Its claims that the president can “order the termination of an investigation by the Justice Department or F.B.I. at any time and for any reason” is unprecedented and far exceeds even Harry Truman’s brazen and rejected attempt to take over the steel mills to blunt labor unrest in the 1950s.
.. We also responded in the negative — but it was not a simple, categorical no. The presidential subpoena is a valid legal tool, as Chief Justice Warren Burger made clear in United States v. Nixon, but a president may find case-specific reasons to resist it.
.. The authors of the letter think the question is answered by a lower-court ruling, United States vs. Espy, decided in 1997 during the presidency of Bill Clinton. The letter claims that to overcome a privilege claim, special counsel must show that evidence is obtainable from no other source than the president.
.. The letter’s position also draws anachronistically upon an early theory of Thomas Jefferson — that each branch determines its own constitutional meaning. In United States v. Burr (1807), Thomas Jefferson argued that while a court can issue a subpoena to the president, it is the president who decides how it is enforced.
To drive home his point, Jefferson submitted the subpoenaed material with portions blotted out. Somewhat surprisingly, the presiding judge, Chief Justice John Marshall, did not object.
.. John Marshall’s non-objection was anomalous; he is revered for the proposition that ultimately it is the Supreme Court that says “what the law is.”
.. Laurence Tribe, a law professor at Harvard, has written, “even if courts lack power to enforce a subpoena against a president, presidential defiance of a lawful court order might, in sufficiently serious circumstances, constitute an impeachable offense.”
.. About the only thing one can say for sure about the enforceability of a presidential subpoena is that, should the Trump and Mueller sides fail to agree on a setting for presidential interview, both sides have a basis to litigate the matter tenaciously.
Neal Katyal: Can’t Indict a President? That Could Hurt Trump
For that reason, the “can’t indict a sitting president” view is necessarily dependent on Congress having all of the information necessary to conduct thorough impeachment proceedings.
.. To say that a prosecutor cannot indict a sitting president is, by definition, to say that the prosecutor’s evidence must be given to Congress so that it may decide whether the president should remain in office. It means, in short, that should Mr. Mueller conclude he cannot indict a sitting president, he would also have to turn over all of the information he has uncovered to Congress.
.. If Mr. Giuliani is correct that Mr. Trump cannot be indicted, then the other idea being floated by Mr. Trump’s lawyers — that such testimony would amount to a “perjury trap” — makes little sense.
.. The president of the United States would be refusing to do what every other federal employee must do — provide evidence in a law enforcement proceeding — even when he faces no imminent criminal consequences.
.. But there is a deeper problem still. Mr. Giuliani appears to be making an argument not just about timing — that a sitting president cannot be indicted while in office — but also about the president’s being immune from the criminal process altogether. That is the basis for his claim that the president can refuse a subpoena, which harks back to the notorious statement of Richard Nixon that “when the president does it, that means that it is not illegal.”
.. Mr. Trump, whose Justice Department has, with his blessing, repeatedly overruled longstanding Justice Department positions at an unheard-of rate, is in no position to complain if Mr. Rosenstein overrules these two old opinions... If indictment is off the table, then impeachment must be on it.. if impeachment is off the table because of nefarious congressional activity, then indictment must be on it.
Why Not Mike Pence?
our first openly Hefnerian president gets impeached
.. If Trump were impeached and removed from the White House, the presidency would devolve to precisely the kind of man whom much of pre-Trump religious conservatism insisted that it wanted in the Oval Office: an evangelical Christian family man with a bluenose’s temperament and a boring Reaganite checklist of beliefs.
.. evangelical leaders currently fretting about Trump’s political position would face a case where doing the consistent thing — namely, returning to their Bill Clinton-era position that character counts in presidents and using illegal means to conceal gross infidelities are impeachable offenses — would actually deliver something closer to what they claimed to want, not so very long ago: not a liberal in the White House, but President Mike Pence.
.. We do not have a parliamentary system where party leaders fight internal battles and get replaced by their internal rivals on the regular; instead, we elect a quasi-monarch, whose removal seems as traumatic as a regicide. And thus party loyalists tend to identify with their leaders the way royalists identify with their kings, and regard the prospect of impeachment not as an opportunity for a change of leadership but a revolutionary threat.
.. Sure, making use of Donald Trump to keep Hillary Clinton from being president is a fascinating flourish by history’s Author, but the idea that the Almighty might use a porn star to make Mike Pence president represents, if anything, an even more amazing miracle... So anyone interested in looking for the hand of God in history should probably welcome that miracle’s arrival.. That God is using Trump not as an agent of his good work but as a kind of ongoing test of everyone else’s moral character seems like a not-unreasonable inference to draw... And for those same religious conservatives to pass up the chance, preferring a scorched-earth battle in defense of priapism, would be a sad confirmation of the point that a beloved Christian author made many years ago: The doors of hell are locked on the inside.