Can Mueller Subpoena Trump?

The NY Times tells us that they have gotten a copy of a January memo from Trump's legal team (at the time) to Mueller arguing that Mueller can not subpoena Trump. To their credit, they note in passing that a Mueller subpoena is not a slam-dunk:

Mr. Trump’s broad interpretation of executive authority is novel and is likely to be tested if a court battle ensues over whether he could be ordered to answer questions. It is unclear how that fight, should the case reach that point, would play out. A spokesman for Mr. Mueller declined to comment.

It was relatively easy to find legal experts saying that this is a fight Trump won't win when the issue arose recently. Vox, reliably lefty, contacted nine legal experts and the general theme was pro-Resistance. Keith Whittington stood out as wondering just how clear-cut Mueller's power to subpoena would be; he provided more at Lawfare. Do let me add that all this ought to be subject to a caveat about dramatic new information from Mueller that could sway the undecided, uninterested or confused.

Also at Lawfare, Benjamin Wittes and Steve Vladek gave Mueller a strong 'definitely maybe':

The bottom line, in our view, is that Mueller would probably prevail if and when a battle over a grand-jury subpoena makes its way into court. But it is not a sure thing, and the president has plausible arguments available to him that a court would have to work through before enforcing a subpoena for his testimony.

So, better odds of prevailing than the Cavaliers but not as good as the Yankee's chance of winning the AL East (currently 57% at FanGraphs).

Stuart Taylor, writing at The Weekly Standard, has similar handicapping:

Mueller’s risk in starting a subpoena fight is that he might win less in the Supreme Court than he could have gotten in negotiations, or even lose entirely.

This last possibility is something that Trump’s critics greatly underestimate. The popular analysis is that the Supreme Court’s decisions in U.S. v. Nixon (1974) and Clinton v. Jones (1997) require the president to obey a subpoena to testify before Mueller’s grand jury. Harvard’s Laurence Tribe exemplifies those who hold such presumptions. “The Supreme Court held in the Nixon Tapes Case that executive privilege cannot overcome a grand jury subpoena,” he told Business Insider in March. “So Trump would have to answer every question or be held in contempt—unless he takes the Fifth Amendment.”

We are far less confident in this reading of Nixon and Clinton and that the Supreme Court would award Mueller an unqualified win. If Mueller subpoenas Trump to testify, and Trump fights, then the Court may well decide to limit the questions that the president must answer, if not quash the subpoena altogether. It would have leeway to deal such a setback to the special counsel within the parameters set in the Nixonand Clinton decisions. And whatever the justices may think of this particular president, they will show more care for the needs of the presidency than have the analysts who favor a total victory for Mueller in any battle with Trump.

 

Writing in Politico last February, William Yeomans used the word "crazy":

In the end, Trump will not agree to a voluntary interview. Mueller has the authority to subpoena him to appear before the grand jury, but for a variety of strategic reasons should be reluctant to do so. Most significantly, a subpoena would slow things down. Trump and his allies are now racing to undermine the legitimacy of Mueller’s investigation in the hope of muting the impact of its results. The longer the investigation takes, the more successful Trump’s campaign is likely to be. Mueller, therefore, would be well advised to weigh the burden of the time-consuming and distracting litigation that Trump would launch to block a subpoena against the limited value of Trump’s testimony and move on.

 

His estimate is that in a subpoena fight

 

"Mueller is likely to prevail, but victory will take time and distract his team from wrapping up the investigation, while giving Trump endless opportunities to denounce the “witch hunt.”

"Likely to prevail" means Mueller might lose.

 

Andrew McCarthy of NRO has a table-pounder outline the many objections to the Mueller investigation that Trump is sure to raise.

 

My long elevator ride summary of the above: In the Nixon case the judges agreed that executive privilege, like everything else, is weighed against competing Constitutional objectives. The tapes in question represented important evidence in a criminal case that was not available elsewhere and did not overlap with military or diplomatic issues. Consequently, executive privilege cast only a tiny shadow. Notably, the court did not order the President to devote his time to a personal appearance with the investigators - the tapes were the topic.

 

In the Clinton/Paula Jones civil suit the court ruled that a civil suit should not take up much of a President's time and should be allowed to proceed, with the President's testimony. Some experts infer that a criminal case, being more important, should get more support from the court. Others note that given the higher stakes a criminal case clearly is more burdensome and maybe the Presiden should get more deference, not less. Again, precedent is not clear.

 

And my two cents, not made in these articles (IIRC): fighting with Trump is like wrestling a hog - win or lose you get covered with mud. John Roberts et al will be very keen to stay out of this scuffle if they can find any reasonable way to do so, since - barring game-changing new information from Mueller - half the country will loathe whatever decision they make.

 

Time will no doubt tell.

Comments

[Miss Marple the Deplorable]

Captain Hate,

They are criticizing Grenell for pointing out how unready many of the NATO countries are defense-wise and that the parties in power are giving legitimacy to alternate views.

They are branding this as "interference in European elections."

[Miss Marple the Deplorable]

Captain Hate,

I should have said that the parties in power are by their actions are giving legitimacy to alternate views.

[Captain Hate]

Raising children well interferes with being their friend, which so many parents seem to cherish.

I'm not sure where this bit of dysfunctionality arose but I always made it clear to my children that, as their father, I could have fun with them but we weren't peers and never would be. My wife mentions sporadically revolting behavior on Zuckerberg revealing the needy behavior of parents, almost universally single mothers, who don't understand their role related to their children.

Interference in European elections? Where was this concern when Slick and the Bathhouse Rat was openly doing this in Israel, the ME and the Brexit vote?

[Captain Hate]

was == were

[anonamom]

rse, at our house, it's "being rude."

Any behavior I labelled as that pretty much stopped immediately.
I am not sure how that happened--but it is a good thing!

[henry]

strange morning already:

Maggie Haberman @maggieNYT

Bill Clinton gets asked if he ever apologized to Lewinsky. He responds by saying Starr investigation was unfair

[henry]

Video of Slick here:

Wow. Bill Clinton having a meltdown on the Today show when asked if he had apologized to Monica Lewinsky

https://twitter.com/ComfortablySmug/status/1003605152291610624

[Davod]

Pinandpuller:

"See I couldn't be in the military because I'd always be two hours late everywhere."

Join a Latin American military.

[maryrose]

Henry:
Glad to hear about Shirley not running again.
Tried the Twitter link and they told me to come back later,

[Man Tran]

RSE,

Our dil is sweating bullets that her 6yo who just finished Montessori kindergarten is going to be forced to do whole word. Momma was taught that way and has apparently suffered ever since. We reminded her that she has your book presumably buried somewhere from the move, but gave her the link to your site, as well with the nudge to search for phonics. I hope that will give her some ammo.

A-mom,

That same gd (our only one) has a summer job of 1hr of reading, 1hr of math, and 1hr of cleaning her room, etc. Hope that meets your recommendation.

[Buckeye]

It's probably curtains for the Cavs..

I don't think King LeBron's personality is conducive to team building.

[Buckeye]

Wow. Bill Clinton having a meltdown on the Today show when asked if he had apologized to Monica Lewinsky

One of the first things that comes out of his mouth is "I left the Whitehouse $16 million in debt".

Unspoken part:

Starr's investigation was unfair, so I am perfectly justified in engaging in shakedowns for the last 2 decades.

[henry]

Right Buckeye. So many legacies are slowly circling the bowl right now, waiting for that blue wave to flush them away.

[rse]

MT-I will be happy to tell her who I read (it is in the footnotes) to grasp that the appropriate logic is "sounds have letters" instead of "letters have sounds." With my youngest, euphemistically known here as the diva, she was in a montessori school that just let reading happen.

I systematically taught her like I did the other two and the same harvard press that puts out Wordly Wise also put out phonetically controlled readers that let you systematically introduce the sounds and one-to-one combos and most likely probabilities first. I bought about 80 altogether and then donated them to her school when I was done. Think it cost me about $125 altogether to turn her into a roaringly phonetic, fluent reader as well.

I love the bill peet and 398.2 legends and folk tales with their awesome stories and vocab when gradually introducing the ability to read. It reminds the kids why it is worth it. Each of my kids had a set of books they aspired to read to themselves. With red I remember it was ursula leguin's catwings series. Precious stories.

When they know all the sounds and the probabilities we would read great stories that are non-phonetically controlled one-page each so they practice with multisyllable words they have never seen and learn that moment when they see the visual representation of a word they realize is already a part of their spoken vocabulary.

My kids think teaching reading is something mothers do. I had never intended to do that until the preschool teacher advised "just memorizing the books." To her credit, she later asked me to come in and meet with her to explain how reading could be taught so efficiently.

I will say though that my middle child, red, had a reflex to try to read words as a whole in a way the other two did not. She would have been a prime candidate for dyslexia with a non-systematic technique. There are innate physiological preferences in my experience apart from the ability of phonetic fluent reading to rewire the brain.

Tell her she can reach out anytime. Also find the Patricia Coombs Dorrie the Little Witch books at a library.

[James D.]

wow, rse. Your 8:53 is simply brilliant.

[Buckeye]

Not sure how I was taught to read, but never had any problems with speed or comprehension.

I am sure that however I was taught to read, it didn't do squat for learning to spell:)

[Man Tran]

Thx Robin. Message forwarded.

[Old Lurker]

Whew.

When I read that the last thing on Beast's Father of the Bride list was securing 300 bottles of top shelf champagne, I confess to a moment of Clarice-Induced-Panic.

[Old Lurker]

4yo Baby Max came home from Montessori the other day and informed his mother that little fish helping clean the backs of sharks is symbiosis.

His alpha 14 month old sister (of YL twin fame) saw how Max could just drop his pants and pee on the bushes when he felt like it, yesterday removed her pants and diaper and peed down the HVAC register on the floor of her room...

August on Nantucket is gonna be "exciting".

[Captain Hate]

Slick thinks #MeToo means he was a victim. Trying to get that pervert to admit he ever did anything wrong is an occasion for textbook denial.

[Old Lurker]

Cap'n, that right there is the most annoying thing that all Progs have in common. They are never wrong, and they never quit.

[Jane]

Ao Krystal is champagne. Clearly I need to live a higher life! (Still like Billie-cart Salmon the best)

[Captain Hate]

OL, even to his former MFM defenders, like Peter "keep the cameras off my bald spot" Jennings, Slick would explode in Foghorn Leghorn cornpone rage if questioned about anything negative. Part of it was he knew they'd never fire back about shutting his lying yap.

None of you guys can calm me down like JackStraw:

Last time Horowitz gave a date, he say, "May." He kept that date. Word is the scoundrels are scurrying to redact as much of the incriminating evidence as they can and that is the holdup now.

The report is given to every person who is named in it after it has been fact checked to give them both a heads up and a chance to respond before the report is released. The fact that it has been delayed leads me to believe that more that a few of the targets are trying desperately to dispute the facts.

It won't work. Horowitz is looking for payback as much or more than anyone. I expect it to be factual, comprehensive and very bad news for those who tried to coverup the FBI's actions in the email coverup.
Posted by: JackStraw at June 04, 2018 08:15 AM (/tuJf)

[Old Lurker]

Jane, I found it at Costco for Beasts at $200 per bottle. Total Wine & More was only $185.

Beast's 300 bottles might get a discount.

[Miss Marple the Deplorable]

Both of my children were very early readers. My son actually taught himself from watching Sesame Street and The Electric Company, supplemented with me reading the Richard Scarry books to him. He was reading chapter books by the time he was four.

When my daughter came along 10 years later, I read to her, played a game with sounds and words, let her watch the same 2 TV shows, and she was reading at 2nd grade level by the time she entered kindergarten.

They both remain readers to this day. It is one of the few things I feel I did right as a parent.

[Miss Marple the Deplorable]

Donald J. Trump
‏Verified account @realDonaldTrump
2h2 hours ago

This is my 500th. Day in Office and we have accomplished a lot - many believe more than any President in his first 500 days. Massive Tax & Regulation Cuts, Military & Vets, Lower Crime & Illegal Immigration, Stronger Borders, Judgeships, Best Economy & Jobs EVER, and much more...

[Miss Marple the Deplorable]

Donald J. Trump
‏Verified account @realDonaldTrump
1h1 hour ago

....We had Repeal & Replace done (and the saving to our country of one trillion dollars) except for one person, but it is getting done anyway. Individual Mandate is gone and great, less expensive plans will be announced this month. Drug prices coming down & Right to Try!

[Miss Marple the Deplorable]

Donald J. Trump
‏Verified account @realDonaldTrump
1h1 hour ago

“This is the best time EVER to look for a job.” James Freeman of WSJ.

[Miss Marple the Deplorable]

Donald J. Trump
‏Verified account @realDonaldTrump
1h1 hour ago

As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!

[Miss Marple the Deplorable]

Donald J. Trump
‏Verified account @realDonaldTrump
1h1 hour ago

China already charges a tax of 16% on soybeans. Canada has all sorts of trade barriers on our Agricultural products. Not acceptable!

[sbwaters]

New ...

[Trowbrdge H. Fprd]

Things returned to normal today when I read The Guardian online where it had an article about a shakeup in the North Korean leadership, probably a murderous one, based upon rumors in its military leadership, based upon a South Korean suspicions. No discussion though about the military guys disagreeing with Kim about still going ahead with claims that the country was going ahead with nuclearization when it was just what the Yanks had made up all along.

More bizarre when Joe Scarborough would only discuss our dictatator playing being a king on tv when his counsel that Giuliani loon indicated that he could have shot the former FBI Director Comey with impunity when it increasingly looks like he did see that poor Seth Rich was done so to help make Trump POTUS..

[Miss Marple the Deplorable]

Donald J. Trump
‏Verified account @realDonaldTrump
1h1 hour ago

The U.S. has made such bad trade deals over so many years that we can only WIN!

[Miss Marple the Deplorable]

Donald J. Trump
‏Verified account @realDonaldTrump
40m40 minutes ago

The appointment of the Special Councel is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!

[pagar, a bacon, ham and sausage supporter]

https://www.americanthinker.com/articles/2018/06/three_climate_change_questions_answered_comments.html#disqus_thread

The leftists still trying to get rid of CO2.

[pagar, a bacon, ham and sausage supporter]

"Because to Muslims, Islam is the super-religion and final religion of Allah."

https://www.americanthinker.com/articles/2018/06/the_muslim_authoritarian_mentality.html

[pagar, a bacon, ham and sausage supporter]

"Second Amendment supporters have a trump card that has nothing to do with the current POTUS: a demand that any legislation limiting the gun access of private citizens should include a measure removing firearms from the guards and police that protect the politicians voting on the gun control legislation. "

https://www.americanthinker.com/blog/2018/06/bodyguard_of_antigun_activist_father_pfleger_arrested_on_gun_charges.html

[Porchlight]

When I read that the last thing on Beast's Father of the Bride list was securing 300 bottles of top shelf champagne, I confess to a moment of Clarice-Induced-Panic.

I did, too, OL, on your behalf!

[Porchlight]

Special Councel

Deliberate misspelling so that more people will RT and reply, thus getting the message out further.
They fall for it every time.

[Extraneus]

NEW THREAD

[clarice feldman]

The baker wins:https://www.cnbc.com/2018/06/04/supreme-court-rules-in-favor-of-colorado-baker-who-refused-to-make-wedding-cake-for-gay-couple-for-religious-reasons.html