Mark L. Hopkins More Content Now

For several weeks now the news media has been debating whether President Donald Trump will testify before Special Counsel Robert Muller. He says he will. His lawyers say otherwise.

There is no good answer to the questions that are raised when the Judicial Branch of the government questions the president on possible violations of the law. To refuse may cause a Constitutional crisis. To comply may raise issues that could cripple the Executive Branch for months in the future.

If President Trump is called to testify, must he comply? If he doesn’t choose to comply, what are his options? Our legal system gives him two ways to avoid such a confrontation.

First, President Trump may exercise his legal rights under the 5th Amendment of the Bill of rights. That is the clause that guarantees that a person is not required to give evidence that may incriminate themselves. That law has been on the books since 1789 and is a part of the Bill of Rights attached to the Constitution. It states, in part, as follows: “... that defendants cannot be compelled to become witnesses at their own trials.”

However, if President Trump “takes the 5th” to avoid testifying it will cause him no small amount of political backlash. He already is having difficulty working with Congress and such an action may adversely affect any support he has in his own political party.

The second device President Trump might use to avoid testifying is to exercise Executive Privilege. Executive Privilege is not in the Constitution or any of the amendments. It is, instead, a practice of presidents based on the necessity to be able to get qualified advice from associates without the threat that they may have to testify before Congress or the courts in the future. By definition Executive Privilege allows the president to, “withhold information in the public interest.”

Has Executive Privilege been invoked in our history? Yes. The first time was in 1792 when President George Washington used it regarding his response to a Congressional request for information on an Indian uprising on the Ohio River. He lost his case in the courts. Executive Privilege has been invoked often in our past. Since 1980, it has been used more than 20 times.

Who usually wins when Executive Privilege is invoked? The Supreme Court generally rules against the president — though in isolated cases it has supported the president.

If President Trump decides to invoke Executive Privilege in the current situation with Special Council Muller is he likely to win his case before the Supreme Court? He most likely will not. Perhaps the closest situation to the present one was with President Richard Nixon during the Watergate Hearings. The Supreme Court ruled that he had to turn over the Watergate tapes by an 8-0 ruling. Their written finding was that Executive Privilege did not supersede the need of the Special Counsel to pursue his Constitutional necessities. President Nixon resigned four days later.

Every time Executive Privilege is invoked, the president runs the risk of creating a Constitutional crisis pitting one branch of the government against another. The three branches Legislative, Executive and Judicial are responsible for different aspects of the government but are of equal power as presented in the Constitution. When the Executive Branch of the government refuses to comply with legitimate requests from Congress or the Courts it inhibits those branches from carrying out their Constitutional duties.

What is the likely outcome of this potential conflict? My crystal ball predicts that after a legal battle over the issue, President Trump will testify. Do I predict a “Nixon” solution to the problem? No. It is likely that politics will rear its ugly head and the fact that Republicans hold majorities in both houses of Congress will negate the possibility of impeachment.

(Do you think anyone will remember this prediction months from now when this issues comes to a head?)
— Dr. Mark L. Hopkins writes for More Content Now and the Anderson Independent-Mail in South Carolina. He is past president of colleges and universities in four states. Books by Hopkins currently available on Amazon.com and Barnes & Noble include “Journey to Gettysburg” and “The Wounds of War,” both Civil War-era novels, and “The World As It Was When Jesus Came.” Contact him at presnet@presnet.net.