WHY MUELLER MUST SUBPOENA TRUMP

 Trump and his legal team's ongoing barrage raises the question as to whether the President is about to terminate the Russian investigation. This attack is occurring concurrently with debate on the impasse as to whether or not the POTUS will be “interviewed” by Mueller’s team. All indications point to Trump going to the ends of the earth to avoid an encounter. Time is running out for Mueller and he needs to act promptly in issuing a subpoena. 

Between Trump, Giuliani, Sekolow and Bannon a strong argument is being made that Trump has dictatorial powers and is answerable to no one but himself. The war between Trump’s Whitehouse and Mueller’s Special Counsel investigation is hotting up every day. Trump appears to be more and more desperate. He has the bully pulpit and screams “Witch Hunt”, “Hoax” while his TV lawyer, Rudi Giuliani, questions the legitimacy of the enquiry claiming it is based on a collection of illegalities and conspiracies to dethrone the POTUS. 

TRUMP ABSOLUTE KING 

Currently Giuliani is acting as if he is in total control making unrealistic demands as preconditions to an interview. The POTUS’S TV lawyer talks as if it is only in his power whether the discussion takes place or not. In addition, he maintains that Mueller has no power to either subpoena or indict the Commander in Chief.  Trump’s legal team, as part of its aggressive in your face approach, have claimed that he cannot obstruct justice as he is the chief law officer. He cannot be indicted even if shot Comey. The POTUS and Giuliani add that his pardon powers extend to his goodself. The fact that the Trump and his legal team can argue this dangerous treasonous drivel is indicative of how far Trumpism has veered from the rule of law.

MUELLER CLAIMS HE COULD SUBPOENA

The Special Counsel has stated that he could subpoena Trump. The fact that he hasn’t to date is reflective of his conservatism and a desire to be perceived to be totally out of the political arena. But like it or not that is exactly where the Trump/Giuliani duo have placed him, thereby putting him at a distinct disadvantage. So far the career public servant has allowed his legal moves to do the talking but the President has skillfully deflected these away from himself. Issuing a subpoena is a legal move which could have profound political implications, placing Trump on the defensive. 

In spite of all this activity public opinion has remained almost static with supporters of Trump not budging an inch. The Trump base is the gallery Giuliani admits that they are playing to in order to prevent impeachment.

VOTER INVOLVEMENT IN WATERGATE AND NIXON’S DOWNFALL

There is little doubt that regardless of the legal merits of the case against the POTUS his guilt or non guilt needs to be clear cut in the eyes of the body politic. Compared to Watergate the body politic is in the dark and are turning to the media that supports their opinions. Trump’s approval rating has remained around forty percent as a result - where it has been for well over a year. That means a sizable portion of society are unmoved by what has transpired. 

Nixon had won an overwhelming electoral victory in November 1972 less than two years prior to his downfall. He had raked up five hundred and twenty electoral votes to McGovern’s seventeen. In the popular vote he had thrashed the Democratic challenger by twenty - three percent. At the time Watergate was already an issue yet Nixon’s approval rating was rock solid at sixty percent. So in order to impeach Trump the body politic has to be persuaded as it was with Nixon.

The reason that society was prepared for the axing of Nixon was the whole drama was played out, daily, in front of their eyes on television. The Democrats were in control and they held open Congressional hearings, firstly in the Senate and then in the House. In both instances the proceedings were obsessionally bipartisan. All heard Nixon’s Counsel John Dean whistleblow and Alexander Butterfield relay to the Committee that Nixon secretly tape recorded his conversations. It was the Senate Minority Republican leader, Howard Baker, who famously capsulated the issue facing the investigators, “What did President Nixon know and when did he know it?”. When the issue came to the House Judiciary Committee the latter voted in a bipartisan decision to recommend impeachment. Leon Jaworski the Special Prosecutor had a far easier task as society was being educated while he proceeded with his work. Finally, when Nixon’s guilt was established by the release of his own tapes his approval rating dropped to twenty - four percent. He was told by the Republican leadership that if he didn’t resign the Senate would uphold his impeachment and he would be terminated.

As the President looks increasingly like he could take his chances and terminate the Investigation and that would be that. His other option is to so trash it that his forty percent remains immovable. So there in an urgency for Mueller to weigh up the pros and cons of issuing a subpoena before this occurs. If Mueller subpoenas the President he will have an opportunity in the Court battles, in a impartial platform, to educate society as to the issues.

POLITICAL ADVANTAGES OF A SUBPOENA

The immediate impact of a subpoena will be to cut dead in its tracks any attempt to terminate the Investigation. This will allow the FBI’s Special Counsel to proceed with his task.

The Special Counsel has more than justifiable reasons to go ahead with a subpoena. Both sides of the political spectrum have been hammered with the fact that the legal teams cannot agree on terms for an “interview”. Mueller’s rationale that he needs to obtain Trump’s side of the story has a very persuasive political ring to it for those who believe it is a "hoax" as well as the majority who are convinced there is wrongdoing.

While the WhiteHouse team can rant and rave that this a “witch hunt” it is not an argument they can use in court. They have to argue the legal basis as to why the Commander in Chief cannot answer questions in a counter - intelligence investigation where he is a subject. There have already been comprehensive indictments to support the fact that the Russians intervened. Then four of his former campaign team including its manager and deputy manger, his National Security advisor and a political advisor have all been indicted, and three are cooperating with Mueller’s office in the investigation. In addition his personal lawyer, who brokered several contacts with the Russians during the election, is one step away from criminal charges. A close confidante of Trump’s, Elliot Broide, is under investigation in the probe. Broide's partner, George Nader, who too was involved with meetings with the Russians, has been given immunity in return for his cooperation.  

Then there is the powerful prima facie case against the President for Obstruction of Justice for which Mueller does not need tapes. Besides all the evidence he has gleaned he has Trump’s tweets and a video archive where he makes it quite clear why he fired Comey and continues to attack Rosenstein, Sessons and Mueller. He has now admitted that collusion did indeed take place in his son’s meeting with Russian operatives. He has also confessed to obstructing justice in relation to the purpose of that meeting.

All this establishes that the request for a subpoena is not “frivolous” or a “witch hunt”. Any court, regardless of the political persuasion of the Judges, will take serious note of these factors. So a motion to dismiss on the basis that the investigation has no merit and is merely political will not get to first base. Society will hear these arguments several times over and note that courts do not dismiss this legal reality as a “hoax”. 

Ultimately it will be the Supreme Court that will decide on the Constitutionality of subpoenaing a sitting President. Even if the Supreme Court ultimately rules that Trump cannot be subpoenaed they will do so on narrow constitutional grounds not on the merits of the case. So Trump will be faced with the fact that he went to all these lengths to avoid being questioned. The irresistible conclusion is that he has something to hide. This will make an indelible impression on the body politic.

THE LEGALITY OF A PRESIDENTIAL SUBPOENA  AND OR INDICTMENT

  There is a debate as to whether the President can be subpoenaed. The issue gets unnecessarily complicated when the argument is coupled as to whether he can be indicted a well. The two concepts should be separated. With regard to an indictment there is understandable some legal confusion as the Constitution makes provision for impeachment for Presidential “high crimes and misdemeanors”. A reasonable interpretation of this article is that a Presidential illegal act should not be tried in Court but rather by the impeachment process. Jay H. Ell believes this does not eliminate the possibility of an indictment. If for example Trump actually shot someone on Fifth Avenue as said he might during the campaign or Comey as Giuliani suggested it might be more appropriate to try him in a court of law.  But the issue here is not indictment. Rather it is what power the courts might have to insist that a President be enjoined to provide evidence in a criminal investigation. Here there is established law.

 United States versus Nixon in 1974 resulted in an unanimous landmark Supreme Court ruling. Nixon had challenged a subpoena which demanded that he provide the State with tape recordings and other materials. This subpoena was for materials rather than for personal evidence but the principle is the same. In Nixon like in Trump’s situations the investigations were of a criminal nature. 

President Clinton versus Jones in 1997 was yet another unanimous landmark Supreme Court ruling creating law relating to a siting President responding to a subpoena. The action was civil rather than criminal. The action adjudicated on was initiated before Clinton was in office. Clinton was enjoined to sit for a deposition.

So between the Nixon and the Clinton precedents any reasonable extrapolation would be that a sitting President is subject to a subpoena demanding that he appear before a Grand Jury in a criminal investigation in which he is a subject of. 

AT THE END OF THE DAY

Commentators are arguing that Mueller is risking giving Trump a victory if he loses in court. Mueller has no choice. If he doesn’t take the initiative, the way this scandal is going, he won’t be around to finish the investigation. He, more than anyone else, realizes that the future of democracy in America is dependent on definitively resolving whether there is an ever expanding criminal enterprise that in the American Presidency. 

Mueller should act now if that is his intention. The criticism he will face is that the President is involved in crucial negotiations with North Korea. The President’s appearance before the grand jury should be after the June 12, initial negotiations.

One fact is certain. The whole saga is accelerating with new revelations daily. An obstruction of justice charge seems a slam dunk and who knows how many abuses of power infractions Mueller has evidence of. There is even an argument that the epidemic of seemingly bizarre Presidential pardons have an obvious corrupt intent to obstruct justice. Commentators are interpreting them as a signal to Manafort, Cohen and company to hang in there as pardons will follow. (The historical precedent cannot be reassuring in that Nixon didn’t follow through as promised to Ehrlichman, Haldemann et al.) The public case for collusion is growing by the day.

The fate of countries and even the world have been, since time immemorial, in the hands of a few individuals. It is not being too melodramatic to say America’s immediate destiny is at stake. On the one hand there is an all powerful narcissistic, authoritarian, corrupt President, who has no vision and whose unpredictable actions are undoing every value this country has strived for. On the other there is the media, the protestors and the like. But in the final analysis the antidote to this threat to democracy must be the unbiased, fact based institutions that have served to sustain it. To that end its success is dependent on a few individuals whose modus operandi is the very opposite of the demagogic charismatic salesman showman who is the President. Public servants such as Rod Rosenstein and Robert Mueller in addition to their roles in upholding truth and justice have been thrust into the political limelight, forcing them to take stances and actions that would not normally be in their armamentarium.  

The time has come for Mueller to move against his conservative instincts. He knows better than everyone else that he has to give the President the opportunity to respond to his findings. He also is aware that the President has no intention of pitching up for an interview. The transparent plan is that Giuliani would blame him for the failure to agree to “reasonable” terms for a meeting which Mueller has been negotiating for, for over six months. 

 The Special Counsel has shown the Office of the Presidency the appropriate respect. The time has come to illustrate what all courts have decided - the President is not above the law. In so doing the action will have profound political impact.  By subpoenaing Trump he will be put on the defensive. But from a political point of view Mueller will be affording the POTUS every opportunity to expose the witch hunt and explode the hoax, which he repeatedly claims is his wish. This while moving the narrative out of the circus tents, twitter accounts and Nuremberg style rallies into cold fact finding arenas.

So go for it Counselor Mueller. You might be surprised at the lack of opposition from the Republicans.

Finally, should President Trump be subpoenaed he will  plead the Fifth Amendmentt.