Will Mueller subpoena Trump?

Will Mueller subpoena Trump?
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The long delay by Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s team in responding to the Trump legal team’s offer to sit down with prosecutors has fueled speculation as to the special counsel’s plans. One possibility is that Mueller’s team is preparing to subpoena the president and to defend the subpoena against expected constitutional challenge.

Months ago I speculated, paraphrasing “The Godfather,” that the Trump team would be making Mueller an offer he couldn’t accept. The purpose behind making such an offer is to allow President TrumpDonald John TrumpMia Love pulls ahead in Utah race as judge dismisses her lawsuit Trump administration denies exploring extradition of Erdoğan foe for Turkey Trump congratulates Kemp, says Abrams will have 'terrific political future' MORE to argue to that it was Mueller, not he, who turned down the opportunity for a meeting. If that indeed is the tactic, it is likely that Mueller has seen through it and no longer wants to engage in what he regards as a sham negotiation. Mueller may, of course, respond in kind by making the Trump team an offer he knows it can’t accept. In either case, the end result may well be a stalemate in the negotiations and no face to face meeting between prosecutors and the president.    

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If that is the end result, then Mueller has several options. The most obvious is that he could subpoena Trump to appear in front of a grand jury. If the president refuses, Mueller can seek a court order. The Trump team would then claim a variety of privileges and the court might well grant some and deny others. The court should, in my view, disallow any questioning of a sitting president about the motives behind actions he took that were authorized by Article II of the Constitution. Allowing the president’s motives to be questioned by prosecutors sends us down a slippery constitutional slope, especially in a world where all presidents have mixed motives for their actions.

Presidents have patriotic, partisan, historic, financial, ego and other motives for their actions. Allowing a prosecutor to parse these motives would undercut the authority of every president. So it is likely that a judge would refuse to allow prosecutors to ask a president why he fired or pardoned anyone. The Supreme Court has already suggested that the president’s motives in enacting a travel ban do not convert a constitutionally authorized act into an unconstitutional abuse.

But a court might well allow prosecutors to question a president about actions he took before he became president, which are not covered by any privilege. These actions would include paying hush money to accusers, failure to report campaign contributions and ordinary economic activities. The problem for Mueller is that these actions prior to becoming president are largely within the jurisdiction of the Southern District of New York, which is investigating these matters, not the special counsel.

Trump’s team may also try a broadside attack on the power of prosecutors to subpoena a president for any purpose. They could argue that since a sitting president cannot be indicted or tried for alleged crimes, the use of a grand jury is improper. Only Congress may investigate allegedly impeachable offenses. Alternatively, the Trump team might argue that a prosecutor must show extraordinary need to subpoena a sitting president and there is no need to do that in this case because so many other people, including White House counsel Don McGahn, have provided information. Subpoenaing the president to ask him questions to which they already know the answers is a quintessential “perjury trap.”

No one can predict how these arguments will resonate with a court. That is why both sides have been cautious in provoking a legal and constitutional challenge. Mueller also has an alternative that would not involve a subpoena. He could simply write a report highlighting the fact that the president has refused to sit down with him, despite statements by Trump that he has nothing to hide. He could use the president’s refusal as a building block in a critical report that would be sent to Congress and, ultimately, released to the public.

So stay tuned as the Trump and Mueller teams position themselves for both legal and public relations battles. The Trump team’s goal is to have the public see this conflict as largely political, because such a perception would strengthen Trump’s base and weaken the credibility of any adverse report. The Mueller team’s goal is to have the public see this as an objective legal dispute that is not political in nature but, rather, an application of the rule of law to a controversial president.

In the end, both sides will succeed to some degree in the court of public opinion. But in the court of law, there probably will be a winner and a loser. For now, however, it is too early to know the outcome.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.