Trump and Mueller charicature
© Thomas Fluharty
Can special counsel Robert Mueller require President Trump to testify before a grand jury? It would be unprecedented, and his effort to do so could lead to a major constitutional confrontation.

The president could, of course, resist a grand jury subpoena by asserting his right under the Fifth Amendment not to be a witness against himself. However, for political reasons, he may not wish to do that. And he may not need to.

Another off-ramp for the president, which he may choose not to take, is to remove the special counsel. Mueller is an appointee of the Department of Justice, part of the executive branch. He is therefore a subordinate of the president. Trump might have to jump through some hoops to remove him-such as removing the deputy attorney general who selected Mueller - but he has the power to do so. If, that is, he's willing to withstand the public outcry and demands for impeachment that would surely follow. Legislative measures, such as those already introduced in Congress, to shackle or impede the president's power to remove the special counsel are almost surely unconstitutional. So the president could avoid a grand jury subpoena by removing the official who is threatening to obtain one. But this is another step with potentially grave political implications that he may not wish to risk.

The president is not "above the law"; there are many court decisions saying so. But the Constitution is part of the law, and it makes the president the sole repository of the executive power of the United States. He is therefore not just like any other citizen.

As things now stand, Mueller has not made, or even attempted to make, a record to explain why he would be justified in invoking the power of the judiciary to compel the president to show up before a grand jury - without a lawyer - and answer whatever questions Mueller and his army of prosecutors may put to him.

Two Supreme Court decisions have been cited by some commentators as precedents authorizing compulsive judicial authority to force a president to testify before a grand jury. But neither case goes nearly that far. Indeed, both decisions are explicitly limited to the unique circumstances that gave rise to them.

In the 1974 case of United States v. Nixon, the Supreme Court held that the president does not possess an absolute, unqualified presidential privilege of immunity from judicial process in all circumstances. The Court required President Nixon to produce records and tapes relating to certain conversations between the president and others pertaining to specific alleged criminal acts. The Court held that the deference ordinarily accorded to the president must in the circumstances presented yield to the prosecutor's demonstrated specific need for particularized evidence in a criminal case. But, quoting Chief Justice John Marshall, sitting as a trial judge in the Aaron Burr treason case in 1807, the Nixon Court went on to emphasize, "In no case . . . would a court be required to proceed against the president as against an ordinary individual." His conduct was to be treated as presumptively privileged, and forcing his compliance with a subpoena - in that case to produce records - was justified by the need for the defendant (Burr) to have the documents to defend himself.

The other precedent, Clinton v. Jones in 1997, was a civil suit charging that President Bill Clinton, when he was governor of Arkansas, had made offensive sexual overtures to Paula Jones and that she experienced retaliatory measures from her state-government employer for rejecting Clinton's advances. The Court held that the president was not immune during his presidency from suit for civil damages for actions allegedly taken by him prior to his presidency. It did not hold that a court could compel his attendance to give testimony at any specific time and place, just that he was not entitled to put the case on hold during his presidency.

Clinton did appear before a grand jury in the Kenneth Starr special counsel investigation, but he consented to doing so. Therefore, neither of the Clinton incidents supports the proposition that a grand jury subpoena could force Trump to appear.

The collective significance of the Supreme Court's opinion in the Nixon case and Chief Justice Marshall's conclusions in the Burr trial is that in a criminal case, constitutional imperatives might require a president to submit to compulsory judicial process. A defendant in a criminal case has a constitutional right to confront the evidence against him and must be able to command production of that evidence, even if it is in the hands of the president.

On the other hand, a prosecutor also has a strong claim to evidence essential to the enforcement of criminal statutes. While the president's presumptive privilege against compulsive testimony would be entitled to considerable deference, that claim could be overcome if the prosecutor makes a strong showing that he must have specific essential evidence that is not procurable from other sources and that he is not simply engaged in a fishing expedition.

As things currently stand, Mueller has made no application to a court for a subpoena to the president based on showing a need for specific evidence essential to his prosecution and not available from other sources. News sources have published a long list of subjects said to be of interest to the special counsel, but these subjects, if they are, indeed, coming from Mueller's office, are in many cases vague, open-ended and highly generalized-all the earmarks of casting a very wide net to see what might be snared. He's going to have to do better than that - the usual open-ended general subpoenas won't work.

One might imagine based on news reports that Mueller has made or will make a formal request for face-to-face testimony by the president. If so, the president's lawyers might conceivably advise Trump not to agree to anything like that unless accompanied by a specific commitment from Mueller that the interview would be short, limited, intended simply to wrap up loose ends, part of the process necessary to conclude his investigation, and not intended to be used as a basis for gathering incriminating evidence. Mueller, presumably, would not be inclined to make any such commitments. He may, at that point, proceed with a grand jury subpoena.

Acting on the advice of his lawyers, the president could refuse to comply with the subpoena. Mueller could then go to the court seeking an order compelling compliance with the subpoena accompanied by a threat that the president would be held to be in contempt of court if he continued to refuse.

At this point, the judge would probably require Mueller to show precisely what he wants from the president, why he needs it, why he cannot get the evidence elsewhere, and the importance of that evidence to a specific prosecution. Mueller would have to be highly specific and show that his need for the president's testimony as a witness-not for the purpose of discovery-was necessary to prosecute specific criminal acts. If the court was convinced by the Mueller showing, it could order the president to comply. And that decision could be appealed by the president to the Supreme Court.

If the Supreme Court affirmed an order compelling the president's testimony, President Trump and his lawyers could then decide whether to cooperate, compromise in some fashion, submit to the grand jury, refuse to testify based on his Fifth Amendment rights, or simply refuse and prepare for an impeachment battle.

The importance of all this to the president is that it is unlikely that he can be forced to give grand jury testimony simply to satisfy Mueller's curiosity and submit to a potential perjury trap. He could, in short, put Mueller to his proof - make Mueller show that the president's testimony was necessary to prosecute someone else. And that such evidence could not be obtained elsewhere. That is a high bar, indeed, and one that at this point Mueller has not shown he would be able to surmount.