Will Mueller Subpoena Trump?

Very good article here by Ben Wittes, Lawfare, on whether the Special Counsel will subpoena the president.

The Game Theory of a Trump Subpoena

By Benjamin Wittes
Wednesday, May 2, 2018, 10:57 AM

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Mueller clearly wants an interview with Trump; we know this because he has asked for one. He wants it either because he is wrapping up his investigation and wants the president on the record on a number of points or because he genuinely needs information only Trump can provide to round out his evidence and make responsible judgments about how to proceed.

There are two ways to get an interview from an investigative subject: by consent or by seeking to compel the subject by issuing a grand jury subpoena. The former course requires the president’s agreement. The latter course requires the cooperation of the federal district court here in Washington.

It is probable—but not 100 percent certain—that Mueller can obtain the court’s cooperation. The reason it is probable is U.S. v. Nixon, in which the Supreme Court allowed the administration of justice and the needs of law enforcement to overcome a presidential assertion of executive privilege with respect to the Nixon tapes. The reason it is not 100 percent certain is that Nixon is not directly on point in a few discrete respects: It relates to physical material (tapes), not testimony, for example, and it relates to a trial subpoena, not a grand jury subpoena. So the president would have some room to argue that this case—in which a court would be forcing him to testify—is different. There is thus some litigation risk for Mueller if he actually issues the subpoena. First, there is the substantive risk that the case is litigated and the special counsel loses. (Steve Vladeck and I are writing a separate piece fleshing out the law on this point.)

Second, even if Mueller were to ultimately prevail on the question, litigation still carries costs. Issuing a subpoena would require months of litigation if the president resisted it. The fight would likely go all the way to the Supreme Court. Even expedited, it would slow things down—and Mueller does appear to be interested in speed.

More: https://www.lawfareblog.com/game-theory-trump-subpoena