Like much of what got reported yesterday, this is old news, but it’s also in a new context. Robert Mueller’s desire to have a sit-down interview with Donald Trump has been common knowledge for more than a year, and everyone also knows that Mueller had near-plenary subpoena power during the entire special counsel probe. It comes as no surprise, then, that Mueller considered taking the extraordinary step of subpoenaing a sitting president.
Look between the lines of this CNN report and you do get to a little news, though:
The special counsel’s office deliberated at length with Justice Department officials about issuing a subpoena for President Donald Trump to be interviewed, but ultimately the decision was made not to move forward with such a significant investigative step, according to a source familiar with the matter.
For months, Robert Mueller’s team had requested a sit-down interview with Trump, but the President’s lawyers refused to commit and negotiations continued. Eventually, the special counsel submitted written questions to the President last fall concerning the time frame before the 2016 election, which Trump answered in late November 2018.
The source said the sensitive discussions between Justice Department officials and the special counsel team, and the determination that a subpoena would not be pursued, were based on the perception of the evidence and merits of the issues — separate and apart from the fact that current department policy dictates that a sitting president cannot be indicted.
Emphasis mine. In other words, Mueller came to the conclusion that there wasn’t much reason to subpoena Trump at all. This is the same reasoning that led Mueller to punt on obstruction, as Paul Mirengoff wrote yesterday at Power Line. Mueller’s team couldn’t find an underlying crime in the case nor any real evidence of obstructive intent, and rather than make a prosecutorial decision that was well within their authority and their mission, they shrugged it off. Mirengoff isn’t terribly impressed with that choice — he argues that Mueller should have either charged it or issued a similarly debunking declaration as he did on the collusion hypothesis — but the fact that he left the decision to Barr and Rod Rosenstein speaks to Mueller’s lack of enthusiasm for the idea.
The same goes with the subpoena threat. Subpoenaing a sitting president would have meant a big legal fight, but if Mueller really thought Trump had committed a crime, it seems doubtful he would have hesitated. Instead, Mueller satisfied himself with written answers to a questionnaire. That’s the real news from this story — “based on the perception of the evidence,” Mueller didn’t have a case, as he reported to William Barr and as the Attorney General reported to Congress.
Speaking of the questionnaire and Trump’s answers, CNN’s Alisyn Camerota asks Jay Sekulow when we’ll be able to read them. Forget it, Sekulow replies — he wouldn’t share this kind of detail after a declination to prosecute no matter who his client was, Trump or Camerota herself:
"As a lawyer, you don't wave privileges … I think that would be very inappropriate."
President Trump's attorney @JaySekulow tells Alisyn Camerota he has no plans to release the President's written answers as submitted to the special counsel. https://t.co/5df99pT6mm pic.twitter.com/Amaevht86r
— New Day (@NewDay) March 25, 2019
This may not be Sekulow’s call for long. The Department of Justice has this information, and Congress will no doubt demand to see it. It’s not 6(E) material covered by grand-jury secrecy statutes, so Barr could choose to share it with House committees. Here again, though, this would likely be nothing but a red herring. If Mueller couldn’t make anything out of Trump’s responses, Jerrold Nadler and Adam Schiff sure won’t be able to do so either.