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Legal Scholar and DOJ Alumni Letter on Presidential Compliance with a Special Counsel Subpoena

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September 20, 2018

Rudolph Giuliani
Giuliani Security & Safety LLC
200 Park Avenue, 39th Floor
New York, NY 10166

Jay Sekulow
American Center for Law and Justice
P.O. Box 90555
Washington, DC 20090-0555

Dear Mr. Giuliani and Mr. Sekulow:

We are law professors, legal experts, and former Department of Justice officials with experience and expertise on matters of criminal investigation and constitutional law. We understand that you are advising President Donald J. Trump about whether to answer questions from Special Counsel Robert Mueller in connection with the ongoing investigation into whether the Trump campaign colluded with Russia and whether the president obstructed justice. We encourage the president to answer the Special Counsel’s questions because it is his duty, as the nation’s chief law enforcement officer, to assist with investigations of potential crimes.[1] Furthermore, if the president were subpoenaed, he would be required by the courts to comply because he has no valid argument that compliance would impair the performance of his presidential duties.

The president is not above the law. While the president’s powers are broad, he may not act in a corrupt or self-interested way. The Take Care Clause requires the president to “take Care that the Laws be faithfully executed.”[2] The term “faithfully” imposes “a duty of good faith,” including prohibitions on “dishonesty, disloyalty, and lack of fair dealing.”[3] Put another way, the Take Care Clause requires him to act for the good of the country, not for the good of himself. If the president were to impede a criminal investigation to protect himself or his associates, he would violate this mandate.

Congress has put other limits on the president’s use of his powers with respect to the administration of justice. For example, Congress has passed civil service laws and created independent agencies limiting the president’s power to hire and fire federal employees who enforce the law.[4] To the same end, and consistent with the Take Care Clause, Congress has enacted various prohibitions on obstruction of justice without exempting the president.[5] Thus the president has no legal basis to claim that his position immunizes him from Mueller’s obstruction of justice investigation — or from a subpoena soliciting information relating to this investigation.

One of you has argued that President Trump’s actions while in office “could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself.”[6] Under this view, the president can take steps to terminate an investigation, fire a government official, or issue a pardon “at any time and for any reason” — even if the reason is corrupt or self-interested.[7] Not so. At all times, the president is subject to the constraints of the Constitution and, specifically, the Take Care Clause requirement that he “faithfully” enforce the laws. The president has a constitutional duty to enforce, not subvert the laws, including congressionally-enacted obstruction of justice laws.

Of course, like any litigant, President Trump may seek to avoid a subpoena by filing a motion to quash. But when a president files such a motion, his motives matter. If he resists because of the burdens of his office or to protect legitimate deliberations with his staff, that may be a valid basis to contest a subpoena. If, on the other hand, he resists a subpoena in order to protect himself or his associates from the reach of the law, that is unlawful. If President Trump wishes to avoid answering questions that may incriminate him, the proper response is for him to invoke the Fifth Amendment rights he shares with every American, rather than attempting to invoke presidential power. Protect Democracy has recently published a white paper exploring in greater detail the constitutional limits on the president’s power to resist a subpoena on the basis of executive privilege.[8]

Here, there is abundant evidence that President Trump’s desire to avoid the Special Counsel’s questions stems from concerns about his own criminal exposure and that of his close associates. The Mueller investigation implicates the president himself, his campaign, his family, and his business interests. It is a fundamental threat to his hold on the presidency. And President Trump knows this: that’s why he has sought to impugn the investigation as a “witch hunt” and the investigators as politically motivated.[9] In contrast, neither you nor the president has identified with specificity how complying with a subpoena would interfere with his presidential responsibilities. Indeed, it would be difficult for President Trump to claim that he could find no time to testify before a grand jury, given his well-established television-viewing habits and his record of playing golf one out of every five days of his presidency.[10]

In reviewing a motion to quash a subpoena directed at President Trump, the courts will balance the president’s Article II powers with the demands of the rule of law. In this case, the rule of law should win. Courts have consistently rejected generalized claims of presidential privilege, instead demanding that presidents identify a specific way in which their presidential duties would be impaired if they complied with the demands of the justice system. In Nixon v. United States, for example, the Supreme Court recognized that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”[11] Here, the president cannot identify any specific, non-corrupt reason to avoid a subpoena into corruption by his campaign or obstruction of justice by the president himself — and the courts will see that.

Because a court is likely to force the president to comply with a subpoena, for the reasons stated above, it would be a waste of time and resources for him to fight a subpoena from the Special Counsel. It would also breach his sworn duty to “faithfully execute” his office, including his role as the nation’s chief law enforcement officer. Instead, we ask that you urge your client to honestly answer questions from the Special Counsel’s investigators.

Sincerely,

 

Ben Berwick

Former Trial Attorney, U.S. Department of Justice, Civil Division*

Joyce R. Branda

Former Acting Assistant Attorney General*

Erwin Chemerinsky

Jesse H. Choper Distinguished Professor of Law, Berkeley Law, University of California*

John W. Dean

Former Nixon White House Counsel*

Ambassador (ret.) Norman Eisen

Chair, CREW*

Aziz Huq

Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School*

Harry Litman

Former United States Attorney for the Western District of Pennsylvania*

Matthew Miller

Former Director of the Office of Public Affairs, U.S. Department of Justice*

Florence T. Nakakuni

Former United States Attorney for the District of Hawaii*

Nicole Lee Ndumele

Former Trial Attorney and Legislative and Policy Counsel, U.S. Department of Justice, Civil Rights Division*

Kristy Parker

Former Deputy Chief, U.S. Department of Justice, Civil Rights Division*

Asha Rangappa

Senior Lecturer, Yale Jackson Institute for Global Affairs*

Sarah R. Saldaña

Former United States Attorney for the Northern District of Texas*

Laurence H. Tribe

Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School*

Kimberly Wehle

Professor of Law, University of Baltimore School of Law*

Andrew M. Wright

Former Associate White House Counsel and Current Senior Fellow & Founding Editor, Just Security*

 

*Title or noted affiliation for identification purposes only.
 

[1] Consistent with that responsibility, numerous prior presidents have willingly provided testimony in court proceedings and to investigators without requiring the prosecutor to resort to a subpoena. See Presidents under Oath, Associated Press (Mar. 28, 2018), available at https://wtop.com/white-house/2018/03/presidents-under-oath/.

[2] U.S. Const., art. II, § 3, cl. 5. The Constitution also prescribes the presidential oath of office, requiring him to swear or affirm that he “will faithfully execute the Office of President of the United States.” U.S. Const., art. II, § 1, cl. 8 (emphasis added).

[3] David E. Pozen, Constitutional Bad Faith, 129 Harv. L. Rev. 885, 888 (2016); see also Noah Webster, An American Dictionary of the English Language (1828) (defining “faithfully” as meaning “with good faith”).

[4] Richard Pildes, In the View of the Supreme Court, Alan Dershowitz Is Wrong About the Powers of the President, Lawfare (June 9, 2017), available at https://lawfareblog.com/view-supreme-court-alan-dershowitz-wrong-about-powers-president (quoting Morrison v. Olson, 487 U.S. 654 (1988)).

[5] See, e.g., 18 U.S.C. § 1501-02.

[6] Memo from John Dowd and Jay Sekulow to Robert Mueller (Jan. 29, 2018) (hereinafter “Dowd/Sekulow Memo”), available at https://www.nytimes.com/interactive/2018/06/02/us/politics/trump-legal-documents.html.

[7] Id.

[8] Protect Democracy, The President Must Obey the Law: Why President Trump is Not Immune from a Special Counsel Subpoena (Sept. 2018), available at https://protectdemocracy.org/resource-library/document/the-president-must-obey-the-law-why-president-trump-is-not-immune-from-a-special-counsel-subpoena/.

[9] Julie Hirschfeld Davis, et al., Trump Tells Sessions to ‘Stop This Rigged Witch Hunt Right Now,’ N.Y. Times (Aug. 1, 2018), available at https://www.nytimes.com/2018/08/01/us/politics/trump-sessions-russia-investigation.html.

[10] Philip Bump, Trump says golf is his ‘primary form of exercise.’ We talked to an expert about how effective that is, Washington Post (July 20, 2018), available at https://www.washingtonpost.com/news/politics/wp/2018/07/20/trump-says-golf-is-his-primary-form-of-exercise-we-talked-to-an-expert-about-how-effective-that-is/; Jonathan Swan, Scoop: Trump’s secret, shrinking schedule, Axios (Jan. 7, 2018), available at https://www.axios.com/scoop-trumps-secret-shrinking-schedule-1515364904-ab76374a-6252-4570-a804-942b3f851840.html.

[11] United States v. Nixon, 418 U.S. 683, 713 (1974); see also Clinton v. Jones, 520 U.S. 681, 708 (1997) (possible future burden on president’s time and attention do not justify postponing civil litigation against him).

 

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