But I believe that fighting Mueller’s efforts to obtain the president’s testimony would be a mistake, both legally and politically. Neither the courts nor the public will support prolonged resistance that is not based on a reasonable view of the Constitution and applicable law.
To be clear, executive secrecy is vital. Presidents going back to the beginnings of the nation have asserted privileges unique to the presidency, often in the cause of resisting disclosure of information where they believed it would erode the confidentiality necessary to fulfill their constitutional duties. During the Clinton administration, both in the course of my service in the counsel’s office and afterward, I argued for a broad view of executive privilege.
But legal developments then and afterward have severely curtailed the scope of the privilege. They strongly suggest that the president and his lawyers would ultimately lose any attempt to assert that he can avoid answering the special counsel’s questions by invoking executive privilege.
Any discussion of privilege begins with United States v. Nixon, the Watergate tapes case, in which the justices rejected President Richard Nixon’s claim of an “absolute, unqualified Presidential privilege of immunity from judicial process.” Rather, the court said, the president’s “generalized interest in confidentiality . . . must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
The Nixon case involved tapes, not live presidential testimony. But, as with Trump, it involved a criminal investigation and presidential evidence. And, in the decades after Nixon, courts have routinely ruled against assertions of executive privilege and immunity from suit. Significantly, in 1997, the court unanimously ruled that Clinton could be subject to a civil suit for sexual harassment during his term in office notwithstanding arguments that allowing the lawsuit to proceed would “interfere” with the conduct of his presidency.
The law is now clear: Although presidential communications with close advisers are presumptively privileged, that privilege is qualified and can be overcome by a showing on the part of a prosecutor that the evidence sought is not just relevant but important, and that it is not available other than through the president. And, notably, as U.S. Appeals Court Judge Patricia M. Wald said in a case involving a former Clinton Cabinet member, privileged evidence will be deemed particularly appropriate for disclosure when an immediate White House adviser is being investigated for criminal behavior.
The key lessons from developments in the law of executive privilege since Nixon was decided are threefold:
First, presidents cannot, without real basis, assert that taking the time to provide critical evidence in a criminal proceeding would be too inconvenient to their performing presidential duties.
Second, the assertion from the president’s legal camp that Mueller has no “standing” to ask questions about anything implicating the president’s constitutional powers, regardless of its importance to an investigation, is at best frivolous, unless those questions would reveal actual state secrets.
Third, a president will, in the end, be required to testify in criminal proceedings where his evidence is important and irreplaceable, although the president will be able to negotiate accommodations to minimize actual and nonessential impositions on the performance of his constitutional duties. In Clinton’s case, after extensive back-and-forth with independent counsel Kenneth W. Starr over securing his testimony about the Monica Lewinsky scandal, Clinton ended up testifying under oath for four hours.
So what would Trump gain from resisting an invitation from Mueller to testify or contesting a grand jury subpoena, if it were come to that? Nothing. Actually, worse: It would only extend the life of the Mueller investigation and the attendant bad press for the president well into the election season.
More to the point, how would this approach really serve the president? How would it help him to maintain that he has nothing to hide when at the same time his lawyers are furiously trying to hide him? Better to prepare well and get on with it than to appear afraid of the truth.