The legal fight of the century may have already started, and almost no one noticed? According to former federal prosecutor Nelson Cunningham, recent reporting — some of it just by hanging around the clerk’s office in Washington DC — reveals a very unusual level of activity involving a grand jury, a subpoena, and bunch of expedited appeals. Has Robert Mueller subpoenaed the president? Cunningham says “it all fits“:
But now, thanks to Politico’s reporting (backed up by the simple gumshoe move of sitting in the clerk’s office waiting to see who walks in and requests what file), we may know what Mueller has been up to: Since mid-August, he may have been locked in proceedings with Trump and his lawyers over a grand jury subpoena – in secret litigation that could tell us by December whether the president will testify before Mueller’s grand jury.
The evidence lies in obscure docket entries at the clerk’s office for the D.C. Circuit. Thanks to Politico’s Josh Gerstein and Darren Samuelsohn, we know that on August 16th (the day after Giuliani said he was almost finished with his memorandum, remember), a sealed grand jury case was initiated in the D.C. federal district court before Chief Judge Beryl A. Howell. We know that on September 19, Chief Judge Howell issued a ruling and 5 days later one of the parties appealed to the D.C. Circuit. And thanks to Politico’s reporting, we know that the special counsel’s office is involved (because the reporter overheard a conversation in the clerk’s office). We can further deduce that the special counsel prevailed in the district court below, and that the presumptive grand jury witness has frantically appealed that order and sought special treatment from the judges of the D.C. Circuit – often referred to as the “second-most important court in the land.”
How do we know this isn’t Roger Stone, Carter Page, or some other fringe figure in the special counsel investigation? Presumably, any number of people would fight a grand-jury subpoena if one got delivered to them, and might appeal a lower-court defeat. That’s true enough, Cunningham acknowledges, but few of them would get those appeals fast-tracked, especially in the manner the court docket suggests. After the first appeal was lodged, the court gave Mueller’s team only three days to respond, then dismissed the appeal two days after Mueller’s team filed their response — apparently on technical grounds, because the district court issued a favorable ruling to the witness, who renewed the appeal.
Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s 8 days after the midterm elections). Oral arguments are set for December 14.
That’s pretty fast for an ordinary witness’ appeal of a subpoena, Cunningham argues, but that’s not the most compelling circumstance. After losing the first appeal, the witness asked for an en banc review, which would require all ten current judges on the DC Circuit Court of Appeal to rule on the case. That itself is unusual, Cunningham argues, suggesting that the witness presents specific and unique circumstances.
And at that point, a very curious thing happened — Judge Gregory Katsas recused himself before the en banc petition was denied. And who is Gregory Katsas? He’s the only current Trump appointee to the DC Circuit, Cunningham notes, as well as a former deputy counsel to Trump. The en banc petition wouldn’t require a recusal if the witness were someone like Stone or Page, as Katsas testified during his confirmation hearings that he never worked on anything to do with the special counsel investigation. However …
But if the witness were the president himself – if the matter involved an appeal from a secret order requiring the president to testify before the grand jury – then Judge Katsas would certainly feel obliged to recuse himself from any official role. Not only was the president his former client (he was deputy counsel to the president, remember) but he owes his judicial position to the president’s nomination. History provides a useful parallel: In 1974, in the unanimous Supreme Court decision US v Nixon requiring another witness-president to comply with a subpoena, Justice William Rehnquist recused himself for essentially the same reasons.
That raises questions as to what would happen if this is indeed Trump and his appeal reaches the Supreme Court. The matter of presidential compliance with subpoenas was settled in the unanimous Nixon ruling of 1974, so it’s likely that the appellate court will shoot down this appeal simply on precedent. Will that force Brett Kavanaugh and Neil Gorsuch to recuse? Neither worked for Trump prior to their appointment as Rehnquist did (in the Office of Legal Counsel), so perhaps not. Kavanaugh got in some hot water over the summer for comments made twenty years previously that suggested he thought the court got it wrong on Nixon, but two years ago wrote that it was one of the “greatest moments in American judicial history”:
Fifth, at the same time, to be a good judge and a good umpire you have to possess some backbone. An umpire or referee has to keep control of the game, and be able to make tough calls against the star players or the home team. As a judge, you must, when appropriate, stand up to the political branches and say some action is unconstitutional or otherwise unlawful. Whether it was Marbury, or Youngstown, or Brown, or Nixon, some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law. That takes backbone, or what some call judicial engagement. To be a good judge and a good umpire, you have to possess strong backbone.
If Mueller has subpoenaed Trump, don’t expect Kavanaugh to bail him out.
But is it Trump? Cunningham makes a good case here, in part by noting that none of these circumstances fits anyone else that Mueller might be targeting. Even if it is, though, that doesn’t mean Trump will be talking with a grand jury either. The subpoena might be an attempt to get Trump to negotiate in good faith for a deposition with investigators. If Mueller has that in mind, then a stealth subpoena is the right tactic to use.