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Could Mueller have subpoenaed Trump?

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Robert Mueller
Robert Mueller.
REUTERS/Kevin Lamarque

  • A former federal prosecutor wrote that although October was
    an outwardly quiet month in the Russia investigation, the special
    counsel Robert Mueller may have made his most significant move
    yet.
  • Nelson Cunningham, the former prosecutor, wrote in Politico that based on a
    series of under-the-radar moves at two Washington, DC, courts,
    he believes Mueller may have moved to subpoena President Donald
    Trump.
  • Jeff Cramer, another DOJ veteran, said Cunningham’s
    theory was “consistent” with how he believed Mueller’s
    decision to subpoena the president might play out.

  • Trump and his attorneys denied that Mueller has issued a
    subpoena.

October was an unusually quiet month — at least publicly — in the
Trump-Russia investigation.

The reasoning behind that, experts say, is that the midterm
elections are just days away, and Justice Department guidelines
prevent prosecutors from taking any overt actions that could
influence the outcome of an election.

But Nelson Cunningham, a former federal prosecutor and Senate and
White House aide, laid out compelling alternative evidence in
Politico. He believes
that special counsel Robert Mueller may have made his most
significant move yet this month: subpoenaing President Donald
Trump to testify before a grand jury.

The clues, Cunningham wrote, lie in a series of under-the-radar
moves at the Washington, DC, district court and circuit court of
appeals by lawyers working for Mueller and an unknown witness in
the investigation:

From then, Cunningham wrote that three factors tipped him off to
the fact that the sealed case may have to do with the president:

  • The first was the speed with which the case was handled. Not
    only did the unidentified witness appeal the lower court’s ruling
    almost immediately, but the appeals court also responded quickly.
    The court also set an accelerated briefing schedule, per
    Politico, and all the judges involved moved quickly to amend a
    procedural flaw in just under a week that typically would have
    taken “weeks or months” to resolve.
  • The second factor Cunningham outlined was the witness’s
    unusual decision to request a hearing before all 10 of the DC
    circuit court judges.
  • The third factor was that Gregory Katsas, one of the judges
    on the panel, recused himself from the matter. Katsas was
    appointed to the court by Trump, and prior to joining the panel,
    he worked in the White House counsel’s office as deputy counsel
    to the president.

If Mueller were going to subpoena the president — and
there’s every reason why a careful and thorough prosecutor would
want the central figure on the record on critical questions
regarding his knowledge and intent — this is just the way we
would expect him to do so,” Cunningham wrote.

Jay Sekulow, one of Trump’s defense lawyers, denied
Politico’s story on Wednesday, telling The New York Times
there was “no subpoena issued and there is no litigation.”

Trump later told reporters the same.


Read more:
What 3 past presidents did when
they were subpoenaed, and what could happen if Mueller tries to
make Trump testify


donald trump
President Donald
Trump

Alex Wong/Getty
Images


A presidential subpoena would likely kick off a lengthy
constitutional battle that would go all the way to the Supreme
Court.

Current DOJ policy states that a sitting president cannot be
indicted. Trump’s lawyers have argued that if he cannot be
indicted, he also cannot be subpoenaed.

DOJ veterans and Mueller’s former associates have described him
as a by-the-books prosecutor, adding that he is unlikely to go
against DOJ guidelines on the issue of indictment.

But the move may not be completely off the table.

In May, The 
Washington
Post

 reported that during a negotiation in March,
Mueller threatened to subpoena Trump to testify before a grand
jury if he did not agree to a voluntary interview.

Giuliani
told Business Insider
 in August that he plans to fight a
potential grand jury subpoena “all the way to the Supreme
Court.”

Jeff Cramer, a longtime former federal prosecutor who spent
12 years at the DOJ, said Cunningham’s theory was “consistent”
with how he believed Mueller’s decision to subpoena the president
might play out.

“I can’t imagine Mueller’s going to back away from the
fight,” he said. “If the president ultimately says, ‘No, I’m not
talking to you,’ then you have to subpoena him, and now we’re in
a fight. So the question is, how badly does Mueller want that
interview?”

Trump is a significant witness in the collusion thread of
the Russia probe, but he is arguably the most important witness
to Mueller’s obstruction-of-justice case. The FBI began
investigating the president for obstruction after he fired then
FBI Director James Comey last year and later said on national
television that he ousted Comey because he was displeased with
the Russia investigation.

“The written answers from the president, which are really
answers from his attorneys, are absolutely useless to Mueller,”
Cramer said. “Trump’s lawyers can scrub that document. But in a
one-on-one interview, anyone can lie for the first one or two
layers of questions. It’s when you start going deeper that things
start to unravel.”

If Mueller decided to subpoena Trump, it wouldn’t be the
first time a sitting president has been at the receiving end of
the move. Former presidents Thomas Jefferson, Richard Nixon, and
Bill Clinton were all subpoenaed while in
office.

For now, legal experts expect the special counsel to stay mum for
at least the next week or two.

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