What if that constitutional crisis over the subpoena or indictment of Donald Trump that every TV pundit, wringing sweaty palms, has forewarned never comes to pass?
By constitutional crisis, I mean an unprecedented state of affairs that contributes to a decline in the Constitution’s perceived legitimacy or sends a chicken-with-its-head-cut-off emergency pleading to the Supreme Court. Looking wide and far, I see no such decline, no such headless chicken. Do you? Even Trump’s whimsically executed pardons, which come loaded with potential pardons for those who’ve been indicted in special counsel Robert S. Mueller III’s investigation, have done no more “damage” to our faith in the Constitution than, say, President Bill Clinton’s pardon of fugitive financier Marc Rich.
Even the president’s Twitter histrionics-which reached personal-best status this week as he attempted to inject a conspiracy theory that originated on Reddit about “Spygate” starting in 2015 into the conversation-have not harmed the Constitution. It remains as raveled as a sailor’s best knot.
All of this could change, of course, and Trump has done plenty to make the average law professor queasy. But such fretting is premature. Mueller has given us no sure sign that he has gotten the goods on the president that would cause him to indict. Mueller might eventually present evidence that Trump did illegal things with the Russians or prove that all the thumb-tacks he’s tossed in the investigation’s path amount to a solid case for obstruction of justice. Trump being Trump, there’s a hot chance that Mueller might catch the president cheating on his taxes or laundering money for some oligarchs. But will he be willing to blow up the system by indicting Trump over a few financial shenanigans? Or will he pass the information to Congress as grounds for impeachment and the public as a reason to vote the president out in 2020? I’m betting he’ll take the gentle path. Until Mueller shows us something more – and that may well happen – my palms will remain dry and composed.
As faithful narrators go, Trump attorney Rudy Giuliani probably finishes last. But America’s batty ex-mayor might have been telling a rare truth last month when he claimed Mueller’s office indicated he would observe the standing Justice Department view, issued by the Office of Legal Counsel, that you can’t indict a president. Our incomplete operating manual, the Constitution, is silent on the issue of presidential indictment. But the reluctance of past prosecutors to throw criminal charges at a sitting president over the past 228 years presages continued reluctance. As this excellent New York Times decision tree explains, Mueller could take a third option if he found evidence that Trump broke the law by taking the “Nixon option” – that is, asking “a grand jury to deem Mr. Trump [an unindicted] co-conspirator and send a report to Congress,” which could, if it so determined, use it as grounds for impeachment.
Besides, as the decision tree lays it out, Mueller needs the permission of Deputy Attorney General Rod Rosenstein to get a grand jury to indict Trump. The law being a precedent-bound, conservative thing, would Rosenstein really be up for such a tussle with legal tradition and actually pull the trigger? Everything we know about the man, a cautious bureaucrat who climbed his way carefully up the DOJ ladder to his present precarious perch, suggests otherwise.
Constitutional crisis averted!
Then there’s the question of whether one can subpoena a sitting president, which has elicited surplus crisis-mongering. When Vox assembled an all-star panel of legal scholars to consider the question, they arrived at no consensus, so anybody who tells you the issue isn’t fraught is selling you bunk. The president’s lawyers have been adamant on this subpoena topic, as news spread of the 20-page letter they sent to Mueller’s team in January, insisting that he’s above such a legal demand. Again, our incomplete operating manual doesn’t offer direct guidance on the point of whether a president can be subpoenaed to testify. The Supreme Court ruled in 1974 that President Richard Nixon had to obey a subpoena for records and tapes, which is a different matter. In 1998, when President Bill Clinton received a subpoena from independent counsel Kenneth Starr to testify before a grand jury, he jawboned it down to an agreement to testify “voluntarily.”
This historical background of compromise and accommodation suggests that Mueller might navigate around this barrier as well as his forebears did without sparking a crisis. For one thing, how badly does he need Trump’s answers to his questions to complete his case – assuming that he has a prosecutable case? And can Mueller overcome Trump’s invocation of executive privilege, which first requires Mueller to search for the information he seeks from sources other than Trump? Or, what if Trump reached for the Fifth Amendment?
What about other scenarios? If Mueller were to issue a lawful subpoena and Trump defied it, would Trump face contempt proceedings? Would Trump defy it? Would a judge impose a fine or jail sentence for Trump’s contempt? Who would be sent to the White House to arrest Trump or collect the fine? Does Mueller really want to risk setting off such a chain reaction? Keith Whittington of Princeton University told Vox that the separation of powers appears to prevent judges from directly commanding the president, otherwise “the several courts could bandy him from pillar to post . and withdraw him entirely from his constitutional duties.” Again, the law is precedent-bound and conservative – because Mueller plays the game by the book, he’s not likely to take actions that force the Constitution to be reread for new meaning.
As long as the Constitution is performing its central functions, as Whittington has written, no constitutional crisis exists. The Constitution’s framework appears to be operating nicely: The full heat of a criminal investigation is falling on the president almost daily and yet the sun rises and sets just the same. The best remedy for a criminal president, if it comes to that, will be impeachment. And impeachment never signifies a constitutional crisis. It is the Constitution.
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Send articles of impeachment to Shafer.Politico@gmail.com. My email alerts have lawyered up. My Twitter feed has taken the Fifth. My RSS feed defies all subpoenas and contempt orders.
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