Trump Would Be Crazy to Sit with Mueller. Mueller Would Be Crazy to Insist.
Why the special counsel probably won’t subpoena the president.
.. Trump and his allies are now racing to undermine the legitimacy of Mueller’s investigation in the hope of muting the impact of its results. The longer the investigation takes, the more successful Trump’s campaign is likely to be. Mueller, therefore, would be well advised to weigh the burden of the time-consuming and distracting litigation that Trump would launch to block a subpoena against the limited value of Trump’s testimony and move on.
.. Clinton resisted sitting down with Ken Starr until the independent counsel obtained a subpoena. They then negotiated to allow Clinton to testify for four hours from the White House with his lawyer present and the grand jury connected by video.
.. Prior presidents also feared the political damage from appearing uncooperative with law enforcement. Trump has worked furiously to build political support for his resistance to cooperation and appears confident that his base and core supporters in Congress will insulate him from political consequences.
.. Mueller—because of the importance of obtaining spontaneous answers, asking follow-up questions and observing the witness’s demeanor—will not agree to anything less than live questioning.
.. Moreover, the precedent set by issuing a subpoena could be abused by less scrupulous prosecutors than Mueller to sully a president for political purposes.
.. Trump will respond to a grand jury subpoena with a protracted legal challenge that will go to the Supreme Court. At the very least, he is likely to challenge the constitutionality of the special counsel’s appointment; argue that Mueller has exceeded his authority by investigating tangential matters; urge the court to impose limits on the scope, time, place and manner of the questioning; and contend that much of the information the grand jury will seek is covered by executive privilege. Mueller is likely to prevail, but victory will take time and distract his team from wrapping up the investigation, while giving Trump endless opportunities to denounce the “witch hunt.”
.. Although taking the Fifth could be politically embarrassing, grand jury secrecy might prevent the public from learning of it.