TRUMP DROPS MASSIVE NUKE ON MUELLER,ROBERT MUELLER IN FULL PANIC MODE
Has President Donald Trump been subpoenaed by special counsel Robert Mueller?
If you believe Politico the answer is yes.
A new report by Politico on Wednesday said that court documents have been filed that
makes it appear as if Mueller has subpoenaed the president to testify before the grand
jury.
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.
But, The New York Times Maggie Haberman reported, that the speculation is nothing more than
fake news according to President Trump's counsel Jay Sekulow.
"The report in Politico is completely false.
There has been no subpoena issued and there is no litigation," he
told her.
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