Showing posts with label Mueller Investigation. Show all posts
Showing posts with label Mueller Investigation. Show all posts

April 17, 2019

In Hours The Redacted Mueller Report is Coming To Congress, You Should Know These Few Facts

The Justice Department says it plans to release special counsel Robert Mueller's report on Thursday morning. Here's what you need to know.
What is it?
Mueller was appointed in the spring of 2017 to investigate whether President Trump's campaign conspired with the Russian interference in the 2016 election.
The fact of the interference itself had been long established, and last month Attorney General William Barr told Congress that Mueller did not find that Trump's campaign was involved with it.
Barr also told Congress that Mueller didn't establish that Trump broke the law in trying to frustrate the investigation — but neither did Mueller's office "exonerate" the president. 
Barr and Deputy Attorney General Rod Rosenstein concluded for themselves, based on the special counsel's findings, that Trump would not face obstruction-of-justice charges.
With that established, what's the point of the report?
What the document is expected to reveal are the factual findings and legal analysis that underpinned the conclusions already shared by Barr.   
Trump and Republicans have welcomed Barr's summary, which they say vindicates the president and gave them a surge of momentum into the burgeoning 2020 election season.
Democrats say they can't be sure Barr isn't providing political cover for Trump, pointing to skepticism he voiced about Mueller's inquiry before he was nominated to be attorney general. Trump's opponents say they can't be sure what to make of Mueller's findings until they see the findings firsthand.  
How long is it?
Nearly 400 pages, "exclusive of tables and appendices," Barr told Congress.
Will it be Mueller's complete report?
No. Barr told members of Congress that he has been working with the special counsel's office to redact four kinds of information.
First, grand jury material, which is secret under the law. Second, foreign intelligence that could compromise the sources and methods from which it originated, which American spies want to protect. Third, Barr said he would redact information about ongoing cases or investigations — those taking place elsewhere in the Justice Department now that the special counsel's work is complete. 
Charges unsealed last week against Julian Assange, the founder of WikiLeaks, and Greg Craig, a former White House counsel, made clear that legal aftershocks will continue even though the big political quake in Washington apparently has passed.
And fourth, Barr told Congress, is "information that implicates the privacy or reputational interests of peripheral third parties who were not charged." The Justice Department should not reveal derogatory information about people whom it isn't accusing of breaking the law, he said.
Who is covered under that exception?
"People in private life," the attorney general told senators. "Not public officeholders."
 What is wrong if I ask him what is best and he does it?....... 

November 13, 2018

Drafter of Cousel Law: " The installation of Matthew Whitaker as acting attorney general isn’t just unconstitutional it is unconstitutional"


The installation of Matthew G. Whitaker as acting attorney general isn’t just unconstitutional — although it is unconstitutional. Even if Whitaker’s appointment ever survived a court challenge on constitutional grounds for most of his day-to-day duties at the Justice Department, the fact that he’ll now be performing the sensitive work of supervising Robert S. Mueller III’s investigation raises other deep problems. Putting Whitaker in charge of the inquiry is sharply at odds with the special counsel regulations governing Mueller’s work and with the Justice Department’s rules about who may oversee an investigation.
I had the privilege of drafting the special counsel rules 20 years ago when I was at the Justice Department. Recall the setting: The independent counsel statute was expiring in June 1999, and there was a robust debate about what should take its place. After the multitude of investigations of the Clinton administration, many in Washington clamored for renewal of the supercharged independent prosecutor in the act. Others, seeing what they believed were abuses by then-independent counsel Ken Starr (and prior independent counsel Lawrence Walsh, who oversaw the earlier Iran-contra investigation of the Reagan administration more than a decade before Starr), believed that something more accountable and less independent had to be created instead. 
My Justice Department colleagues and I, along with a bipartisan group on Capitol Hill, worked through many possible scenarios before we settled on the rules that now govern Mueller’s investigation. Everyone in the debate recognized that any enhancement in the special counsel’s accountability had to come from additional supervision by the attorney general. After all, the power to supervise is the power to destroy. The attorney general can stop a special counsel from investigating altogether or stop them from taking a specific step (such as subpoenaing a president). He can read every file of the councel, and he may even attempt to give information about the investigation to the president in real time. And he plays a crucial role in determining what report by Mueller, if any, is given to Congress and ultimately the public.
But no one — and I mean no one — ever thought the regulations we wrote would permit the president to install some staff member of his choice from the Justice Department to serve as acting attorney general and thereby oversee the special counsel. Such a proposal would have been laughed off Capitol Hill within a nanosecond as fundamentally at odds with the most cardinal principle that no one is above the law.
It simply cannot be that the president can name his own temporary attorney general to supervise an investigation in which he and his family have a direct, concrete interest. The Constitution itself underscores this — even assuming Trump’s defenders are right that under the Appointments Clause, an acting attorney general doesn’t always need to be Senate-confirmed. Ordinarily, “Principal Officers,” which Cabinet secretaries undoubtedly are, must have Senate confirmation under Article II of our Constitution. The most eloquent defenders of Trump’s action say that Whitaker is serving in a temporary capacity, as an inferior officer, and therefore he can serve without confirmation. But they cite precedents that do not apply, because they concern emergency situations in which no one else has been confirmed by the Senate in the line of succession. In this case, the Senate has confirmed two officials who could continue to oversee Mueller: Deputy Attorney General Rod J. Rosenstein, who has been supervising the case ever since former attorney general Jeff Sessions recused himself, and Solicitor General Noel Francisco. Notably, Congress’s succession statute for the Justice Department lists those people as next in line, not a handpicked mere staff member from the bowels of the department. 
But even if the defenders’ claims were true, all that would mean is that Whitaker is an inferior officer who doesn’t need to be confirmed by the Senate. In that situation, someone else, a principal officer, would still need to be in place to supervise Mueller — who is also an inferior officer. That responsibility would fall once again to Rosenstein under the succession statute Congress authorized. 
Sometimes, an inferior officer has to supervise other inferior officers with no principal — say, if no one else has been confirmed at the start of an administration. Or in a more hypothetical scenario, imagine a military conflict in which casualties meant there were no Senate-confirmed officials in a department. But fortunately, today’s Justice Department isn’t dealing with challenges anything like those. There are Senate-confirmed officials at the helm.
And regardless of those issues, there is yet another problem, specific to the Mueller investigation. In an emergency situation where an acting head is named, the president is, ultimately, the responsible official who supervises temporary, unconfirmed stand-ins. The idea is that there would at least be someone accountable to the public above the acting officer in those situations — and as Harry Truman put it, the buck always stops with the president. 
Here, though, the idea that the president could be trusted to supervise Whitaker as he oversees Mueller’s work is absurd. The potential for self-dealing, not selfless sacrifice, is rampant. Trump could secretly order Whitaker to do his bidding and terminate an investigation of his or his family’s wrongdoing, and Whitaker would take the blame for it. Trump could shield his actions from public scrutiny, and Whitaker, who depends entirely on the president’s support for his job and later advancement, would have no standing to complain. This is fundamentally at odds with the core principle of American law, going back to the early 1600s, that no one can be a judge in their own case.
The problems don’t end there. Because even if you think that Trump could surmount that obstacle and supervise an investigation of himself, it cannot be that he can install the compromised Whitaker to the task. Justice Department ethics rules forbid someone from participating in a criminal investigation if they have “a personal or political relationship” with “anyperson … which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation.” That fits this case to a T. Whitaker indeed campaigned for the job, first on TV, and then reportedly with the White House privately, casting aspersions on the Mueller investigation, even saying “the truth is there was no collusion with the Russians and the Trump campaign,” writing an op-ed called “Mueller’s investigation of Trump is going too far” and insinuating that he was part of Trump’s team. He evidently even interviewed for a job to defend Trump against Mueller. And Whitaker ran a past political campaign by Sam Clovis, a Trump confidant who has been subpoenaed by the grand jury as part of the Russia inquiry.
Given all of that, it is no wonder that Trump has told people that Whitaker would be “loyal.” 
In some cases, Justice Department leaders can supervise investigations despite having personal knowledge about the entities involved. After all, the president nominates every senior official there, so relationships will often exist. But there is a big difference between those garden-variety cases and this one. The department’s ethics rules define a “personal relationship” as “a close and substantial connection of the type normally viewed as likely to induce partiality.” And it’s here where the temporary nature of Whitaker’s appointment boomerangs. Like Supreme Court decisions that are tickets “good for one day only,” when an appointment is made for only one reason, it looks more suspect. That suspicion is exacerbated further because Whitaker has not been confirmed by the Senate. No independent body has signed off on his ethics or his integrity — and bypassing the Senate makes his appointment appear to be an attempt to put a Trump lackey in charge of the investigation. And finally, the ethics rules ask whether a substitute official can be found easily. In this situation, two can step in. One, in fact, is already acting as attorney general for the purposes of Mueller’s investigation — yet another reason it looks as though Whitaker has been installed simply to change the way the special counsel’s work is handled.
Our founders recognized that “men were not angels” and that checks and balances in government were critical to avoiding threats to the rule of law. The Whitaker installation does violence to our most basic principles — enshrined in the Constitution, laws enacted by Congress, the ethics rules that govern our prosecutors and the special counsel regulations themselves.
It is lawless and unprincipled.
It must be stopped.
Neal Katyal  is the former acting solicitor general of the United States and presently serves as a partner at Hogan Lovells and the Saunders professor of national security law at Georgetown University.

November 10, 2018

We Are At The Precipice But Mueller is Got Minions of Prosecutors Out of Reach of Trump

By Richard Ben-Veniste and George Frampton
Mr. Ben-Veniste and Mr. Frampton worked on the Watergate cover-up task force of the special prosecutor’s office~~~The New York Times

In a stunning move on the heels of the midterm election, President Trump has forced the resignation of Attorney General Jeff Sessions and appointed an outspoken critic of the Mueller investigation — Matthew Whitaker — as acting attorney general, shunting Deputy Attorney General Rod Rosenstein to the sidelines. This raises the specter of a fearful president attempting to muzzle Special Counsel Robert Mueller or hinder him from revealing whether his 18-month-long grand jury investigation has turned up evidence of criminality implicating Donald Trump or his immediate family.
But a 44-year-old “road map” from the Watergate prosecution shows a potential route for Mr. Mueller to send incriminating evidence directly to Congress. The road map was devised in 1974 by the Watergate special prosecutor, Leon Jaworski, with our assistance. We wrote the road map — actually a report — to be conveyed to Congress; it was called “Report and Recommendation” and served as a guide to a collection of grand jury evidence contained in a single document. That evidence included still-secret presidential tape recordings that had been acquired through grand jury subpoena — but which had been withheld from Congress by President Nixon. 
The recent decision by Washington’s Federal District Court chief judge, Beryl Howell, to release the document from the National Archives provides a historic legal precedent that could be a vehicle for Mr. Mueller and the grand jury assisting him to share the fruits of their investigation into possible criminal conduct within the Trump presidential campaign and subsequent administration.
In all the discussion about Mr. Mueller’s options when he concludes his investigation, little attention has been paid to the potential role of the grand jury. Chief Judge Howell’s decision unsealing the Watergate road map brings new focus on the role the grand jury might play in the dynamics of the endgame. Although the grand jury is a powerful tool for federal prosecutors, it has historic and independent power and operates under the supervision of the federal judiciary. Following the Oct. 20, 1973, “Saturday Night Massacre” — in which President Nixon forced the Justice Department to fire the original special prosecutor, Archibald Cox — the Watergate grand jury played a critical role in forcing the president to back down, hand over the subpoenaed tapes and appoint a new special prosecutor.

Although Mr. Cox had been fired, his staff — duly appointed federal prosecutors — had not. The grand jury, as an arm of the judicial branch, could not be fired by the president. Indeed, Judge John Sirica of the United States District Court immediately summoned the grand juries (there were two) to his courtroom and exhorted them to continue to pursue their investigations and assured them that they could rely on the court to safeguard their rights and preserve the integrity of their proceedings. 

In the face of Congress’s inability to obtain evidence that the grand jury well knew incriminated the president, we prepared the grand jury report to Judge Sirica and requested that he use his plenary authority to transmit that evidence to the House Judiciary Committee, which had already commenced a proceeding to consider Mr. Nixon’s impeachment. It was carefully written to avoid any interpretations or conclusions about what the evidence showed or what action the committee should take. The report contained a series of spare factual statements annotated with citations to relevant transcripts of tapes and grand jury testimony. Copies of those tapes and transcripts were included as attachments. 
Judge Sirica was convinced that the materials contained in the report should be made available to the House Judiciary Committee. His decision was affirmed by the Court of Appeals for the District of Columbia Circuit. This evidence formed the gravamen of Article I (obstruction of justice) of the impeachment resolution adopted by the Committee.
Much note has been made of the fact that the Justice Department regulations under which Mr. Mueller was appointed actually require him to submit a report to the attorney general. Importantly, nothing in the department regulations prohibits Mr. Mueller’s Department of Justice superior, now Mr. Whitaker, from refusing to release the report

What if Mr. Mueller concludes that the president has committed a crime? The question of whether a sitting president can be indicted remains a subject of vehement debate among scholars. But assuming that Mr. Mueller follows what many regard as “current Justice Department policy” based on several past internal legal opinions that an indictment is inappropriate, then the appropriate place for consideration of evidence that the president has committed crimes rests definitively and exclusively with Congress.

If Mr. Mueller has obtained such evidence, his responsibility and the correct operation of our system of government compel the conclusion that he and the grand jury can make that evidence available to Congress through a report transmitted by the court. 
With the fox now guarding the henhouse, there is sufficient precedent for the grand jury and Special Counsel Mueller to seek the chief judge’s assistance in transmitting a properly fashioned report to Congress.
Richard Ben-Veniste, an attorney in Washington, was the chief of the Watergate cover-up task force of the special prosecutor’s office and was a member of the 9/11 Commission. George Frampton is the chief executive of the Partnership for Responsible Growth and was an assistant special prosecutor on the cover-up task force.

November 9, 2018

With Jeff Sessions Fired What is Next For Special Counsel Robert Mueller

By Greg Walters            
 President Trump spent a chunk of time during Wednesday’s post-midterms press conference bemoaning Robert Mueller’s ongoing investigation into his 2016 campaign. 
Then he parted ways with one of the key men responsible for it: Attorney General Jeff Sessions. 
With the beleaguered AG’s resignation in hand, Trump welcomed a much friendlier face to his ranks: Matt Whitaker, a former U.S. attorney from Iowa who’s been far from shy in his criticism of Mueller’s probe. The hiring of Whitaker spells trouble for special counsel Mueller’s investigation into Trump’s ties to Russia, legal experts told VICE News. 
Whitaker, who has accused Mueller of "going too far," is now expected to assume oversight of the the special counsel's investigation from Deputy Attorney General Rod Rosenstein, Bloomberg and NBC reported, citing unnamed sources familiar with the situation. Rosenstein appointed Mueller 18 months ago and has quietly defended the probe from Trump and his allies in Congress ever since. 
“The president’s move to demand Sessions resign, and put Whitaker in his place, is obviously part of a strategic effort to limit the Mueller investigation,” said David Kris, who served as assistant attorney general for national security under former president Barack Obama. 
Mueller’s new boss at the Department of Justice can dismiss him for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause,” according to the special counsel regulations. But he doesn’t need to fire Mueller to change the shape and scope of the investigation, and Whitaker seems abundantly clear in this regard. “I could see a scenario where Jeff Sessions is replaced,” Whitaker told CNN in July 2017. “It would recess appointment and that attorney general doesn't fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt.”
Jeff Sessions is gone. Here's what that means for Robert Mueller.
 President Donald Trump announced in a tweet that he was naming Matt Whitaker as acting attorney general after Attorney General Jeff Sessions was pushed out Nov. 7, 2018. (AP Photo/Charlie Neibergall, File.But Whitaker’s ability to assume full oversight of the Mueller probe may be in question, said Kris, founder of the Culper Partners consulting firm.)

 Whitaker could potentially be advised to recuse himself by DOJ ethics officials, on the grounds that he was appointed by Trump, who is a subject of the investigation. Whitaker’s appointment could also be legally challenged by outside groups, including newly-empowered Democrats in the House, Kris said. 
Mary McCord, the former DOJ official who oversaw the department’s investigation into foreign meddling in the 2016 election before Mueller’s appointment, shared Kris’s skepticism. 
“It’s not obvious, from the regulations, that Whitaker will automatically and immediately take over the Mueller investigation,” said McCord. “I think that at a minimum he’d need to do the conflicts of interest check. That’s in the very first line of the special counsel regulations.”
Barring such a recusal, however, a new Trump-friendly official has considerable power to simply bog down the probe by refusing new investigative steps or blocking prosecutions outright.
“Whitaker could withhold resources, or approval for charging decisions,” said Barbara McQuade, a former U.S. Attorney for the Eastern District of Michigan.  
Whitaker’s critical view of Mueller was likely on Trump’s mind when he selected his new acting AG, observers said.
“Mr. Whitaker has been critical of the Mueller investigation, and it’s hard to imagine those critical comments weren’t at least part of the reason why Trump chose him,” said Harry Sandick, a former federal prosecutor turned white-collar defense attorney. 
Whitaker has been called the White House’s “eyes and ears” in the Justice Department by Trump’s chief of staff John Kelly, according to an earlier report in The New York Times. 
“This is a disturbing development,” said Jens David Ohlin, vice dean of Cornell Law School. “The eyes of history are on Mr. Whitaker and will judge him accordingly, as hero or villain, as the case may be.”
Whitaker’s appointment immediately stirred alarm among Democrats who’ve long sought to protect Mueller through bipartisan means.
Senate minority leader Chuck Schumer called on Whitaker to “recuse himself from” the Russia investigation, citing his critical comments of the special counsel. Democratic Sen. Mark Warner, the ranking member on the Senate Select Committee on Intelligence, warned Trump against attempting to obstruct the Mueller probe.
“No one is above the law, and any effort to interfere with the special counsel’s investigation would be a gross abuse of power by the president,” Warner said in a statement to VICE News. “While the President may have the authority to replace the Attorney General, this must not be the first step in an attempt to impede, obstruct or end the Mueller investigation.”
Sessions’ firing is also likely to raise fresh questions surrounding obstruction charges, which already falls under Mueller’s core mandate. Legal analysts said that Trump has the right to fire Sessions, but doing so with the express intent of flummoxing Mueller’s probe could put him in legal jeopardy.  
“The president has the right to remove a member of his cabinet,” said Sandick. “But if he takes official action with the clear objective of upending the investigation, then it seems to me that could indeed be construed as the obstruction of justice.” 
Rosenstein has been widely seen as a protective buffer between Trump and Mueller. He has allowed Mueller to expand the probe beyond the narrow question of Trump and Russia, while sticking up for the special counsel’s integrity under withering criticism from skeptical Republican Congressmen. 
While the special counsel regulations give Mueller’s boss at the Department of Justice the power to deny specific investigative steps, Rosenstein approved the prosecution of former Trump campaign chairman Paul Manafort, a move that resulted in Manafort’s conviction. Manafort then flipped, and agreed to a sweeping cooperation agreement to tell Mueller everything he knows, including about Trump and Russia.
Despite the looming threat to Mueller, analysts have said Trump will find it difficult to stuff Mueller’s genie back in its bottle.
Mueller has already scored convictions against four Trump aides, turning them into cooperating witnesses. Tangential investigations have been farmed out to other districts, giving them a life of their own far beyond his purview. 
Cover image: Then-FBI director Robert Mueller speaks during an interview at FBI headquarters on Wednesday, Aug. 21, 2013, in Washington. 

November 1, 2018

Tea Leaves, A Court's Clerk and Politico Believes Trump is Been Subpoena For Mueller's Grand Jury

By Nelson W. Cunningham 

A careful reading of court filings suggests the special counsel hasn’t been quiet. Far from it.
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 long-standing Justice Department policy that prosecutors should not take actions that might impact pending elections. Whatever he is doing, he is doing quietly and even farther from the public eye than usual.
But thanks to some careful reporting by Politico, we may have stumbled upon How Bob Mueller Is Spending His Mid-Terms: secretly litigating against President 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 about 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 if Mueller had decided to forego 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 may 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.
The evidence lies in obscure docket entries at the clerk’s office for the D.C. Circuit. Thanks to Politico’s Josh Gerstein and Darren Samuelsohn, we know that on August 16th (the day after Giuliani said he was almost finished with his memorandum, remember), 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.”
Nothing about the docket sheets, however, discloses the identity of the witness. Politico asked many of the known attorneys for Mueller witnesses—including Jay Sekulow, another Trump lawyer—and every one denied knowledge of the identity of the witness. (What, of course, would we expect a lawyer to say when asked about a proceeding the court has ordered sealed?)
But for those of us who have been appellate lawyers, the brief docket entries tell a story. Here’s what we can glean:
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 unusually petitioned for rehearing en banc—meaning he thought his 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 his case demands very special handling), but the order disposing of the petition is, even more, telling: President Trump’s sole appointee to that court, Gregory Katsas, recused himself.
Why did he recuse himself? We don’t know; by custom, judges typically don’t disclose their reasons for sitting a matter out. But Judge 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 he had previously given advice, there would be no reason 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 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.
We cannot know, from the brief docket entries that are available to us in this sealed case, that the matter involves President 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 has 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.
Nelson W. Cunningham has served as a federal prosecutor in the Southern District of New York under Rudolph Giuliani, general counsel of the Senate Judiciary Committee under then-chair Joseph R. Biden, and general counsel of the White House Office of Administration under Bill Clinton. He is now president of McLarty Associates, an international strategic advisory firm based in Washington.

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