A duck floating quietly on a lake appears motionless, but it’s not. Beneath the smooth water, its legs and feet are constantly swirling and kicking to maintain its direction. We don’t see the effort unless we somehow have a view from beneath the surface.
That’s sort of the way the special counsel is right now, at least until after the midterm elections next week.
According to longstanding Justice Department policy, prosecutors are supposed to take no actions that might affect upcoming elections. So Robert Mueller’s investigation has “gone dark.” Always tight-lipped about what his team is doing, he’s been even more secretive for the past few months. At the same time, we’re not hearing much from the typically very public Trump attorneys Rudy Giuliani and Jay Sekulow, either. This relative silence may lull us into thinking that not much is going on, that Mueller is winding down his investigation and putting the finishing touches on his final report. Somehow I doubt that.
Giuliani went on TV a lot during the summer to talk about the negotiations surrounding whether or not the President would testify, but just about the last thing we heard from him about that was on August 15, when he said that Trump would move to quash a subpoena to testify and that they were “pretty much finished” with their memorandum to that effect. After that, he’s had essentially nothing to say about it.
But a couple of reporters from Politico (Darren Samuelsohn and Josh Gerstein) have evidently been doing the Woodward-and-Bernstein thing for the past few months, hanging out in the court clerk’s office to keep an eye on who came in and asked for what file, sneaking around trying to find out what Mueller is up to. They’ve found reason to believe the special counsel is conducting “secret litigation” with Trump and his lawyers over a grand jury subpoena and that we will likely know by December (after the elections, of course) if the President is going to be brought before the grand jury.
Don’t doubt that this is the ultimate goal of Mueller’s team, and it’s not just to “fill holes in the final report,” as investigators like to say, but also to trap the President, who never “colluded” with Russia, on something “procedural” that can be used to impeach him, which they no doubt dream about every night. (That’s my personal observation, not something admitted by the Woodward-and-Bernstein wannabes.)
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Anyway, these two reporters found that on August 16 (which happens to be the day after Giuliani said they were about done with the memorandum to quash a subpoena), a sealed grand jury case was initiated in the DC federal district court of Chief Judge Beryl A. Howell. On September 19, Howell issued a ruling pertaining to that case. One of the parties appealed the ruling to the DC Circuit just five days later –- and that is very fast, considering that they would have had 30 days to file an appeal.
Also, while he was sitting around the court clerk’s office, one of the reporters, presumably disguised with a fake beard and glasses or hiding his face behind a copy of the Washington Post, overheard a conversation in the clerk’s office about the special counsel being involved. The special counsel, if that’s who it indeed was, responded to the witness’s appeal in just three days (bringing us up to October 1), which is like a whirlwind when calculated in “court time.” Usually lawyers want to delay, delay, delay, but this case was attracting reporters’ attention for just the opposite reason.
The docket sheets do not identify the mystery witness who made that quick appeal. The Politico reporters asked Trump’s attorneys about it, but they said they didn’t know who it was. (Of course, if they did know, they couldn’t say, because grand jury proceedings are under seal.)
The flurry of motions continued: On October 3, the court dismissed the witness’s appeal over some unspecified procedural flaw. On October 5, with the procedural flaw swiftly taken care of, the witness re-appealed and by October 10 was before the appellate court. Normally, such a procedural flaw takes weeks or months to resolve, but this time it took just two days. On October 10, the parties filed a motion for “expedited handling” and, sure enough, on October 12, the judges set up an expedited hearing schedule. If you’ve ever been involved in litigation, I don’t have to tell you: this kind of hurry-up is almost unheard of.
The mystery witness was given just 11 days to file briefs, and the special counsel (if that’s who it is) just 2 weeks to respond. The witness must now reply by November 14; that puts us one week past the midterm elections. Oral arguments have been set for December 14.
Court watchers such as Nelson W. Cunningham, a former federal prosecutor for the Southern District of New York under Rudy Giuliani and also White House counsel under Bill Clinton, suggest that this witness is very likely President Trump. The case apparently is getting special handling and has been moving with incredible speed, suggesting, Cunningham says, “that no ordinary witness and no ordinary issue is involved.”
Cunningham has another reason for suspecting the witness is Trump. When the full panel of ten DC Circuit Court judges were petitioned to review the witness’s first appeal, the one judge who had been appointed by this President, Gregory Katsas, recused himself. We don’t know why –- judges don’t usually specify their reasons for taking themselves off a case --- but he’s been one of four deputy White House counsels under Trump, though he did testify during his confirmation hearings that he hadn’t been involved in the special counsel investigation.
I suppose that if Katsas hadn’t recused himself, that would be a clue that this witness ISN’T Trump.
Cunningham closes his remarks on the Katsas recusal with a parallel to Watergate, which I’m sure the Politico team will find delicious: In 1974, when the Supreme Court ruled that President Nixon would have to comply with a subpoena, Justice William Rehnquist was in essentially the same position, and he recused himself.
So that’s what appears to be going on with the special counsel investigation. Whether or not that particular witness is Donald Trump, we know Mueller is like that duck in the lake. All the action has been taking place beneath the surface. It’s going on right now, with quiet intensity. And no matter how the midterms turn out, the Democrats have their plans for how to move forward and unseat the duly-elected President. If they take the House and Senate, Plan A (the easiest, obviously). If they take the House but not the Senate, Plan B. If the Republicans keep the House and Senate, Plans C, D and E. They’ll exhaust the whole alphabet if they have to.
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