DOJ Memo Casts Doubt on Mueller’s Ability to Question Trump About “Obstruction”
A newly uncovered memorandum from the Department of Justice (DOJ) Office of Legal Counsel (OLC) sheds light onto the ever-present question of whether Special Counsel Robert S. Mueller III has the authority to subpoena President Donald J. Trump. The memorandum — dated June 25, 1973 — regards “Presidential Amenability to Judicial Subpoenas” (hereinafter, “Subpoena Memorandum” or “memorandum”).
[Read the memorandum here]
The memorandum significantly undercuts two aspects of the Special Counsel’s investigation.
First, the memorandum casts doubt on the legitimacy of any inquiry into the motives an Executive Officer had in taking certain discretionary actions. This would drastically undercut any inquiry into whether the President “obstructed” the investigation, because one of the essential elements of such an offense is the intent (i.e., mental state) of an alleged offender.
Second, the memorandum strongly suggests that the President has a legal privilege against the taking of his oral testimony, and limit any interaction with the Special Counsel to written interrogatories.
Each of these is examined in turn.
I. ILLEGITIMACY OF OBSTRUCTION INQUIRY
The Special Counsel is allegedly investigating whether the President attempted to “obstruct” the Russia investigation. The President’s critics argue that the firing of former FBI Director James Comey, attempting to fire the Special Counsel, and attempting to get Attorney General Jeff Sessions to retract his recusal from the Russia investigation constitute obstruction of justice. Many commentators have correctly noted that the President, pursuant to his Article II powers, has the power to fire without cause the FBI Director and Special Counsel, as well as manage the affairs of the Department of Justice. Facially, then, the obstruction inquiry appears to be disingenuous.
The memorandum unambiguously says that Executive Officers, including the President, may not be “questioned about the motives and considerations which induced him to take certain discretionary actions, . . .” The memorandum quotes at length a 1959 opinion from a D.C. Federal District court. The 1959 case examined the propriety of probing the mental process the Chairman of the Federal Trade Commission had in taking certain discretionary actions. The court held that the Chairman “would be entirely within his rights if he appeared at the taking of the deposition and declined to answer such questions.” This sentiment tracks with what the Supreme Court said 18 years earlier in United States v. Morgan. In that case, the Supreme Court strongly admonished the lower court for permitting the Secretary of Agriculture to be “questioned at length regarding the process by which he reached the conclusions of his order,” and said, “the short of the business is that the Secretary should never have been subjected to this examination.”
The decision in Morgan is far from a fluke; its rationale has become a bedrock principle of our constitutional system, and has been relied upon in dozens of court cases, including one decided in April of this year. It is also of no consequence that most of these cases deal with cabinet-level officers. “The rules generally protecting high government officials are, of course, a foriori applicable to the President,” the memorandum says. Accordingly, the Special Counsel likely has no business even asking the President about his motives in taking his allegedly obstructive actions. And because one of the essential elements of obstruction is intent (i.e., motive), the Special Counsel would be unable to make an obstruction case against the President.
II. PRIVILEGE AGAINST ORAL TESTIMONY
One of the flashpoints in the negotiations between the President’s lawyers and the Special Counsel’s team has been regarding the manner in which any testimony from the President is taken. The President’s team, lead by former New York City Mayor Rudolph Giuliani, has repeatedly requested that the President be allowed to answer questions in writing. The Special Counsel has consistently rejected these requests.
However, the President likely has a legal privilege against the taking of his oral testimony. This is because, as the memorandum states, “the existence of judicial power to subpoena the President does not mean that a court is required to proceed against him without regard to his overriding duties to the public at large.” Given these overriding duties, courts have historically granted high-level government officials the privilege to not attend court, and to instead have their testimony taken via deposition. Both Presidents Jefferson and Monroe successfully invoked this privilege, according to the memorandum. “More recent [court] decisions,” the memorandum continues, “indicate a practice of taking the testimony of high government officials not by way of oral depositions but by written interrogatories, even if the litigation is pending at the seat of the Government.” This privilege is “applicable all the more to the President,” the memorandum says.
In sum, the President has numerous legal protections at his disposal in dealing with a subpoena from the Special Counsel. For starters, the President could likely get any subpoena quashed on the grounds that it sought to inquire about his mental process in taking certain discretionary actions. Even if that argument were to fail, the President would still be able to invoke the legal privilege against oral testimony, and force the Special Counsel to submit all of his questions in writing. Assertion of this privilege would substantially reduce, though not totally eliminate, the risk of falling victim to a perjury trap, which is one of the biggest concerns among the President’s legal team. Given the longstanding history of these legal protections, it is likely that the President would emerge victorious in court, should he need to litigate any of the matters outlined above.