The Supreme Court Will Make Trump Talk

Throughout his real estate career - and seemingly his entire life - Donald Trump has always demonstrated two traits: he lies incessantly and he views himself as above the law, the latter being evidenced by his questionable mob ties and cosiness with Russian mobsters, not to mention his repeated disdain for municipal and federal laws that get in his way.  Now, with the Mueller investigation apparently headed towards a showdown, Mueller's trump card - no pun intended - is to secure a federal grand jury subpoena for Trump to testify.  Given Trump's endless lying, nothing poses a bigger danger than Trump before a grand jury with no legal counsel at his side. The likelihood of perjury occurring is, in my view, almost guaranteed and would open yet another phase for prosecution of Trump.  Thus, the question becomes whether or not Trump can be forced to testify.  A piece in New York Magazine suggests that, if given the opportunity, the U.S. Supreme Court would rule that Trump must testify (and likely cause his own undoing in the process).  Here are article highlights:

Rudy Giuliani may have just made the case for why Robert Mueller, the special counsel getting to the bottom of Russia’s role in the last presidential election, has a real need to speak with Donald Trump. And it has everything to do with the president’s state of mind during a key moment under the microscope: the firing of James Comey, the former FBI director.

“He fired Comey because he would not, among other things, say that he was not a target of the investigation,” Giuliani told Fox News’ Sean Hannity late on Wednesday. . . . . So he fired him, and he said ‘I’m free of this guy.’”

United States v. Nixon, the landmark Supreme Court case that forced President Richard Nixon to comply with a prosecutorial subpoena to turn over the Watergate tapes, is still good law. And of all the important principles the decision stands for — beyond precipitating the fall of a sitting president — one that rises to the top is the American public’s interest in the fair and impartial administration of justice. The court system must be able to get a full picture of the facts of a criminal investigation. “To ensure that justice is done,” Chief Justice Warren Burger wrote for an 8-to-0 court, “it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.”

Nixon is controlling law for the Mueller investigation. And in light of reporting this week that the special counsel still has a keen interest in interviewing Trump — and an apparent willingness to rely on compulsory process — there is a distinct possibility that Mueller may go to court and invoke Nixon if [Trump] the president doesn’t cooperate, either voluntarily or in the face of a valid subpoena. That’s the kind of momentous confrontation that no doubt would quickly make its way to the Supreme Court, which so far has seemed willing to treat Trump just like any other president, rather than carve out Trumpian exceptions to presidential powers that may bind later chief executives.

Even if he’s not a target, courts may still determine that Trump is required to give the evidence that’s asked of him — especially in a probe where he may hold the key to many of its mysteries. “The need to develop all relevant facts in the adversary system is both fundamental and comprehensive,” the Supreme Court said in Nixon. “The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.”

That’s precisely the state of affairs with a number of unresolved strands of the Russia investigation. We don’t know Trump’s frame of mind or what he knew when he fired Mike Flynn. We don’t know if he ever learned during the campaign that two of his family members and his campaign chairman wanted to obtain “dirt” on his rival from Russians during a meeting in Trump Tower. Or the reason he dictated the White House response to news reports revealing that the meeting took place. Or what he meant when he told NBC News’s Lester Holt that he dismissed Comey on account of “this Russia thing.” And what about his reported comments to Russian officials in the Oval Office, one day after Comey’s firing, that getting rid of the FBI director relieved “great pressure” from his presidency?

These are all open questions that are critical to Mueller and that only Trump can answer. And notice how all of these queries are far more focused than the broad, open-ended questions that Trump’s legal team leaked to the New York Times this week — not even Fox News’ Howard Kurtz buys the spin that these disclosures came from Mueller’s side.  . . . .[the] suggestion — that he [Mueller] remains on a never-ending fishing expedition — is just red meat for Trump’s base and a tactic to discredit Mueller’s work. Getting Trump’s direct testimony for a narrower set of interrogatories is Mueller’s way of tying up loose ends.

If Mueller can show that he has, as Nixon observed, a “demonstrated, specific need for evidence,” he’ll get it. The republic, the separation of powers, and the office of the presidency won’t crumble. The opposite may be true if the courts and the office of the special counsel are stonewalled by Trump and aren’t allowed to do their job.

Personally, I hope Mueller seeks a subpoena and soon.  It is far past time to put Trump in a box where he must testify and where, if he lies - a near certainty in my view - he will make matters far worse for himself.  I suspect Mueller already has information and evidence that he can use to catch Trump in his near certain lies.  Get out the popcorn.