Is a presidential subpoena coming? Former Trump lawyer says Mueller asked

John Dowd, then leading Trump's legal team, claims Robert Mueller raised the possibility of a subpoena in March

By Matthew Rozsa

Staff Writer

Published May 2, 2018 8:48AM (EDT)

Robert Mueller; Donald Trump (Getty/Salon)
Robert Mueller; Donald Trump (Getty/Salon)

Special Counsel Robert Mueller is reported to have threatened President Donald Trump with a subpoena unless Trump is willing to voluntarily answer questions pertaining to the ongoing investigation.

The meeting, which took place in early March between Mueller and Trump's lawyers, took a downward turn after the possibility was floated that Trump might not talk with federal investigators because he believed he wasn't obligated to do so, according to The Washington Post. In response to this prospect, Mueller told Trump's legal team that he could try to subpoena the president to appear in front of a grand jury if he wasn't willing to comply.

"This isn’t some game. You are screwing with the work of the president of the United States," John Dowd, then the president's lead lawyer, shot back after Mueller made this suggestion. The ensuing weeks of internal squabbling among Trump's legal team over how to handle the requests ultimately prompted Down to resign. He has since been replaced by former New York City Mayor Rudolph Giuliani.

Since the March meeting, Mueller's team has provided the president with a list of subjects that he wishes to discuss. One of Trump's lawyers, Jay Sekulow, used that list to come up with 49 questions that he believes Mueller wants to ask the president — a list that was subsequently leaked, most likely by Trump's own team, to the press earlier this week. The questions focus on the firing of former FBI Director James Comey, Trump's anger toward Attorney General Jeff Sessions for recusing himself, the president's handling of the news that former National Security Adviser Michael Flynn had lied about his contacts with Russia and the president's own campaign connections with the Russian government.

As the Post explained:

Now Trump’s newly reconfigured legal team is pondering how to address the special counsel’s queries, all while assessing the potential evidence of obstruction that Mueller might present and contending with a client who has grown increasingly opposed to sitting down with the special counsel. Without a resolution on the interview, the standoff could turn into a historic confrontation before the Supreme Court over a presidential subpoena.

"Hopefully we’re getting near the end. We all on both sides have some important decisions to make. I still have a totally open mind on what the right strategy is, which we’ll develop in the next few weeks," Giuliani told the Post.

If no agreement can be reached between the two parties, the case may very well appear before the Supreme Court. Should that happen, it is difficult to anticipate whether the judges would decide to compel the president to testify either in person or through written responses. On the one hand, judges tend to grant the president considerable latitude to perform his job without having to deal with legal snags, and the bench currently has a conservative majority that can be expected to instinctively sympathize with the president. Either way, it makes legal sense for Trump's lawyers to not want him to either testify before a grand jury or speak directly with FBI investigators (lying to the FBI is also a crime). As attorney Andrew Stoltmann explained in an editorial for CNBC:

Unfortunately, President Trump has a history of exaggerations, half-truths and outright falsehoods and becomes easily distracted. His tendency toward inflating things-his actions, net worth and intellectual powers, has become a defining characteristic of his career in both politics and business.

He also has a long history of not listening to his lawyers when it comes to lawsuits and his preparation of them. Even if he isn't questioned under oath, Trump could still open himself to charges if he lies to Mueller's team, since lying to the FBI is also a crime.

Ramesh Ponnuru, senior editor at National Review, wrote a column for Bloomberg that took the exact opposite approach, arguing that Trump's advisers should urge him to speak with Mueller in a forthright manner. Ponnuru also argued that the notion that Trump should not do so is based on three false premises. The first is that "Mueller is out to get Trump by fair means or foul," even though "nothing Mueller has done has shown him to have an ax to grind against Trump." The second is that "Trump should think the same way as anyone else caught up in an investigation, whether or not he is formally a 'target' of it," even though "Trump is, however, the president of the United States, and as such ought to take account of the national interest in a) getting to the bottom of the Russian-interference question; b) clearing up suspicions about the campaign that won him the presidency; and c) allowing the administration and the political system to move on."

Ponnuru identified the final flawed premise as being that "Trump is an inveterate liar and fabulist and will therefore get himself into enormous legal and political trouble if he sits down with Mueller. The president should reject that advice because it is demeaning to him."

He added, "And if someone with Trump’s ear believes it, he shouldn’t be telling Trump to stay away from the special prosecutor. He should be telling Trump to resign."

In the midst of all this, of course, there remains Trump. The president is still using his Twitter account to denounce the investigation as a "witch hunt" and tout his own supposed accomplishments as president.

It is hard to say where all of this will end. No president has ever had to face the Supreme Court over a question of whether or not he should be impeached. Similarly, no president has ever had such concrete evidence emerge proving that members of his campaign had improper connections to a foreign power. The closest equivalent may be when Richard Nixon attempted to thwart President Lyndon Johnson's attempts to create a peace in the Vietnam War to facilitate his own election in 1968. Yet Nixon was never exposed to have done that to the general public in his own lifetime. Trump has . . . and it remains to be seen how this will play out for him, and for America.

By Matthew Rozsa

Matthew Rozsa is a staff writer at Salon. He received a Master's Degree in History from Rutgers-Newark in 2012 and was awarded a science journalism fellowship from the Metcalf Institute in 2022.

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Donald Trump Perjury Trap Robert Mueller Russa Subpoena