Here's what Mueller can and can't say about Trump if he's called to testify before Congress: legal analyst
Robert Mueller testifies before Congress (Photo: Screen capture)

Elie Honig, the former assistant U.S. Attorney, of the Southern District of New York, agreed that if the final report from special counsel Robert Mueller isn't released to the public, Democrats in Congress will likely subpoena him. But even under that subpoena, there are things he won't be able to say.


The first thing that could stop Mueller is President Donald Trump proclaiming executive privilege. He's already done that with other administration officials called. Indeed, son Donald Trump Jr. even attempted to claim "parental privilege," which doesn't exist anywhere in the law.

"Another question is what is the scope of executive privilege and where can we see this arise?" Honig noted. "Executive privilege is basically the idea that conversations between the president and his advisers are secret, they're not for the public to know about. People need to speak freely without knowing whether this will come out."

That might arise in the Mueller report, he explained.

Trump lawyer and disastrous spin-man Rudy Giuliani said that Trump might raise the privilege as a means of objecting to certain parts in the final report. His example was any secret conversations between the president and advisors.

"Now, people should understand, executive privilege is narrow," he continued. "The main decision we have on it is from the Richard Nixon case in 1974. In that case, the Supreme Court said unanimously 'yes,' executive privilege exists but it's designed to protect national security and military secrets. It is not designed as a general shield for the president against potential criminality."

He noted that the policy indeed puts the president above the law, "a little bit."

"If you look at the actual policy, which it goes back to," Honig went on, "it's not something new. It was most recently updated in 2000, so it's been around a while. What the policy itself says is the fear is throwing the entire executive branch into chaos and dysfunction. Imagine if a sitting president was indicted and tried. The report said, 'Well, could we perhaps indict a president and hold off trial until he gets out of the office?' And the DOJ said even that would be too disruptive. The president is candidly a little above the law but not entirely above the law. There's always impeachment. The president could be indicted after impeachment or indicted after his term ends naturally."

The week will be filled with a number of things that contribute to the investigation. Former Trump "fixer" Michael Cohen is scheduled to testify before Congress. Honig also advised watching Roger Stone, because "it took him one business day to threaten the judge after she put the first gag order. Will he abide by this one? I'm not betting on it."

Watch the full discussion below: