Mueller Threatens Subpoena

Donald Trump’s current team of lawyers lacks the security clearances needed to discuss sensitive issues related to a possible presidential interview with Special Counsel Robert Mueller, according to Bloomberg anonymous sources.

Trump’s former lead lawyer John Dowd had been the only member of the president’s personal legal team with a security clearance. When Dowd quit in March over disagreements with Trump on legal strategy, Jay Sekulow became the lead lawyer on the investigation and is still waiting for his clearance.

Dowd also faced criticism over his handling of the response to the guilty plea of Trump's former national security adviser Michael Flynn, who became the first Trump administration official to face charges in Mueller's investigation. Dowd landed himself and the President in hot water after a tweet he says he authored suggested Trump knew Flynn lied to the FBI in January, reviving questions of whether Trump committed obstruction of justice when he allegedly asked then-FBI Director James Comey to drop the Flynn investigation.

"I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies," the tweet on Trump's account said. The tweet led Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, to note that the committee is investigating obstruction of justice and said: "What we're beginning to see is the putting together of a case of obstruction of justice."

In a testy exchange with CNN, Dowd said he authored the tweet, but then suggested it was incorrect, claiming that "at the time of the firing no one including Justice had accused Flynn of lying." He declined to answer additional questions, saying: "Enough already. I don't feed the haters."

The Washington Post reported that Mueller suggested in a March 5 meeting that he could subpoena Trump to appear before a grand jury if he refused an interview. Before Dowd resigned, Mueller’s prosecutors reportedly made it clear to Trump’s lawyers that Mueller would consider a presidential subpoena if Trump refused to participate in an interview, Dowd told Bloomberg.Mueller made it clear to Trump’s lawyers before Dowd left that the special counsel would consider a subpoena compelling the president to testify before a grand jury if he refuses to participate in a voluntary interview, Dowd said.

Mueller believes he has legal standing to subpoena a sitting president, even though such a move has never been fully tested. Unlike an interview, Trump couldn’t bring his lawyers into a grand jury room. If Trump agrees to an interview, the topics that could require security clearance for the president’s lawyers include a meeting he had with Russian officials the day after the president fired FBI Director James Comey. The leak of the questions, which were reported by the New York Times, could disrupt the negotiations over a Trump interview, which have been going on since last year. Several Trump advisers are opposed to having Trump meet with the special counsel.

Sekulow has continued talking with Mueller’s team since Dowd’s departure. Giuliani joined in a session last week. The lawyers have been trying to negotiate ways to narrow the scope of a possible interview. Ty Cobb, the White House lawyer handling requests from Mueller, has a security clearance. But Cobb’s role is to represent the office of the presidency, not Trump personally, and he hasn’t been directly involved in discussions with Mueller about an interview.

Trump’s legal team is well-aware Mueller could issue a subpoena, a possibility they have calculated in their strategy on negotiating an interview, according to anonymous sources. They have discussed a possible defense against a subpoena, including citing a 1990s ruling involving President Bill Clinton that set a standard for when a president can invoke executive privilege. Deputy Attorney General Rod Rosenstein said that the president isn’t a target of the Mueller investigation or of a separate probe into Trump’s longtime lawyer, Michael Cohen. But the questions published on Monday make clear that Mueller is still examining the president’s conduct.

In response to publication of the questions, Trump wrote on Twitter that “it would be very hard to obstruct justice for a crime that never happened” and that Mueller was investigating a “made up, phony crime.”

It’s common practice for prosecutors to inform defense attorneys about the subjects they plan to pursue during a voluntary interview and for defense lawyers to try to limit the extent of questioning.

From the start, Trump’s legal team has been out-manned by Mueller’s. About a month after Dowd’s departure, Sekulow said Giuliani would be joining the legal team, along with Florida-based white-collar defense lawyers Martin and Jane Raskin.

1. Can Trump fire Mueller?
Sarah Huckabee Sanders raised eyebrows on April 10 by saying "we’ve been advised" that Trump "has the power to make that decision." Trump certainly could fire Mueller, or anyone else in the executive branch, and then see what happens. But special counsels -- lawyers named by the Justice Department to take over sensitive investigations -- answer to the Justice official who appoints them, according to the 1999 rules that guide the role. Usually that’s the Attorney General. In Mueller’s case, it’s the Deputy Attorney General, Rod Rosenstein, because Attorney General Jeff Sessions, having advised and supported Trump’s 2016 campaign, recused himself from overseeing the inquiry.

2. So only Rosenstein can fire Mueller?
That’s the most literal reading of the special-counsel rules, which also say Mueller could be fired only upon a finding of “misconduct, dereliction of duty, incapacity, conflict of interest" or "other good cause.” As long as Sessions is Attorney General, and recused from the probe, that judgment is up to Rosenstein. Hypothetically at least, Trump could order Rosenstein to fire Mueller, then fire Rosenstein if he refuses, and then repeat the order to the official who steps in for Rosenstein.

3. Who would that be?
For most of Trump’s presidency the answer was Rachel Brand, the Associate Attorney General. But she resigned in February to take the top legal job at Walmart; she denied a report that she departed in part because she didn’t want to be forced to oversee the Russia probe. Until a new Associate Attorney General is named and confirmed by the Senate, the next in line to fill Rosenstein’s role is the solicitor general, Noel J. Francisco.

4. What if he, too, declined to dismiss Mueller?
Trump could fire him as well and repeat the process through the line of succession until someone does as he says. This is largely what happened in the "Saturday Night Massacre" of 1973, when President Richard Nixon ordered three Justice Department officials to fire the Watergate special prosecutor until one finally agreed.

5. Does Trump have any other options?
A draft of articles of impeachment of Rosenstein has been prepared by Rep. Mark Meadows, a North Carolina Republican, and other members of the House Freedom Caucus. Rosenstein could be impeached by Congress and replaced.

Other than firing Rosenstein, Trump could fire Sessions, with the expectation that Sessions’s successor would seize control of the case from Rosenstein. Or Trump could order the repeal of the special-counsel regulations, in hopes that would clear a legal path to fire Mueller himself. There also are ways Trump could defang the Russia probe short of getting Mueller fired. For instance, under the rules, Rosenstein -- or his successor in overseeing Mueller’s work -- could reel in the investigation by finding one of its strategies or techniques "so inappropriate or unwarranted under established departmental practices that it should not be pursued."

6. Would firing Mueller end the Russia investigation?
Not necessarily. The investigation predated Mueller’s appointment as special counsel and already has some prosecutions underway.

7. Is anyone trying to protect Mueller?
That effort has picked up of late. In the U.S. Senate, two Republicans and two Democrats have consolidated their separate bills to protect Mueller into a single piece of legislation that would, according to the sponsors, ensure that the special counsel can only be fired for “good cause” and give the person in that role the ability to seek an expedited judicial review of any dismissal.

8. What would happen if Mueller were fired?

He could try to challenge the grounds for his dismissal in court. Beyond that, much of the fallout would depend on Trump’s fellow Republicans in Congress, who hold majorities in the House and the Senate. Democrats could be expected to express their outrage by offering proposals to reinstate Mueller and to remove Trump as president, on grounds that he had obstructed justice. But Democrats couldn’t accomplish that on their own. Republican Senator Lindsey Graham warned in January that if Trump tries to fire Mueller, "it would be the end of his presidency." More recently, Republican senators John Cornyn and Chuck Grassley have sounded similar cautions. But some other Republicans have been far more critical of the Russia probe -- which they say was tainted early on by anti-Trump bias -- than they are protective of Mueller.

9. Could Trump be impeached for firing Mueller?
Since removing a president is a political process, not a legal one, that question would be up to Congress, and the political calculus may change if Democrats gain control of one or both houses in the November midterm elections. The Constitution says the president (and vice president and judges and members of the cabinet) "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The key phrase "high crimes and misdemeanors" has been defined by Congress through the years to include exceeding or abusing the powers of the presidency or misusing the office for improper purpose or gain.

I never did understand how Mueller could be Special Counsel when his law firm worked for Manafort and Ivanka Trump. Is this how Trump and Sessions set up Mueller and Rosenstein?

Before he became Special Counsel, Robert Mueller was a partner at the law firm WilmerHale, which had both Paul Manafort and Ivanka Trump/Jared Kushner as clients. Mueller quit WilmerHale to become Special Counsel and brought over several associates with him. Manafort fired WilmerHale after his house was raided.

Now, Federal government insiders believe that Deputy Attorney General Rod Rosenstein did not have the authority to legally appoint Robert Mueller as special counsel, due to this major glaring conflict of interest in the case. Rosenstein's DOJ signed a waiver for Mueller on May 18th. Nobody understands why.

Robert Mueller still worked for WilmerHale — the very firm representing Paul Manafort — when Rod Rosenstein contacted Mueller to give him the go-ahead to investigate Manafort for suspected Russia ties. That should have come up in any fair (and legally required) background check that Rosenstein should have done on Mueller. Manafort was still being represented by WilmerHale when his house was raided by federal authorities in August 2017, at which time he dropped WilmerHale as his representation.

“Acting AG Rod Rosenstein did not follow the law established to appoint a special counsel. This was made clear when he and the special counsel on Monday filed a response to Paul Manafort’s motion to dismiss. In the CFR (600.3) for special counsel it states “to ensure that a Special Counsel undergoes an appropriate background investigation and a detailed review of ethics and conflicts of interest issues“.

That’s where the entire Rosenstein-Mueller team runs into trouble.

“In the Prosecutions response to Manafort’s motion to dismiss, they provide as evidence Attachment “A” the letter from Rosenstein dated 05/17/2017 appointing Robert Mueller as special counsel. They also provide Attachment “B” the 08/02/2017 Memorandum from Rosenstein to Mueller referencing the scope of investigation and definition of authority. In the “Memorandum” Rosenstein list Manafort as a prime target “Allegations that Paul Manafort: Committed ….”!”

“Mueller was working at the WilmerHale law firm when picked as special counsel. Manafort has and was using WilmerHale as his law firm. The prosecution’s response to the motion to dismiss reveals that Rosenstein did not follow the law otherwise the background would have initially disqualified Mueller or any staff from WilmerHale or at the least would have disqualified them once Rosenstein issued the Memorandum in August revealing that Mueller’s Firm’s client Manafort as a target. Part of the Memorandum is redacted and the further question exists: is Jared Kushner in the redacted section because the fact that Jared Kushner and Ivanka Trump are and have been client’s of Mueller’s law firm should have been reason to disqualifiy “WilmerHale insiders” during the required background check of Mueller and his staff."