Yesterday, The Washington Post reported that Bob Mueller has raised the possibility of issuing a grand jury subpoena in order to compel Donald Trump to testify in the obstruction of justice case being mounted against him.
This could go in one of many ways. The easiest and most logical solution would be for Donald Trump to voluntarily submit to an interview, but these are not easy and logical times. Moreover, Trump’s attorneys — for obvious reasons (Trump lies with every breath he takes) — don’t want him to give an interview, fearing that he’ll get himself in even more trouble.
Should Trump decline to a voluntary interview, the law on whether a President can be subpoenaed in a criminal case against him is not entirely clear, but it’s mostly clear. The Supreme Court ruled in 1974’s US v. Nixon that Presidents were not “above the law” and absent a clear national security threat, Presidents have to hand over documents. It did not, however, address witness testimony. However, in a civil case filed against President Clinton, the Supreme Court ruled there that Clinton did have to testify according to the subpoena. That wasn’t a criminal case, however, and when Ken Star did threaten to issue a criminal subpoena in the Lewinsky matter, Clinton eventually caved and submitted to questions voluntarily.
So, while the matter hasn’t been decided in this precise instance — witness testimony in a criminal case — it has been decided in the periphery, and most legal experts would agree that Trump would have to submit to a subpoena. Fortunately, our Supreme Court has not been too terribly tainted by Trump, and I suspect that even most of the conservative members are not willing to bend over backward to carve out this very limited exception for a President for which they likely have very little respect.
So, if Mueller does subpoena the President, he will almost certainly have to submit. The legal fight, however, could take months, and that’s not particularly good for Mueller because Trump has found some limited success in undermining Mueller. The longer this drags on, the more damage Trump can do to the special counsel’s reputation. Unless, of course, Trump fires Mueller, in which case this thing probably completely blows up in his face, and the person who takes over for Mueller — because that is inevitable — would have an even stronger obstruction case against Trump.
Meanwhile, if Trump refuses the subpoena even after the Supreme Court compels him to answer, that’s where impeachment comes in.
There is also the possibility that Trump does submit to the subpoena but then pleads the Fifth, which he is allowed to do. But politically, that’s likely to backfire. No one looks guiltier than a sitting President pleading the Fifth. It’s not likely to matter, anyway, because Mueller probably already has all the answers he needs. Trump’s testimony seems like 1) a formality and 2) an easy way to strengthen the case against him.
Of course, if Trump does eventually submit to an interview, he may have some questions of his own. Last night, Seth Meyers helpfully outlined those for us.