Constitution Daily

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Could the Fifth Amendment play a role in the Mueller investigation?

February 7, 2018 by Scott Bomboy


As special counsel Robert Mueller reportedly negotiates with Donald Trump’s lawyers for an interview the President, legal experts are evaluating several different scenarios, including a possible rare Fifth Amendment appearance in testimony about Mueller’s case.

Mueller and his team are investigating alleged Russian influence in the 2016 presidential campaign and related evidence at the request of the Justice Department. President Trump has said publicly he’s willing to speak with Mueller. But any interview between the two would be done on conditions approved by the President’s attorneys.

While the situation between the Mueller and Trump teams might seem unique, there have been investigations involving potential presidential legal testimony before, and certainly more frequently since Richard Nixon took office.

For example, back in 1876, President Ulysses S. Grant agreed to testify at the White House in a case involving the Whiskey Ring, as a witness for the defense of his own personal secretary. Orville Babcock. Babcock and others were charged with profiting from tax evasion. In a compromise, Grant and his lawyers were presented with questions in advance, and the President answered them in person, with attorneys from both sides in the room. Chief Justice Morrison Waite presided over the five-hour private event.

In another famous incident, Chief Justice John Marshall compelled President Thomas Jefferson to produce written evidence in Aaron Burr’s 1807 treason trial. Marshall issued a subpoena to President Jefferson to deliver documents that Burr had requested to prepare his own defense. Jefferson only supplied parts of the letters to the court and never acknowledged the subpoena.

In the current situation, the issues under consideration by President Trump’s attorneys involve the scope of the President’s testimony and if he needs to appear before Mueller personally, or as part of a grand jury process. This week, a report from the New York Times said some members of the Trump legal team didn’t want the President to sit down with Mueller in an open-ended questioning process. And another report from Politico on Wednesday said even some Republicans outside of President Trump’s inner circle questioned the wisdom of an in-person session with Mueller and his team.

“If I were his lawyer, that’s what I’d tell him,” South Carolina Senator Lindsey Graham told Politico. “I just think, you know, if I could avoid my client having to answer a bunch of questions that you may not be prepared to answer, I would.” Politico indicated that the Trump legal team might prefer that the President answer written questions from Mueller, in the same way President Ronald Reagan answered questions about the Iran-contra investigation in 1987.

But what if Mueller wants an in-person interview the President and his legal team refuses? Two scenarios could unfold. The first is a subpoena from Mueller for Trump to testify before a grand jury. President Bill Clinton did receive such a subpoena and agreed to testify in 1998 using a closed-circuit TV feed. Clinton’s testimony later became a factor in impeachment proceedings against him.

George Washington University Law professor Randall Eliason explained last month in the Washington Post that the Trump legal team faces another risk here. “The President’s lawyers must consider that during a voluntary interview they can at least be in the room and participate. If Mueller called their bluff and subpoenaed the President and he ended up in the grand jury, prosecutors could examine him under oath with no defense attorney present,” Eliason said.

The Trump legal also could argue a subpoena in this case is inappropriate. One theory is that the attorneys could site a 1997 opinion by the U.S. Court of Appeals for the D.C. Circuit about an investigation into Clinton-era Agriculture Secretary Mike Espy. Judge Patricia Wald’s ruling required that investigators would need to prove they are seeking information unavailable elsewhere to overcome a claim of executive privilege.

“We are ever mindful of the dangers involved in cloaking governmental operations in secrecy and in placing obstacles in the path of the grand jury in its investigatory mission,” Wald wrote. “There is a powerful counterweight to these concerns, however, namely the public and constitutional interest in preserving the efficacy and quality of presidential decisionmaking.”

But the “Espy Standard” may only apply to the President’s actions while in office, some commentators believe, and if so, a second scenario would come into play: the Fifth Amendment. Todd Presnell, a Nashville-based attorney who studies executive privilege cases, told The Wall Street Journal last month that the Espy Standard could be crucial. “This is really the only argument they can make outside of the Fifth,” he said, with a qualifying statement:  “The Fifth Amendment would be a public-relations nightmare.”

Part of the Fifth Amendment reads that no person “shall be compelled in any criminal case to be a witness against himself.” If President Trump were to honor the subpoena and then refuse to answer questions by “taking the Fifth,” it surely would cause significant political debate. Attorney Robert S. Bennett, who represented President Clinton during his testimony in 1998, told Vanity Fair last month that there are legal concerns that could be a factor in a decision made by Trump’s legal team. “By talking to the government, you’re running an enormous risk of a false statement or perjury,” Bennett said. “You can only let your client testify if you know he’ll tell the truth.”

And even former Vice President Joe Biden told CNN that Trump’s legal team had an important decision to make about their client. “One of the things I would worry about if I were his lawyer is him saying something that was simply not true without him even planning to be disingenuous,” Biden said on Tuesday.

Scott Bomboy is editor in chief of the National Constitution Cente


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