Why Mueller Can’t Subpoena Trump

There are significant factual disputes about these episodes, but all involve the president’s exercise of his core constitutional powers as chief executive, including the power to appoint and remove high-level executive-branch officials, to supervise the performance of their duties (as in the Espy case), and to determine law-enforcement priorities. We have argued in these pages that the president cannot obstruct justice by exercising the discretionary powers of his office, especially in determining whether and why to fire high-level presidential appointees like Mr. Comey. According to the two leaked letters from Mr. Trump’s lawyers to Mr. Mueller, they take essentially the same view.

Any prosecution based on Mr. Trump’s exercise of his core constitutional authority would dramatically impair the executive’s status as a coequal branch of government, considering that Congress enjoys immunity under the Speech and Debate Clause while exercising its legislative powers. It would also inject the judiciary into the president’s decision-making process, requiring judges to delve into matters that are inherently political.

Developments over the past year reinforce our view that it would unconstitutionally debilitate the presidency to base an obstruction charge on gainsaying the president’s motives in exercising his core responsibilities. Mr. Trump’s critics have also accused him of obstructing justice by using his pardon power. They claim his pardons of Joe Arpaio, Scooter Libby and Dinesh D’Souza —whom he considers victims of previous political prosecutions—were meant to reassure targets of Mr. Mueller’s probe that they too might be pardoned. Under such logic, a president under investigation could not discharge his constitutional duties at all, including the use of military force overseas—which can always be cast as a “wag the dog” strategy.

..  That independent-counsel investigation did not concern the exercise of presidential authority. They concerned allegations of perjury and obstruction from Mr. Clinton’s personal relationship with a White House intern.

.. Because constitutional considerations were not in play

.. Mr. McGahn spent nearly 30 hours describing the substance of his conversations with Mr. Trump and offering his assessment that the president’s actions were lawful.

With access to the relevant documents and everyone around the president, the special counsel has no material facts left to find.

.. Interviewing or interrogating the president could shed additional light only on his own thoughts and motives—exactly what executive privilege is designed to protect.

.. Mueller knows that losing a subpoena court fight would prolong and delegitimize his investigation. He is unlikely to press the point.

 

As Washington Churns, the World Grows More Dangerous

North Korea, China and Russia pose growing tests for a beleaguered administration

When a president appears weak, distracted or in trouble, as President Donald Trump does right now, the effects on international affairs can play out on many fronts. First, adversaries may feel more emboldened to challenge a besieged American leader. That may be a miscalculation, but the odds of miscalculation go up at such times.

.. Second, there always is the suspicion that a president embattled at home is looking for a distraction abroad. Even if there’s a real crisis, there would be charges the White House is pumping it up to divert attention. “Wag the Dog” suspicions are never far beneath the surface.

.. Third, when a president is thought to be distracted or in trouble, Congress steps in to fill what it perceives to be a void. That’s what happened during Watergate, when lawmakers voted to cut funding for the war in Vietnam and passed the War Powers Act to limit a president’s hand in military operations abroad.
.. Mr. Trump is right when he says China hasn’t done what it could to curb North Korea: At this point, Beijing’s true intentions have to be considered suspect. The grim reality, though, is that China’s balkiness leaves few options, and no good ones, for dealing with the threat.