WASHINGTON ― Democrats have an interesting idea for finding out what happened in President Donald Trump’s private two-hour meeting with Russian President Vladimir Putin this week: subpoena the U.S. interpreter who was in the room and ask her.
Sen. Jeanne Shaheen (D-N.H.) is lobbying for a Senate hearing with the interpreter. Rep. Adam Schiff (Calif.), the top Democrat on the House intelligence committee, tried Thursday morning to get the committee on board but was overruled by Republicans.
Can lawmakers even do this, though, given the principle of executive privilege? Congress has an oversight role over the executive branch, but how far does it extend? Does it change the equation that there’s an ongoing federal investigation into Russian interference in the 2016 presidential election to help Trump win?
HuffPost asked some constitutional scholars if it would be legal for lawmakers to make Trump’s interpreter share details from that meeting. Even they weren’t sure.
“The legal territory is unsettled,” said Laurence Tribe, the Carl M. Loeb university professor and a professor of constitutional law at Harvard University. “I don’t think there is any authoritative on-point precedent either way.”
“That’s a great question, and there is no clear answer,” said Erwin Chemerinsky, the dean of Berkeley Law and the Jesse H. Choper distinguished professor of law at the University of California. “Executive privilege is traditionally about conversations with or memoranda from advisers. This, of course, is different.”
Some said Trump’s ability to invoke executive privilege would likely overrule any effort by lawmakers to tap the U.S. interpreter, who has been identified as State Department employee Marina Gross, for information from a private meeting.
“He could cite national security as well as the president’s unique position as the country’s representative in foreign relations,” said Eric Posner, the Kirkland and Ellis distinguished service professor of law and the Arthur and Esther Kane research chair at the University of Chicago. “To overcome the privilege, Congress must provide an adequate explanation for why it needs to know what was said at the meeting. I don’t see one as of now.”
“I can’t imagine this doesn’t fall within executive privilege,” said Geoffrey Stone, the Edward H. Levi distinguished service professor at the University of Chicago. “Then, again, there was the Nixon tapes case, so maybe it’s more complicated than I think.”
Executive privilege is traditionally about conversations with or memoranda from advisers. This, of course, is different. Erwin Chemerinsky, dean of Berkeley Law
Democrats’ biggest challenge to talking with the U.S. interpreter may not be Trump’s executive privilege, though. Republicans don’t seem interested whatsoever in trying to uncover what Trump may have promised Putin in the highly unusual meeting.
“The world will never know,” Sen. Jim Lankford (R-Okla.) told reporters Tuesday. “Because there were no note takers, the Russians will say, ‘This is what was said,’ and there’s no way to be able to counter that.”
“I don’t understand the value of that two-hour meeting,” said Sen. Roy Blunt (R-Mo.). “But that’s the president’s decision to make, not mine.”
For all the murkiness about Congress’ ability to compel the president’s interpreter to testify, some legal experts urged lawmakers to push for it anyway.
“I think they should try it,” said Cristina Rodriguez, the Leighton Homer Surbeck professor of law at Yale Law School and a former deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice. “[The administration] might try to claim presidential communications privilege, but that generally refers to consultation with advisers, not to something rote like translation. The more viable channel of resistance would be to invoke the president’s power to conduct diplomacy, which Republican and Democratic administrations alike have regarded as an exclusive presidential prerogative.”
“I strongly favor this effort to subpoena the U.S. interpreter,” said Tribe. “There is a lot to gain and nothing to lose by at least seeking such testimony.”
He added, though, that he “would be surprised if the current congressional leadership has the guts to try it.”
Igor Bobic contributed reporting.
CORRECTION: A previous version of this article used a former title for Erwin Chemerinsky. He is the dean of Berkeley Law and the Jesse H. Choper distinguished professor of law at the University of California.