Can Trump Invoke Executive Privilege in Mueller Probe?

  • Trump’s executive privilege allows him to decline an interview with Robert Mueller’s FBI Russian collusion investigation.

  • Executive privilege is the power of the President of the United States to withhold information from Congress, the courts, and the public.
  • Trump can even invoke his executive privilege if he is subpoenaed to testify before a grand jury, likely sparking an intense court battle over whether a president can be compelled to answer questions under oath.
  • Even if Trump exerts his executive privilege avoid a Mueller interview or grand jury subpoena, he can still be indicted or arrested.

Will Trump Invoke the Executive Privilege with Robert Mueller?

It’s probable. As the Mueller probe continues to intensify, recent reports suggest that President Trump’s attorneys are advising him to not agree to an interview with Special Counsel Robert Mueller. Trump would be able to do this by invoking a rarely used constitutional defense–the executive privilege.

What is the Executive Privilege?

The Executive privilege is the power of the President of the United States to refuse compliance with subpoenas or other inquiries by legislative and judicial branches of government in pursuit of information or people relating to the President. In other words, executive privilege is the constitutional protection that gives the President and other high level officers of the President the power to withhold information from Congress, the courts, and the public.

Will Trump Ever Have to Testify Before a Grand Jury?

It’s possible. If Trump refuses to sit for an interview with Mueller, then he may be subpoenaed before a grand jury. As any of the best Connecticut federal criminal lawyers and attorneys can explain, a federal grand jury reviews evidence submitted to them by United States attorneys to determine whether probable cause exists to arrest (or “indict”) someone.

Has a President Ever Invoked Executive Privilege?

Yes. If Trump is subpoenaed to testify before a grand jury, then he can still exert his executive privilege, setting the stage for an intense court fight that could end up in front of the Supreme Court. This issue has come before the Supreme Court before, most notably when President Richard Nixon when he refused to turn over tapes containing incriminating statements to the special prosecutor investigating him. There, the Supreme Court ruled that the executive privilege is not an absolute one. The Court held that in a criminal investigation where evidence is necessary for the pursuit of justice, it must be turned over – thus, ruling against the executive privilege and ordering President Nixon to turn over the tapes.

The takeaway from the Nixon case: if President refuses to sit for an interview with Mueller and refuses to comply with a subpoena, I predict a long court battle similar to Nixon’s case will ensue, regarding whether Trump must answer questions under oath.

Executive Privilege Will Not Protect President Trump from Indictment

Even if Trump refuses to sit for an interview by exerting his executive privilege and is permitted to do so, he is not protected from indictment (which is the federal version of an arrest). Mueller can still convene a grand jury, and work with the grand jury to decide whether or not enough evidence exists to hand down a formal indictment. This means that regardless of whether Trump sits for an interview with Mueller, or even testifies before a grand jury, he can still be indicted through a grand jury if legally sufficient evidence of Russian collusion is gathered against him.

So stay tuned…

The Mark Sherman Law Federal Crimes & Grand Jury Subpoena Practice

If you or a family member is facing federal charges in Connecticut federal court, or has received a subpoena to testify before a Connecticut federal grand jury, then contact an attorney at Mark Sherman Law today. The grand jury process can be intimidating and daunting. While your rights to an attorney are sometimes limited during the Connecticut federal grand jury process, it is critical to understand all of your legal rights before going in front of the grand jury. The team of lawyers at Mark Sherman Law are extremely well versed in this area of law (click here to see former federal client reviews) and are ready to take your call 24/7 at 203-358-4700.