Sunday, August 1

The Road To Hotel California — Part 1

I believe the greatest rock song ever written is The Eagles' "Hotel California". I have believed this for some time, and for a variety of reasons.  But I have come to believe it even more recently, because "Hotel California" is turning out to be the anthem of any nation -- at this time, the United States -- which allows itself to be seduced into tyranny by the meretricious charms of simplistic solutions to problems which, though genuine enough, may be used to further the demagoguery of people whose only loyalty is to their own power. Our fear and perplexity are their strength. The latest highway signpost pointing the way to our Nation's Hotel California is the 20-page memorandum arguing that the President is a law unto himself. We can hear the music and read the lyrics even now.

On a dark desert highway, cool wind in my hair
Warm smell of colitas, rising up through the air
Up ahead in the distance, I saw a shimmering light
My head grew heavy and my sight grew dim

The following is a prophecy. I hope I am wrong. But I do not think I am.

Step 1:  Trump will decline to volunteer to be interviewed by Special Counsel Robert S. Mueller and his co-investigators in the Office of Special Counsel about Russian influence in the last presidential campaign.

Speaking as an “avocational constitutionalist,” i.e., someone who has studied the Constitution seriously and in depth, read it closely, read commentaries on it, read theories about how to interpret it, written about it, and taken courses about it, I believe that the President has the power to decline to volunteer to be interviewed by any member of the Executive Branch. Donald Trump, like any other citizen, has the “Nancy Reagan Option”:  Just Say No.

Step 2:  Special Counsel Mueller, whose office has full subpoena power, will issue a subpoena that is intended to force Donald Trump to be interviewed by the Office of Special Counsel.

Again, there is no question whether the Office of Special Counsel has subpoena authority.  So any subpoena issued at the behest of Mr. Mueller is accompanied by the same authority as any subpoena issued by any office or individual endowed with such vested power.  So there is no question as to the legitimacy of the subpoena thus issued. But it is at this point – the undoubted legitimacy of the legality of the issuance of the subpoena accompanied by Trump’s reluctance to comply with same – that holds the potential for a constitutional crisis – and, I would argue, consequences immeasurably more serious – of a gravity not seen since the run-up to the Civil War.

Step 3:  Trump will refuse to comply with the subpoena, whereupon the issue devolves to the Supreme Court.

Now, to be fair, there is a genuine issue – at least in my mind, and speaking only for myself – as to the constitutionality of a sitting President being required to answer to a subpoena.  Frankly, I can argue both sides of the issue, the “Yes” side and the “No” side.  The operative word in the foregoing is “sitting”.

A President who is impeached, and who is subsequently convicted becomes a private citizen, and, as a private citizen, he or she is no more immune from answering a subpoena than you or I.  This has never happened before in the Nation’s history, the closest approach being the impeachment of President Andrew Johnson in 1868, whose conviction by the Senate failed by a single vote. Nor, once leaving office, is any former President immune from the legal penalties incurred by refusing to comply. (The word “subpoena”, translated literally from the Latin, literally means “under [pain of] punishment”.) One could argue, however, that President Nixon, who refused to produce what later came to be known as the “Watergate Tapes,” was ordered by the Supreme Court to produce the tapes, and that executive privilege did not extend to the withholding of physical evidence, which could not be obtained in any other manner. What is at stake in this case is the ability of the President to function as President under the terms of Article II of the US Constitution.  In the interest of the Nation as a whole, even criminal action – so this argument goes – must be subordinate to the functioning of the Office of President.

So the key question -- it seems to me, and, again, speaking only for myself -- is whether the information required by the Office of Special Counsel, can be obtained in any manner short of a personal, face-to-face questioning of the President. This is where the jurisprudential bubble gun gets sticky, certainly for the President’s legal team. 

Over the year-plus since the inception of the Mueller investigation, how many versions has Donald Trump issued of his reasons for taking various actions relevant to the Mueller inquiry? To cite only a single example, at one point Trump said that he fired former FBI Director James Comey for his highly unprofessional conduct in announcing the renewal of the Hillary Clinton e-mail investigation. (I agree with Trump’s assessment as to Mr. Comey’s professional conduct in this matter:  even people of exceptional integrity, as I would still characterize James Comey, sometimes succumb to bad judgment.) But a few days later, in response to a question by NBC’s Lester Holt, Trump said that he fired Mr. Comey in order to shut down the Russia investigation. (Granted, the firing of then-Director Comey for his handling of the Clinton e-mails and the stopping of the Russia inquiry are not contradictory reasons. But if each reason is to be given its proper weight in answer to those respective questions, then why not allude to both reasons in both interviews? Why did the Comey matter suddenly sink below the threshold of visibility in the Holt interview? And why did Mr. Comey's professional conduct not rise above that threshold in the matter of the Clinton e-mails?) Which story are we to believe? (Ironically, Rudolf Giuliani recently cited such inconsistencies as a reason to not interview Trump!) Must I really in addition allude to Trump’s waffling on whether or not he knew about the $130 thousand hush-money payment to Stormy Daniels? Then there is the “No he’s not my lawyer / Oh yes he is” assessment of his relationship with Michael Cohen. Ad nauseum et ad infinitum. Moreover, all these contradictory statements occurred in public – in fact, in front of members of the media – on occasions when Trump was not under oath. Now, I am no one’s idea of a lawyer, nor do I presume to be. But I am a pretty damn good logician, certainly more than good enough to know that the statement “P and not-P” is a contradiction.

So, even as just an educated lay person with a more-than-merely-casual interest in the Constitution, if I were Trump’s attorney, I would quail with terror at the prospect of my client being interviewed under oath by the Special Counsel and my client responding to Mueller's questions with his trademark free-wheeling, stream-of-consciousness, on-the-fly, logic-free, real-time ad lib remodeling of history, which is apparently Trump’s default mode or discourse, even part of the Trump brand. On literally anything. (Remember "See Melania through the window"? Remember "Yes I've read the North Korea letter / No I haven't read the North Korea letter"?) Now, granted, it is perhaps on the outermost fringes of possibility that Trump, with intense coaching by his legal team, might collaborate with them to formulate a more-or-less consistent and perjury-proof account of Trump’s behavior, both during the campaign and after assuming the Presidency. And – even more important – that Trump would strictly stick to this story during questioning. Yeah. Perhaps. Maybe. But even then, there would remain the potentially catastrophic problem of how Trump would answer questions in real time from the Mueller team as to reconciling this consistent version of Trump’s story with subsequent public utterances contradicting same. E.g., if Trump did indeed fire Mr. Comey for unprofessional conduct regarding the Clinton e-mails, how is such a characterization to be reconciled with the statement to Lester Holt about shutting down the Russia inquiry? Lipstick on the collar and an empty condom package in the wallet are irreconcilable with the husband’s statement to his wife “Oh … she and I are just professional colleagues”.

Step 4:  The following is a flat prediction – Trump will refuse to comply with any subpoena from the Office of Special Counsel.

At that point, the matter will, I predict, be decided by the Supreme Court.  Must a sitting President comply with a subpoena? Or may he legally demur? I would further predict a very close vote, but that the Supreme Court would decide in the negative:   no, a sitting President need not comply with a subpoena. Please understand:  that is the best result we can hope for. 

The worst-possible result would be a "Yes" decision by the Supreme Court:  yes, the President must comply with the subpoena, and for reasons analogous to the reasons cited by the Court in the matter of the Watergate / Nixon tapes. That is to say, there is no other way for the Office of Special Counsel to ascertain the answers to the relevant questions. In the event of a "Yes, comply" vote by the Court, it would be elegantly ironic that -- this is me talking now -- one of the most salient justifications for such a "Yes, comply" decision would be the word-salad of contradictions Trump himself tossed in response to other Mueller-related questions, a bare few of which I enumerated above:  a masterpiece of smoke-and-mirrors obfuscation, gaslighting, misdirection, and just plain lying that has left the entire issue hopelessly confused, absent a one-on-one conversation between Trump and the Office of Special Counsel. Consequently, if Mr. Mueller & Co. are to have any hope of ferreting out the diamond from underneath the gigatons of bullshit, common sense alone dictates that they must be allowed into the cattle feedlot.

My final prediction:

Step 5:  Trump will elect to defy any "Yes comply" decision by the Supreme Court.

In this case, Trump adopts the strategy allegedly -- and probably apocryphally -- followed by President Andrew Jackson in 1832 in response to the Worcester v. Georgia holding of the Marshall Court:  "Mr. Marshall has made his decision, now let him enforce it". But unlike the Worcester decision, this is not a States' rights issue. This is strictly a matter within the confines of the Executive Branch. So Trump's defiance of a subpoena would precipitate a constitutional crisis of unprecedented scale. I fully understand that saying a decision in Trump's favor is the best result we can hope for is highly counterintuitive. One would think that a Supreme Court ruling mandating that the President comply with the Special Counsel's subpoena would be the supreme desideratum. To understand why I disagree,  read Part 2 next week. For now, kindly suspend disbelief.

What would be the consequences of such a "Yes comply" decision?  The short answer is "Nothing good".  But as to the details, here prediction must yield to speculation. See Part 2 next week.

I had to stop for the night
There she stood in the doorway;
I heard the mission bell
And I was thinking to myself,

'This could be Heaven or this could be Hell'

James R. Cowles

Image credits

Eagles in concert ... Linc-o ... Creative Commons Attribution 2.0 Generic
Hotel California ... Lawren ... CC BY 2.0
Mirrored ceiling ... Ibnazhar ... Creative Commons Attribution-Share Alike 4.0 International
Pink champagne ... Max Pixel ... Public domain
Robert Mueller ... The White House ... Public domain
Donald Trump ... Michael Vadon ... CC by SA 2.0
Subpoena ... Science Education Resource Center (SERC), an office of Carleton College ... Creative Commons Attribution-Share Alike 3.0 Unported
Supreme Court ... Daderot ... Public domain
Lyrics to "Hotel California" ... © Universal Music Publishing Group


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