What Happens if The President Pleads the Fifth?
President Trump has publicly expressed willingness to talk to Special Counsel Robert Mueller under oath about the Russia investigation; however, according to the New York Times, his lawyers are telling him that’s not such a good idea. The President being at odds with his lawyers is nothing new, but what happens if he ultimately refuses to talk to Mueller? Can the President be impeached for pleading the Fifth? The short answer is “yes,” but it comes with many caveats.
The Trump-Russia Investigation: How Did We Get Here?
The Trump administration came into office already mired in controversy. Although he received less votes than his rival Hillary Clinton, Donald Trump won more electoral college votes and thus the Presidency. Just before the 2016 election, reports emerged suggesting that agents for the Russian government tried to influence the election in Trump’s favor by spreading online propaganda and hacking the Democratic National Committee’s web servers. It is not yet known whether the President had any knowledge of these efforts..
Nonetheless, the President may have violated his constitutional obligation to “take care that the laws be faithfully executed” when he fired FBI Director James Comey after Comey refused the President’s request to cease investigating former National Security Advisor Michael Flynn. Comey’s firing led the US Deputy Attorney General to appoint former FBI Director Robert Mueller as Special Counsel to lead a much wider investigation, including into the Trump campaign’s possible connections with Russia. Michael Flynn has since plead guilty to misleading the FBI, and is now cooperating with Mueller.
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What if President Trump Refuses to Cooperate with Mueller?
If Trump declines an interview with Robert Mueller, the President will likely receive a subpoena from a grand jury. That’s what happened to both Presidents Clinton and Nixon, who then chose to testify under oath in front of an audience. Clinton’s testimony was eventually used against him in impeachment proceedings.
Trump could follow his predecessors’ example, or he could take an unprecedented route by asserting his Fifth Amendment right to avoid self-incrimination. Doing so might create a constitutional crisis. While “pleading the Fifth” isn’t necessarily an admission of guilt, refusing to cooperate with a federal investigation could be considered obstruction of justice. Of course, many politicians and scholars have called the President’s decision to fire James Comey obstruction of justice. If that’s the case, why hasn’t President Trump been impeached already? How much can the President get away with? The answer is simple: As much as Congress will allow.
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How Do Presidents Get Impeached?
Just because the president commits an impeachable offense doesn’t mean he will be impeached; that decision is up to the US House of Representatives. Members of the House may draw up articles of impeachment against the President for “Treason, Bribery or other High Crimes and Misdemeanors.” Indeed, more than 60 Democrats have already done this. All they need is a simple majority of the 435 member House to agree with them.
However, even if the House eventually votes to impeach Trump, it doesn’t mean the President will be removed from office. A trial would ensue in front of the US Senate, and 60 of the 100 members would have to vote in favor of convicting Trump, which would lead to his removal. At that time, Vice President Mike Pence would become President.
No US President has ever been removed from office by Congress. Just three Presidents have been impeached; Richard Nixon resigned before a trial could ensue while Bill Clinton and Andrew Johnson were acquitted by the Senate.
In other words, impeachment proceedings are not just a legal process; they are highly political. It’s ultimately up to Congress what a president can and can’t get away with. Therefore, impeachment seems far more likely if Democrats win a congressional majority in 2018. But since removing Trump will require some Republican Senators to agree with their Democrat colleagues, the prospect of that happening seems low at this point.
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Congress Controls President Trump’s Destiny
It’s possible that the President’s legal team will request written questions for the President to answer. That’s what President Ronald Reagan did during the 1987 Iran-contra investigation. Still, Mueller could refuse such a proposal and compel the President to testify. If Trump refuses, what happens next is up to Congress.
Despite Richard Nixon’s famous proclamation that “When the president does something, that means that it is not illegal,” Congress disagreed with him, which is why Nixon left office in disgrace. Likewise, it will be Congress, not Robert Mueller, who determines President Trump’s fate.
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