Can the president be indicted or subpoenaed?

Many readers may find this debate hard to follow, and the diversity of opinions on news pages and TV shows hardly helps. Here’s Giuliani in an interview with CNN:

“All they get to do is write a report,” Giuliani said of Mueller and his team on May 16. “They can’t indict. At least they acknowledged that to us after some battling.”

Here’s Giuliani in an interview with The Washington Post, also on May 16:

“He didn’t seem to want to give the answer,” Giuliani said of Mueller. During a meeting between the Trump and Mueller teams, it was left as an “open question” whether the president could be indicted, according to Giuliani.

The Washington Post added that, according to Giuliani, “a deputy to Mueller followed up a few days later in a phone call to clarify that the special counsel plans to follow the Justice Department guidelines”; those guidelines say a sitting president can be impeached but not indicted.

Rep. Joaquín Castro (D-Tex.) told CNN on May 17 that Mueller “could actually get an exemption to not indicting the president” — in other words, an exemption from the Department of Justice guidelines Giuliani referenced.

Peter Carr, a spokesman for the special counsel’s office, declined to comment in response to our questions whether the president could be indicted or subpoenaed to testify. The White House did not respond to the same questions.

Let’s assume Mueller obtained an indictment of the president or a subpoena for the president to testify before a grand jury. Trump would be able to appeal the indictment or subpoena all the way to the Supreme Court.

The justices have never said whether the president can be indicted, nor whether the president can be subpoenaed for testimony. Only the Supreme Court can answer these constitutional questions definitively. The justices ruled in 1974 that President Richard Nixon could be subpoenaed for documents and tape recordings, but different legal standards apply for a subpoena seeking a witness’s live testimony before a grand jury.

We have no way to settle this debate, we take no position on the right answers to these questions, and we won’t be awarding Pinocchios. As a service to readers, we’re going to lay out several Justice Department memos and court opinions that Mueller or the Supreme Court may choose to rely on in the future, along with some historical context.

The Facts

Trump’s legal team and the special counsel’s office have been in negotiations over the terms of a potential interview of the president, according to reporting by The Washington Post and others. In a meeting in early March between the two sides, “Mueller said he could issue a subpoena for the president to appear before a grand jury,” according to four people familiar with the encounter who spoke to The Washington Post.

Mueller’s investigation into Russian interference in the U.S. presidential election in 2016 and related issues began in May 2017.  An order signed by Rod J. Rosenstein, the acting attorney general for all matters pertaining to the Mueller investigation, says, “If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.”

This language notwithstanding, Mueller’s team purportedly told Giuliani that “they have to follow the Justice Department rules.” Giuliani told CNN:

“The Justice Department memos going back to before Nixon say that you cannot indict a sitting president, you have to impeach him. Now there was a little time in which there was some dispute about that, but they acknowledged to us orally that they understand that they can’t violate the Justice Department rules.

“We think it’s bigger than that. We think it’s a constitutional rule, but I don’t think you’re ever going to confront that because nobody’s ever going to indict a sitting president. So, what does that leave them with? That leaves them with writing a report.”

Depending on the content of such a report (if it were written), Congress could decide to impeach or not impeach the president. The Constitution allows Congress to consider impeachment of the president regardless of whether the special counsel, or anyone, issues a report.

Indictment

The Justice Department memos Giuliani referenced were written during the Nixon and Bill Clinton administrations, amid the Watergate and Monica Lewinsky scandals.

The first memo, “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While in Office,” was produced by the Justice Department’s Office of Legal Counsel in September 1973.

“The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination,” it reads.

The Office of Legal Counsel noted that the Constitution specifically provides some immunity from prosecution to lawmakers but says nothing about the president being immune.

However, the Office of Legal Counsel concluded that the president’s powers and responsibilities were so vast and important that an indictment would pose too many risks to the proper functioning of government. Here are two key passages:

“A necessity to defend a criminal trial and to attend court in connection with it … would interfere with the President’s unique official duties, most of which cannot be performed by anyone else. It might be suggested that the same is true with the defense of impeachment proceedings; but this is a risk expressly contemplated by the Constitution, and is a necessary incident of the impeachment process. The Constitutional Convention was aware of this problem but rejected a proposal that the President should be suspended upon impeachment by the House until acquitted by the Senate. …

“To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs. It is not to be forgotten that the modern Presidency, under whatever party, has had to assume a leadership role undreamed of in the eighteenth and early nineteenth centuries.”

The author, then-Assistant Attorney General Robert G. Dixon Jr., flagged some other quirks: Unlike other defendants, the president could invoke executive privilege and has the pardon power.

In 2000, the Office of Legal Counsel revisited the indictment question after Clinton’s experience with scandal. This OLC memo restated the Justice Department’s view that the text of the Constitution does not give the president express immunity from prosecution but that the powers of the presidency are so vast and important as to bar the indictment of a sitting chief executive. (An indictment or jury verdict would have a “dramatically destabilizing effect,” the author, then-Assistant Attorney General Randolph D. Moss, wrote.)

Legal developments between 1973 and 2000 did not change this conclusion, Moss wrote. “No court has addressed this question directly, but … our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution,” the memo reads.

The Justice Department regulations governing the appointment of a special counsel says he or she “shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice” — but there’s an exception for “extraordinary circumstances.”

In those cases, the special counsel would have to consult directly with the attorney general. Since Attorney General Jeff Sessions is recused from the Russia investigation, this means Mueller would have to consult with Rosenstein if he encountered “extraordinary circumstances” that prevented him from following the Justice Department’s “rules, regulations, procedures, practices [or] policies.”

This is the exception Castro pointed to on CNN.

So, what does Rosenstein have to say about all this? Not a thing.

“I’m not going to answer this in the context of any current matters, so you shouldn’t draw any inference about it,” Rosenstein said in a Freedom Forum interview May 1. “But the Department of Justice has in the past, when the issue arose, has opined that a sitting president cannot be indicted. There’s been a lot of speculation in the media about this. I just don’t have anything more to say about it.”

The Supreme Court has never weighed in on this question directly. In United States v. Nixon, a 1974 decision, the court ruled that “neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

In Nixon v. Fitzgerald, a 1982 decision, the court ruled that the president had immunity from civil lawsuits arising from his actions in office. But in Clinton v. Jones, a 1997 decision, the justices ruled that the president enjoyed no immunity from civil suits arising from his conduct while he was not in office.

Bob Bauer, who was White House counsel to President Barack Obama, has questioned the logic of the OLC opinions from 1973 and 2000. A “damning” conclusion in a report by the special counsel could jeopardize the president’s ability to run the government as much as an indictment could, Bauer argued, so the dire scenario the OLC opinions warn about could come to pass anyway.

The OLC memo from 2000 says that “notwithstanding Clinton’s conclusion that civil litigation regarding the President’s unofficial conduct would not unduly interfere with his ability to perform his constitutionally assigned functions, we believe that Clinton and the other cases do not undermine our earlier conclusion that the burdens of criminal litigation would be so intrusive as to violate the separation of powers.”

Subpoena

Leaving aside the hypothetical indictment, the debate over whether the president can be subpoenaed to testify before a grand jury is its own thorny legal thicket. Prosecutors often seek to bring before a grand jury witnesses whom they do not necessarily deem to be suspects. Mueller told attorneys for the president in March that Trump was a subject and not a target of his investigation, The Washington Post’s Carol D. Leonnig and Robert Costa reported.

As we noted, The Post also has reported that Mueller said at a meeting in March that a subpoena for Trump to testify before a grand jury would be valid. Begging to differ, Giuliani said in an interview with Sean Hannity of Fox News that it was “pretty clear that a president can’t be subpoenaed to a criminal proceeding about him.”

There’s a long history to this question, stretching to the earliest days of the republic. Chief Justice John Marshall, one of the architects of the separation of powers doctrine in the United States, at various times held different views on whether judges could issue subpoenas to the president, according to the 1973 OLC memo.

The first case in which this came up was Aaron Burr’s treason trial. Marshall, sitting as a trial judge in 1807, “at first concluded that since the President is the first magistrate of the United States, and not a King who can do no wrong, he was subject to the judicial subpoena power,” according to the OLC memo.

This particular subpoena went to President Thomas Jefferson, compelling him to testify in court in Richmond. Jefferson decided not to go, claiming he was too busy running the government, but he submitted documents and offered to give testimony in Washington. And that was that.

Months later, Marshall seemed to revise his thinking and said courts were not “required to proceed against the President as against an ordinary individual.” In an 1838 decision, Kendall v. United States ex rel. Stokes, the Supreme Court took an even narrower view of the judiciary’s power concerning the president, according to the OLC memo.

“The executive power is vested in a president; and so far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeachment,” the court said.

Fast-forward 167 years to U.S. v. Nixon, the landmark Supreme Court case from 1974. Chief Justice Warren E. Burger wrote for the court that Nixon, still in office amid the Watergate scandal, had to comply with a subpoena seeking records and tapes of the president talking to aides and advisers. These records were to be reviewed in private by a federal judge, the court said.

“To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of  ‘a workable government’ and gravely impair the role of the courts under Art. III,” Burger wrote.

Burger addressed Marshall’s statement 167 years earlier that courts were not “required to proceed against the president as against an ordinary individual.”

“Marshall’s statement cannot be read to mean in any sense that a President is above the law,” Burger wrote, “but relates to the singularly unique role under Art. II of a President’s communications and activities, related to the performance of duties under that Article.”

The court was addressing a subpoena for records, not a subpoena for live testimony. Different legal standards apply for each.

Fast-forward a few more years to Clinton and Lewinsky. Independent counsel Kenneth Starr served Clinton with a subpoena to testify before a grand jury in 1998, but withdrew the subpoena when Clinton agreed to testify voluntarily.

“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,” Theodore B. Olson, a former U.S. solicitor general under President George W. Bush, wrote in the Weekly Standard.

Alternatively, Trump could fire Mueller as a way to quash a subpoena, Olson wrote.

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