Analysis
Russia, If You’re Listening
While there have been no direct clashes so far between the President and investigators, it seems increasingly likely that at some point the question will be asked — is the President of the United States above the law?
So far, in the history of the United States, the President has not been compelled to testify under oath in a criminal case.
Even former president Richard Nixon, who was forced to hand over documents and tapes, was not asked personally to testify in a criminal probe.
So what would happen if Mr Mueller decided to involve the US President directly in his investigation?
Posted
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Debate has raged over whether Donald Trump will be compelled to appear in the Mueller investigation. (Reuters/AP)
The Trump administration has the potential to test the world's oldest constitution more than it has in decades.
Special
Counsel Robert Mueller is heading up an investigation into whether
Russia interfered in the US election, and debate has raged over whether
Donald Trump will be compelled to testify.While there have been no direct clashes so far between the President and investigators, it seems increasingly likely that at some point the question will be asked — is the President of the United States above the law?
So far, in the history of the United States, the President has not been compelled to testify under oath in a criminal case.
Even former president Richard Nixon, who was forced to hand over documents and tapes, was not asked personally to testify in a criminal probe.
So what would happen if Mr Mueller decided to involve the US President directly in his investigation?
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Despite the Watergate scandal, Richard Nixon was never compelled to testify in a criminal case. (AP: Charles Tasnadi)
Can Mueller subpoena the President?
Mr Mueller has subpoena power which means he can compel people to do certain things, including produce documents or present themselves to be interviewed.
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He can also seek indictments, conduct searches and pursue prosecutions.
But according to US law expert Professor Sandeep Gopalan, from Deakin University, whether Mr Mueller can subpoena Mr Trump is up for debate.
There is a precedent in the case of Clinton v Jones.
That was a civil case in which Paula Jones, a former employee of Bill Clinton, sued the president for sexual harassment which occurred before he was elected.
"In that case, the Supreme Court answered that the president would have to participate and deliver testimony in a civil matter," Professor Gopalan said.
"The question is whether that applies in a criminal context when it's coming from a prosecutor rather than a private litigant."
Many people would argue the President should not be forced to testify, because the process of preparing for a criminal testimony would take time away from him doing his job.
Essentially, they would argue the President is too busy to testify.
"Trump's people would argue that it doesn't necessarily distract the President from carrying out his functions to merely have to participate in a civil case, whereas here you have a criminal prosecution where you have a high risk to the President himself, and to prepare for such a testimony entails a substantial division of attention away from his normal job.
"In addition, turning over documents or records is a lot less burdensome than personal testimony."
What happens if the President refuses to testify?
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Robert Mueller is investigating whether Vladimir Putin's Government interfered in the 2016 US election. (Jorge Silva: AP)
This is where we get into constitutional crisis territory.
If the President is ordered by a court to testify and he simply refuses, it's unclear who would be able to physically force him into a courtroom, because all law enforcement officials are obliged to follow the orders of the President.
"Ultimately the the power to execute orders and and follow through on on any kind of court judgment remains with the executive branch," Professor Gopalan said.
"So there is nothing in theory stopping the President from saying, 'I'm not going to listen to the court and I refuse to testify despite the court saying that I have to'."
Can Mueller arrest the President?
If Mr Mueller finds proof Mr Trump committed a crime, he still does not have authority to arrest the President."Based on what we know, a sitting president cannot be indicted and cannot be arrested or prosecuted."However, Professor Gopalan said that's only for crimes related to his official duties as president.
If he was to be charged with murder, for example, he may not be immune from prosecution.
Presidents can only be prosecuted once they have left office, and apart from elections and term limits, there are only four methods of leaving: resignation, death, impeachment by a majority of the House and two-thirds majority of the Senate, or the Cabinet declaring they are unfit to fulfil the duties of the office.
Can the President fire Mueller?
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In theory there is nothing stopping the President from firing Mr Mueller directly, if he wished. (AP: Charles Dharapak)
The simple answer is "yes", but the process is complicated.
The theory is that if Mr Trump wants to fire Mr Mueller, he would have to go through the process president Nixon went through to fire the Special Counsel investigating Watergate in 1973 — namely to order the Special Counsel's boss to fire him, and if he refuses, fire the boss and appoint someone who will obey your orders.
But it's possible Mr Trump would not need to go through that process.
"Given that the President is actually the head of the executive branch and possesses supreme executive power, there is nothing in theory stopping the President from firing Mueller directly," Professor Gopalan said.
If he didn't fire Mr Mueller himself, Mr Trump would have to order Deputy-Attorney General Rod Rosenstein to fire him.
Mr Rosenstein said he won't fire Mr Mueller without a good reason to, so he seems likely to refuse.
If he does, Mr Trump would need to fire Mr Rosenstein, and go to his second in command.
If that doesn't work, Mr Trump would need to keep firing people until he can find someone who will fire Mr Mueller.
Would firing Mueller shut down the probe?
It's unclear if firing Mr Mueller would shut down the investigation or if someone else would just take over.The US Department of Justice could appoint a replacement, or alternatively one of the 93 federal prosecutors offices around the country could take up the investigation.
That's not to say it wouldn't be disruptive.
"Terminating Mueller will strike no doubt a very powerful blow against the investigation," Professor Gopalan said.What we do know is the President is uniquely placed in the US legal system to avoid prosecution.
The system is built to stop nuisance legal actions from getting in the way of him doing his job.
The other thing we know is that many questions are yet to be answered.
No president has ever been forced from office or forced to testify against his will. We don't even know if he can be. Yet.
Russia, If You're Listening is an ABC podcast about the investigation into Russia's interference in the US election. Find it in the Listen App, in Apple Podcasts or your favourite podcasting app.
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