Patterico's Pontifications

10/31/2018

Has Mueller Subpoenaed Trump to the Grand Jury?

Filed under: General — Patterico @ 7:59 am

Betteridge’s law of headlines says no, and so do I. But that’s the case made by former federal prosecutor Nelson Cunningham at POLITICO. Ed Morrissey at Hot Air will walk you through the evidence and save you the angst of clicking on a POLITICO link. First, Cunningham says, we know this:

[A] sealed grand jury case was initiated in the D.C. federal district court before Chief Judge Beryl A. Howell. We know that on September 19, Chief Judge Howell issued a ruling and 5 days later one of the parties appealed to the D.C. Circuit. And thanks to Politico’s reporting, we know that the special counsel’s office is involved (because the reporter overheard a conversation in the clerk’s office). We can further deduce that the special counsel prevailed in the district court below, and that the presumptive grand jury witness has frantically appealed that order and sought special treatment from the judges of the D.C. Circuit – often referred to as the “second-most important court in the land.”

Cunningham then says that the appeal was particularly fast-tracked for an appeal by a normal witness. Then, at the en banc stage, there was a curious recusal:

And at that point, a very curious thing happened — Judge Gregory Katsas recused himself before the en banc petition was denied. And who is Gregory Katsas? He’s the only current Trump appointee to the DC Circuit, Cunningham notes, as well as a former deputy counsel to Trump.

I think that “as well as” formulation, suggesting that the identity of Katsas as a Trump appointee as the key fact, gets it exactly backwards. Katsas being a Trump appointee should have absolutely nothing to do with this. Presidential appointees rule on important questions involving the president who appointed them, all the time. All. The. Time. The key point here, I think, is that Katsas was deputy counsel to Trump. Keep that in mind as you read this totally misguided passage from Cunningham:

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 Judge 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 US v Nixon requiring another witness-president to comply with a subpoena, Justice William Rehnquist recused himself for essentially the same reasons.

The United States v. Nixon case certainly does provide a useful parallel, but not in the way Cunningham thinks. Cunningham’s notion that Rehnquist recused himself from the Nixon tapes case in part because he was a Nixon appointee is wrong. How do we know this? Because of a fact that Cunningham does not tell his readers: three other Nixon appointees were in the unanimous majority against Nixon: Warren Burger, Lewis Powell, and Harry Blackmun. The real reason Rehnquist recused himself was because he had been an Assistant Attorney General, close to Richard Kleindienst and John Mitchell.

Similarly, if the litigation in the D.C. Circuit is over Trump, any recusal by Katsas would be because of his past work for Trump, not because Trump appointed him.

But the reason I don’t believe this is simple:

If Robert Mueller subpoenaed Donald Trump to the grand jury, there is no way Donald Trump could keep his mouth shut about it for several weeks.

No way.

So: nice theory, but no sale.

[Cross-posted at The Jury Talks Back.]


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