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By Frank Bowman

The New York Times has published a lengthy letter dated January 29, 2018, from John Dowd, then head of Trump’s legal team, to Special Counsel Robert Mueller contending that Trump could successfully assert executive privilege and refuse to testify, even if subpoenaed.

The Dowd letter doesn’t quite say that Trump will invoke executive privilege.  It merely argues that he would have solid grounds for doing so and thus, by implication, warns the special counsel not to put the question to the test.  Remarkably, the letter is so poorly executed that it ends up demonstrating exactly why such a subpoena is enforceable under existing law.

Courts have recognized that presidents need a zone of confidentiality within which they can receive and discuss information and recommendations from their advisers.  To protect that zone, several privileges (often lumped together under the term “executive privilege”) have emerged.  One of these covers communications to the president  from his advisers and also communications among the advisers about matters on which they will advise the president.

Unlike many other privileges with which the public is familiar, such as the Fifth Amendment privilege against self-incrimination, the presidential communications privilege is not absolute.  If a criminal suspect claims his right against self-incrimination, he cannot be compelled to talk (at least without granting him immunity from prosecution), no matter how useful his testimony might be.  By contrast, even if a president can show that subpoenaed materials are covered by the presidential communications privilege, the court will order them produced anyway if the prosecution (or a civil litigant) can make a sufficient showing of relevance and need.

The Espy case, on which the Dowd letter places great reliance, sets out the standard for relevance and need:

[I]n order to overcome a claim of presidential privilege raised against a grand jury subpoena, it is necessary to specifically demonstrate why it is likely that evidence contained in presidential communications is important to the ongoing grand jury investigation and why this evidence is not available from another source.

The Dowd letter makes three interlocking claims: (a) implicitly that Trump’s own testimony is covered by the presidential communications privilege; (b) that Mr. Trump did not, indeed legally cannot, commit obstruction of justice and therefore the grand jury has no legitimate need for his testimony; and (c) that, even if there were a need, the White House has already provided so much information from sources other than the president’s own mouth that his testimony would be superfluous.

As to the scope of the privilege, it’s surely correct that, to the extent advice to the president is covered, the president’s memory of that advice and his mental processes in deciding how to respond to the advice should be covered, as well.  The catch, however, is that not all advice and not all presidential decisions fall within the privilege.  It exists in order to maintain the confidentiality necessary to sound exercise of the president’s legitimate powers.  However, if a president does illegitimate things, that is things he has no power to do or things that violate the criminal law, then the fact that he is the president does not immunize him or his advisers from disclosure of either the advice or his personal rationale for choosing to do wrong.  Richard Nixon was legally required comply with a subpoena seeking White House tapes that recorded him receiving advice and giving orders that amounted to criminal conduct during Watergate.

Dowd’s argument that there was no obstruction and therefore no need for a Trump interview has two threads.  The first, and the one that has drawn immediate outraged responses, is the by-now familiar claim by Trump’s acolytes that a president cannot commit obstruction of justice by firing or giving instructions to executive branch law enforcement officials.  The argument takes the noncontroversial truth that a president has wide Article II powers to hire and fire executive branch subordinates and considerable discretionary authority to supervise their work and distorts it into an absurd absolute.  This extreme application of the so-called unitary executive theory has been given thorough scholarly debunkings elsewhere.

But one scarcely needs to be a scholar to discern its absurdity.  If a president can never commit a crime by ordering his subordinates not to investigate or prosecute, regardless of how self-serving or corrupt the president’s motive, then a president can effectively exempt both himself and anyone he favors from the constraints of law.  Anglo-American jurisprudence abandoned that idea — what the English called the royal prerogative — four centuries ago during the reign of King Charles I.  The Framers did not revive this relic of absolutist monarchies in the U.S. constitution.

The second prong of Dowd’s obstruction argument is less shockingly authoritarian, but ultimately no less wrong.  Essentially, he goes through various incidents possibly indicative of obstruction — Trump’s alleged remark to James Comey about letting General Flynn go, the Comey firing, and others — and tries to show that no obstruction occurred and therefore there can be no need for Trump to testify about them.  The argument has two gaping holes.

The first was noted in the original Times report: incredibly, Dowd based his entire exposition on the wrong obstruction statute.

There are a number of federal obstruction of justice statutes.  The three most important are 18 U.S.C. Sections 1503, 1505, and 1512.  The Dowd letter says, “The only statute that could even theoretically be implicated on the alleged facts is 18 U.S.C. § 1505….”  This is not only wrong, but laughably wrong.  Sections 1503 and 1512 between them cover proceedings before judges, grand juries, Congress, and executive agencies, while 1505 is directed primarily at obstruction of proceedings before federal regulatory agencies.  No prosecutor faced with allegations of obstruction of a federal grand jury investigation would ever use section 1505.

Not only do sections 1503 and 1512 fit the facts of this case far better than 1505, but Section 1512 is phrased to eliminate the technical issues raised in the Dowd letter, such as whether there was a “pending proceeding” at the time of Trump’s allegedly obstructive behavior and, if so, whether he was aware of its pendency.  Section 1512(f) specifically provides that in 1512 prosecutions “an official proceeding need not be pending or about to be instituted at the time of the offense.” In short, under Section 1512(c), all the government must prove is that the defendant corruptly attempted to obstruct, influence, or impede some official proceeding (a term that includes grand jury investigations) that is either under way or that might reasonably be anticipated.

Dowd’s choice to claim 1505 as the only applicable obstruction statute is inexplicable. It can only have drawn incredulity mixed with contempt from Mueller’s team.  And it casts everything else in the Dowd letter into doubt.

The remainder of the letter fulfills this low promise.  The primary obstacle to proving that Mr. Trump violated 18 U.S.C. 1512 is not proving that he has acted in ways that tend to “obstruct, influence, or impede” investigation of his affairs.  He plainly has.  His Twitter feed is now devoted obsessively to that project. (Which may be why the Dowd letter relies so heavily on the specious claim that a president can never obstruct justice.)  The real legal challenge for a prosecutor is proving that the president acted “corruptly,” which is to say with an improper purpose.  In other words, the one issue on which Mueller is in the most need of evidence is Trump’s state of mind.

Yet most of the factual discussion in the Dowd letter amounts to arguments that Trump acted with proper, rather than corrupt motives.  Sometimes the letter argues that the evidence already in Mueller’s hands should be read as demonstrating that Trump’s motives were pure. And sometimes, particularly with respect to former FBI Director Comey’s allegations about Trump’s private statements to him, the letter just denies that any such statements were made.

But of course all this rigamarole really demonstrates is how crucial Trump’s testimony is to the obstruction inquiry.  Only two people know what Trump said to Comey.  Mueller has Comey’s evidence.  What’s missing is Trump’s.  Even if other evidence on the point is equivocal, one person knows for certain whether Trump’s motives in impeding the Russia investigation are legitimate or corrupt.  Trump himself.

In short, the Dowd letter actually achieves exactly the reverse of its stated purpose.  It shows precisely why Mueller needs Trump’s testimony and why no other kind of evidence is a reasonable substitute.  And it therefore makes the best possible case for enforcing a subpoena to the president.