Blog No. 181. Mueller and Trump: The Realities

On June 2, the New York Times published two letters from President Trump’s counsel to Special Counsel Robert Mueller. The disclosure of the letters, which were dated in January 2018 and June 2017, was amplified by endless bloviation from Trump’s TV lawyer, Rudy Giuliani, and created a fount of media commentary. The media has addressed, directly or indirectly, these interesting questions among others:

—If Trump does not agree to an interview by Mueller, will Mueller subpoena him?

–If Trump challenges the subpoena, will it be enforced by the courts?

–How strong is the case against Trump for obstruction of justice?

The Realities. Much of the commentary to date has failed to appreciate fully the significance of two fundamental realities:

1. Under the well established position of the Justice Department, a sitting president cannot be indicted without first having left office by impeachment or otherwise.
2. If the November elections give the Democrats control of the House, a vote of impeachment is possible, but conviction by the Senate would be highly doubtful even if the Democrats were somehow able to gain a narrow majority of that chamber.

Taken together, those facts suggest that Trump is likely to be in office and able to run for re-election in 2020. Of course, circumstances may well change between now and then in ways that are presently unforeseeable, but developments would have to be dramatic to alter the calculus.

The proposition that a sitting president cannot be indicted is debatable, but there is virtually no chance that the Department will change that position. (Indeed, it would seem unlikely for the Department of Justice under any administration to take a position that would make it easier for its president to be indicted.) As a result, the debate may be interesting, but it is pointless.

At the present time, conviction by the Senate following a vote of impeachment by the House is unlikely as matter of fundamental politics. Despite Trump’s frequently embarrassing behavior, and his failure to accomplish many of his campaign promises, his base has remained doggedly loyal and that base is one that he largely shares with Republicans in the Senate. Moreover, his overall approval rating, although still relatively low, has been edging upward. Hence it is not surprising that very few Senators, other than those who are leaving office,  have been willing to take on Trump over anything.

Apart from those who are unaccountably charmed by Trump’s “style,” the principal factor in sustaining his approval is the robust economy. One can debate how much credit Trump deserves for the present surge, but he has done a good job of claiming credit, and the fact is that presidents tend to receive disproportionate credit for good times and disproportionate blame for the bad. Economic circumstances, of course may change, if for example Trump succeeds in starting an insane and disastrous trade war with our major trading partners and (formerly) close allies. On the other hand, despite his instincts, Trump may succumb to the better judgment of others before it is too late. I remarked casually to friends earlier this year that I did not think Trump could be impeached unless the Dow Jones average fell below 20,000. It was a flip comment, unsupported by any serious analysis, but I suspect that it, or something like it, may be true.

Another factor sustaining Trump is the declining approval rating of Robert Mueller and the investigation he leads. Attacks on Mueller from the right have taken a toll. Giuliani’s running commentary is simply anther voice in the chorus  relentless attacks on both Mueller and the FBI  from media on the right, including the Murdoch Empire’s Fox New, featuring Sean Hannity and Fox & Friends,  The New York Post, and  Kimberly Strassel and Holman Jenkins in the Wall Street Journal.

The one thing that might change the equation would be a damning and convincing report from Mueller. As discussed below, however, such a report is not likely to result in impeachment and conviction unless it goes beyond evidence of obstruction of justice to expose underlying misconduct of a serious nature.

Interview or Subpoena. The January letter from Trump’s lawyers set out sixteen areas of inquiry that it said had been identified by the Special Counsel. They are worth at least a quick perusal as an outline of where the investigation of Trump appears to stand:

1. Former National Security Adviser Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
3. Lt. Gen. Flynn’s interview with the FBI regarding the same;
4. Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
5. The President’s meeting on February 14, 2017, with then-Director James Comey;
6. Any other relevant information regarding former National Security Adviser Michael Flynn;
7. The President’s awareness of and reaction to investigations by the FBI, the House and the Senate into possible collusion;
8. The President’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation;
9. The President’s reaction to Former FBI Director James Comey’s testimony on March 20, 2017, before the House Intelligence Committee;
10. Information related to conversations with intelligence officials generally regarding ongoing investigations;
11. Information regarding who the President had had conversations with concerning Mr. Comey’s performance;
12. Whether or not Mr. Comey’s May 3, 2017, testimony lead to his termination;
13. Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt;
14. The President’s reaction to the appointment of Robert Mueller as Special Counsel
15. The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel; and,
16. The statement of July 8, 2017, concerning Donald Trump, Jr.’s meeting in Trump Tower.

Significantly, all of the question areas relate to a possible obstruction of justice by the president and none relate to possible collusion between the Trump campaign and Russia or Trump’s financial dealings with Russians. Why this is the case is not known and it is somewhat puzzling. Possibly Trump’s lawyers are correct in claiming that as of January, Mueller had abandoned that aspect of the investigation as it pertained to Trump personally. Or perhaps Muller had questions in those areas that he did not mention or, if he did, that Trump’s counsel chose not to address.

Interestingly, the New York Times published on April 30 an article titled “The Questions Mueller Wants to Ask Trump About Obstruction, and What They Mean.” As implied by the headline, the bulk of the questions dealt with possible obstruction of justice, and many of them tracked the areas outlined in the January letter, but there were more than a dozen questions under the heading “Campaign Coordination With Russia.” The current status of those questions is not known.

The January letter from Trump’s counsel made sweeping claims of presidential power:

It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.

The president’s lawyers, however, did not attempt to support that unprecedented claim with legal authority or legal analysis. Rather, they chose to focus on a narrower argument, citing a District of Columbia Circuit Court of Appeals decision, In re Sealed Case (Espy) which held that:

[T]hose seeking information from the President must “demonstrate with specificity why it is likely that the subpoenaed materials [here, his testimony] contain important evidence and why this evidence, or equivalent evidence, is not practically available from another source.

Seeking to show that the Special Counsel could not meet the Espy standard—claiming that there is really no need for the President’s testimony—counsel presented a rather lengthy factual argument to the effect that the President had done nothing illegal in his actions concerning Lt. Gen. Flynn and FBI Director Comey including the firing of Comey. I will not attempt a detailed critique of that argument, and readers may examine the letter and draw their own conclusions. Neither the letter nor the ensuing media commentary are likely to changed many minds among Trump supporters or critics.

For my own part, I doubt that a court would quash the Special Counsel’s subpoena simply by applying the Espy standard and finding the narrative of Trump’s lawyers persuasive. Nevertheless, there is another issue, not raised by Trump’s counsel or, so far as I am aware, other commentators. Both Espy and the seminal case of United States v. Nixon explicitly acknowledged the important public interest in preserving the confidentiality of presidential communications, and recognized a presumption that such communications are privileged from disclosure. The privilege expended to presidential communications would seem to apply a fortiori to presidential “reactions” In Nixon, however, the Supreme Court found that the privilege for presidential communications must yield to the overriding need for evidence in the then ongoing criminal trial of several of Nixon’s associates. (It may be noted that the tapes at issue in Nixon were ostensibly not sought for use against the president  in a criminal trial (to which it had been determined he was not subject), nor were they sought on behalf of the House Impeachment Committee. Thus, the impact of the tapes’ disclosure that caused Nixon’s resignation was, in a sense, collateral damage.)

In this case, there is no ongoing criminal trial as there was in Nixon. There is, however a pending grand jury investigation as there was in Espy, and Espy held that the Nixon standard applied equally to grand jury proceedings. The difficulty here is that Trump, unlike Espy, is not subject to criminal prosecution and therefore it may be questioned whether the grand jury has any real need for evidence of Trump’s knowledge, thoughts and motives at various junctures. Mueller could argue that, as in Nixon, Trump’s personal reactions could provide evidence against his associates, who could be indicted by the grand jury. Still the highly personal nature of the focus on Trump in Mueller’s questions may make that assertion somewhat tenuous.

Trump’s counsel did not discuss the ultimate purpose of the evidence sought by Mueller except to assume that it was for the confidential report called for by the statute and regulation under which Mueller was appointed:

It is our understanding that the reason behind the request for the interview is to allow the Special Counsel’s office to complete its report.

It is open to question whether courts would find the preparation of a report as compelling a reason for invading presidential privilege as were the pending criminal trial or grand jury investigation in Nixon and Espy.  After all, as Nelson Cunningham pointed out in the Washington Post, “A Mueller report may never see the light of day,” there is no legal requirement that the Special Counsel’s report be made public and there are various legal and political obstacles that might prevent its disclosure.

Given that uncertainty, and the potential for lengthy and politically divisive litigation, it is not clear whether Mueller will issue a subpoena if Trump refuses an interview. He might well conclude that it is not worth it. That is particularly true if he seeks to question Trump only about matters relating to a potential obstruction of justice charge. Such questioning might be quite important if Trump were to be tried in court before a jury (particularly in the District of Columbia), but a trial before the Senate is quite another matter. Given the reaction of the Trump base and Capitol Hill Republicans thus far, it is difficult to imagine any answer or combination of answers to Mueller’s questions that would move the needle very far.

In a court of law, Trump would be unlikely to prevail on his lawyers’ claim that a president cannot obstruct justice by firing the head of the FBI or otherwise interfering with an investigation, but among Senate Republicans that theory may well find  adherents. Similarly, in a court of law a case of perjury or obstruction of justice can be successfully prosecuted without proof of an underlying crime. (Just ask Scooter Libby.) In the Senate, however, a very different dynamic is likely apply. Put another way, the Senate would almost certainly fail to convict Trump of obstruction in the absence of convincing evidence of criminal activity that he was seeking to cover up.

The possibility of such evidence cannot be dismissed. It remains to be seen, for example, whether Michael Cohen and Paul Manafort, facing a lengthy prison term, should decide to take a plea and cooperate with Mueller. While it is difficult to imagine the consequences of such a development for Trump,  it would be a mistake to count on it happening

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