A careful reading of court filings suggests the special counsel hasn’t been quiet. Far from it.
These months before the midterm elections are tough ones for all of us Mueller-watchers. As we expected, he has gone quiet in deference to longstanding Justice Department policy that prosecutors should not take actions that might affect pending elections. Whatever he is doing, he is doing quietly and even further from the public eye than usual.
But thanks to some careful reporting by Politico, which I have analyzed from my perspective as a former prosecutor, we might have stumbled upon How Robert Mueller Is Spending His Midterms: secretly litigating against President Donald Trump for the right to throw him in the grand jury.
As a former prosecutor and Senate and White House aide, I predicted here last May that Mueller would promptly subpoena Trump and, like independent counsel Kenneth Starr back in 1998, bring a sitting president before his grand jury to round out and conclude his investigation. What Trump knew and when he knew it, and what exactly motivated his statements and actions, are central to Mueller’s inquiry on both Russian interference and obstruction of justice.
As the summer proceeded, we certainly heard a great deal from Rudy Giuliani, the president’s lawyer, about purported negotiations with Mueller’s office regarding the propriety and scope of Trump’s potential testimony. On August 15, Giuliani said Trump would move to quash a subpoena and went so far as to say, “[W]e’re pretty much finished with our memorandum opposing a subpoena.”
And then—nothing. Labor Day came and went without a visible move by Mueller to subpoena the president, and we entered the quiet period before the midterms. Even the voluble Giuliani went quiet, more or less. Mindful of the time it would take to fight out the legal issues surrounding a presidential subpoena, and mindful of the ticking clock on Mueller’s now 18-month-old investigation, many of us began to wonder whether Mueller had decided to forgo the compelling and possibly conclusive nature of presidential testimony in favor of findings built on inference and circumstantial evidence. A move that would leave a huge hole in his final report and findings.
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 might 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.
Nothing about the docket sheets, however, discloses the identity of the witness. Politico asked many of the known attorneys for Mueller witnesses—including Jay Sekulow, another Trump lawyer—and each one denied knowledge of the identity of the witness. (What, of course, would we expect a lawyer to say when asked about a proceeding the court has ordered sealed?)
But for those of us who have been appellate lawyers, the brief docket entries tell a story. Here’s what we can glean:
The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court—and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
The appeals court itself responded with remarkable speed, too. One day after getting the witness’ motion, the court gave the special counsel just three days to respond—blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
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 eight days after the midterm elections). Oral arguments are set for December 14.