Can Congress Subpoena the Trump-Putin Translator? Thinking 4-dimensionally about 3 branches

I’m stuck in bed with some kind of unpleasant bug this morning, so if my approach here is nuts, chalk it up to the bug.  And I had a hard time sleeping last night, not only because of the bug, but because of this outrageous story:

“President Trump has gone to extraordinary lengths to conceal details of his conversations with Russian President Vladi­mir Putin, including on at least one occasion taking possession of the notes of his own interpreter and instructing the linguist not to discuss what had transpired with other administration officials, current and former U.S. officials said.”

There is a robust debate about whether the House or Mueller can subpoena the translator or whether Trump could invoke executive privilege. On the one hand, the Supreme Court in U.S. v. Nixon clearly approached executive privilege as a balancing test, not a blanket rule.

On the other hand, dicta in U.S. v. Nixon indicate a special protection of diplomatic/foreign executive communication, and Eric Columbus flagged this remarkable twist: an OLC opinion recognizing this concern was written by AG nominee Bill Barr. See Eric’s thoughtful thread here. The counterargument is that these circumstances are so extraordinary, and the basis for suspicion of criminal conduct are so valid, that the normal rules no longer apply.

I have thought about the balance of these two positions, and how to make sense of them through the lens of separation of powers. I think one answer is to think four-dimensionally about the three branches, meaning that they work out stages over a sequence of time back-and-forth.

  1. In ordinary circumstances with normal presidents, privilege applies.

In the US v. Nixon balance, one would need some strong reason to override executive privilege in regular White House communications, but especially extraordinary circumstances to override privilege in dlplomatic/foreign national security communications

2. What kinds of especially extraordinary circumstances? When there is already existing evidence of gross maladministration/misconduct/potential criminal conduct, fiduciary misdemeanors of self-serving conduct. In short, one would need evidence of some level of high crimes or high misdemeanors to pierce the privilege in diplomatic/foreign contacts.

3. And now, we have that evidence in spades.

4. Once we have that level of evidence, the appropriate process under our Constitution is impeachment and removal. That process might be necessary before overriding executive privilege.

5. The Court might say something like this: “This is a close case. But rather than have the judiciary intrude on the executive branch’s privileges when we have sufficient evidence of misdemeanor (or worse), let’s follow constitutional structure of impeachment first. Give the political branches the opportunity to address this sufficient evidence first.”

7. By January 2020, it’s no longer an impeachment/removal case. It becomes a criminal investigation. (And I’ve explained recently in Slate why prosecutors must be able to indict a sitting president: many crimes have statutes of limitations that would run out in a first or second term, and there is no such thing as equitable tolling of criminal statutes).
9: Message from Court: We are going to give the political branches the first opportunity to address probable cause of high crimes and misdemeanors, without crossing into executive privielge. But Senate, don’t make us have to step in. If you, the Senate, are so dysfunctional, partisan or corrupt to do your job, we will be forced to take extraordinary measures.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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