Rudy Giuliani has been keeping up the pretense that Donald Trump is “eager” to talk to special counsel Robert Mueller. Trump will talk about anything. Except his business. Or obstruction. Or collusion. Or anything where Mueller might charge him with perjury. Which sounds a lot like nothing. And to underscore how much Trump wants to talk to the special counsel’s team, Trump’s attorneys are preparing not for that conversation, but to fight a subpoena all the way to the Supreme Court.
The Washington Post reports the Giuliani and the rest of Trump’s team are “still awaiting a response from special counsel Robert S. Mueller” to the letter sent last week. That letter was sent as a reply to a letter from Mueller which Giuliani painted as close to Trump’s requirements, but it also seemed to be the precipitating factor in an explosion of tweets by Trump attacking Mueller and his team which suggests that “close” in this case didn’t actually mean close.
In particular, Mueller has clearly continued to build a case on both the points of conspiracy between Trump’s campaign staff and Russian officials and obstruction of the investigation. Requirements in the last proposal from Trump’s lawyers that Mueller could not ask about Trump’s firing of Comey, requests to go easy on Michael Flynn, or other matters connected to obstruction were clearly terms that the special counsel was unlikely to accept.
Trump’s attempts to wave off potential charges of obstruction were definitely not bolstered by his actions regarding John Brennan. The pattern in this case—where Trump claimed to be revoking Brennan’s security clearance for one set of poorly-defined reasons, then admitted in an interview that he was going after the former CIA director for his connection to the Russia investigation—exactly mirrored his drafting of an excuse to fire FBI director Comey before confessing that was also about Comey’s refusal to drop the Russia investigation.
If the latest letter from Trump’s legal team to Mueller still includes the requirement that Trump not be asked about anything related to obstruction, they have good reason to expect that the response might come in the form of something other than yet another round of pointless negotiation. And they’re getting prepared for what they expect instead.
Giuliani: We would move to quash the subpoena, and we’re pretty much finished with our memorandum opposing a subpoena.
However, claims that Trump is immune to a subpoena might have a difficult time at the Supreme Court. Though Republicans have been trying to rush the approval of no-indictment, no-subpoena, no-special counsel Brett Kavanaugh, he’s not there yet.
Subpoenas have been issued to two recent presidents: Richard Nixon and Bill Clinton. In Nixon’s case, the subpoena was solved in the most efficient way—he resigned. Clinton agreed to provide testimony—twice. First to special prosecutor Robert Fiske, and later for Ken Starr. Clinton’s subpoena was withdrawn, but only after he agreed to testify.
Both those cases also have something to say about the limits of executive privilege. The Nixon case also saw the Supreme Court rule that presidential documents, such as Nixon’s tapes, were not immune to subpoena and that “generalized assertion of privilege must yield to the demonstrated, specific need for evidence” in the investigation of a potential criminal case. With Clinton, the supreme Court ruled that he was not immune to a lawsuit. The Court declared "that the president is subject to judicial process in appropriate circumstances."
To afford Trump an exemption from a subpoena, the Supreme Court would have to reverse those previous rulings. It’s unclear that—especially without Kavanaugh—there exists a majority willing to make that big a change.
Just as with suggestions that Trump wants to talk with Mueller, only to fight it every step of the way, there are also indications that Trump’s desire to “wrap up” the investigation is less than honest. Insiders have suggested that the inability to get Trump to testify is the biggest hold-up in allowing the special counsel to issue a final report on at least some parts of the investigation.