London is a retired partner for the law firm Paul, Weiss, Rifkind, Wharton & Garrison and the author of The Client Decides; he was a principal lawyer for Vice President Spiro Agnew.
The President “shall take Care that the Laws be faithfully executed.”
These words are not a suggestion. They are a command. They impose an affirmative duty on the President — and, as the Republican-led House Judiciary Committee reminded us five years ago, the clause is mandatory. It was inserted into the Constitution because the Founders rejected the notion that, like the English king, a President could suspend, ignore or violate a law he didn’t like.
These words also have especially significant meaning today, as the President weighs whether or not to speak with a law enforcement officer charged with investigating alleged criminal acts that could encompass the President’s own conduct or the actions of his family and colleagues. President Trump has said that he is not only eager to talk to Special Counsel Robert Mueller for the investigation into Russia interference with the 2016 election (and any other federal crimes he encounters in the process of that inquiry) but that he wants to do so under oath. Nonetheless, the New York Times reports that some of the President’s lawyers have now advised Trump to refuse any interview with Mueller.
Whether this course of action is in the President’s best interests is one question. But would President Trump refusing to speak with Mueller be unconstitutional? Would it violate his unique obligation to “take Care that the Laws be faithfully executed”? While there has never been a litigated matter covering this precise situation — at least to my knowledge — the Constitution, the common law and common sense all suggest the answer is “yes.”
There is nothing ambiguous about the words of the Constitutional command, and it is not a logical stretch to say that an obligation to faithfully execute the laws would include an obligation for the President to cooperate with an authorized law enforcement officer making an authorized inquiry — especially when the President and his family are themselves subjects of the investigation. The President has a Constitutional obligation to help Mueller execute the law, not hinder him.
This would be a new application of the Faithful Execution clause, but there is ample legal precedent for the other branches of our government to review and sanction the Chief Executive for a failure to abide by Presidential obligations. Presidents Truman and Nixon bore the scars of such recent battles.
If Trump does refuse to speak to Mueller, he risks a grand jury subpoena. Two previous Presidents went that route and neither Clinton nor Nixon fared very well in the courts. The President would then likely have to testify under oath and incur substantial risk of perjury and self-incrimination. Or he could claim a Fifth Amendment right to avoid answering Mueller’s questions by asserting his testimony would tend to incriminate him. (In which case: Yikes… The Donald morphs into The Don.)
On the face of it, one could reasonably argue that there is a direct conflict between the mandatory obligation to take care to see to the faithful execution of the law and the interposition of a Fifth Amendment right to frustrate the prosecutor. I respectfully suggest “Taking care” appears to be the direct opposite of “Taking five.” But the novel legal question of whether the Take Care clause strips the President of any Fifth Amendment rights in these circumstances — even if it resolved in the President’s favor — certainly does not immunize the President from impeachment.
The Fifth Amendment would hardly serve the President’s interests in a proceeding before a dutiful Congress.
While in a criminal trial, the court instructs the jury that they may not infer a consciousness of guilt from the silence of the defendant (and therefore the invocation of the Fifth Amendment), the opposite is true in civil cases. There, when a party fails to deny any allegation, or fails or refuses to answer a pertinent question based on a Fifth Amendment claim, the jury is free to assume that the defendant’s failure to swear “I didn’t do it” is powerful evidence that he did do it.
Impeachment proceedings are closer to civil cases than criminal ones. Congress’s rights are very broad. And while there is no precedent, I suggest Congress is free to do what logic suggests: infer guilt by reason of the President’s imposition of the Fifth Amendment.
A failure to cooperate in full with Mueller would remove any doubt of the President’s abject contempt for his Constitutional obligations.
The irony here is that because it is exclusively Congress’s duty to hold the President accountable for Constitutional offenses, Trump is more likely to commit them. I predict Trump will listen to his lawyers. I would give the same advice they are giving him. The calculation is simple. The President needs to estimate which government officer is less likely to end his presidency before 2020: Robert Mueller or Paul Ryan.
Would Congress live up to its Constitutional obligations? Would it impeach by reason of the President’s failure to cooperate with Mueller, his failure to aid in the faithful execution of the law?
This Congress? Ha!