Trump Can't Count on the Supreme Court to Save Him from Mueller

The president seems to think partisan judges are his secret weapon in the Russia investigation. An expert told us why that's wrong.

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Aug 7 2018, 9:00pm

Left Photo by SAUL LOEB/AFP/Getty Images. Right Photo by 

If you were alive and even vaguely sentient in the year 2000, you probably remember the Supreme Court voting along strict ideological lines to hand the presidency to George W. Bush. Bumper stickers mourning that momentous occasion are still out there, perched on Volvos owned by latte-sipping, yoga-practicing Baby Boomers and others who couldn't—still can't—make sense of the country's top judges seeming to bend the legal system to bitter partisan ends. But if the Bush presidency was a liberal's nightmare, Donald Trump's has quickly emerged as the even more horrifying sequel, and the Mueller investigation of possible collusion between Trump's campaign and Russia could end up in front of that gaggle of black-robed ultimate arbiters sooner than you think.



While Mueller's mandate was originally to explore election meddling in 2016, he has since dug into whether Trump may have committed the crime of obstruction of justice, deliberately protecting himself or others from law enforcement. Two episodes of special interest to Mueller include Trump allegedly asking then-FBI Director James Comey to go easy on disgraced National Security Advisor Michael Flynn, and the president's subsequent firing of Comey, which he admitted on TV was sparked by "this Russia thing." (There are others.) As the Washington Post reports, negotiations between Trump's legal team and Mueller over the president being personally interviewed about all of that have been stuck for several months now. The president's lawyers have long been determined he not get in a room with Mueller, reportedly fearing he might incriminate himself. But Trump has been just as dogged about going ahead and clearing his name.

Now, according to the Post, Trump's top lawyer Rudy Giuliani is close to refusing a meaningful interview with his client, telling the paper, "We have a real reluctance about allowing any questions about obstruction." If they ultimately decline to cooperate, Mueller would have to decide whether to actually issue Trump a subpoena to make him talk—as he reportedly teased he might months ago—or else settle for an interview that focuses more narrowly on Trump's campaign and leaves out obstruction entirely. If Mueller does go the subpoena route, another of Trump's lawyers suggested this weekend, "It would go to the Supreme Court"—which is to say he would fight it, probably by invoking executive privilege. As Greg Sargent notes, that brings a new nightmare scenario for liberals—where Republicans secure the pivotal vote to protect Trump from Mueller's subpoena by confirming his nominee, Brett Kavanaugh, to the Court—into focus.

But how likely is a Trump subpoena to actually end up before the Supreme Court? Would justices really come down along strict party lines, as they did in Bush v. Gore, to decide whether he had to honor it? And if Trump's camp thinks Kavanaugh—a former George W. Bush administration attorney—would swoop in to save them, are they right? For answers to those questions and more, I called up Ciara Torres-Spelliscy, a law professor at Stetson University and constitutional expert.

VICE: Generally speaking, does the back and forth between Trump's legal team and Robert Mueller over the president possibly being interviewed—and what that might look like—strike you as normal lawyer stuff, normal legal maneuvering, or something a bit stranger?
Ciara Torres-Spelliscy: Oh man, I feel like we are so far from normal legal maneuvering, it's not even funny. This is nervous laughter, not ha-ha laughter. I think every white-collar defense lawyer would try to protect their clients in every legal way that one could. So the gamut, from trying to quash subpoenas, arguing in court, filing motions—I think the tactics from a good defense attorney are: no easy baskets for the prosecutor. So that means, especially if you have resources, contesting everything.

What is peculiar about what Rudy Giuliani has been doing on television is he often makes admissions that are against his client's interests, which is a very peculiar way of trying to deal with what are very grave circumstances—potentially—for the president.

Right, and along with Giuliani's statements not necessarily being helpful to him, the president himself, of course, often seems to hamper his own cause. Like when he admitted this weekend that the purpose of the infamous meeting between his son, top campaign aides, and a Kremlin-connected lawyer was in fact to discuss dirt on his opponent, Hillary Clinton. Does that put him in greater jeopardy, as his advisors are said to fear?
Yes. The fact that the former candidate—Mr. Trump—has admitted that the purpose of the June 2016 Trump Tower meeting with the Russians was to, quote, get dirt on Hillary Clinton, that could run afoul of a longstanding prohibition on American federal campaigns receiving anything of value from a foreigner. And, I should add, the penalties for doing so are worse if the foreigner is a foreign government! So to the extent you can link back the Russians who showed up at Trump tower to Moscow, the potential liability is magnified.

Got it. Meanwhile, it seems increasingly plausible—given what the president's own lawyers are saying—that he might be issued a subpoena to compel his testimony about possible obstruction of justice. His lawyers have also suggested there's no real precedent for compelling his criminal testimony directly. Is that actually true?
I think that's correct. [But] the precedent is not on President Trump's side. On the one hand, you have the Bill Clinton case, which was a civil case, where he had made the argument—which maybe in retrospect should have been given a little bit more credence—his basic argument was: I'm the leader of the free world, it would be every distracting if i had to sit for civil suits while I am president. And that was rejected unanimously by the Supreme Court. They said: Make the time.

So that precedent goes against all of the machinations by Trump and his lawyers—the argument that "I can't do it because I'm so busy as president"—that has been tried and failed. And because we are in a potential criminal context here, the Nixon case where he cleverly bugged himself in the White House [also has some relevance]. And again, it goes up to the Supreme Court and unanimously they said: Yes, in a criminal case, the executive power must yield to the truth in a criminal prosecution.

So I think between the Clinton case and the Nixon case, the precedent is just not on Trump's side. And I would just suspect that this may not actually get all the way up to the Supreme Court, because the Supreme Court has control over their own docket. You need four justices to grant [review of a case] and I feel like Chief Justice Roberts wants a fight over a Trump subpoena like he needs a new hole in his head. They may avoid it. The appellate court is bound by the Clinton and Nixon precedent, so I assume what most sensible appellate courts will do is say, "Sorry you're busy, but there's this ongoing criminal process that needs your testimony, Mr President. You're going to have to sit, you're going to have to honor the subpoena."

Sure, though the judiciary has become more partisan over the years and Trump has already shaped the lower courts and Supreme Court—with Neil Gorsuch—right? I mean, how do you see the current court ruling on whether Trump has to honor a subpoena and answer questions about obstruction of justice?
I would predict, because of that controlling precedent of Clinton and Nixon, that the Court—and it might not be unanimous the way those previous cases were—that especially in the context of a criminal proceeding, that the president must testify. And part of that just goes to precepts of the rule of law, that no one is above the law, even the president of the United States.

But with Brett Kavanaugh's nomination looming, where do you see him coming down on this and potentially changing the calculus? There's speculation out there that he might have been chosen for that very reason—as an insurance policy for Trump.
He is only one vote. So even if he ends up as one vote in favor of quashing the Mueller subpoena of President Trump—should one exist in the future—there are still eight other justices who I think do not share that view of the presidency or the rule of law. He might find himself quite alone in that particular viewpoint.

Even Nixon's own appointees voted against him once they were on the Supreme Court, on the question of producing the tapes. So it's entirely possible that people who criticize Judge Kavanaugh and fear the worst about him are actually being unfair to him as a jurist. It's entirely plausible that he would go with the rest of the group and say, "No man is above the law, including the president. He has to sit for the interview."

The president's lawyers seem to be behaving as if they think SCOTUS will protect them, though, right?
I've been deeply puzzled by several of the positions that the Trump legal team has taken during the course of the investigation. One of their stances early on was there was no possible crime in the Trump Tower meeting from June 2016, when that was sort of demonstrably false.

If they are predicting that the Supreme Court, however constituted, would quash a subpoena of President Trump, they're being foolhardily optimistic.

This interview has been lightly edited and condensed for clarity. Sign up for our newsletter to get the best of VICE delivered to your inbox daily.

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