Mueller faces tough subpoena decision
Action might be only way special counsel gets Trump’s testimony
WASHINGTON — After months of negotiations failed to secure an interview with President Donald Trump, special counsel Robert Mueller warned the president’s lawyers during a contentious meeting this spring that he could use a grand jury subpoena if necessary to compel his testimony.
That prompted a furious response from John Dowd, the president’s lead attorney at the time.
“I told him, in no uncertain terms, if that’s the route he took, he’d have a war on his hands,” Dowd recalled about the March meeting.
Trump’s team has increasingly signaled he will not voluntarily answer questions as the special counsel investigates Russian meddling in the 2016 election, whether the Trump campaign colluded with the Kremlin, and if Trump subsequently obstructed the investigation.
That may give Mueller little choice but to seek a subpoena if he deems Trump’s testimony critical. But getting one this summer almost certainly would spark a bitter court battle with the president’s lawyers before the November midterm elections, a prospect Mueller might want to avoid.
The impasse represents a defining juncture for a federal investigation that has clouded the Trump White House from its first day and led to criminal charges against 32 people since October, including 12 Russian intelligence officers indicted Friday in connection with hacking files of Hillary Clinton’s presidential campaign, Democratic Party organizations and state election offices in 2016.
While Mueller has avoided the media — news agencies recycle year-old photos of him — Trump’s rage has only grown, with near-daily Twitter broadsides against what he calls a “rigged witch hunt.” He will meet Monday in Finland with Russian President Vladimir Putin, who denies the meddling even though U.S. intelligence agencies said he personally ordered the operation.
Trump’s attacks appear to have gained traction: Recent polls show declining public support for Mueller’s investigation.
Rudy Giuliani, who replaced Dowd, has become the president’s most vocal defender. On July 8, the former New York City mayor told a TV talk show that Trump would meet with Mueller only if the special counsel could show a “factual basis for the investigation,” a hardening of the White House position.
Legal experts questioned Giuliani’s attempts to set preconditions for a possible interview with Trump.
“That’s nonsense. It’s actually nonsense on stilts,” said Paul Rosenzweig, who worked with the independent counsel’s office that investigated President Bill Clinton, and is now a senior fellow at the R Street Institute, a nonpartisan think tank in Washington.
The only grounds required for obtaining a grand jury subpoena, he said, is whether a witness may have evidence germane to the investigation.
Some former prosecutors and other lawyers say they are puzzled that Mueller has not sought a subpoena to bolster his hand in securing Trump’s testimony.
“We’ve passed the point where a sensible prosecutor, even with the president, would have said, ‘Okay, enough. Here’s your subpoena. See you in court,’ ” said Harry Litman, a University of California law professor and former U.S. attorney in Pittsburgh who was appointed by Clinton. ”I would never second guess Mueller. But I’m a little surprised he didn’t start proceedings on a subpoena.”
Shanlon Wu, a former prosecutor who worked with Mueller in the 1990s in the U.S. attorney’s office in Washington, D.C., said he doesn’t believe Mueller wants to preside over a multi-year investigation.
“I think Mueller is very conservative in terms of his approach, and he would like to not create a big legal battle” over a subpoena, Wu said. “I think his end goal is he wants to be seen as having done this very quickly and effectively.”
The question of whether a president can be compelled to testify under oath has never been tested in the courts.
Many legal experts believe a subpoena for the president’s testimony would be upheld. They point to the Supreme Court’s unanimous decision on July 24, 1974, which ordered President Richard Nixon to hand over taped conversations and other materials subpoenaed by the Watergate special prosecutor.
Mueller’s office declined comment for this story. Another lawyer for the president, Jay Sekulow, said only that “we continue to maintain a professional dialogue with the special counsel.”
In public, however, the scorched-earth attacks by Trump and his allies have undercut support for Mueller’s investigation.
A Washington Post-Schar School poll released on July 11 showed support for Mueller’s handling of the case dropping from 58 percent in November to 49 percent now. Disapproval rose from 28 percent to 45 percent.