President Trump’s legal team is preparing to give written answers on Russia questions to special counsel Robert Mueller, according to news reports — adding fuel to speculation that Trump is secretly fighting a subpoena to compel his testimony.
The theory that Trump is appealing an order requiring in-person testimony is guesswork, largely based on a journalist overhearing a conversation that connected a mysterious court fight to Mueller’s investigation — and the latest reports arguably support either side of the debate.
Attorney John Dowd, who left Trump’s legal team in March, told the Washington Examiner that preparation of written answers indicates there’s no secret subpoena requiring the president to appear before a grand jury.
Dowd, who had encouraged Trump to cooperate with Mueller, called the subpoena theory “fake news” and said he hopes the reports indicate Mueller’s investigation is nearing an end.
The existence of a secret subpoena fight previously was denied by Trump’s team. Attorney Jay Sekulow said he had “no idea” who was involved in the secret case — before the influential Drudge Report gave top billing to an op-ed arguing it was Trump.
Nelson Cunningham, the former federal prosecutor whose editorial popularized the theory, said the latest news could bolster the case that Trump is secretly fighting a subpoena.
Cunningham said he believes the reports are a strategic leak from Trump’s team.
“I think the theory very much still holds water,” Cunningham told the Examiner. “Clearly the leak [about written responses] comes from the president’s team and is designed to exert pressure on Mueller.”
The latest reporting “does not necessarily mean that Mueller’s office has agreed to accept written answers in lieu of actual testimony. So I don’t view written answers as at all incompatible with a separate battle over a subpoena — they seem quite consistent,” Cunningham said.
“My theory may be wrong, but no one has yet to suggest who the mystery litigant is battling with Mueller,” he added.
Cunningham, a former Clinton White House attorney who worked as general counsel of the Senate Judiciary Committee, speculated in the widely read op-ed that Trump’s resistance to a subpoena was playing out before the U.S. Court of Appeals for the D.C. Circuit, noting that the court’s only Trump-nominated judge — Gregory Katsas — had recused himself.
Cunningham, who also worked for Trump attorney Rudy Giuliani when he was a federal prosecutor in New York, pointed to remarks Giuliani made in the Washington Post on Aug. 15 that “we’re pretty much finished with our memorandum opposing a subpoena … exactly one day before the mystery litigation was commenced in the district court.”
Giuliani presented a subpoena from Mueller as hypothetical in that Post article, saying, “We would move to quash the subpoena,” and Trump lawyers were ready to “argue it before the Supreme Court, if it ever got there.”
“If there is a subpoena fight brewing in the courts, I do not see the submission of written answers as having much of an impact. If Mueller wants oral testimony that can be followed-up and challenged — the gold standard — then he is unlikely to be satisfied with written answers,” Cunningham said.
The anticipated written answers will not focus on potential obstruction of justice or other legal issues raised by Mueller’s probe, according to reports. Trump recently has lashed out at Mueller for leading a “witch hunt” into matters unconnected to possible campaign collusion with Russia.
Giuliani declined to discuss written questions from Mueller. A spokesman for Mueller also declined to comment.
Melissa Quinn contributed to this report.
