Law & the Courts

Why All the Secrecy?

Deputy Attorney General Rod Rosenstein testifies before the House Judiciary Committee, December 13, 2017. (Joshua Roberts/Reuters)
It’s time to level with the public about the basis for Mueller’s investigation.

‘How do you know Trump’s not a suspect?”

I’ve been hearing that question a lot these days. News reports indicate that Special Counsel Robert Mueller may try to coerce President Trump’s testimony by issuing a grand-jury subpoena if the president does not agree to a “voluntary” interview. That has sparked a public debate over the question of whether Mueller, an inferior executive officer, has such authority to strong-arm the chief executive — the official in whom the Constitution reposes all executive power, including the power that Mueller exercises only as long as the president permits it.

I don’t think he does.

To be clear, there is no question that Mueller, as a special counsel, is a federal prosecutor who has the authority to issue grand-jury subpoenas. But everyone who works in the Justice Department has a boss, including the attorney general (who answers to the president). As special counsel, Mueller answers to Deputy Attorney General Rod Rosenstein (because Attorney General Jeff Sessions recused himself from the so-called Russia investigation). That means Mueller has the authority to issue a subpoena to the president unless Rosenstein — or the president — tells him not to.

Before we come to whether the deputy AG should clip the special counsel’s wings, let’s address one point of confusion.

Many people believe, as I do, that the president should not be subjected to questioning by a prosecutor on the facts as we presently know them. From that premise, however, they argue that Mueller may not subpoena the president, or that the president may ignore any subpoena. Neither of those things is true.

A prosecutor has the power to subpoena virtually anyone. In our system, there are very few limits on what the grand jury may investigate. A comparison usefully illustrates this point. I’ve frequently observed that by appointing Mueller without first establishing a basis to believe a crime warranting investigation had been committed, Rosenstein violated regulations that govern special-counsel appointments. By contrast, the grand jury has no such constraints — it can investigate pretty much anything. There is no proof hurdle — such as “probable cause” or “reasonable suspicion” — that has to be surmounted. In fact, a grand jury is free to investigate even if it just wants to satisfy itself that a crime has not been committed.

So a prosecutor who is using the grand jury has sweeping investigative authority. That includes broad subpoena power. There is a big difference, however, between the power to issue a subpoena to a person and the power to make that person testify.

Our law extends various privileges that relieve the privilege-holder of the obligation to provide evidence. Best known is the privilege against self-incrimination — a person never has to testify against himself. But there are many others: husband-wife, lawyer-client, doctor-patient, priest-penitent, and so on.

So sure, a prosecutor can issue a subpoena requiring a witness (including a witness who may be a subject or target of the investigation) to appear before the grand jury. But that does not necessarily mean the witness must testify. If the witness has a privilege that would be infringed by the prosecutor’s questions, the witness may refuse to answer.

Of course, a prosecutor is not going to issue a subpoena or otherwise try to coerce the testimony of a witness the prosecutor knows is going to assert a valid privilege. Similarly, a person who has a valid privilege knows a subpoena cannot force him to testify. These practical realities understandably cause non-lawyers to assume that the prosecutor is probably not allowed to issue the subpoena, or that the recipient’s privilege means he can ignore the subpoena. Not so. Technically, the prosecutor has the authority to issue the subpoena, even if it is futile; and a witness may not lawfully ignore the subpoena — that would be contempt of court (since a subpoena is basically a court order to appear).

Bottom line: The question is not whether a prosecutor has the power to issue a subpoena. It is whether the person he wants to subpoena has a privilege that would allow him to refuse to testify.

Now, why does our law grant such privileges? Because we recognize that in a society based on ordered liberty, some things are simply more important than the search for truth in a criminal investigation. Some security considerations; some fundamental human relationships; some needs to promote exchanges of information that, in turn, promote the functioning of a free society — these priorities can and often do outweigh a prosecutor’s desire to gather evidence relevant to an investigation.

I dealt with this in national-security cases. Let’s say the FBI has an informant who has infiltrated a terrorist cell and is giving the government information that helps us prevent terrorist attacks. A prosecutor at the Justice Department says we now need to indict some of the terrorists in the cell; the FBI counters that if we indict the terrorists, we will have to identify the informant and we will lose this vital source of life-saving information. If the officials who run the Justice Department agree with the FBI, that does not mean they believe terrorism prosecutions are unimportant; it means they prioritize security, so the need to prosecute has to take a back seat to other vital concerns.

The president’s job is more critical to the nation than Robert Mueller’s investigation. That does not mean Mueller’s investigation is insignificant; it is crucial that we fully uncover Russia’s interference in the 2016 election (the aim of the counterintelligence investigation Mueller was assigned to conduct) so that we can thwart the Kremlin in the future. But it does mean that Mueller’s desire for investigative secrecy and the ability to interview every witness who might have relevant evidence has to give way to other priorities.

As we observed here a few days ago, while the president’s awesome responsibilities for American governance and national-security are more significant than any criminal investigation, the president is not above the law. Thus, there are circumstances in which it is reasonable to burden the president to comply with investigative demands. But those circumstances must be narrow.

This is precisely why the courts have recognized “executive privilege,” a qualified privilege that enables a president to shield information unless a prosecutor can demonstrate that its disclosure is critical to an investigation. Given that the president is the chief executive and can fire federal prosecutors at will, it is not clear how a prosecutor would have authority to oppose a presidential assertion of privilege. But the upshot is obvious: A prosecutor should not be permitted to seek information from a president unless there is evidence of a serious crime in which the president is implicated, and there is no alternative source from which the prosecutor could obtain the information sought.

This is certainly clear enough to the Justice Department when, as sometimes happens, a defendant in a trial attempts to subpoena some top government official on the theory that the official might have relevant information. The Justice Department routinely fights off these efforts, arguing that there is no basis to burden these officials in the absence of proof that the testimony sought is critically important to the case and there is no alternative source from which the information can be elicited.

This makes perfect sense. If there were any other rule, these officials would be unable to perform the responsibilities of their public offices — responsibilities that are more vital to the nation than the case in question. And plainly, no other government official’s responsibilities compare to the importance of the president’s.

There are thus very good reasons why Deputy Attorney General Rosenstein should step in and prevent Special Counsel Mueller from seeking to question the president. But I want to leave you with a different thought. How are we supposed to grapple with whether the president should be compelled to testify when we don’t know what Mueller is alleging? What crime does Mueller want to ask the president about? And if there isn’t one, why are we even talking about an interview, let alone a subpoena?

Yes, all prosecutors want to maintain investigative secrecy. In the vast majority of cases, the enforcement of the law after a serious crime has been committed outweighs other concerns; secrecy enables prosecutors to investigate without smearing innocent people, so we respect the need for it. But secrecy is not an absolute requirement; it must give way when outweighed by other considerations.

Can anyone conceivably contend that a prosecutor’s desire to maintain secrecy until the prosecutor is good and ready to reveal details of his investigation is more important to our society than the damage caused by potentially unfounded suspicion that the president is a criminal?

It has become ludicrous. The question of whether a prosecutor should be permitted to interview a president hinges on whether the president is a suspect. There is no public evidence that President Trump is. This raises the patent objection that he should not be asked to be interviewed under those circumstances. What we hear in response is, “How do you know he’s not a suspect?” But the reason we don’t know — other than the lack of evidence after two years — is that Mueller won’t deign to tell us, and Rosenstein won’t deign to comply, publicly, with regulations that required him to outline the basis for a criminal investigation.

The president should direct Rosenstein to outline, publicly and in detail, the good-faith basis for a criminal investigation arising out of Russia’s interference in the election — if there is one.

That is not acceptable. In every other independent-prosecutor investigation in modern history — Watergate, Iran-Contra, Whitewater/Lewinsky — the president and the public have known exactly what was alleged. The prosecutor was able to investigate with all the secrecy the law allows, but under circumstances in which we all understood what was being investigated and why the president was suspected of wrongdoing.

After two years, we are entitled to nothing less. The president should direct Rosenstein to outline, publicly and in detail, the good-faith basis for a criminal investigation arising out of Russia’s interference in the election — if there is one. If he can’t, Mueller’s criminal investigation should be terminated; if he can, Mueller should be compelled to explain (unless Rosenstein’s disclosure makes it clear) why he needs to interview President Trump in order to complete his work.

If Rosenstein and Mueller are reluctant to do that, it can only be because they’ve decided that not only their investigation but also their desire for secrecy take precedence over every other consideration, including the president’s capacity to govern domestically and conduct foreign policy in a dangerous world. But secrecy is not the nation’s top priority. It’s long past time to lay the cards on the table.


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