Trump Subpoenaed?

This piece in Politco contains in its second graph what I conclude was the working title- “How Robert Mueller Is Spending His Midterms”.

As they note it’s been a while since we’ve had news on what TMC calls “The Russian Connection” and I, in my less diplomatic way, “The Trump Treason Plot”. Sure there has been some surface froth which indicates Roger Stone is getting squeezed on the Trump-Wikileaks-Russia channel and Michael Cohen is not off the hook yet as he is still involved in pending criminal investigations which are legally distinct for his plea agreement with Mueller.

Also we have the breaking news that some dumb Stone wannabe, Jack Burkman, was pushing a ludicrous scheme to fabricate evidence that Mueller engaged in sexually harassing behavior. Too bad that the first woman he approached to make these false charges narced him out and the matter referred to the FBI. Nothing will come of this except maybe Burkman gets some G. Gordon Liddy reflection time in a Federal Correction facility.

But today we have this blockbuster news which, if true, means Trump might theoretically be forced to testify in front of a Grand Jury (no lawyers to help you out and the members of the Jury can ask you any question they like, oh, and if you lie it’s Perjury).

Has Mueller Subpoenaed the President?
October 31, 2018

(F)or those of us who have been appellate lawyers, the brief docket entries tell a story. Here’s what we can glean:

  • The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court—and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
  • The appeals court itself responded with remarkable speed, too. One day after getting the witness’ motion, the court gave the special counsel just three days to respond—blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
  • At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
  • Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s eight days after the midterm elections). Oral arguments are set for December 14.

At every level, this matter has commanded the immediate and close attention of the judges involved—suggesting that no ordinary witness and no ordinary issue is involved. But is it the president? The docket sheets give one final—but compelling—clue. When the witness lost the first time in the circuit court (before the quick round trip to the district court), he petitioned, unusually, for rehearing en banc—meaning the witness thought the case was so important that it merited the very unusual action of convening all 10 of the D.C. Circuit judges to review the order. That is itself telling (this witness believes the case demands very special handling), but the order disposing of the petition is even more telling: Trump’s sole appointee to that court, Gregory Katsas, recused himself.

Katsas previously served in the Trump White House, as one of four deputy White House counsels. He testified in his confirmation hearings that in that position he handled executive branch legal issues, but made clear that apart from some discrete legal issues, he had not been involved in the special counsel’s investigation. If the witness here were unrelated to the White House, unless the matter raised one of the discrete legal issues on which Katsas had previously given advice, there would be no reason for the judge to recuse himself.

But if the witness were the president himself—if the matter involved an appeal from a secret order requiring the president to testify before the grand jury—then Katsas would certainly feel obliged to recuse himself from any official role. Not only was the president his former client (he was deputy counsel to the president, remember) but he owes his judicial position to the president’s nomination. History provides a useful parallel: In 1974, in the unanimous Supreme Court decision United States v. Nixon, which required another witness-president to comply with a subpoena, Justice William Rehnquist recused himself for essentially the same reasons.

We cannot know, from the brief docket entries that are available to us in this sealed case, that the matter involves Trump. But we do know from Politico’s reporting that it involves the special counsel and that the action here was filed the day after Giuliani noted publicly, “[W]e’re pretty much finished with our memorandum opposing a subpoena.” We know that the district court had ruled in favor of the special counsel and against the witness; that the losing witness moved with alacrity and with authority; and that the judges have responded with accelerated rulings and briefing schedules. We know that Judge Katsas, Trump’s former counsel and nominee, has recused himself. And we know that this sealed legal matter will come to a head in the weeks just after the midterm elections.

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. Quietly, expeditiously, and refusing to waste the lull in public action demanded by the midterm elections. It all fits.

It is still unlikely that Trump will face the full horror show of an unassisted, unscripted Grand Jury appearance but it is highly likely that, after a complete and thorough victory by Mueller (this is not unlitigated, United States v. Nixon is pretty clear) and perhaps several weeks persuading Trump his legal position is hopeless, they will negotiate a sworn, taped deposition with Counsel present like the one Bill Clinton had (and remember, that was a civil case, in Criminal Law the presumption of required testimony is much stronger). Or he could plead the Fifth which would be ironic in the non-Classical way.

So there you go. Things will start a’poppin’ November 7th. Pick up some Popcorn on your way home from the polls.