In the coming weeks, President Donald Trump is going to find himself making a decision he’s bound to hate: Does he want to comply with Robert Mueller, or risk diminishing his own power?
Here’s why this choice is inevitable. In the wake of his 8-count indictment against 13 Russian nations and 3 Russian entities for election interference, Special Counsel Robert Mueller’s interest in interviewing Trump will take on a renewed importance. So far, all signs have pointed to Trump’s refusing the interview request, which would almost certainly force Mueller to issue a grand jury subpoena to compel the president to talk. If this comes to pass, and the president refuses to comply with such a subpoena, the country will be in unchartered constitutional territory, and the courts will need to intervene. But history shows that when courts intervene because a president is trying to shield his own conduct, the deck is stacked against him. If Trump isn’t careful, he will end up shrinking his own authority—and diminishing the presidency for years to come.
When it comes to the separation of powers, the Constitution makes it looks pretty simple: Congress makes the laws, the president enforces them and the judiciary adjudicates them. In reality, though, the lines between the branches are a little blurrier than they seem on paper. Writing in 1952, Supreme Court Justice Robert Jackson noted that presidential power sometimes lies in a “zone of twilight” where the precise boundaries of Article II, which defines the president’s role, are unclear. In general, it’s in the interest of presidents to leave some of their authority in the grey area. This is because having a court decide where presidential power begins and ends leaves it set in stone, and applies to anyone who occupies the office in the future. In practice, presidents have typically tended to think of themselves not just as stewards for their party, but also of the presidency itself—preserving the full scope of its constitutional power for their successors is part of their job.
Story Continued Below
For this reason, when questions arise about whether the president can or can’t do something, it’s better, from the presidential perspective, not to have the issue go to court. Sometimes this will be by getting Congress on board to authorize and fortify executive powers—think of the Authorization for the Use of Military Force, or the recently renewed Section 702 of FISA that permits the executive to conduct electronic surveillance on foreign targets. Other times, it might just be reluctant compliance, as when President Ronald Reagan handed over his personal diaries to Iran-Contra Independent Counsel Lawrence Walsh, or when President Bill Clinton agreed to give testimony to the grand jury in Independent Counsel Kenneth Starr’s Whitewater/Lewinsky investigation.
Of course, courts can and do intervene when presidents attempt to extend their authority too far or refuse to negotiate on the parameters. The Supreme Court reigned in President Harry Truman when he tried to use his war powers to take over domestic steel mills during the Korean War, and brushed back President George W. Bush when he established military tribunals to try suspected terrorists at Guantanamo Bay. The nature of our constitutional system presumes that the executive branch will try to overreach, and having the judiciary impose limits on the presidency is appropriate and necessary in these instances. When these cases are about contested policies, limits on presidential power can strengthen our constitutional democracy overall by promoting the robust expression of checks and balances, encouraging collaboration with Congress, or reaffirming individual rights.
However, when judicial limits on the president’s power arise over a dispute concerning his own alleged bad conduct, they weaken the presidency for the wrong reasons. In such situations, the president isn’t defending some larger goal in the national interest. Rather, he’s simply using it as a shield to avoid being held accountable for his personal behavior or criminal acts. The most famous example is President Richard Nixon, who claimed executive privilege to avoid providing incriminating information to Watergate Special Prosecutor Leon Jaworski. The resulting Supreme Court case, U.S. v. Nixon, gave the presidency a blow by ruling that claims of executive privilege didn’t insulate him from having to turn over records that might have evidentiary value in a criminal proceeding. Similarly, Clinton’s attempt to use the same tactic to keep his aides from testifying before Starr’s grand jury failed, with a court deciding that “personal matters” did not fall within the scope of the privilege.
These were the worst kind of cases to test the limits of presidential power because they weren’t about the role of the presidency, but the individual occupying the office. This makes a difference. When presidents decide to litigate an issue to protect their policy decisions, they are more likely to act judiciously, and with an eye toward compromise, because they can see the larger implications for the legacy of their office. But when presidents are just trying to keep their own bad or illegal conduct from public view—or keep themselves out of jail—they end up placing the power of the presidency at risk unnecessarily, with no real benefits to the other branches, individual rights or the country generally if they lose. They offer courts a way to extend these decision to other contexts in the future, tying the president’s hands in ways we might not want.
And though these battles can reaffirm the important principle that no one, not even the president, is above the law, they can still be damaging to democracy. Criminal investigations pit the president against law enforcement, making the public believe their loyalty belongs with one or the other. Even worse, they incentivize the president to accuse the investigations against him of being illegitimate, or an abuse of power. This kind of behavior is a typical self-preservation strategy for a criminal target—Trump, like Nixon, has attacked the prosecutors and FBI agents investigating him as being politically biased. When this rhetoric comes straight from the chief executive of the United States against his own branch of government, it is especially destructive to democratic institutions and the faith people have in their legitimacy.
Electing someone to the presidency with bad moral character isn’t just a 4-year embarrassment. It’s also a constitutional risk, since there’s a good chance these individuals will have little regard for how their actions impact the legacy of the office they hold—especially if they find themselves in the crosshairs of an investigation, like Trump does now. The irony, of course, is that Trump’s impending showdown with Mueller is on shaky legal ground precisely because of the precedent set by some of his predecessors. Still, the presidency, and the country, would be better off if these questions never had to be decided in the first place.