WHY SO SECRETIVE?
Posted: 05-07-2018 11:38 AM
From Andrew McCarthy's column:
"How do you know Trump’s not a suspect?" I’ve been hearing that question a lot these days. News reports indicate that Special Counsel Robert Mueller may try to coerce President Trump’s testimony by issuing a grand-jury subpoena if the president does not agree to a “voluntary” interview.
Let’s address one point of confusion.
Many people believe, as I do, that the president should not be subjected to questioning by a prosecutor on the facts as we presently know them. From that premise, however, they argue that Mueller may not subpoena the president, or that the president may ignore any subpoena. Neither of those things is true.
In our system, a prosecutor who is using the grand jury has sweeping investigative authority. That includes the power to subpoena virtually anyone. There is a big difference, however, between the power to issue a subpoena to a person and the power to make that person testify.
Bottom line: The question is not whether a prosecutor has the power to issue a subpoena. It is whether the person he wants to subpoena has a privilege that would allow him to refuse to testify.
It is crucial that we fully uncover Russia’s interference in the 2016 election (the aim of the counterintelligence investigation Mueller was assigned to conduct) so that we can thwart the Kremlin in the future. But it does mean that Mueller’s desire for investigative secrecy and the ability to interview every witness who might have relevant evidence has to give way to other priorities.
While the president’s awesome responsibilities for American governance and national-security are more significant than any criminal investigation, the president is not above the law. Thus, there are circumstances in which it is reasonable to burden the president to comply with investigative demands. But those circumstances must be narrow.
This is precisely why the courts have recognized “executive privilege,” a qualified privilege that enables a president to shield information unless a prosecutor can demonstrate that its disclosure is critical to an investigation. Given that the president is the chief executive and can fire federal prosecutors at will, it is not clear how a prosecutor would have authority to oppose a presidential assertion of privilege.
But the upshot is obvious: A prosecutor should not be permitted to seek information from a president unless there is evidence of a serious crime in which the president is implicated, and there is no alternative source from which the prosecutor could obtain the information sought.
How are we supposed to grapple with whether the president should be compelled to testify when we don’t know what Mueller is alleging? What crime does Mueller want to ask the president about? And if there isn’t one, why are we even talking about an interview, let alone a subpoena?
Can anyone conceivably contend that a prosecutor’s desire to maintain secrecy until the prosecutor is good and ready to reveal details of his investigation is more important to our society than the damage caused by potentially unfounded suspicion that the president is a criminal?
It has become ludicrous. The question of whether a prosecutor should be permitted to interview a president hinges on whether the president is a suspect. There is no public evidence that President Trump is. This raises the patent objection that he should not be asked to be interviewed under those circumstances. What we hear in response is, “How do you know he’s not a suspect?”
But the reason we don’t know — other than the lack of evidence after two years — is that Mueller won’t deign to tell us, and Deputy AG Rod Rosenstein won’t deign to comply, publicly, with regulations that required him to outline the basis for a criminal investigation.
That is not acceptable. In every other independent-prosecutor investigation in modern history — Watergate, Iran-Contra, Whitewater/Lewinsky — the president and the public have known exactly what was alleged. The prosecutor was able to investigate with all the secrecy the law allows, but under circumstances in which we all understood what was being investigated and why the president was suspected of wrongdoing.
After two years, we are entitled to nothing less. The president should direct Rosenstein to outline, publicly and in detail, the good-faith basis for a criminal investigation arising out of Russia’s interference in the election — if there is one. If he can’t, Mueller’s criminal investigation should be terminated; if he can, Mueller should be compelled to explain (unless Rosenstein’s disclosure makes it clear) why he needs to interview President Trump in order to complete his work.
If Rosenstein and Mueller are reluctant to do that, it can only be because they’ve decided that not only their investigation but also their desire for secrecy take precedence over every other consideration, including the president’s capacity to govern domestically and conduct foreign policy in a dangerous world. But secrecy is not the nation’s top priority. It’s long past time to lay the cards on the table.
"How do you know Trump’s not a suspect?" I’ve been hearing that question a lot these days. News reports indicate that Special Counsel Robert Mueller may try to coerce President Trump’s testimony by issuing a grand-jury subpoena if the president does not agree to a “voluntary” interview.
Let’s address one point of confusion.
Many people believe, as I do, that the president should not be subjected to questioning by a prosecutor on the facts as we presently know them. From that premise, however, they argue that Mueller may not subpoena the president, or that the president may ignore any subpoena. Neither of those things is true.
In our system, a prosecutor who is using the grand jury has sweeping investigative authority. That includes the power to subpoena virtually anyone. There is a big difference, however, between the power to issue a subpoena to a person and the power to make that person testify.
Bottom line: The question is not whether a prosecutor has the power to issue a subpoena. It is whether the person he wants to subpoena has a privilege that would allow him to refuse to testify.
It is crucial that we fully uncover Russia’s interference in the 2016 election (the aim of the counterintelligence investigation Mueller was assigned to conduct) so that we can thwart the Kremlin in the future. But it does mean that Mueller’s desire for investigative secrecy and the ability to interview every witness who might have relevant evidence has to give way to other priorities.
While the president’s awesome responsibilities for American governance and national-security are more significant than any criminal investigation, the president is not above the law. Thus, there are circumstances in which it is reasonable to burden the president to comply with investigative demands. But those circumstances must be narrow.
This is precisely why the courts have recognized “executive privilege,” a qualified privilege that enables a president to shield information unless a prosecutor can demonstrate that its disclosure is critical to an investigation. Given that the president is the chief executive and can fire federal prosecutors at will, it is not clear how a prosecutor would have authority to oppose a presidential assertion of privilege.
But the upshot is obvious: A prosecutor should not be permitted to seek information from a president unless there is evidence of a serious crime in which the president is implicated, and there is no alternative source from which the prosecutor could obtain the information sought.
How are we supposed to grapple with whether the president should be compelled to testify when we don’t know what Mueller is alleging? What crime does Mueller want to ask the president about? And if there isn’t one, why are we even talking about an interview, let alone a subpoena?
Can anyone conceivably contend that a prosecutor’s desire to maintain secrecy until the prosecutor is good and ready to reveal details of his investigation is more important to our society than the damage caused by potentially unfounded suspicion that the president is a criminal?
It has become ludicrous. The question of whether a prosecutor should be permitted to interview a president hinges on whether the president is a suspect. There is no public evidence that President Trump is. This raises the patent objection that he should not be asked to be interviewed under those circumstances. What we hear in response is, “How do you know he’s not a suspect?”
But the reason we don’t know — other than the lack of evidence after two years — is that Mueller won’t deign to tell us, and Deputy AG Rod Rosenstein won’t deign to comply, publicly, with regulations that required him to outline the basis for a criminal investigation.
That is not acceptable. In every other independent-prosecutor investigation in modern history — Watergate, Iran-Contra, Whitewater/Lewinsky — the president and the public have known exactly what was alleged. The prosecutor was able to investigate with all the secrecy the law allows, but under circumstances in which we all understood what was being investigated and why the president was suspected of wrongdoing.
After two years, we are entitled to nothing less. The president should direct Rosenstein to outline, publicly and in detail, the good-faith basis for a criminal investigation arising out of Russia’s interference in the election — if there is one. If he can’t, Mueller’s criminal investigation should be terminated; if he can, Mueller should be compelled to explain (unless Rosenstein’s disclosure makes it clear) why he needs to interview President Trump in order to complete his work.
If Rosenstein and Mueller are reluctant to do that, it can only be because they’ve decided that not only their investigation but also their desire for secrecy take precedence over every other consideration, including the president’s capacity to govern domestically and conduct foreign policy in a dangerous world. But secrecy is not the nation’s top priority. It’s long past time to lay the cards on the table.