WASHINGTON, DC - FEBRUARY 27:  White House Communications Director and presidential advisor Hope Hicks (2nd L) arrives at the U.S. Capitol Visitors Center February 27, 2018 in Washington, DC. Hicks is scheduled to testify behind closed doors to the House Intelligence Committee in its ongoing investigation into Russia's interference in the 2016 election.  (Photo by Chip Somodevilla/Getty Images)
House Judiciary Dems subpoena Ex-WH aides including Hope Hicks
05:32 - Source: CNN

Editor’s Note: In this weekly column, “Cross-exam,” Elie Honig, a former federal and state prosecutor and CNN legal analyst, gives his take on the latest legal news and answers questions from readers. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.

CNN  — 

How many times can the White House slap Congress in the mouth before Congress hits back? The list got longer this week when the White House instructed former Trump administration officials Hope Hicks and Annie Donaldson to defy a House Judiciary Committee subpoena for documents relating to their work in the White House. Hicks and Donaldson now join other subpoena recipients – Attorney General William Barr, former White House counsel Don McGahn, Treasury Secretary Steve Mnuchin – in telling Congress to pound sand.

Elie Honig

The White House’s latest act of defiance drove home a message that already should have been clear to Congress: you’ll get nothing and that’s that. Now Congress needs to end its equivocating and take decisive action to enforce its subpoena power. The only way to do this is to play hardball: promptly hold all who defy subpoenas in contempt, bring every contested subpoena to court to seek enforcement and demand expedited rulings to prevent the White House from prevailing by running out the clock. This isn’t about machismo or ego – this is about constitutional balance of powers.

The House Judiciary Committee will hold hearings next week designed to bring to life the findings of special counsel Robert Mueller’s report. Former Richard Nixon White House counsel John Dean (a current CNN contributor) and a panel of former federal prosecutors and legal experts will reportedly discuss the evidence set forth in the report.

The hearings will be important because so many Americans – including some members of Congress – have not read the full Mueller report. Any trial lawyer understands that written reports only resonate so much, but live testimony tends to make a bigger impact. It will be a worthwhile exercise for experienced witnesses to explain Mueller’s findings to Congress and the public.

But, standing alone, these hearings will be insufficient if Congress’ goal is to ensure accountability from President Donald Trump and the White House. The most meaningful testimony would come not from outside experts but rather from McGahn, Hicks and others who witnessed Trump’s potentially obstructive acts firsthand and thus far have been directed by the White House to brush off congressional subpoenas.

Congress must use its authority to fight for enforcement of its subpoenas – and there are promising signs that if Congress refuses to back down, it may just get what it needs. Congress has already won two decisive court victories in the battle over Trump’s financial records, with both federal judges reaffirming that Congress has broad constitutional authority to investigate – even over Executive Branch objection.

It has been nearly seven weeks since the Mueller report became public. Congress has obtained exactly zero testimony from firsthand witnesses about the facts set forth in the report. That won’t change unless and until Congress takes a stand.

Now, your questions:

Anand, India: How sacrosanct is the Department of Justice opinion against charging a sitting president?

The notion that the sitting president cannot be indicted is not explicitly stated in the Constitution, nor is it specified in any statute or court decision. Rather, the Justice Department adopted an internal policy based on an opinion by the Office of Legal Counsel (which gives legal advice to the Justice Department) that indictment of a sitting president would “impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions.” The policy is not new; the Justice Department adopted it in 1973 and then updated it in 2000.

Theoretically, the policy could be changed quite easily. Justice Department policies come and go all the time. When I worked there from 2004 to 2012, many policies changed. For example, in 2010, Attorney General Eric Holder issued a new policy giving prosecutors more discretion to exercise leniency in charging, plea and sentencing decisions. This replaced a stricter policy issued by Attorney General John Ashcroft.

While policy change is merely an attorney general’s pen stroke away, there are legal and political obstacles. Legally, we do not know for sure whether the current policy is right or wrong as a legal matter. The OLC memo argues that the separation of powers doctrine likely prohibits indictment, but also acknowledges that “(n)o court has addressed this question directly.”

Politically, by changing the policy, an attorney general would place the President to whom he or she reports in the firing line. The President, as head of the Executive Branch, also likely would have the power to change the Justice Department policy, but would place himself or herself in potential peril by doing so. This is an important question that all candidates for president in 2020 should answer: If elected, will you change the Justice Department policy against indicting a sitting president?

Andrew, Minnesota: President Trump, like anyone else, is entitled to a fair trial. If he is indicted, how do you foresee him getting one?

Yes, every person is entitled to a fair trial, including Trump – should he be indicted after leaving office.

I am one of over 1,000 former prosecutors who signed a letter concluding that the evidence in Mueller’s report would support criminal charges. In recognition of any defendant’s right to a fair trial, the letter also noted “there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here. In our system, every accused person is presumed innocent and it is always the government’s burden to prove its case beyond a reasonable doubt.” I’d be more than comfortable charging Trump with obstruction. I’m also confident our system can safeguard the right of any person, including a former President, to a fair trial.

First, while the prosecutors’ letter received significant public attention, Trump himself has made countless public declarations – including dozens to his 60 million-plus Twitter followers – that he is the victim of a “witch hunt” and a “hoax,” that he has been declared “innocent,” and that he committed “no collusion” and “no obstruction.”

Even in the highest-profile cases, our criminal justice system has procedures to ensure that juries are unbiased. All potential jurors are asked whether they know any of the parties or have formed any advance opinion about the case. If so, the prospective juror will be “struck” – eliminated from the jury pool. I’ve done high-profile trials that were in the news every day, and our system regularly handles trials against defendants of household-name status (Martha Stewart, Michael Jackson, Bill Cosby and, soon, Harvey Weinstein, to name a few). The system is not perfect, but it is capable of weeding out biased jurors and conducting a fair trial regardless of the defendant’s status.

Brian, Iowa: Even if the White House is right to claim that senior advisers are immune from congressional subpoenas, could there be an exception if the subpoena relates to potential criminal conduct?

The Trump administration has attempted to block the testimony of former White House counsel Don McGahn by claiming that Congress cannot force senior presidential advisers to testify. I believe this argument is legally flawed (ok, I called it “nuts”) because it would upset the balance of powers by limiting Congress’s ability to conduct oversight of the Executive Branch.

Even if the White House is correct, there’s still a catch. Legal privileges – attorney-client, doctor-patient, or between spouses, depending on the state – protect certain communications from disclosure. But under the “crime-fraud exception,” privileges do not apply when the communications occur during or in furtherance of a crime, or even a potential crime.

Congress likely would ask McGahn about Trump’s instruction to remove Mueller, and later to lie about it. Because those communications were at least arguably criminal, the crime-fraud exception would apply and those communications would not be privileged.

The White House might counter that it does not technically claim a privilege, but rather a broader immunity based on its purported right to be free of congressional oversight. The problem with that argument, however, is that it would enable the White House to shield from Congress the most important and potentially dangerous communications of all. That would upset the balance of powers the other way, essentially rendering Congress incapable of discovering or addressing criminality in the White House.

Glenn, Australia: How can Trump’s defending of himself in the course of a criminal investigation be described as obstruction of justice?

Any person is entitled to defend himself through lawful means: by obtaining counsel, by asserting his constitutional rights – including the right to remain silent and the right to be free from unlawful search and seizure, by challenging a criminal charge in court and ultimately by trial, if necessary.

But Trump’s alleged conduct, as described in the Mueller report, goes beyond such means. According to Mueller, Trump tried to persuade then-FBI Director James Comey to drop the investigation of Flynn, he fired Comey, he tried to fire Mueller,and he tried to get Sessions to un-recuse himself and limit the investigation. It now appears that Barr excused that conduct based on his extremist view of the President’s power. Barr wrote in his unsolicited memo to the Justice Department shortly before his nomination as attorney general that the President is constitutionally entitled to fire anybody and shut down any investigation, even to protect himself: “There is no legal prohibition – as opposed to a political constraint – against the President’s acting on a matter in which he has a personal stake.”

Stay up to date...

  • Join us on Twitter and Facebook

    I disagree with Barr. There is nothing in our Constitution granting the President such broad powers that he can kill an investigation to protect himself or others. But even if Barr is correct, his legal view only covers some of the obstructive acts laid out by Mueller. It does not forgive Trump’s efforts to dissuade Manafort, Flynn and Cohen from cooperating with investigations, to have various people including McGahn lie, and to prevent public disclosure of evidence.

    Three questions for next week:

    1.) Will House hearings on the Mueller report cause more lawmakers to call for an impeachment inquiry?

    2.) Will the House vote to hold Barr and McGahn in contempt, and if so, will it file a lawsuit to enforce the subpoenas and compel their testimony?

    3.) Will the House subpoena Mueller and, if so, will he comply?