United States v. Nixon, Revisited

On March 1, 1974, Department of Justice Special Prosecutor Archibald Cox obtained a federal grand jury indictment against seven associates of then-President Richard Nixon. The President himself was not indicted, although he was named as an “unindicted co-conspirator.”

Trial of the seven defendants was scheduled for September 9. In preparation for trial, Cox issued a subpoena for tape recordings of specified Oval Office conversations. President Nixon went to court to oppose the subpoena, claiming, among other things, that the president is entitled by virtue of the doctrine of executive privilege to absolute confidentiality in his communications, and that the constitutional separation of powers precluded the judicial branch from reviewing the chief executive’s assertion of the privilege.

The federal trial judge, John Sirica, rejected Nixon’s arguments and ordered that the tapes be presented to him for “in camera” review, so that Judge Sirica could listen to the tapes and decide which portions should and which should not be given to Special Prosecutor Cox. President Nixon appealed to the federal Court of Appeals.

Consistent with the urgency of the situation, the Supreme Court agreed to hear the case without waiting for the Court of Appeals, and the case was argued during the Court’s summer recess, on July 8, 1974. Just 16 days later, the Court delivered its firmest possible rejection of President Nixon’s arguments. The Court unanimously upheld Judge Sirica’s order, and the opinion was written and delivered from the bench by Chief Justice Warren Burger – a Nixon appointee. Not only were there no dissents, there weren’t even any separate concurring opinions, meaning that all eight justices agreed not just with the result, but also with Chief Justice Burger’s reasoning. (Associate Justice William Rehnquist recused himself, presumably because he had been associate counsel in the Justice Department during the Nixon administration.)

The Court rejected both grounds for Nixon’s claim of absolute executive privilege: “neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

Furthermore, the Court turned Nixon’s separation of  powers argument around on him. Just as Nixon asked the judicial branch to respect his exercise of his executive duties, Nixon must respect the courts’ exercise of their judicial duties. And “the primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions.”

What’s important about the case, titled United States v. Nixon, is that the President was not a defendant in the criminal case at hand. The Court’s holding is that neither executive privilege nor separation of powers immunizes even the president of the United States from providing evidence needed for the prosecution of a criminal case.

Donald Trump’s lawyers – chiefly former New York City Mayor Rudy Giuliani – have worked hard to cast Special Counsel Robert Mueller’s investigation into Russian election interference as an investigation into criminal wrongdoing by President Trump himself. Most recently, Giuliani announced that Trump would agree to be interviewed by Mueller’s team only if Mueller shows that he has evidence of criminal wrongdoing by the President.

Regrettably, I think, many who have argued that Mueller should be allowed to complete his investigation unhindered have accepted Giuliani’s casting of the Mueller investigation as a criminal investigation of Donald Trump. It’s regrettable because it’s inaccurate, and it’s doubly regrettable because it fosters a public misperception that if the investigation ultimately proves no criminal wrongdoing by Trump, then it will have proved nothing at all.

I have pointed out that the logically primary purpose of the Mueller investigation is to determine the full extent of Russia’s interference in the 2016 election – what they did, how they did it, and how it can be prevented from happening again. In its primary purpose, the Mueller investigation is a counter-intelligence investigation.

The logically secondary purpose of the investigation is to charge and prosecute any person, Russian, American or otherwise, who may have committed federal crimes in the course of Russia’s interference with our election. In this secondary purpose, the Mueller investigation is a criminal one. And in fact sixteen Russian individuals and entities have been indicted for election interference. No Americans have yet been indicted on “collusion” charges, although a number of Americans have been indicted for lying to investigators about their Russian connections, and for other crimes uncovered during the investigation.

The fruits of criminal investigations often become public even before the investigations are completed, as indictments are announced and as prosecutions proceed. Therefore we know some of what Mueller’s criminal investigation has found. But counter-intelligence investigations do not necessarily produce public information before the investigations are completed, and not necessarily even then. In this case, some of the fruits of the counter-intelligence investigation have been revealed in public documents, most importantly the indictments of 16 Russian individuals and companies for their roles in the election interference. But it is possible, and I think it is very likely, that Mueller’s counter-intelligence investigation has found a great deal more than what has been revealed.

Although we know that Mueller has developed evidence of fairly extensive criminal wrongdoing, we don’t know yet whether Mueller has developed evidence of criminal wrongdoing by Trump himself. I’ve said that I think it’s unlikely that Trump colluded with Russians, at least in the sense of Trump talking directly with Russian officials to work out a joint action plan for winning the 2016 election.

On the other hand, I think it’s likely that Trump knew, at least generally, that Russia was seeking to aid his campaign, since I think it’s likely that Trump knew about the infamous Trump Tower meeting at which Trump campaign officials expected to receive Russian government information that would be damaging to Hillary Clinton. And if Trump knew about the Trump Tower meeting, he probably knew both that his campaign was open to collusion with the Russians, at least in the form of receiving the proffered information, and that, by taking the meeting, his campaign had revealed to the Russians its openness to such collusion.

I also think it’s plausible that the Russian government has leverage over Trump. That leverage may have as pedestrian a source as Trump’s long-standing desire to build a Trump Tower in Moscow. It may have as idiosyncratic a source as Trump’s affinity for powerful authority figures. It may have as lurid a source as the alleged “pee tape,” or other evidence of improper or embarrassing conduct by Trump.

I don’t really know whether any of that could create criminal liability on the part of President Trump. But the lesson of United States v. Nixon is that Trump’s obligation to cooperate with the Mueller investigation is not determined solely by whether Trump is a target of the investigation, or whether the investigation has as yet developed evidence against Trump.

Even absent criminal liability, the President is an important witness for Mueller to interview. No one is better positioned than Trump himself to explain his obvious deference to Vladimir Putin. If Russia has leverage over Trump, it’s critically important for Mueller’s counter-intelligence investigation to understand how Russia developed and used that leverage, regardless whether Trump bears any blame in it.

Trump can explain why his campaign hired Paul Manafort, a has-been of American politics whose primary qualification seem to have been his connections with pro-Russian Ukrainians. Trump may be able to explain why Manafort was willing to take the job without pay at a time that Manafort was desperate for money. Trump can explain why his campaign selected pro-Russian foreign policy advisors like General Michael Flynn, Carter Page and Roger Stone, and why he selected Flynn to be his first national security advisor.

Trump can shed light on what his campaign staff did, what he instructed them and what they reported to him. Trump can explain his ample Twitterature, what prompted various tweets and what he meant by them. If Trump’s former attorney, Michael Cohen, is prosecuted, Trump will almost certainly be an important witness, whether for the prosecution or for the defense.

Others have pointed out that Trump and Giuliani must be very concerned about the downside potential of an interview with Mueller’s investigators. One speculation is that Trump has something very substantial to hide. Another is that his well-documented “practiced ignorance” and habit of “truthful hyperbole” would make an interview a “perjury trap.” The cover for Trump’s unwillingness to sit for an interview has been the claim that the Mueller investigation is biased, a tool of the “deep state” and the Clinton campaign, and therefore that Trump can’t get a fair shake from Mueller.

Even without the support of actual facts, the logic of the argument only works if Trump is a target of the Mueller investigation. The argument fails even on its own terms if Trump is needed as a witness, whether to the counter-intelligence or to the criminal component of the investigation – which he almost certainly is.