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Can a Sitting U.S. President be Subpoenaed by a Criminal Grand Jury?

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HUGH HEWITT: Morning Glory, America! It is Hugh Hewitt from the relieffactor.com studios inside of Washington DC. I am so pleased to bring the Hillsdale Dialogue to you this time of each week. The last radio hour of the week I'm joined by either Dr. Larry Arnn, the president of Hillsdale College, or one of his colleagues to talk about matters of supreme importance whether they are 3,500 years ago or three days ago. The big issues. The big decisions. And Dr. Arnn is back with me this week.

All things Hillsdale, by the way, are collected at Hillsdale.edu including a couple of courses on the Constitution that they ought to be watching over at the office of the special counsel. And Dr. Arnn has got a great series on Churchill there which ought to be watched by everyone. All of our conversation dating back to when we began with Homer in 2013 are collected at HughforHillsdale.com for your binge listening pleasure.

Dr. Larry Arnn, Good Friday morning to you, sir.

LARRY ARNN: Good morning, Hugh. How are you doing?

HUGH HEWITT: I'm great. We are back in, and I wrote you earlier this week, this might be the most important Hillsdale Dialogue we ever do because it is so timely and so critical. We're in Article II of the United States Constitution, which is about the presidential powers. Section 1 reads simply at the beginning, "The executive power shall be vested in a president of the United States of America," and Section 4 of Article II reads very simply, "The president, vice president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors."

Let me play for you something Rudy Giuliani said to Maria Bartiromo in their last conversation.

MARIA BARTIROMO: I mean, let's face it, this has been going on now with no evidence of collusion, no evidence of obstruction of justice, but they are now talking about the potential of a subpoena.

RUDY GIULIANI: Well, they can't. I mean, they can't subpoena. He is the President of the United States. He has all the powers under Article II. America is one of the many countries where the head of state is not to be prosecuted until after they leave office, not to be subject to the criminal process. Different if it was a civil case. This is a criminal case. The best example is right now. He is getting ready to negotiate a historic agreement with Korea--

MARIA BARTIROMO: That's right.

RUDY GIULIANI: --that will save the planet. And we have to-- I have to sit him down and say, we've got to get ready for a deposition Mr. President, forget Kim Jong Un.

HUGH HEWITT: What do you think Dr. Arnn, can a president be subpoenaed to appear in front of a grand jury?

LARRY ARNN: Well, you sent me a great article by the great John Yoo that shows that the precedents, which go back to Thomas Jefferson versus Aaron Burr are mixed on this.

HUGH HEWITT: Yes.

LARRY ARNN: But think about the logic of it. If you look at Robert Mueller's leaked questions, I don't know who leaked them, but that he proposes to ask Trump many of the questions are about the essence of the work of the president. My favorite is, what did you think of James Comey during the transition team, during the transition? What was your opinion of him, right? And of course, it's the business of the president to form opinions of people who work under his management, and then he goes on to step, by step, by step, leading to, why did you fire him?

Well, it's the business of the president to hire and fire subordinates to run very important things because the president is in charge of the executive branch of the United States. So if what's going to happen is in the middle-- heck, it's still early in his term as President of United States-- he's going to have to answer questions in public about all of those decisions. It will just interfere with his ability to deliberate.

HUGH HEWITT: And under oath and I bring this up because Bill Clinton lied under oath, and that made up the basis for articles of impeachment, which were voted by many members of the Congress yes, including many Republicans who still serve, and conviction was affirmed not in sufficient numbers by many members of the Senate.

Lindsey Graham, for example, helped draft those articles of impeachment and was one of the triers of the president, and he would have a tough time voting down an article of impeachment based upon lying under oath because that is an impeachable offense, and many of us are stopped from arguing otherwise. I believe it is, if you lie under oath that it's an impeachable offense, so don't go under oath is my view. Don't get trapped in this endless machinery in the way that Bill Clinton was. If I may, I want to review for the audience, and then you can elaborate on the precedents that matter on this issue.

Aaron Burr was tried for treason, and John Marshall, who hated Thomas Jefferson, subpoenaed Thomas Jefferson's papers. Jefferson bitterly opposed that, but he did provide the papers. Jefferson thought it was wrong. Flash forward 200 years, President Nixon had tapes. He did not want to turn them over. They were subpoenaed, and he was obliged to turn them over by a nine-oh vote of the Supreme Court, but they were tapes to be used in an ongoing criminal proceeding where due process interest dominated. Then Paula Jones sued Bill Clinton over an assault case, and it was ruled that the President of the United States would have to sit for depositions that were timely and scheduled with due consideration for the pressing duties of the office in a civil case for actions before the presidency occurred.

And then Ken Starr threatened and indeed issued a subpoena to Bill Clinton to appear before a federal criminal grand jury, which Clinton resisted, but then in a filing by his lawyers said, you can't do this, but let's see what we can work out. They worked out a voluntary appearance for three hours before the grand jury that was televised from the White House to the grand jury, and Clinton ran out the clock. That's the sum of the precedents.

What do you think is the best legal assessment of all those precedents?

LARRY ARNN: Well, in things like this, the earlier, the better. And so John Marshall was a very great man, and Thomas Jefferson was a very great man, and you're right they really disliked each other very much. And what they worked out was something that cuts both ways. And that means that even in that case, we don't have a clear statement of--

HUGH HEWITT: Correct.

LARRY ARNN: --what's absolute here. But Jefferson did provide documents, but he didn't provide all that he was required or was asked of him. And so he kept open the question, I have to judge what the executive branch needs to do his job. And that's the key claim, right? If you're going to have separation of powers, it's one of the prime points in The Federalist Papers, that each branch has to have the means to defend itself against the others.

It has to have two things, really. It has to have the ambition to defend itself against the others, and it has to have the means to do it. And so each member of each branch, everybody who serves under the Constitution of the United States, is required to take an oath to uphold the Constitution. And that means you have to uphold it as you think it is.

So that's the first step. You can't simply have any branch judging the affairs of another one completely. Now, the second point is, you also have to wonder how does use of authority trace back to the control of the people. And the president of the United States is elected every four years. And that means if we don't like what he does, we can get somebody else pretty quick. The judges serve during good behavior, and that means you can never get rid of them unless you impeach them, which happens sometimes, but never for a thing like this.

So if it were true that the Supreme Court were a tribunal that would sit-- Supreme Court, and therefore the inferior courts, by the way, that means all the lower courts-- if they were sitting in judgment on the operations of the presidency all the time, which of course wouldn't be hard to imagine because it's easy to file a lawsuit, and you could have 100 a day, easy, right? You could pick all of the judges who don't like the person in power, whichever party he's in, you could pick-- there are probably thousands, right? I don't know how many there are, but you could pick them, and you could just give them a lawsuit every week.

And so obviously that's crazy. That won't work. Because the president has got a hard job to do, and he needs the powers to do it. And if there are fine points here, and since the precedents are so few, by the way, three in all these years, 200 years. We don't really know for sure. There's not a settled thing about this. But if it's a fine point, where are you going to lean? Well, I think you're going to lean toward the authority of the ones that get elected.

HUGH HEWITT: I couldn't agree more. And I want to make sure people understand that in the prior cases, papers were at issue, papers of Thomas Jefferson, the recordings, which are the same as papers of Richard Nixon. The papers, the deposition, the process was for the person of Bill Clinton in a civil proceeding, but when it came to the person of the president in a criminal proceeding, Ken Starr was acting as an independent counsel appointed pursuant to a statute that the president had signed, a previous president had signed, that statute is no more.

When we come back from break we talk about an Article II officer, the special counsel exists by regulation, trying, or possibly trying to subpoena for a grand jury the head of the Article II. That's different from Ken Starr doing it. We'll explain why when we come back. Don't go anywhere America, Dr. Larry Arnn and I are talking about that key issue of the summer. It's going to come down to this. That's why Rudy said what he said. They can't subpoena him. President Trump's-- nothing makes sense this week unless you understand President Trump is not going to be subpoenaed by a grand jury willingly. Stay tuned America. It's the Hugh Hewitt Show. The Hillsdale Dialogue continues. All things Hillsdale, hillsdale.edu.

Welcome back, America, it's Hugh Hewitt. The Hillsdale Dialogue originates from the relieffactor.com studio inside the belly of the beast in the beltway. Some days I go over to the Kirby Center, Hillsdale College's lantern of light in the shadow of the Capitol, but not today. I am talking with Dr. Larry Arnn, President of Hillsdale College. They're preparing, I think, for commencement there. I hope it's in May. It's boiling here in DC, and Dr. Larry Arnn is thus in Michigan and beyond most technology since the state is under technologized, but I--

LARRY ARNN: We invented the internet.

HUGH HEWITT: We invented the internet, yeah.

We like to talk about constitutional matters in this hour. Right now, we're talking about Article II and whether or not a president can be subpoenaed by a grand jury, which is an instrument of the prosecutors who are part of Article II. I pointed out in the last segment Dr. Arnn, that Ken Starr, when he subpoenaed Bill Clinton to appear before a grand jury. He was acting as an independent counsel pursuant to a statute, that he was appointed by three judges. The statute existed. It had been signed into law by a previous president. That statute has lapsed. Mr. Comey-- Mr. Mueller, the special counsel, is an appointee of Rod Rosenstein, who is an appointee of President Trump. Does this distinction make a difference to you?

LARRY ARNN: Well, because the statute is a bad but better. And the reason it's better is because under that statute that lapsed, the special prosecutor operated under the authority of a three judge panel.

HUGH HEWITT: Correct.

LARRY ARNN: That means he was controlled by the judicial branch in overseeing. See that's the kind of Hegelian German model, right, which excludes the people from controlling, ultimately, the processes of government. Because if you put it in you know-- judges are neutral, and whatever they say goes.

Well, first of all, any time you get a system like that judges are not, in the end, going to rule unless they become kings. Some party like the English king with the star chamber, some party is going to get control of him and use them to punish their enemies, so that could be what's going on here. So it's way better if this prosecutor can be dismissed by the president as he can be, but in my opinion, it's still not the way.

I was involved in, because I know James Rogan and some people, with the impeachment of Clinton, and I didn't like-- I adore Ken Starr. I know him well, and I admire him very much, and I thought he did his job honestly and well. But I also think it was a bad thing right, because when he discovered what he discovered-- and Bill Clinton volunteered to come give that deposition where he apparently lied under oath-- then the Congress is the place where this is ultimately going to have to be dealt with, right?

The house has to impeach. And the Senate has to try, and convict, or acquit. And those are all elected people, and it takes both of them to do it. Now, why is it set up that way? But anyway, the point is, so Ken Starr he brings all these boxes of stuff, and it's a public event when he does it. And the Congress has no warning. They haven't developed this information through their own investigations in committee hearings. It just lands on them fully.

HUGH HEWITT: Kaboom! Yep.

LARRY ARNN: I happened to be in the room because there was something called the Congressional Policy Advisor Board, formed by your friend and mine Christopher Cox--

HUGH HEWITT: Yes.

LARRY ARNN: --now a lawyer in Southern California and a great man. And and they came in and told him, and I watched Newt Gingrich, and Tom DeLay, and Dick Armey, and the rest of them get up and run from the room, briskly from the room because now they've got this problem in front of them. And it and it should have been developed in the Congress in my opinion, right?

And then the next thing is, just think about the presidency. If you read The Federalist, the idea is you need the president to have great power for a term of office long enough for him to work, but not too long so elections are ever distant, right? And then he needs that time. He doesn't have absolute power. He can't spend money legally that's not been appropriated. He's subject to questions from the Congress, not he personally, but his officers are.

The Congress has to advise and consent on his senior appointments. There's plenty of checks on him. But the idea is give him time to work.

HUGH HEWITT: And when we come back, we're going to talk about why that precludes criminal subpoena to appear before a criminal grand jury. Don't go anywhere.

Welcome back, America. It's Hugh Hewitt from the relieffactor.com studios inside of the beltway. It is time for the Hillsdale Dialogue to continue. Dr. Larry Arnn, president of Hillsdale College, is my guest. Dr. Arnn, we are ahead of the curve here. All summer long we are going to be consumed with the question, I believe, as to whether or not a president of the United States can be subpoenaed by a special counsel appointed under regulation to the Department of Justice to appear before a criminal grand jury.

And the reason I think that matters is because if he lies under oath, and the president is prone to talk at great length about many matters, some of which might be construed as lies simply because we don't know what the special counsel has, and the president likes to talk, likes to talk like you and I like to talk, at length, about many different things, and sometimes perhaps inconsistently with what we have said before.

LARRY ARNN: Thank God we are not powerful, by the way.

HUGH HEWITT: You know, that's good. We are just like Statler and Hilton in the puppet show, in The Muppets. But you said at the beginning of this show on questions, such as whether or not the president can be subpoenaed by a grand jury, the earlier, the better. And then we were talking about Jefferson and Burr. Would you explain, just for our audience's sake, why it is true the earlier, the better? Before I repair to Federalist 69.

LARRY ARNN: Well, because beginning in about-- beginning in earnest, in the 19-teens a new idea of the American government began to grow up, and that idea was that there should be an administrative class, that basically plans the future of the country. And that class has grown up now, and along with it a depreciation of politics. And politics is, of course, a terrible thing. It's just the best way to govern because politics in America is the process by which the people control the government.

And so we want neat and tidy, right? And what you get, if you have real separation of powers, is you get conflict between the branches.

HUGH HEWITT: Never neat. Never tidy.

LARRY ARNN: And that's right, and that means that that conflict is in public, right? It's the reason why freedom of the press is important. I mean, as I often comment, I read the New York Times, and I protect their right to write the rubbish that they write.

But it's not all rubbish, by the way, they're pretty good sometimes. But they're always thorough, right? They tend to be that. So it's a public fight, right? And then elections are always coming, right? There's every two years--

HUGH HEWITT: It's endless cycle now. An endless cycle.

LARRY ARNN: And that's good because the people are going to get to make a judgment, and they need the information that senior people in the government don't agree about something. And some questions are so huge that they take a generation to solve. And take, for example, slavery, right? That became a thing in 1815 to '20 and it was settled never, right? But it was settled when--

HUGH HEWITT: It was settled by force. It was never settled by conversation and vote.

LARRY ARNN: And look at the American Revolution, right? That started in 1763, when the British started passing more and new kinds of rules and laws over the Americans, and that was over when the Constitution went into effect, or maybe in the election of 1800 when the Constitution functioned to change the party in power of the nation. So 40, 50 years, right? What is this about?

This is a battle in a war, or a long conflict, over whether we're going to be administratively ruled or politically and constitutionally ruled. And if the president is reduced to serving at the pleasure of judges. And remember, if Mueller subpoenas him, it's going to go before a court, but Mueller is really an agent of the administrative state.

And so are they together, going to be able to compromise the work of a president? And I was hesitant about that when Bill Clinton was the President of the United States, and I didn't like all that. And I thought-- I will tell you my opinion because maybe it was wrong, but I don't think so-- once they got the information that he had obstructed justice, they have an oath too and the President of the United States is not supposed to be lying under oath.

And so you're right Hugh, the right solution is don't take the oath.

HUGH HEWITT: Don't take the oath. Do not, do not agree to this, and fight it out. To quote Grant before he engaged in the wilderness campaign part 2, "to fight on that line if it takes all summer." And I want to go back to Federalist 69 now. Written by the great Hamilton. Before the Constitution enters into effect, he wrote, "The President of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course of law." The ordinary course of law is a grand jury proceeding.

I don't even know how this is an open question, Dr. Arnn, given Federalist 69.

LARRY ARNN: Yeah, in this case-- and see this is long before Alexander Hamilton was shot by Aaron Burr, in our first precedent we named. That's right. In other words, he's got to be able to function. But that fits with everything else in The Federalist about the nature of the executive. And see, remember that was a tough part of the constitutional ratification debate because they didn't like the idea of kings because they just fought a big old war with one, and it had been very difficult.

And the king had been unreachable, and so they didn't like setting somebody up with sole authority. Well, The Federalist cuts against that. And also reinforces it. It cuts against it because it says the fellow should be given the power to do the job. But then cuts against it too because he should be held to account by the impeachment process, by the powers of Congress, which remember, back when the Congress used to function the way it's supposed to, it controlled the budget. It doesn't anymore much because it doesn't really make budgets or appropriations. It doesn't really provide details sufficiently of what the administration may spend money on.

And so the great majority of the money that is voted from the Congress to the president, to the executive branch, doesn't really go to the president. It goes to fund all these agencies, and these agencies are governed in different ways, and the president has only indirect control over them. So we've eroded the basis of the operation of the Constitution. If we got it back, the Constitution would produce conflicts between the branches that would ultimately be settled by the people.

HUGH HEWITT: By the people, and what is interesting to me here is that you said, without any personal venom, that Mr. Mueller is a creature of the administrative state. He has one job, right? He has one thing to do, which is to look into this collusion charge, and so he does it with all of his evident talent. And he's a man of great integrity and energy. He's surrounded around by a lot of lawyers who may or may not be partisan, but they also have great talent and ability to do what they do.

But they do one thing. They're not like the attorney general who has to do many things. They do one thing, which is to investigate collusion. So they dig, and they dig, and they dig, and they dig, like the hi-ho miners in Snow White and the Seven Dwarfs. They just dig, and they dig, and they dig, and they dig, and they dig, but nothing countervails in the administrative state when Javert gets in the saddle. That's not what Federalist 69 had in mind. They had in mind that the Congress would have to weigh whether or not an impeachment was worth the candle. Not a creature of the administrative state deciding well, this is what I'm supposed to do, I'm just going to go like a mole and dig.

LARRY ARNN: Yeah. And see, look at the spirit of it, right? So the president appoints the attorney general, and the Senate confirms or doesn't. And when the president wants to fire him, he can fire him that day. It's a factor whether the Senate will give him somebody else he likes, right? They have to think about that. And the people decide whether the Senate is, within limits, they decide how friendly the Senate is going to be to the president.

And then the attorney general sets about his work, right? He's taken his own oath to the Constitution, by the way. And if the president directs him to do something that violates that oath, then he must resign. Now, the other thing though, is it is the essence of his job-- and that's the point you just made to draw out-- it's the essence of his job that he's weighing all of the things in front of him to sustain the rule of law and what priority should a thing get.

And you can say if you want to, because the president can fire him that he's not the right watchdog over the president, and that is exactly right. That's not his function. His function is to be an agent of the president in executing the law. And remember, that's one of the four original offices in the Constitution.

HUGH HEWITT: Edmund Randolph, number one. Yup.

LARRY ARNN: And so what is the right watchdog? And the answer is the Congress, and the press, and the coming election.

HUGH HEWITT: And the coming election. So this brings us to a difficult situation. You are, like I am, an admirer and a friend of Jeff Sessions. But it might be at the end-- for political reasons I don't think the president can remove, and should not remove special counsel Mueller or Rod Rosenstein. Rod Rosenstein was actually selected as sort of a career guy to run the department's machinery, not to be the constitutional scholar at the top the Department of Justice.

And at this point, I'm beginning to think the president has to replace Attorney General Sessions with a student of the Constitution because this is much more than about Russia collusion. About which, I don't think there's any evidence. It's about how the Constitution operates. We're getting very close to a very high precipice. Dr. Arnn, if this actually becomes-- the Clinton thing was a five-year developing issue, this is 15 months. The presidency being crippled in 15 months is the worst precedent I can imagine for the country.

LARRY ARNN: Yeah. And I don't know about firing Jeff Sessions. I've made this criticism before, and I do, like you, know him and like him very much. I think he's the right man for the job with one exception. And that is if he knew he was going to recuse himself on this Russia collusion stuff, and he didn't tell Donald Trump when Donald Trump interviewed him for the job, that was a mistake.

HUGH HEWITT: And when we'll come back to that. That was a mistake, and we explain why that matters when we return in just a moment. Dr. Larry Arnn and the Hillsdale Dialogues all collected at HughforHillsdale.com.

Welcome back, America. It's Hugh Hewitt. The Hillsdale Dialogue is underway from the relieffactor.com studios inside the beltway. I'm talking with Dr. Larry Arnn. Dr. Arnn, while we were chatting off air, news arrived that the jobless rate in the United States has fallen to 3.9%, a 17-year low. 164,000 jobs were added last month, in the month of March. Workers are becoming scarce. Tight labor market means wages will rise.

This is really quite extraordinary to be back to 3.9 percent. It wasn't that long ago when President Obama was one year into his presidency that it was at 10%, and still, no one much covers this. They're covering Stormy Daniels.

LARRY ARNN: Yeah. That's right. And that she doesn't apparently have a job.

HUGH HEWITT: She's making a lot of money.

LARRY ARNN: Maybe. I look at these numbers, and I think maybe I should try to get a job. But maybe she should.

HUGH HEWITT: But it's part of this overall-- Democrats should be running for their lives in the midterms. With the Korea deal, the Iran revelation, the unemployment number down so low, growth at 2.4% in the traditionally slow first quarter, headed for 3% over the course of the year, the stock market where it is, they should be running for their lives. But they're not because all of media, 90% of media, has turned its face against Donald Trump.

LARRY ARNN: Yeah. Well, the fate of the country is in the hands of the American people. Where It should be. And we don't know what they're going to do. I was just down in Texas, and they're worried about Texas becoming a blue state. If that happens, that changes things in a big way, right? And I don't know what's going to happen. All any citizen can do is what you and I do, which is day-to-day when we talk and think about the country, we should try to do the best job we can.

And so my point to the American people is you're supposed to be in control of this government. And the Constitution is the vehicle by which you should do it. And so you should learn as much as you can about that.

HUGH HEWITT: Now do you think it would be wise for Rudy Giuliani or Don McGahn, the very competent White House counsel-- I don't think you can ask the Department of Justice to do this because of the conflict that now occurs within the riven Article II branch-- to make a talk, to try and explain why it peremptorily-- why the president-- Rudy said it last night to Maria Bartiromo, they can't subpoena him. They can't do it. And he tried to explain it, but I think it actually needs to be explained at length and in detail before the necessity of doing so arises. What do you think about that?

LARRY ARNN: Yeah, I think this should be Kim's-- we talked about Kim Strassel's really great article in the Wall Street Journal last week, and she said that Trump's defense should not be a personal defense because Trump is just and in two years or six years, however long it is until the next two elections, Trump is going to be an ordinary citizen again, and he will be subject to all of the processes of law that every ordinary citizen is.

HUGH HEWITT: As President Obama, as President Bush, as they all are.

LARRY ARNN: They all are, right? And they should be. That Hamilton's point that you bring up in the Federalist Papers. But in the time being, he is the chief executive of the land, and so this is about the powers of the presidency. And he should frame the argument about those. And that will be-- there will be a million claims, and it's all very complicated. But we, you more than I, but you and I have both made a judgment a long time ago that you can't expect that the American people will never figure out a complicated thing. They often do.

HUGH HEWITT: They often do.

LARRY ARNN: Ultimately, they always do.

So he should put that thing to them, and deal with this entirely, or say supremely, with that in mind. The constitutional powers of the presidency and the efficient operation of the executive branch is part of his keeping. He's in charge of that. He's got to defend that. That's his duty. And he should make his defense around that.

HUGH HEWITT: And unfortunately, Bill Clinton did not do that. They launched an attack on Ken Starr. That was their playbook. Rather than arguing that the presidency is to be judged by the people, and only the people at regular intervals. They went after, and I'm afraid it will attract them, and some Republicans are-- they should not go after Mueller. They should stand instead on Article II and stand there all day long, and make an argument, not personalize it. But our politics prefers the latter Dr. Arnn because it's easier for talking heads who don't know anything.

LARRY ARNN: Yeah. And it's-- that's right. But, I mean, you like Mueller better than I do, and so there's my attack on Mueller.

HUGH HEWITT: And a mild one at that, I might add.

LARRY ARNN: And I really savaged him there, didn't I?

HUGH HEWITT: You academics, when you go for blood there's no stopping you.

LARRY ARNN: You know, we're just meaner than hell, aren't we?

But I think that's right. I think that the other thing is, remember, if it weren't Mueller, it would be somebody else. And the attack on Ken Starr was so implausible to me, and yet it was effective.

HUGH HEWITT: It was so effective.

LARRY ARNN: He's one of the most fair-minded people you'll ever meet, right?

HUGH HEWITT: We'll talk more about that next week. Dr. Larry Arnn, thank you so much.
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