A day after the New York Times published a list of more than four-dozen questions that Special Counsel Robert Mueller had purportedly delivered to President Trump’s legal team, the Washington Post Tuesday evening sent US stock futures and the dollar lower when it reported that Mueller had raised the possibility of subpoenaing president Trump – something that would almost certainly trigger a constitutional crisis that would need to be resolved by the Supreme Court – should he refuse a meeting with investigators.
The threat was reportedly issued during a particularly tense meeting held on March 5. Robert Mueller reportedly made the threat after former Trump lead attorney John Dowd, who has since left the legal team, was arguing that Mueller didn’t have the authority to subpoena Trump. Until now, the notion that Mueller would subpoena Trump has been more conjecture; this is the first time a major media outlet has reported that the special counsel is considering such a drastic course of action.
The threat reportedly set in motion weeks of turmoil in the Trump legal team that eventually led to Dowd’s exit.
But the details buried inside the WaPo report are almost as interesting as the headline. Because WaPo recounts how Trump lawyer Jay Sekulow transcribed 49 questions that the Mueller team offered as examples of what the special counsel intended to ask the president.
In the meantime, Trump’s lawyers are also considering whether to provide Mueller with written explanations of the episodes he is examining. After investigators laid out 16 specific subjects they wanted to review with the president and added a few topics within each one, Sekulow broke the queries down into 49 separate questions, according to people familiar with the process.
This would seem to confirm our theory that Trump’s legal team leaked the Mueller questions to pressure the special counsel into backing off.
Which is unsurprising because, according to WaPo, Trump is so infuriated about the Cohen raid, that one aide reportedly told WaPo that he seems to talk about it “20 times a day.” Multiple media reports have claimed Trump soured on the prospect of an interview with Mueller after the raids on Cohen’s home, office and hotel room.
Trump’s anger over the Cohen raids spilled into nearly every conversation in the days that followed and continues to be a sore point for the president. One confidant said Trump seems to “talk about it 20 times a day.” Other associates said they often stand silent, in person or on the phone, as he vents about the Cohen matter, knowing that there is little they can say.
If this is true, it would suggest that Mueller’s team leaked the WaPo report to push back against Trump’s lawyers and pressure the president into agreeing to an interview.
Should a subpoena be issued, Trump’s legal team would likely argue that Trump’s communications and deliberations are protected by executive privilege, and that a subpoena would interfere with his ability to do his job. While it’s generally accepted that a sitting president could be subpoenaed, the issue has never been decided in court, since Special Prosecutor Ken Starr backed down from subpoenaing former President Bill Clinton.
Mueller’s team would likely argue that no American citizen is above the law, banking on the fact that judges are typically loathe to rule that somebody can’t be investigated.
Trump’s team could argue that Mueller was seeking information about the president’s private conversations that are protected by executive privilege or that a grand jury interview would place an unnecessary burden on the president’s ability to run the country.
Judges have generally held that the president is not above the law and can be subjected to normal legal processes — but the issue of a presidential subpoena for testimony has not been tested in court. Starr subpoenaed President Bill Clinton for grand jury testimony in 1998 but withdrew it after Clinton agreed to testify voluntarily. He was interviewed at the White House, appearing before the grand jury via video.
The news briefly sent stock futures and the dollar lower Tuesday evening, though they started to recover after traders likely accounted for the fact that this threat is nearly 2 months old, and predates the addition of Rudy Giuliani to Trump’s legal team. Giuliani has a decades-old relationship with Mueller and is widely viewed as a stabilizing force.