Deputy Attorney General Rod Rosenstein sounded like a man who had made peace with his potential fate Tuesday when he told a Washington audience, “The Department of Justice is not going to be extorted.” That’s a problem, in the twisted view of Donald Trump and his House GOP stooges. Republican Rep. Mark Meadows later mused that if Rosenstein considered doing his job “extortion,” then maybe he should “step aside.” And Trump returned fire Wednesday morning in a series of tweets promising to “get involved!” with the agency’s oversight of an ongoing criminal investigation into the 2016 election.
The GOP assault on Rosenstein comes on the heels of the revelation that special counsel Robert Mueller threatened to subpoena Trump during a March meeting with his lawyers if Trump refused to sit for an interview in the Russia probe.
First, let’s just remark at these extraordinary times. Although past presidents have been served with subpoenas, it’s never been to compel testimony in a criminal investigation, according to constitutional law scholar Harry Litman. President Bill Clinton’s subpoena came via a civil lawsuit, Clinton v. Jones, and he ultimately negotiated terms for a voluntary interview. And President Richard Nixon was subpoenaed in the criminal proceeding United States v. Nixon, but it was an effort to force him to provide documentary evidence, not testimony.
So serving a sitting president a subpoena to compel testimony in a criminal proceeding would truly be a first, it appears. And due to the unprecedented nature of such an action, some legal observers have questioned whether Mueller would prevail if Trump’s ever-changing legal team challenged it before the Supreme Court. But many legal experts come down on the side of Mueller succeeding, including Harvard legal scholar Laurence Tribe and former federal prosecutor Renato Mariotti. In U.S. v. Nixon, the high court famously concluded:
“…no person, not even the president of the United States, is above the law.”
Litman says a court challenge would likely eat up several months, but he too sides with Mueller, writing:
Assume the day comes when Trump has no more room to maneuver. The courts have ruled against him, the subpoena has been upheld, the grand jury has assembled. Trump still has one more thing going for him: his apparent contempt for the Constitution.
And there’s the wild card—Trump has no institutional memory or awareness and, in fact, harbors a deep disdain for any trype of protocol. He could take the Fifth, but besides the political implications of doing so, it’s simply hard to imagine he would do anything close to admitting possible criminality. Since when has Trump ever admitted culpability for anything ever?
When Litman wrote that Lawfareblog piece in January, he concluded:
Trump is the chaos president. Trying to anticipate his reaction, especially when he is facing a mortal challenge to his presidency, is like trying to predict the movements of a tropical storm. But there is one takeaway point: Do not count on his raising his right hand any time soon.
Mere months later, Litman’s prediction seems even more prescient now. Trump has made explicit threats to intervene at the Justice Department twice in just the last week—in his Wednesday morning tweets and his Fox & Friends phone interview last Thursday.