position go downhill from there. President Richard Nixon resisted Watergate special prosecutor Leon Jaworski’s subpoena for audiotapes, claiming “executive privilege” anchored in the need for confidentiality in high-level presidential communications.
The Supreme Court unanimously rejected that claim, noting that “the generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
It is significant that the Nixon case did not involve a subpoena to testify, which doubtless entails a greater encroachment on presidential authority. But that’s not the distinction that Giuliani was arguing. Instead, he contended outright that Trump needn’t comply with a Mueller subpoena.
Clinton invoked executive “immunity” — not executive privilege — in arguing that the distractions of providing live testimony would impermissibly compromise his ability to discharge his presidential duties.
Citing half a dozen cases in which presidents had complied with subpoenas in civil cases, the Supreme Court unanimously rejected the argument. Still, Clinton v. Jones leaves a sliver of an argument for Trump — though, again, nothing remotely resembling support for Giuliani’s brazen assertion.
First, echoing Chief Justice Marshall, the court acknowledged that the presidency is “so vast and important that the public interest demands that he devote his undivided time and attention to his public duties.”
Second, the historical record turned out to undercut the court’s confidence that the case would not present a significant distraction. Instead, it triggered a legal battle royal (to be sure, because Clinton dissembled in the deposition) that led to his impeachment.
Third, and most importantly, Clinton v. Jones leaves room for Trump to argue that a subpoena to testify in a criminal case in which one is a subject, as Trump is in the Mueller probe, imposes a heavier burden than deposition testimony, and one that would hamstring Trump’s discharge of his constitutional duties.
Giuliani seemed to refer to this argument in an interview last week with Maria Bartiromo of Fox Business Network, asserting that in the United States, “the head of state is not to be prosecuted until after they leave office. Not to be subjected to criminal process. Different if it was a civil case.” Giuliani was shorthanding the argument that, because the Constitution provides that the president may be removed from office only through the mechanisms of impeachment (or the 25th Amendment), a sitting president cannot be criminally prosecuted. If so, this argument continues, a president would be similarly protected, while in office, from having to testify in a criminal proceeding in which he is a subject or target.
This remains an open question. When independent counsel Kenneth W. Starr served a subpoena on Clinton in the criminal case that led to Clinton’s impeachment, some advisers urged that he challenge the subpoena as an encroachment on presidential powers. Former White House counsel Jack Quinn wrote in the Wall Street Journal that “the argument that the president must answer unproved allegations against him before a grand jury is scary. If Mr. Starr were deemed to possess such power, it would not be limited to independent counsels, because any state or local prosecutor could similarly haul a president before a grand jury.”
But Clinton decided against mounting the court challenge. He concluded that testifying was a political imperative, and in return for his “voluntary” testimony, Starr withdrew the subpoena. Clinton thereafter testified under special conditions before the grand jury and wound up adding perjury to the counts of impeachment against him.
With the legal issue unsettled, the Trump team at least has some room to construct an argument to resist a subpoena from Mueller. Still, it is unlikely this assertion would prevail at the Supreme Court. Both the Nixon and Clinton cases cast large shadows, even if they don’t foreclose the claim.
But this is the sort of lawyerly argument that is likely Trump’s best bet. The legal effort can only be impeded by Giuliani’s rash freelancing, and its stark and offensive implication that the president is above the law.