Stephen Bates, who was one of Ken Starr’s assistant prosecutors in the Clinton investigation, has a Washington Post op-ed making a terrible argument for why he thinks Special Counsel Robert Mueller should not issue a subpoena to Donald Trump to testify before a grand jury. Bizarrely, he says not doing so would protect the rule of law.
His argument, in a nutshell (and that’s where it belongs): If Mueller subpoenas Trump, Trump might refuse to go and might also refuse a court order upholding the subpoena and requiring him to testify and that would threaten the rule of law and prompt a constitutional crisis.
The Supreme Court says a grand jury can keep digging until “every available clue has been run down.” As a former lawyer on the staff of independent counsel Kenneth W. Starr, I hope that’s not Robert Mueller’s plan. If, as reported, he’s thinking about subpoenaing President Trump to testify , he should drop the idea. The rule of law is at stake…
Imagine that Mueller, acting on behalf of the grand jury, subpoenas Trump to testify. The president says no. Mueller goes to court. The judge orders Trump to comply. He still refuses. The judge, treating him like any other defiant witness, holds him in contempt of court. Then what?
Not jail. The Justice Department maintains that a president can’t be prosecuted while in office, in part on the reasonable assumption that the presidency can’t operate from behind bars. Mueller must follow Justice Department policies, probably including that one. Anyhow, a president who disobeyed a subpoena and an order enforcing it wouldn’t go quietly to serve a sentence for contempt.
Alternatively, a judge might impose a fine. In 1999, Judge Susan Webber Wright held Clinton in civil contempt of court over false deposition testimony in the Paula Jones sexual harassment case. Wright ordered him to pay court costs and attorneys’ fees, and he chose to comply rather than challenging the order.
In an article in the Georgetown Law Journal in 1998, my former colleague from the Starr office, Brett Kavanaugh, endorsed the Saturday Night Massacre strategy for a president intent on withholding evidence. (Kavanaugh, of course, is in the news these days because Trump nominated him to the Supreme Court on Monday.) According to Kavanaugh, a president in such circumstances should “simply order the federal prosecutor not to seek the information and fire him if he refuses.” Cry not for the ousted prosecutor, Kavanaugh wrote: “In a perverse way, removal is a sure way to immortality, as Archibald Cox learned.” That’s harsh but, I think, correct: Better to avoid an intractable conflict by removing the prosecutor before he issues a subpoena — thus keeping the issue out of the courts — even at the cost of a Saturday Night Massacre, than to invite a standoff in which power can defeat law.
No. A thousand times no. If he really thinks that the rule of law is at stake and that a presidential refusal to follow a valid court order would prompt a constitutional crisis — and he’s right, that would be a constitutional crisis and it would undermine the rule of law, may I not so politely suggest that the crisis is already at hand and the rule of law is already in grave danger? If Trump refusing such an order does those things, surely it must be true that achieving the same immunity and unaccountability through the mere prospect that he might refuse the court order to testify has already rendered the rule of law and the separation of powers a moot point when it comes to this president?
But here’s the thing: If Trump really would do that, we need to know that. We can’t let the mere threat of it cow us into not holding him accountable, we need to make him actually do it or not do it. If he refuses, he needs to be impeached. And if the Republicans would refuse to impeach him for such an action, we need to know that about them too. The solution to that constitutional crisis is found in the constitution itself — impeachment and the next election. If Trump really is so lawless that he would take that position, let him do it in broad daylight and let us all hold him accountable for it.