Media reports on Kavanaugh’s views on executive power too quickly assume he would shield the executive branch during criminal investigations.
If Special Counsel Robert Mueller subpoenas President Trump, would the President be required by the law to testify? That is one of the hot topics discussed these days. There are a great many ways to analyze this question, including by asking whether the President could avoid testifying by asserting various constitutional privileges.
Back when I was in practice, I was part of a legal team that represented former President Reagan in his effort to resist and structure his testimony required as part of the Poindexter trial. The former President asserted a number of executive privileges that were used to arrange a deal that allowed the former President to receive the questions in advance.
But I am interested in a different question. Could President Trump prevent Robert Mueller from forcing him to testify by asserting authority over or otherwise regulating the special counsel? In some respects, this turns out to be a complicated question under the regulation that governs the special counsel. In general, the special counsel has independence, but is subject to review by the Attorney General as to certain issues. And the special counsel can only be removed for cause.
But there is another way of regulating the special counsel: Could President Trump repeal or amend the regulation, if Muller sought to force him to testify? Could he, for example, amend the regulation to provide that the special counsel could not force the President to testify without the President’s consent?
The regulation governing the special counsel was enacted by the Attorney General. Ordinarily, a regulation is binding on both the public and the agency that enacted it. Thus, the AG would have to follow it. And ordinarily amending or repealing that regulation would require that the agency go through the notice and comment process. This is usually a time-consuming process. Thus, one might believe that changing the regulation to require Muller to seek the consent of the President to subpoena him for testimony would not be possible in a short period.
But the special counsel regulation differs from the ordinary situation. While most regulations go through notice and comment, this regulation did not. Attorney General Reno claimed that it fit into some exceptions to notice and comment. She argued that the regulation was exempt from notice and comment for several reasons, including that the rules related to “agency organization, procedure, or practice”
If Reno was correct, then this suggests that the President could change the regulation rather quickly. Notice and comment would not be required. Of course, Reno might have been wrong about the regulation satisfying the exception. But if that were true, then the regulation would not have been valid for this period, since it should have gone through notice and comment.
Reno actually gave several reasons for not following notice and comment. One of the others – good cause – might or might not apply to amending the regulation. If the exception for “agency organization, procedure or practice” did not apply to enacting the regulation (despite Reno’s claim), and the good cause exception did (but not to the repeal), then the argument I am making might not stand. But that circumstance would only hold if these several different factors all aligned, which seems unlikely.
While it might be legal to repeal the regulation in a quick time period, a separate question is who could do it. This raises separate questions. Some people might believe that acting AG Rosenstein is only person who could do it. In that event, changing the regulation might be politically difficult. But despite the politics, it would still be entirely legal for the Trump Administration to change the regulation without firing the special counsel.