I asked a legal expert if the special counsel could make the president talk, and what Trump might say.
Photo of Robert Mueller via Getty. Photo illustration by Lia Kantrowitz
Despite a global brand as a reckless Twitter addict and loudmouth, Donald Trump has a history of behaving himself in formal legal settings. Before he was president, the real estate heir was deposed dozens of times, mostly in various lawsuits related to his businesses, which have been accused of discriminating against black people, screwing over renters, and stiffing contractors. When pressed to tell the truth under penalty of perjury in formal depositions, Trump has tended to provide something resembling it.
On Monday, the New York Times reported that most of the president's lawyers have advised him to rebuff requests from the special counsel's office for a sit-down interview as part of the ongoing investigation of Russian interference in the 2016 election. According to the paper, Trump's attorneys are nervous that—among other things—he might tell a lie if he got in a room with Mueller or his team, which is a federal crime when the FBI is involved. If Trump refused a request to chat, Mueller could issue a subpoena compelling him to testify under oath. Telling fibs in those circumstances would be perjury, a.k.a. an impeachable offense, as Bill Clinton could tell you.
According to the Times, the White House's legal braintrust doesn't think Mueller would actually risk taking the step of subpoenaing the president. That move could result in a court battle that might resemble the dispute from the Watergate era when Richard Nixon refused to fork over the tapes of his Oval Office conversations until the Supreme Court forced him to. Given he's already successfully convicted two Trump associates and is leaning on others, it's not hard to envision Mueller going for the jugular here. Just as Trump's lawyers might be kept up at night by the prospect of what he might say to investigators, Mueller may be licking his chops at the thought of even ten minutes in a room with the guy.
For some insight into how presidents have been compelled to testify in the past, what a Supreme Court ruling on a Trump subpoena might look like, and how the thorny question of his testimony is as much a political question as a legal one, I called up Noah Feldman, a legal historian at Harvard Law School. Here's what we talked about:
VICE: The analogy is often made between the Nixon tapes and Trump's possible testimony. Is that the best example we have of judges forcing a president to talk?
Noah Feldman: There are two relevant precedents. One is the Nixon tapes case, where the Court held that the interest of executive privilege didn't outweigh the interest of an ongoing criminal investigation. And the second is the Clinton-Paula Jones litigation, where the Court said, among other things, that it is well-settled that the president may be made subject to legal process. In that case, it was a civil suit, so even less pressing than a criminal [case]. The president nevertheless was subject to suit. Clinton himself did not make a legal objection to being asked to testify—he claimed that the suit altogether couldn't go forward against him while he was president. But once he lost that, he agreed to speak to [independent prosecutor] Kenneth Starr.
That raises another really fascinating issue, which is that historically, it would always have been said and it was said at the time of the Clinton investigation, that no president could afford as a political matter to refuse to testify on the grounds that he might be incriminating himself. That no president could take the Fifth because the political cost would be too high. And certainly that seems to have been Clinton's belief.
It seems important to note that in this administration, the question of what is too high a cost may have a different meaning.
Does the erosion of political and legal norms under Trump's watch mean that he could get away politically with pleading the Fifth?
It is of course more plausible than it would have been in the past that he could simply say, "I'm pleading the Fifth because I don't want to incriminate myself, but the real reason I'm doing this is not that I'm guilty"—which is what most people would think when someone pleads the Fifth—"but rather because this is an unfair investigation that's designed to be a witch hunt against me and is politicized." He and his lawyers must be trying to make the calculation of whether he can get away with that politically.
Presumably that calculation is also affected by his being a first-term president, unlike both Nixon and Clinton, no? It would be a remarkable statement about where we are in terms of our political culture that a first-term president might actually take that step.
The way I think of it is that every lawyer who's worth his salt would advise a client of the type of Donald Trump to take the Fifth. If you have a client and you don't know exactly what that client will say, you really don't want that client testifying under oath. So the president's personal lawyers would naturally advise him not to testify.
You would give that advice to many, many kinds of clients in many kinds of circumstances. The question is: Is a politician with a national audience who's the president of the United States like an ordinary defendant? And historically the answer has been no, because the cost is too high. But Trump got elected by changing the unwritten rules of the electoral game. Imagine you believe this investigation is a witch hunt by the deep state to try take down the president. In that situation, it might be perfectly justified to plead the Fifth.
Do defense lawyers ever tell their clients to talk to the FBI if they haven't been forced to, as a general rule?
There are circumstances where it's a good idea. If an investigation is in play and you are genuinely confident that your client is genuinely innocent, not only of these charges but of any other conduct, then you would, still under very limited circumstances, arrange something. And what you would probably do is ask the FBI for some kind of promise of immunity for what you said that day—they call it "clean for a day." And then, under those circumstances, you'd tell your accurate story, and with any luck, the FBI is like, "Good point, you're not guilty, we're letting you off the hook."
So sure, that can happen. But if you're in the midst of a complex investigation and people around you may have committed crimes and you don't know exactly what your client has or hasn't done, a wise lawyer would advise clients to keep his or her mouth shut.
Given the Supreme Court's makeup, if Trump refuses an interview request and then tries to rebuff a subpoena, do you think it's plausible that subpoena would be upheld by the Court?
Yes, it is plausible. I mean, there is precedent on point. And I think the justices will seek to follow precedent.
Despite the incredible politicization of the legal system?
I mean, look, the Supreme Court 9-0 said that the Paula Jones [sexual harassment] case could go forward. That was the same Court that then decided Bush v. Gore. There was no change of personnel between the time of the Paula Jones case and Bush v. Gore. So that was a Court that was deeply divided, and not on literally partisan but on quasi-partisan lines. And the Court in the Nixon case, which was also deeply divided on many issues, like Roe v. Wade, the same exact Court decided the Nixon tapes case 9-0. So when there's a conflict between the branches of government, the Court does have a strong impulse to speak with a single voice if it can.
From where you're sitting now, will this president testify to the special counsel—what is the most plausible outcome?
I believe it is much more probable than not that he will testify. But I could be wrong for the simple reason that he could agree to testify and then plead the Fifth on a whole range of issues. That is possible.
That brings us back to the political question: what can he get away with?
Yeah, it's a political judgment. Can he get political cover by claiming the investigation is too politicized. And, again, this is a president who breaks the unwritten rules. Under the unwritten rules, he'll end up testifying, and if he changes the unwritten rules sufficiently, he might not testify.
And he's already changed some of them.
For sure. We're in a very different world.
This interview has been edited and condensed for length and clarity.
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