I’m not talking about Mueller’s legal authority as special counsel. In the Starr investigation in 1998, President Bill Clinton declined six invitations to testify before the grand jury. When the grand jury voted to subpoena him, the president’s lawyers said he would testify voluntarily, but the subpoena had to be withdrawn. To avoid a drawn-out court fight, Starr agreed. As a result, the courts have never evaluated the constitutionality of a subpoena seeking a president’s testimony before a grand jury. When Clinton claimed immunity in another judicial proceeding, he lost in the Supreme Court — unanimously. The same thing happened to the only other president to make such an argument, Richard Nixon.
So Mueller probably has the legal and constitutional authority, but he shouldn’t exercise it against this norm-busting president. The security of institutions sometimes depends on not pushing them too far.
Imagine that Mueller, acting on behalf of the grand jury, subpoenas Trump to testify. The president says no. Mueller goes to court. The judge orders Trump to comply. He still refuses. The judge, treating him like any other defiant witness, holds him in contempt of court. Then what?
Not jail. The Justice Department maintains that a president can’t be prosecuted while in office, in part on the reasonable assumption that the presidency can’t operate from behind bars. Mueller must follow Justice Department policies, probably including that one. Anyhow, a president who disobeyed a subpoena and an order enforcing it wouldn’t go quietly to serve a sentence for contempt.
Alternatively, a judge might impose a fine. In 1999, Judge Susan Webber Wright held Clinton in civil contempt of court over false deposition testimony in the Paula Jones sexual harassment case. Wright ordered him to pay court costs and attorneys’ fees, and he chose to comply rather than challenging the order.
A president’s false testimony in an earlier deposition, though, differs from ongoing defiance of a subpoena. Imposing a fine might suggest that continuously violating a court order is no problem as long as the president writes a check. Watergate special prosecutor Archibald Cox worried that Nixon might disobey a judge, but he believed that imposing a fine might diminish a grave battle over the rule of law into a trivial fight over dollars and cents.
How to enforce court orders against the president, in fact, hung over the Watergate prosecutors. When Cox first sought White House tapes, Nixon claimed that the Constitution gave him “the power and thus the privilege to withhold information.” Rejecting this might-makes-right argument, the U.S. Court of Appeals for the D.C. Circuit said that “the President is legally bound to comply” even if the court lacks the “physical power to enforce its judgments.” Presidents have a duty to obey, the court said. It’s just an unenforceable duty.
After losing in the D.C. Circuit, Nixon tried to rid himself of the subpoena by ridding himself of the prosecutor. The “Saturday Night Massacre
” ensued, with Cox, the attorney general and the deputy attorney general all out of their jobs. The paramount constitutional crisis of Watergate thus grew out of a subpoena.
In an article in the Georgetown Law Journal in 1998, my former colleague from the Starr office, Brett Kavanaugh, endorsed the Saturday Night Massacre strategy for a president intent on withholding evidence. (Kavanaugh, of course, is in the news these days because Trump nominated him to the Supreme Court on Monday.) According to Kavanaugh, a president in such circumstances should “simply order the federal prosecutor not to seek the information and fire him if he refuses.” Cry not for the ousted prosecutor, Kavanaugh wrote: “In a perverse way, removal is a sure way to immortality, as Archibald Cox learned.” That’s harsh but, I think, correct: Better to avoid an intractable conflict by removing the prosecutor before he issues a subpoena — thus keeping the issue out of the courts — even at the cost of a Saturday Night Massacre, than to invite a standoff in which power can defeat law. Later, writing in the Minnesota Law Review, Kavanaugh proposed that Congress exempt presidents from investigation and prosecution while in office, which would ameliorate but not eliminate the issue; prosecutors still might subpoena evidence from the White House while investigating a president’s friends, relatives, supporters and appointees, unless all of them got exempted, too.
In Watergate, Judge John J. Sirica decided that even without Cox, the grand jury subpoena to Nixon was still before him even if Cox wasn’t. Acting on his own, Sirica was ready to take the step that Cox had rejected: holding Nixon in contempt and imposing a fine, as much as $50,000 per day. Fining Nixon thousands and even millions of dollars might have metastasized a constitutional crisis into a constitutional catastrophe, but before the judge had a chance to act, the president agreed to comply with the subpoena.
Cox’s successor, Leon Jaworski, subpoenaed more White House tapes, this time for a criminal trial. After the uproar over the Saturday Night Massacre, Nixon couldn’t fire another special prosecutor. He fought this subpoena to the Supreme Court, which unanimously ruled that he must turn over the tapes. Nixon complied. Two weeks later, he resigned.
Nixon’s ultimate compliance with the subpoenas and court orders was far from a sure thing. He believed, as he wrote in his memoir, that when a judge’s order impinges on executive authority, “a President has a right — and some scholars would argue, a responsibility — not to obey.” After losing in the Supreme Court, Nixon reportedly considered a suggestion from one of his lawyers: destroy the White House tapes, pardon all Watergate defendants and resign. But he didn’t.
Cox and Jaworski prevailed against an erratic, indignant president by acting with restraint. Often, they sought White House evidence by letters of request rather than subpoenas, and they later noted in their report that they decided to forgo some evidence rather than push too hard. (Sirica, fortunately, didn’t get a chance to push harder.)
Jaworski, in fact, asked Nixon to testify before the grand jury. Nixon declined, and Jaworski decided not to issue a subpoena. He thought the president would refuse to comply. Some fights were worth fighting. This wasn’t one of them.
In the Starr investigation, getting Clinton to testify was worth the fight for us: His testimony was indispensable to the investigation. Starr withdrew the subpoena so that Clinton could appear voluntarily. The president promised to testify fully. But he didn’t. He refused to answer many questions rather than admit that he had lied in his deposition before Wright.
Over the course of 1998, Clinton also lied to grand jurors, Cabinet members, White House aides and the American people. He invoked executive privilege where it didn’t apply. He gamed the courts, filing and then abandoning appeals. In response to subpoenas, he sometimes abided without complying — a distinction Nixon drew during Watergate — by dribbling out the evidence as slowly as possible.
All of which is appalling. But I never imagined back then that Clinton would openly defy a final and binding court order. He fought, and at times fought dirty. There were moments when I thought he might shake the system by firing Starr, but I never thought he would break the system by declaring himself unanswerable to the courts. He obeyed court orders, even though, as the D.C. Circuit acknowledged in 1973, they couldn’t be enforced against an intransigent president.
For Trump, by contrast, the notion of an unenforceable duty might be an oxymoron.
Presidents so far, Nixon and Clinton included, have obeyed judges out of respect for the rule of law, fear of impeachment or both. Trump’s attitude toward the rule of law ranges from disdain to indifference, and he seems to harbor little fear of impeachment. He’s probably right about impeachment: With its outcome dependent on the politics of the moment, we can’t count on such a proceeding to safeguard constitutional institutions against a rampaging president.
I’ve got no special insight into the Mueller investigation, of course. But from what I can tell reading the news and recalling my work in the Starr office, subpoenaing Trump to testify before the grand jury just doesn’t seem worth it. Up against an irresponsible president, a responsible prosecutor will pick his battles.
Looking back, Cox once reflected on the possibility that Nixon might have flouted the courts and survived. “Who could say in an age of Presidential aggrandizement that if one President succeeded in his defiance, he and others might not follow that example until ours was no longer a government of law?” he wrote. Had it come to that, Cox suggested that he would have taken some of the blame: “How far was a man justified in provoking this kind of constitutional crisis with the outcome so uncertain?”
That question haunted Archibald Cox in 1973. It ought to haunt Robert Mueller today.