President Donald Trump has consistently downplayed Russian interference in the 2016 election. But the U.S. intelligence community is convinced that Russia meddled in the election, which has raised two huge unresolved questions:
- To what extent, if any, did the Trump campaign know about and/or abet the Russian efforts?
- Has the president tried to obstruct the investigation into the campaign’s potential collusion with the Russians?
Those questions lie at the heart of the investigation being conducted by special counsel Robert Mueller, who now wants to question Trump in February. In late January, Trump boldly declared he was looking forward to being questioned by the Mueller team, and would do so under oath.
But in early February, The New York Times reported that a number of Trump’s lawyers are advising him against testifying under oath, fearing the president, whose penchant for “alternative facts” is well documented, may perjure himself.
If Trump declined the special counsel’s request for an interview, Mueller could subpoena the president. And, assuming Trump refused to comply, a legal battle could ensue, one that would quickly land in the Supreme Court.
In an interview with the website VICE, Harvard Law professor Noah Feldman noted there is precedent for forcing a sitting president to comply with a subpoena. This goes back to 1974, when President Richard Nixon, fighting charges that he obstructed justice in the Watergate scandal, refused to surrender tapes of Oval Office conversations between himself and his aides. In the United States v. Nixon, the Supreme Court unanimously ruled that Nixon did not have the power to block a subpoena for the tapes issued by special prosecutor Leon Jaworski.
But even if forced to submit to questions under subpoena, Trump wouldn’t necessarily have to answer. “The way I think of it is that every lawyer who’s worth his salt would advise a client of the type of Donald Trump to take the Fifth [Amendment],” Feldman said in the VICE interview.
Doing so could be politically risky, as it could make the president look guilty in the eyes of the public. But Trump could mitigate the damage, said Feldman, by simply declaring, “I’m pleading the Fifth because this is an unfair investigation that’s designed to be a witch hunt against me and is politicized.”
Regardless of how Trump responds during an interview, Mueller has several options should he be convinced that Trump has obstructed justice or committed perjury. He can:
- Name Trump an unindicted co-conspirator. The president would not be formally charged, but any evidence against him would be admissible in the cases of those who were indicted.
- Indict Trump, but subject the move to judicial review. The courts never have had to settle the question of whether it’s legal to indict a sitting president, so this move could backfire if the courts decide that such an indictment is unconstitutional.
- Refer the case to Congress for impeachment. Independent Counsel Kenneth Starr followed this path in 1998 while investigating perjury charges against President Bill Clinton.
No matter how the Trump-Mueller drama unfolds, the Russian investigation could take years. Watergate took more than two years to play out, ending with Nixon’s reluctant resignation and his subsequent pardon by President Gerald Ford in 1974.
Several years later, when British journalist David Frost asked Nixon about the legality of his actions, Nixon infamously replied, “When the president does it, that means that it is not illegal.” And while no one is saying that Trump would go that far, it’s fair to predict that he’ll be formidably defiant in the face of any legal proceedings.