The Special Counsel’s investigation is approaching a decisive moment. Once that moment arrives, the President will face a range of questions from the Special Counsel.
Information that was made available to the President’s legal team indicates that the Special Counsel will, if necessary, subpoena the President. Historical precedent suggests that the President will ultimately answer questions from the Special Counsel in one form or another.
The President will likely confront the questions at a disadvantage. First, he has built his administration on the quicksand of misleading and false statements. On May 1, The Washington Post reported that the President had made 3,001 misleading claims or false statements during his first 466 days in office. Second, he has surrounded himself with staff who have faced serious ethics questions or worse. Examples include Michael Flynn, Scott Pruitt, and Rob Porter. Their scandals have sharpened the focus on the President’s own conduct. Third, even as the Special Counsel’s team has discussed areas of concern with the President’s legal team, the President and his legal team do not know the extent of evidence that the Special Counsel possesses. This information asymmetry gives the Special Counsel a decided advantage in discovering the truth.
Rising fear now grips the White House. In response, the President and his allies are lashing out against the Special Counsel, Department of Justice, FBI, Intelligence Community, and others involved in upholding the rule of law.
His allies in Congress are running interference of their own. Congressman Devin Nunes used his position as Chair of the House Intelligence Committee to release a shoddy, poorly developed, and highly partisan report that sought to exonerate the President while discrediting law enforcement and the Intelligence Committee. Congressmen Mark Meadows and Jim Jordan have demanded that the Department of Justice turn over highly sensitive information concerning the scope of the Special Counsel’s investigation, asserting “oversight” while likely seeking to provide the President with the information his legal team and he lacks.
On radio, TV, and in print, the President’s allies have carried out a loosely coordinated and increasingly noisy campaign attacking the news media, which has covered the Special Counsel’s investigation and broken important stories related to it. Taking their cue from the President, they have also sought to undermine law enforcement and the Intelligence Community, even charging them with pursuing an unconstitutional “silent coup.” Recently, they have anointed themselves de facto Supreme Court Justices and advanced narratives of what is or isn’t constitutional. Not surprisingly, their interpretations of the Constitution coincide almost perfectly with the President’s interests.
In a recent appearance with radio host Mark Levin, former prosecutor Andrew McCarthy stated:
Well, I don’t think…that not only should a prosecutor not be permitted to subpoena a president by a court, I don’t think the Justice Department should allow a president to be even asked voluntarily to submit to an interview in the absence of evidence that there’s a serious crime that the president is complicit in and indication that the only way that you could get the evidence that the prosecutor can show is vital to the case is through the president… So, you know, you’d have to be in like a Nixon tape situation, where you have evidence of a crime that the president’s complicit in, and the only way you can get the tape is through the president, through the White House.
Such rationale would preclude the Special Counsel’s ability to discover whether a crime or other impeachable offense had, in fact, taken place. McCarthy’s view misses among the most basic reasons the Special Counsel seeks to interview the President in the first place. A required element of obstruction of justice concerns whether a person who carried out even an otherwise lawful act did so with “corrupt intent.”
No interview. No way to examine the President’s thinking. No finding of corrupt intent. No obstruction of justice. No legal problem.
The McCarthy position is a dramatic break from the Founders’ expectations. In a letter to Edmund Randolph dated September 28, 1789, whom he nominated to be the first Attorney General of the United States, President George Washington observed that “due administration of justice is the firmest pillar of good government.”
The nation and its people have good reason to ask why the President and his allies have gone to almost extreme ends to hobble the Special Counsel’s investigation. They have even stronger cause to resist all such efforts knowing that by advocating the pursuit of justice, they are defending the “firmest pillar of good government” and the Constitution itself.