For months, these columns have contended that, on the question whether President Trump should agree to a request by Special Counsel Robert Mueller III for an interview, the burden of persuasion has been imposed on the wrong party. That is, the president should not even be asked to submit to questioning at this point; the prosecutor must first establish that the president (1) is implicated in a serious crime and (2) has information or evidence that the prosecutor is unable to obtain from any other source.
That argument is bolstered by this weekend’s New York Times report that, with the president’s consent, Mueller’s team has conducted 30 hours of interviews with White House counsel Donald F. McGahn II. Having secured testimony from the president’s top lawyer, the special counsel is in no position to claim that he needs the president’s own testimony.
The president’s consent to make McGahn available to prosecutors is extraordinary, as it involves waiving both executive privilege and attorney–client privilege. As to the latter, some claim that there is no real waiver involved because McGahn purportedly represents “the presidency” in the abstract, not the actual incumbent. (The Times pushes this line, claiming that McGahn “viewed his role as protector of the presidency, not of Mr. Trump.”) This is nonsense. McGahn’s client is the president in the latter’s official capacity — in contrast to Trump’s private lawyers (Rudy Giuliani and Jay Sekulow).
Reportedly, the president consented to Mueller’s interview of McGhan at the urging of a legal team that, for the most part, has since been overhauled — John Dowd, who served (along with Sekulow) as Trump’s private counsel, and the now-retired Ty Cobb, who was brought into the White House Counsel’s Office (over McGahn’s objection, according to the Times) to manage the administration’s response to the investigation — a job taken over since Cobb’s retirement by Emmet Flood.
As we have noted several times, it seems certain that the special counsel is going to write a report that, even if it does not accuse the president of crimes, will be censorious regarding the president’s judgment and comportment. It is reasonable to assume that information from the extensive interviews with McGahn will be exploited for that purpose. I suspect the degree to which this will be the case is being overstated by pundits: Whatever color commentary the White House counsel may have added, it is hardly a secret, for example, that the Trump administration gave contradictory explanations for firing FBI director James Comey, that the president has pressured the attorney general to renounce his recusal, and that there is a constant Twitter stream of spleen-venting over the special counsel’s “witch hunt.”
Nevertheless, Washington being Washington, the finger-pointing has already begun: Was the waiver allowing McGahn to be interviewed — part of a strategy of complete transparency to try to resolve the Trump part of Mueller’s investigation — a bonehead move by the first legal team? Did McGahn have an independent ethical obligation to his client to be less than forthcoming, or did he have to answer all the questions once he was made available to answer any of the questions? Is the current legal team, by seeking to discredit Mueller’s inevitable report, motivating the prosecutor to make the report more damning?
I confess that I can’t get too whipped up about any of this. In the end, what’s at issue is the president’s behavior. The report will say what it says, and either it will be backed up by facts or it won’t. The lawyering may make a difference at the margins, but it’s unlikely to make or break the case.
It is more useful, then, to focus on how the McGahn interviews may have a meaningful impact on the investigation. That brings us to Mueller’s desire to interview Trump, currently expressed as a request but one that, if the president declines, could take the form of a coercive demand — i.e., a subpoena.
As noted above, the president has executive privilege, a confidentiality carapace recognized by the Supreme Court, covering communications with his advisers. Because Donald Trump is such a lightning rod, it is hard to discuss this topic without provoking cries of “Corruption!” . . . notwithstanding that Trump’s detractors had little to say when President Obama invoked his privilege to conceal executive-branch communications about the Justice Department’s “Fast and Furious” gun-walking scandal, and when it was quietly announced that Obama’s email exchanges with Secretary of State Clinton via the latter’s non-secure “homebrew” server system would be withheld from the public.
Still, if we take Trump out of the equation for a moment and focus on how privileges work, the stakes become easier to grasp.
It is simply a fact that the law does not require all important witnesses in criminal cases to testify if called upon. The central witness in any criminal case is the main suspect, whose testimony is never required under the Fifth Amendment privilege against self-incrimination. Similarly, spouses are not required to testify against one another, and the law generally protects communications between doctors and patients, priests and penitents, attorneys and clients, and so on. When such privileges are invoked, it does not matter that suppressed information is vital to the search for truth. Our law reflects society’s judgment that some concerns and relationships outweigh the legal system’s need for each person’s testimony.
As we’ve also noted, if Trump were a journalist rather than the president, everyone would understand that a prosecutor may not just willy-nilly issue a subpoena. Justice Department rules would require the prosecutor to establish both that a serious crime was under investigation and that the journalist had critical information for which there was no other source — and even then, the Justice Department might well instruct the prosecutor not to issue a subpoena.
Obviously, the president’s job is more consequential to our society — to our governance, to national security, to law enforcement — than that of any individual journalist. Therefore, the president should never be diverted from his responsibilities by the demands of a criminal investigation unless there are equally dire reasons. A prosecutor does not get an interview just because the president’s testimony might be relevant or interesting. It has to be make-or-break, in connection with a major offense.
Here, Mueller has not come close to satisfying these conditions — certainly not publicly. The McGahn interviews indicate that he could not do so.
To begin with, it does not appear that the president is implicated in a crime. He was repeatedly told that he was not a suspect in the “collusion with Russia” aspect of the investigation. As I’ve just outlined in another column about Mueller’s access to McGahn, the special counsel’s legal theory on the obstruction aspect of the investigation is dubious at best. It hinges on the idea that a president can be criminally liable for obstruction based on lawful acts — acts within the president’s constitutional prerogatives — that the prosecutor suspects may have been corruptly motivated.
I do not believe Mueller can make the showing that should be required before he gets to interview the president. At a minimum, though, the special counsel should be compelled to establish that his obstruction theory is sound. If there is no crime, there is nothing to discuss.
That aside, the McGahn interviews demonstrate that Mueller has no need for the president’s testimony.
Given the White House counsel’s intimate involvement in presidential decision-making, McGahn’s testimony gives the special counsel everything he could want from President Trump himself: solid evidence about what the president said and was thinking when the actions Mueller is probing were taken. According to the president’s private counsel, the White House made available to Mueller 37 witnesses and 1.4 million documents. Now we know that this extraordinary disclosure also included the president’s top lawyer, whose testimony Trump could lawfully have withheld.
Remember, the attorney–client privilege was the pretext by which the Obama Justice Department undermined the Clinton-emails caper. Mrs. Clinton insinuated lawyers in establishing the private server system over which she improperly conducted government business, and in vetting her emails — over 30,000 of which she deleted and attempted to destroy, falsely claiming they were all “private.” At every turn, investigators were blocked from critical lines of inquiry and evidence on the rationale that pursuing them could breach lawyer–client confidentiality.
In stark contrast, Trump waived his privileges and made his lawyer available for 30 hours of questioning. Consequently, the special counsel has already gotten far more information than he was entitled to regarding the president’s actions and state of mind. Bear in mind, due to the Fifth Amendment privilege against self-incrimination, it is very common for prosecutors to complete investigations and make charging decisions without interviewing the principal subject of the investigation. And the prosecutor almost never gets to interview the subject’s lawyer.
Plainly, the special counsel has all the information he needs to write his report. The president could well decide to consent to Mueller’s request for an interview. As we’ve observed, there would be risk in doing so; the president would be well advised to decline unless, at a minimum, Mueller discloses whether he regards the president as a criminal suspect and, if so, of what crime and on what basis. But the prospect of a subpoena should be off the table. The special counsel does not need the president’s testimony in order to complete his work.