If President Donald Trump tries to elude an interview with special counsel Robert Mueller by exerting a claim of executive privilege, then he could face an arduous battle in the courts.
In the 1974 case of US v. Nixon, the Supreme Court unanimously rejected executive privilege in a ruling that triggered the culmination of the Watergate scandal. The high court concluded that “the fundamental demands of due process of law” as well as the “specific need for evidence in a pending criminal trial” overrode the President’s assertion that he had a constitutional right to keep communications private.
That case involved a subpoena for the President’s Oval Office tapes, not for a personal interview. In separate possible blueprints for a president seeking to evade court-related proceedings, President Bill Clinton in the 1990s was subjected to a civil lawsuit and, separately, served with a subpoena to testify (the subpoena was withdrawn when Clinton agreed to testify voluntarily).
Mueller, who is investigating any Trump campaign connection to Russian meddling in the 2016 presidential election, apparently is close to seeking an interview with Trump. Mueller has reportedly raised the possibility of subpoenaing Trump.
Since taking control of the Russia probe last May, Mueller has charged several people, including 13 Russians for their use of social media during the campaign, former Trump national security adviser Michael Flynn and former Trump campaign chairman Paul Manafort. Flynn has pleaded guilty to lying to the FBI and is cooperating with the counsel’s office; Manafort has pleaded not guilty to the various charges that include conspiracy and money laundering.
Trump has repeatedly denounced the investigation and more recently derided reports about the possible questions Mueller might ask. He wrote Wednesday morning on Twitter, “There was no Collusion (it is a Hoax) and there is no Obstruction of Justice (that is a setup & trap).”
Trump’s evolving legal team has sent conflicting signals about whether the President would accept or try to resist an interview with Mueller’s team.
Although it is not a regular occurrence, presidents for centuries have sought to resist turning over materials to courts. In an 1807 case the Supreme Court cited when it ruled against Nixon and Clinton, President Thomas Jefferson tried to withhold personal documents from the treason trial of his former Vice President Aaron Burr.
The modern touchstone for “executive privilege,” as the claim is now known, is US v. Nixon. The privilege arises from the separation of powers among the three branches and the principle that executive communications, such as military and diplomatic secrets, should remain confidential.
That 1974 constitutional showdown began after a grand jury indicted seven aides and advisers to President Richard Nixon for conspiracy, obstruction of justice, and other offenses related to the break-in of the Democratic National Committee headquarters at the Watergate building in 1972. The grand jury named Nixon as an unindicted co-conspirator.
The Watergate special prosecutor obtained a subpoena that directed Nixon to turn over tape recordings and documents relating to conversations with aides. Nixon refused, citing a broad claim of privilege to keep communications private, and the case quickly escalated to the Supreme Court, which heard the dispute on an expedited schedule in July 1974.
In the unanimous ruling written by Chief Justice Warren Burger, the court acknowledged the President’s need to keep communications confidential but said it was eclipsed by the interests of the judicial process.
“Without access to specific facts,” Burger wrote, “a criminal prosecution may be totally frustrated. The president’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.”
The July 24 decision forced Nixon to relinquish the incriminating tapes, and he resigned from the presidency on August 9, 1974.
The other major case concerning a President who tried to avoid being pulled into a judicial process is the 1997 case of Clinton v. Jones. In that dispute, the Supreme Court ruled Clinton could not invoke presidential immunity to postpone a civil lawsuit by Paula Jones, who said he had sexually harassed her when he was governor of Arkansas.
As they argued for immunity, Clinton’s lawyers said the President’s involvement in the civil case would distract from executive branch business. The Supreme Court unanimously ruled for Jones, citing US v. Nixon and other cases. The court said that it did not expect Clinton’s involvement in the case to be distracting and noted the overall principle that presidents can be subject to judicial proceedings when appropriate.
The following year independent counsel Kenneth Starr obtained a subpoena to compel Clinton’s testimony in a separate matter involving Monica Lewinsky, a former White House intern with whom Clinton had had a relationship.
When Clinton agreed to the interview, Starr withdrew the subpoena.