Will Señor Trumpanzee Fight To The Death-- Or Even Start A Civil War?

Steve Vladeck, Benjamin Wittes of Lawfare looked into the reality of Mueller being able to subpoena Señor Trumpanzee since it doesn't look like he's going to come voluntarily. This is, clearly, a fully criminalized presidency-- a kakistocracy that doesn't buy into the idea that no man is above the law. Trump and his rotten regime are absolutely willing to undermine every American institution to save his worthless hide.

The possibility that Special Counsel Robert Mueller might issue a subpoena to President Trump to compel him to testify before a federal grand jury has, understandably, provoked questions: Can the President be forced to testify if he refuses to give Mueller an interview voluntarily? What has the Supreme Court said on the subject? And if the staring match between Team Trump and Team Mueller becomes litigation, who is likely to win?

The bottom line, in our view, is that Mueller would probably prevail if and when a battle over a grand-jury subpoena makes its way into court. But it is not a sure thing, and the president has plausible arguments available to him that a court would have to work through before enforcing a subpoena for his testimony.

By far the most important precedent here is United States v. Nixon-- the landmark 1974 Supreme Court decision in which an 8-0 court held that President Nixon could be forced to comply with a subpoena to produce some of the previously undisclosed “Watergate tapes” to Special Prosecutor Leon Jaworski. Jaworksi sought to use the tapes as evidence in the criminal case against the so-called “Watergate seven” (a case in which Nixon himself was an unindicted co-conspirator).

...That analytical framework treats the validity of the subpoena on its face as a separate question from whether the president might have a case-specific reason to seek to quash it. Thus, Part III of Chief Justice Warren Burger’s opinion for the court focused solely on whether the subpoena was facially valid-- an analysis that turned on the three requirements of Rule 17(c) of the Federal Rules of Criminal Procedure, i.e., that the subpoena seek specific, relevant, and admissible evidence from the recipient. As the court explained, “where a subpoena is directed to a President of the United States,” courts, “in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied.” But if those standards were met, the fact that the recipient was the President of the United States was not, on its face, a reason to quash the subpoena.

Instead, in Part IV of the opinion, the court turned to whether the president could invoke a specific defense against enforcement. And although the court agreed with President Nixon that the Constitution recognizes an “executive privilege” against disclosure of confidential, internal executive branch communications, it nevertheless held that such a privilege was not absolute. Instead, the court famously concluded that the privilege was overcome in Nixon’s case by “the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Given that the party requesting the evidence in Nixon was the prosecutor, not the defendant, this holding necessarily took a rather dim view of the strength of an executive privilege claim in the face of a valid subpoena.

The rest, of course, was history. President Nixon ended up complying with the subpoena and turning over the tapes--which sealed his political fate. Just over two weeks after the Supreme Court ruled, Nixon resigned to ward off his near-certain impeachment and removal.

The subpoena Mueller would issue here differs in a potentially important respect from the one at issue in Nixon. The most important difference is that a Mueller subpoena would demand not material like the tapes or documents for use at a trial, but testimony from the president before a grand jury. That is, it would be a subpoena for the president to personally appear and give testimony, as opposed to produce documentary evidence. And it would be testimony at an earlier stage in the proceedings-- before the grand jury, rather than subsequent to the return of a grand jury indictment.

Would Señor T take the 5th?



Or maybe he can bitch and moan that they're dragging away from his golfing and gossiping with his cronies, which is basically all he does all day. Wettes and Vladeck don't think any of this crap will work since it sounds "suspiciously like the one the court rejected unanimously in Clinton v. Jones, in which the court concluded that a sitting president is not absolutely immune from civil litigation for conduct that took place before he became president. Bill Clinton, in that case, argued that forcing a sitting president to answer a civil complaint would unduly distract him from his duties as president." Trump could still "refuse to comply with a subpoena even after it has been upheld by the Supreme Court. As the story goes, President Nixon seriously contemplated such a course after the Supreme Court ruled against him in July 1974. In such a circumstance, the ultimate question would not be up to the courts, but rather to Congress. Nixon eventually concluded that defying the Supreme Court would only hasten his impeachment."

Whatever else may be said about the law and politics of such a confrontation, Wettes and Vladeck conclude their essay writing that they hope none of us ever have to find out whether Trumpanzee would see things that way. I bet he would, though, and that nothing could impede him, especially not the sense of history and patriotism that eventually stopped Nixon in his tracks.