If There Are White House Recordings, They Could Be Subpoenaed

President Trump warned James Comey that there might be “tapes” of their conversation—and if there are, it would be illegal to destroy them.

Jim Bourg / Reuters

Maybe there are recordings from the Trump White House; maybe there aren’t. On the one hand, President Trump seemed to threaten the former FBI director in a tweet Friday morning, writing, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” Later on Friday, Press Secretary Sean Spicer repeatedly refused to comment on the tweet and whether or not tapes exist.

But if they do exist, those tapes could be subject to a subpoena demanding that the White House turn them over. That could either resolve the question and expose the inner workings of the White House, or it could spark a constitutional crisis.

Former presidents famously did record goings-on in the White House, especially John Kennedy, Lyndon Johnson, and, disastrously, Richard Nixon. It’s believed that no president since Nixon has taped in the White House, in order to avoid the problems Nixon faced—though, of course, it’s possible some did so secretly.

The first important fact about recordings is that if they did exist, post-Nixon, an administration would be required to preserve them as a public record, in accordance with the 1978 Presidential Records Act. The recordings would theoretically become subject to Freedom of Information requests five years after a president left office, though that can be staved off to as much as 12 years. The entire recordings wouldn’t necessarily become available, because there are carve-outs for personal information about the president’s life, as well as “political” activities. If recordings did exist, it would be a crime to destroy them.

But of course, having recordings five years (at the earliest) after Trump leaves office would do little to resolve the political controversy right now. However, the Watergate precedent indicates tapes (or even “tapes”) could be subpoenaed. Ordered to turn over tapes of the White House, Nixon asserted executive privilege. The D.C. District Court rejected that claim, and Nixon appealed to the Supreme Court.

He lost there, too. By an 8-0 margin—William Rehnquist, a former assistant attorney general, recused himself—the Court ruled that the White House had to comply with a subpoena in a criminal case:

Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances…

Although the courts will afford the utmost deference to Presidential acts in the performance of an Art[icle] II function ... when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice.

Presumably, a congressional subpoena about a criminal matter would also succeed in a similar case, on the same grounds.

As my colleague Jeffrey Rosen wrote earlier this week, Nixon nearly provoked a genuine constitutional crisis. The president considered refusing to comply with a Supreme Court order to turn over the tapes.

HuffPost reports that the Senate Intelligence Committee is considering ways to get its hands on the hypothetical Trump tapes. What happens if the committee issues a subpoena for them? It needn’t necessarily have proof they exist. The White House would then have a few options. It could simply say that no tapes exist—which if true would make the administration look silly, and if false would constitute a crime. Or it could say that tapes exist but refuse to turn them over, and try to litigate. Then a Republican-dominated Supreme Court would have to take up the old precedent in United States v. Nixon. (In that case, for the record, five of the justices were nominated by GOP presidents, and three by Democrats.) If the Court affirmed the precedent, Trump would be faced with the same decision as Nixon about whether to comply.

Of course, whether or not the tapes exist remains a central question. The White House’s absolute refusal to discuss it is peculiar, and so is Trump’s tweet, which may very well have been tossed off unthinkingly by the president. At The Washington Post, Philip Bump argues that there are good reasons to believe that Trump recordings do exist.

For one thing, there have been multiple reports of Trump recording conversations or phone calls at his businesses and homes. During the presidential campaign, The New York Times reported that staffers believed they were being bugged. And Trump biographer Tim O’Brien says Trump has claimed to be recording his office in the past, though he’s never produced tapes. There was also a bizarre confrontation earlier this year between reporter April Ryan and White House staffer Omarosa Manigault, of which Manigault claimed to have a surreptitious recording.

Bump also cites an account by my colleague Mark Bowden, who had a recorder fail while interviewing Barack Obama. White House staffers provided him a transcript of the recording. But aides often record interviews by government officials, and a former senior Obama White House official said there was no secret taping system in place, and that a stenographer always recorded meetings with journalists. “None of that was hidden—the stenographer sat in interviews with a tape recorder and sometimes even a boom mic,” the official said. “This was just so we had a transcript of interviews Obama did and, again, would have been known to any journalist who interviewed Obama. We didn’t record private meetings.”

But does Trump? It’s worth reflecting that most of a day’s political news attention has been spent on that question. It will suck up more oxygen going forward. And that’s all because of one tweet that Trump fired off around 8:30 a.m., sans context or evidence. Because he’s the president, it can’t be ignored; because he’s Trump, it can’t be taken at face value. The firestorm follows the pattern set by Trump’s accusation that Obama had Trump’s “wires tapped,” fired off in a weekend tweet and asserted as fact without any evidence. That shocking allegation has occupied large chunks of the last two months, when more urgent crisis haven’t briefly intervened. Trump refuses to offer any evidence for it, and has at times shrugged and argued he was just passing along news reports, but he also refused to acknowledge that he has no evidence for it and was simply making it up, as appears to have been the case.

In fact, the two Twitter-precipitated to-dos are connected. On March 20, members of the House Intelligence Committee asked James Comey, testifying before them, whether Trump’s allegation was true. Comey said it was not. Trump’s fury that Comey said so was reportedly one factor in his decision to fire Comey. So, are there are Trump tapes? Maybe a subpoena will resolve that. Maybe there will be a constitutional showdown. Or maybe this will merely serve as fodder for the next Twitter-inspired crisis.