An Op-Ed piece in Politico….
These months before the midterm elections are tough ones for all of us Mueller-watchers. As we expected, he has gone quiet in deference to longstanding Justice Department policy that prosecutors should not take actions that might affect pending elections. Whatever he is doing, he is doing quietly and even further from the public eye than usual.
But thanks to some careful reporting by Politico, which I have analyzed from my perspective as a former prosecutor, we might have stumbled upon How Robert Mueller Is Spending His Midterms: secretly litigating against President Donald Trump for the right to throw him in the grand jury.
As a former prosecutor and Senate and White House aide, I predicted here last May that Mueller would promptly subpoena Trump and, like independent counsel Kenneth Starr back in 1998, bring a sitting president before his grand jury to round out and conclude his investigation. What Trump knew and when he knew it, and what exactly motivated his statements and actions, are central to Mueller’s inquiry on both Russian interference and obstruction of justice.
As the summer proceeded, we certainly heard a great deal from Rudy Giuliani, the president’s lawyer, about purported negotiations with Mueller’s office regarding the propriety and scope of Trump’s potential testimony. On August 15, Giuliani said Trump would move to quash a subpoena and went so far as to say, “[W]e’re pretty much finished with our memorandum opposing a subpoena.”
And then—nothing. Labor Day came and went without a visible move by Mueller to subpoena the president, and we entered the quiet period before the midterms. Even the voluble Giuliani went quiet, more or less. Mindful of the time it would take to fight out the legal issues surrounding a presidential subpoena, and mindful of the ticking clock on Mueller’s now 18-month-old investigation, many of us began to wonder whether Mueller had decided to forgo the compelling and possibly conclusive nature of presidential testimony in favor of findings built on inference and circumstantial evidence. A move that would leave a huge hole in his final report and findings.
But now, thanks to Politico’s reporting (backed up by the simple gumshoe move of sitting in the clerk’s office waiting to see who walks in and requests what file), we might know what Mueller has been up to: Since mid-August, he may have been locked in proceedings with Trump and his lawyers over a grand jury subpoena—in secret litigation that could tell us by December whether the president will testify before Mueller’s grand jury….
Trump & Co. deny the analysis done by Politico….
President Donald Trump and his lawyers pushed back in force Wednesday against a POLITICO op-ed suggesting the president is already locked in a secret subpoena battle with special counsel Robert Mueller.
“No,” the president, shaking his head, told reporters on the White House lawn as he prepared to fly to Fort Myers, Fla., for a midterm campaign rally.
Trump’s remarks echoed those of several current and former members of his personal legal team who swung back against a POLITICO opinion piece written by Nelson Cunningham, a former federal prosecutor who was attempting to decipher a mystery legal battle that appears to involve an attempt to fight a Mueller subpoena.
Cunningham’s op-ed suggested Mueller may have already issued a historic subpoena for the president because of the “unusual alacrity” with which the federal judges weighing the case have considered the issue….