Depending on which cable channel or other source of news you rely on, you may have a variety of views and understandings of where the presidency of Donald Trump stands vis-à-vis the investigation into Russian meddling in the 2016 election. If your only sources are Fox News (and in particular, its non-news shows: early morning and prime time evening) and Breitbart, you strongly believe the investigation is a misguided, if not malevolent, attempt to discredit, if not derail, the Trump presidency.
But even if that view is correct, Mr. Mueller and his team are hard at work, and part of their work will inevitably, maybe imminently, require taking President Trump’s testimony on a series of events and communications to which he was a party, and that testimony could subject him to criminal charges ranging from obstruction of justice to perjury. If news accounts are correct, discussions have already begun between Mueller’s team and the White House on how the interview would take place.
The steps to a constitutional crisis start with those negotiations. The White House will try to have the interview conducted through written questions and answers. Mueller will almost certainly reject that alternative. He will want the president to testify under oath and in person to ensure that the testimony is Mr. Trump’s and not what his lawyers determine he should say after carefully considering the specific questions that are asked.
The next best alternative for Trump will be an informal interview in which he would not be under oath and would have his attorney at his side, able to advise him on any question. That option will also be unacceptable to Mueller, whose minimally acceptable option will be to have Trump answer questions under oath, with or without legal counsel at Trump’s side. Trump can, of course, reject this alternative, but he would then take the process to a higher level: a grand jury subpoena.
Before going further into the scenario for a potential constitutional crisis, let’s understand why Trump’s attorneys will want to limit Trump’s exposure in his testimony. It starts with Trump himself, who, however brilliant he may claim to be, has shown consistently that he lies without compunction, almost as a habitual means of communication. The term “perjury trap” is something of an oxymoron, as perjury only occurs when the person testifying decides not to tell the truth, but Trump has provided the means for a charge of perjury in the seemingly injurious statements he has given in the past.
Did he, for example, fire James Comey (the former FBI director) because Comey insisted on pressing the Russia probe (as Trump stated in a live TV interview) or because of Comey’s handling of Hillary Clinton’s e-mails as the White House claimed? Or was it for some other reason that he expressed to his aides, many of whom have already given sworn testimony to Mueller’s team? Trump will be hard-pressed to square the various reasons in his sworn testimony and could, in attempting to do so, commit perjury. Or he could just invent a new reason that would be patently false when compared to his prior statements and the testimony of others. Trump also might unwittingly admit to obstruction of justice in his testimony. He could do so by acknowledging that he fired Comey because Comey had refused to limit the FBI investigation. That reason alone could constitute a charge of obstruction.
In fact, Trump might not be responsible for any wrong-doing to this point. It may even be that no wrong-doing, by anyone, has occurred. But even if he and his administration are, as things now stand, completely guilt-free, he would still risk self-incrimination in any testimony he provided to the Mueller team. And while all witnesses, even those who submit to less-than-formal depositions such as Trump might seek, can assert the Fifth Amendment privilege to refuse to answer specific questions, the likelihood that Trump would ever take that route is minimal, as the political ramifications of “taking the Fifth” would be severe.
Thus the great likelihood exists that Trump will refuse to consent to an interview with Mueller, even with his attorney at his side. Mueller would then have to “go nuclear,” which would mean issuing a grand jury subpoena to compel Trump’s testimony. And, at that point, the potential constitutional crisis would be at hand. It would unfold in the following steps:
Trump would refuse to recognize the subpoena by claiming “executive privilege” in one way or another. He could claim that a president can’t be compelled to testify at a grand jury or that a president’s claim of executive privilege is unassailable. Or he (his lawyers) could concoct a series of legal justifications that would all represent untested claims. Whatever means of refusing to testify before the grand jury Trump claimed, Trump would be forcing Mueller to litigate the claim.
Mueller would then file a Motion to Compel in a D.C. District Court. That judge would hear the case and rule one way or the other. The losing side would then appeal to the D.C. Circuit Court of Appeals, where a three-judge panel would reconsider the motion. Its decision, regardless of which way it went, would then be appealed to the U.S. Supreme Court. To that point the Constitution would still have been honored, with each of those steps fully permitted and recognized under our legal system. And, in many respects, the process would be similar to the consideration of Richard Nixon’s case regarding the tape recordings that the Independent Prosecutor had subpoenaed in 1974 in the Watergate investigation. (The Supreme Court ultimately ruled that Nixon had to turn over the tapes and Nixon complied, thereby avoiding a constitutional crisis. He resigned mere days afterwards, when the tapes revealed his criminal complicity.)
But Trump could take a different path than Nixon and assert that he was not bound by the Court’s dictates. In so doing, he would create the constitutional crisis that excites law professors and reporters while terrifying small-d democrats and patriots at the same time. The excitement and fear are caused by the fact that no one knows what would happen next. How would the Court’s order be enforced? Would the House of Representatives initiate impeachment? Or would the Republican-dominated Congress choose to leave the Court to its own devices? And what would those devices be? The Court has no real means of enforcing its orders. It doesn’t have a standing army or a meaningful police force. Those are tools of the executive and would presumably be directed by the president.
And what about the people, the voters, the citizens? Would they be swayed by the Fox News/Breitbart reporting of the crisis, which might present the president as the victim and the Court as the villain? Would those on the left then take up arms against those on the right? Would the military then step in, and if so, on which side? Would the very existence of the democracy be threatened by a military coup? Would the country go the way of banana republics with a declaration of martial law and the suspension or total cessation of constitutional rights? Would the country descend into civil war?
Yeah; it could get pretty scary.