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Report: Robert Mueller raised the possibility of subpoenaing Donald Trump

A sign the special counsel isn’t backing down from a request to interview the president.

Special Prosecutor Robert Mueller Briefs Senate Intel Committee On Capitol Hill Alex Wong/Getty Images

Robert Mueller has raised the possibility of subpoenaing President Donald Trump to compel him to testify in the Russia investigation — a sign that the special counsel won’t back away quietly from his request to interview the president.

The Washington Post’s Carol D. Leonnig and Robert Costa report that Mueller brought up the specter of a subpoena during a “tense meeting” on March 5 after Trump’s legal team told the special counsel’s office that the president had no obligation to speak with investigators:

But special counsel Robert S. Mueller III responded that he had another option if Trump declined: He could issue a subpoena for the president to appear before a grand jury, according to four people familiar with the encounter.

Mueller’s warning — the first time he is known to have mentioned a possible subpoena to Trump’s legal team — spurred a sharp retort from John Dowd, then the president’s lead lawyer.

“This isn’t some game,” Dowd said, according to two people with knowledge of his comments. “You are screwing with the work of the president of the United States.”

Mueller’s acknowledgment that he could issue a subpoena — and the aggressive reply of Trump’s former top lawyer, Dowd — reveals just how contentious this move might be. (Dowd resigned in March.)

Subpoenaing a sitting president would be an extraordinary event; the last time it happened was nearly two decades ago in 1998, when special counsel Kenneth Starr subpoenaed then-President Bill Clinton in the Monica Lewinsky investigation. (It was withdrawn when Clinton voluntarily agreed to testify.) If Mueller subpoenaed Trump, it would likely turn into a lengthy legal battle that could end up before the Supreme Court.

A subpoena would be a last resort for Mueller

Mueller and his team would probably like to avoid a drawn-out court battle, so a subpoena is the option of last resort if Trump doesn’t agree to a voluntary interview.

But whether that Trump sit-down will happen is still uncertain. According to the Washington Post, after the testy March meeting between Mueller’s team and Trump’s lawyers, the special counsel’s staff agreed to give the president more detailed information about what investigators wanted to ask.

The New York Times first obtained a list of those questions, which were compiled by Trump’s lawyers based on information from Mueller’s team. Those questions included questions about former National Security Adviser Michael Flynn, the firing of FBI Director James Comey, Trump’s business interests, and the Trump Tower meeting with Trump associates and Russians in 2016, among other topics, all of which broadly related to possible obstruction of justice and possible collusion between the Trump campaign and Russia (though the president suggests otherwise).

Trump’s lawyers, including Dowd — who ultimately resigned from Trump’s legal team in March because his client was ignoring his legal advice — are reportedly concerned that the president’s tendency toward exaggeration might put him in legal jeopardy. Rudy Giuliani joined Trump’s legal team last month, and among his tasks is to evaluate whether Trump should sit down with Mueller’s team.

The president’s lawyers might also have to contend with Trump’s growing antipathy toward the Mueller “witch hunt,” as he calls it, which spiked after the FBI’s raid on his longtime personal attorney Michael Cohen (though in a separate matter from the Mueller investigation). Trump’s displeasure was on display again Tuesday in his response to the leaked questions published by the Times.

What happens if Mueller subpoenas Trump?

If Mueller dropped the possibility of a subpoena with Trump’s team, it means the special counsel doesn’t see a Trump interview as optional.

David Alan Sklansky, a law professor at Stanford University, suggested to Vox that it would be surprising if the possibility of a subpoena never arose in Mueller’s case.

That doesn’t mean the outcome is predictable, as the Supreme Court hasn’t answered the precise question of whether a special counsel such as Mueller has the constitutional authority to compel Trump to testify with a subpoena, as Diane Marie Amann, a law professor at the University of Georgia previously told Vox’s Sean Illing.

Which means Trump will certainly challenge any subpoena, in the hopes that the Court will have to make a decision. The outcome of such a protracted legal battle is unpredictable — as are the potential political consequences of such a move.

But Sklansky suggested that even without clear precedent, “it’s hard to see what the argument [is] for saying the president is not subject to subpoena.”

The argument is straightforward: that no person, not even the president, is above the law. Sklansky cited two examples that offer some guidance, including the subpoena issued by independent counsel Kenneth Starr in 1998, which summoned Clinton to testify before a grand jury; Clinton instead agreed to testify voluntarily in exchange for Starr withdrawing the subpoena. The other involves the Paula Jones case, in which the Supreme Court ruled the president isn’t immune to a civil suit.

“The precedent involving the civil suit against President Clinton indicates that the courts are not impressed by the argument that the president will be overly distracted from his duties by complying with the legal process, and I think it would apply in a grand jury subpoena also,” Sklansky said, adding, “but since it hasn’t been tested in the courts, it’s hard to say for sure.”