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 long-standing Justice Department policy that prosecutors should not take actions that might impact pending elections. Whatever he is doing, he is doing quietly and even farther from the public eye than usual.
But thanks to some careful reporting by Politico, we may have stumbled upon How Bob Mueller Is Spending His Mid-Terms: secretly litigating against President 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 about 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 if Mueller had decided to forego 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 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.”
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 every 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’s 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 8 days after the midterm elections). Oral arguments are set for December 14.
At every level, this matter has commanded the immediate and close attention of the judges involved—suggesting that no ordinary witness and no ordinary issue is involved. But is it the president? The docket sheets give one final—but compelling—clue. When the witness lost the first time in the circuit court (before the quick round-trip to the district court), he unusually petitioned for rehearing en banc—meaning he thought his case was so important that it merited the very unusual action of convening all 10 of the D.C. Circuit judges to review the order. That is itself telling (this witness believes his case demands very special handling), but the order disposing of the petition is even more telling: President Trump’s sole appointee to that court, Gregory Katsas, recused himself.
Why did he recuse himself? We don’t know; by custom, judges typically don’t disclose their reasons for sitting a matter out. But Judge Katsas previously served in the Trump White House, as one of four deputy White House counsels. He testified in his confirmation hearings that in that position he handled executive branch legal issues, but made clear that apart from some discrete legal issues, he had not been involved in the special counsel’s investigation. If the witness here were unrelated to the White House, unless the matter raised one of the discrete legal issues on which he had previously given advice, there would be no reason to recuse himself.
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.