What Rudy Giuliani said in his two-day “media blitz” on behalf of his new client was so bizarre that even the client, Donald Trump, observed Friday that his lawyer “wasn’t totally familiar with everything.”
True enough.
The president appeared to be trying to distance himself from Giuliani’s announcement that Trump had “funneled” money to attorney Michael Cohen as part of a scheme to pay off porn star Stormy Daniels just before the 2016 election. No surprise there, as that statement by Giuliani opened up an array of potential legal troubles for Trump, including, despite his new lawyer’s assertions to the contrary, an exploration of serious campaign-finance violations.
But the truly troublesome statement from Giuliani was one that Trump made no effort to walk back—and that undoubtedly influenced Trump’s talk about how his new lawyer is “a special guy” who “really understands that this is a witch hunt.” During what Sean Hannity referred to as the “really important” part of his astounding interview with the former mayor of New York, the Fox News host griped about special counsel Robert Mueller’s probe and “many congressional investigations” as he turned the discussion toward the prospect that the president might be subpoenaed.
Giuliani claimed that:
It’s pretty clear that a president can’t be subpoenaed to a criminal proceeding about him. Now, why is that? And fortunately—or maybe unfortunately—we have the real life circumstance going on that the Founding Fathers thought about, which is a president cannot be distracted by a criminal investigation. You can always prosecute him after. They can get him when he leaves the White House. You can always prosecute him after.
Giuliani was asserting that the intent of the founders was that presidents not be distracted by the rule of law. Arguing that the president has a defined authority to refuse to respond to demands from Mueller or others who are investigating wrongdoing, Giuliani theatrically declared that: “I could not go to the president and say, take two days off to get ready for that and screw the whole thing with North Korea. I—how can any American do that?”
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“That’s why the Founding Fathers created this immunity from prosecution and subpoena,” claimed Giuliani.
Say what?
The founders wanted presidents to be able to perform their duties, as part of a system of shared power and responsibility with the Congress. But they were particularly concerned about the threat of an imperial presidency. They wanted to guard against the prospect that a president might decide to serve as an “elected despot” or a “king for four years.” The power of impeachment was developed by the drafters of the Constitution in answer to concerns that were well stated by George Mason, when he argued that: “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?”
There have always been, and there will always be, legal debates about precise questions of presidential responsibility and immunity. But the Supreme Court long ago rejected the absolutes that Giuliani now so casually embraces. “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,” wrote Chief Justice Warren E. Burger—a Republican appointed by President Richard Nixon —in the unanimous United States v. Nixon decision of 1974, which dismissed Nixon’s claim that he was not required to turn over secretly recorded White House tapes in answer to a subpoena from special prosecutor Leon Jaworski.
When President Bill Clinton tried, in the case of Clinton v. Jones, to assert a standard similar to Giuliani’s distraction theory—”arguing,” as the Lawfare blog describes it, “that forcing a sitting president to answer a civil complaint would unduly distract him from his duties as president”—the Supreme Court unanimously rejected the suggestion. Justice John Paul Stevens explained in that 1997 ruling that it is “settled that the President is subject to judicial process in appropriate circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed [at] the President. We unequivocally and emphatically endorsed Marshall’s position when we held that President Nixon was obligated to comply with a subpoena commanding him to produce certain tape recordings of his conversations with his aides.”
Stevens added that: “Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty. President Monroe responded to written interrogatories, President Nixon—as noted above—produced tapes in response to a subpoena duces tecum, President Ford complied with an order to give a deposition in a criminal trial, and President Clinton has twice given videotaped testimony in criminal proceedings. Moreover, sitting Presidents have also voluntarily complied with judicial requests for testimony. President Grant gave a lengthy deposition in a criminal case under such circumstances, and President Carter similarly gave videotaped testimony for use at a criminal trial.”
Why does all of this matter? Not merely because of issues that are certain to arise with regard to the Mueller inquiry—and the likelihood that they will inspire some further interpretation by the courts—but because of this president’s obvious disregard for the Congress that might ultimately issue subpoenas as part of the process of impeaching Trump.
When the House Judiciary Committee adopted articles of impeachment against Nixon in July of 1974, Democratic and Republican members of Congress asserted that Nixon had acted “in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice.” The third article of impeachment read dealt specifically with subpoenas, noting that Nixon had “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas.”
“The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President,” explained the impeachment article, which concluded that: “In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”
If Donald Trump gets it into his head that Rudy Giuliani is right about broad presidential immunity from subpoenas, he could well end up making the case for his own impeachment.
