- President Donald Trump is likely to sit down for an interview with special counsel Robert Mueller sometime soon.
- He could seek to limit the questions he answers by either invoking executive privilege or the Fifth Amendment.
- But even these methods have their limits, according to experts, and claims of executive privilege could open Trump up to a lengthy court battle of the kind that occurred during the Watergate scandal.
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As President Donald Trump shakes up his legal team in preparation for a likely interview with special counsel Robert Mueller, the president and his attorneys have a number of different options for how they could approach the face-to-face session – but history shows that if they are too defensive, they might become embroiled in a lengthy court battle.
After the resignation of attorney John Dowd from his team, Trump appears more likely to overrule any remaining resistance from his lawyers and follow through on his statement that he would like to sit down for an interview with Mueller. Trump could try to avoid answering Mueller’s questions if he sits down with him in one of two ways.
The first is invoking executive privilege, which has been used by several former members of Trump’s staff, like former White House chief strategist Steve Bannon in his testimony before the House Intelligence Committee.
Former federal prosecutor Renato Mariotti laid out where executive privilege can be applied in such investigations.
“What executive privilege is meant to protect are the deliberative processes of the executive branch,” he told Business Insider. “In other words, it’s supposed to permit the executive branch of government to make decisions without being worried about always having all the deliberations that they take part in being part of legal discovery.”
Michael Gerhardt, a constitutional law expert who once served as a federal special counsel, said that while Trump could theoretically claim executive privilege for anything, such an argument would not necessarily hold up in court.
“I think he can, at least theoretically invoke executive privilege whenever he wants or his lawyer might invoke attorney-client privilege on some matters,” he told Business Insider in an email. “Note, however, that, insofar as the courts are concerned, executive privilege is not an absolute.”
A strong court precedent
Mariotti said that even when invoked correctly, arguments based on executive privilege can be challenged. In the landmark 1974 Supreme Court case United States v. Nixon that preceded former President Richard Nixon’s impeachment process, the court ruled against Nixon’s claims that he could not provide certain evidence because of executive privilege.
Gerhardt stated that Mueller is unlikely to issue a subpoena against Trump from the get-go. But Mariotti said he could use one in order to take the issue to court.
“Either Mueller would have to issue a subpoena, get Trump in front of a grand jury, ask him the same questions and have him invoke privilege,” Mariotti said. “Or, and this would probably be the most likely scenario, Mueller would write a letter saying ‘I intend to call you before the grand jury. If I did, would you invoke privilege as to the same questions?’ And the president’s lawyer would respond that yes he would. And that I think would be enough to get you into court because potentially the issue then is ripe for review.”
“The point is that he’d have to go to court to do it, and that ultimately that would be a battle that would be fought over the course of weeks or months,” he added. “That’s exactly what happened in Watergate.”
But there is another method Harvard Law School professor Laurence Tribe said Trump could use.
“The Supreme Court held in the Nixon Tapes Case that executive privilege cannot overcome a grand jury subpoena,” he told Business Insider. “So Trump would have to answer every question or be held in contempt – unless he takes the Fifth Amendment.”
The Fifth Amendment is meant to protect people from incriminating themselves. And Mariotti said that there is little investigators could do if Trump invoked it, unless the questions the president refused to answer did not pertain to his conduct.
“It’s absolute,” he said. “They could either immunize him, or it would have to be a matter for which there was nothing that would implicate him.”