Will Mueller Actually Subpoena President Trump?

August 9, 2018
Filed under: Blog,Writing — Editorial Staff @ 8:00 pm

One thing that anyone following the Trump/Giuliani/Mueller interview dance has to realize at this point is that there is really no way that the President is going to voluntarily sit down with the Special Counsel. While Giuliani has flip-flopped on the question, when asked this week if the President would agree to testify under oath he candidly responded: “Come on, you think we are fools?”

The bottom line is that despite the public gamesmanship and talk of possible terms, under oath or not, the President almost certainly can’t and won’t take the risk.

So the question that will have to be resolved in the days to come is whether Mueller will subpoena– try to force– the President to testify in front of a grand jury. Independent Counsel Ken Starr prepared to subpoena President Clinton before he ultimately agreed to answer questions, under oath.

I have been publicly predicting that Mueller would not take the subpoena plunge. Not because the President would succeed in any legal challenge. The Supreme Court in the Nixon case ruled: “Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” Yes, there are differences here from both the Paula Jones/Clinton case (civil v. criminal) and the Nixon ruling (subpoena of tapes v. testimony) but in the end, Mueller’s legal odds would be more than good.

The primary reason Mueller wouldn’t move forward with a subpoena is because the President has likely become what is called a target of the investigation. There are three designations used by federal prosecutors: witness, subject and target. If he was just a witness, there would no obstacles to issuing a subpoena. The president’s lawyers have claimed that he has been deemed a “subject,” which is defined in the US Attorney manual as “a person whose conduct is within the scope of the grand jury’s investigation.” Think of it as legal purgatory. A target, on the other hand, is “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

Even though few expect Mueller to seek to indict a sitting president, that doesn’t mean that they aren’t investigating him the same way they would anyone else. And typically a prosecutor would not subpoena a target because, in essence the defendant would be called in front of a grand jury just to invoke his/her fifth amendment right against self-incrimination. The goal of a subpoena is not to just create a constitutional show, but to get testimony and evidence which you won’t get from a target.

But what has me questioning my previous assessment, is that Giuliani now seems to be working off a timeline. While on the one hand publicly admitting that delaying the process works to the president’s advantage, he rushed to submit his response to Mueller yesterday. So has Mueller threatened to subpoena the president? Almost certainly. Will he actually do it? I am still betting no but with far less confidence than I initially had.

I asked my followers on twitter who are lawyers and legal geeks to weigh in on the question and they were similarly divided. Here is a sampling of the responses on both sides.

Yes, Trump will get subpoenaed

No, Trump will not get subpoenaed

 

Lincoln’s Last Trial named a NYT Bestseller

June 18, 2018
Filed under: Writing — Editorial Staff @ 2:39 pm

On this week’s New York Time’s Bestseller List, Dan’s new book Lincoln’s Last Trial: The Murder Case That Propelled Him to the Presidency was listed as number nine in the bestselling non-fiction books, just below John McCain’s memoir and edging out James Comey’s book A Higher Loyalty for a spot in the top ten.

Publisher’s Weekly Review of Lincoln’s Last Trial

April 30, 2018
Filed under: Writing — Editorial Staff @ 4:27 pm

Set for a June 5th release date, check out Publishers Weekly’s advanced review of Dan’s new book, Lincoln’s Last Trial: The Murder Case that Propelled Him to the Presidency, below.

Publishers Weekly Review

Trump’s Attack on Hispanic Judge Not a Two Sided Issue Requiring Media ‘Balance’

June 7, 2016
Filed under: Writing — Tags: , , , , , — Editorial Staff @ 2:57 pm

Donald Trump recently claimed that having Judge Gonzalo Curiel, a Hispanic judge, preside over one of the lawsuits against Trump University, is somehow biased against Trump. Trump went on to say that even a Muslim judge might be unfit to hear a case against him as well, a comment denounced by the vast majority of Republican leaders for being bigoted and undermining the judicial system. Dan recently wrote an article for Mediaite.com  on this issue NOT requiring media balance or an objective light, he commented, “In certain cases, the two sides are much simpler: right and wrong. In those relatively rare cases, it should be the media’s obligation and duty to shed the veneer of “objectivity” and specifically and vociferously call it what it is. Wrong. Donald Trump‘s claim that Judge Gonzalo Curiel, presiding over one of the lawsuits against Trump University, is somehow biased against him because he is “Mexican”(born in Indiana of course) is one of those cases.” Read the full article here.

 

If Hillary’s Not Charged, Don’t Dare Accuse FBI Director Comey of Politicization

May 10, 2016
Filed under: Blog,Writing — Tags: , , , , , , , — Editorial Staff @ 8:50 pm

Dan wrote an article for LawNewz.com about the ongoing Hillary Clinton email scandal. Media reports are stating the FBI has not found criminal wrongdoing in the investigation of her email server, thus far. Dan writes, “As I have explained before, criminal wrongdoing can and should not be equated with doing wrong. Based on what we know now, I believe Clinton is only guilty of the latter but who knows what the investigation uncovers.” Dan continues to analyze the ongoing situation in his piece; read the full article here.

 

Dan Comments on ‘Dora the Explorer’ Actress in Vaping Lawsuit

April 20, 2016

Dan appeared on Good Morning America, April 13th to discuss 15-year-old Fatima Ptacek, the voice behind Dora, who is now named in a lawsuit filed in Manhattan civil court. The AP reports that the case, brought by Nadia Leonelli and Fredrik Sundwall, alleges that Ptacek encouraged their 14-year-old daughter last December to join her in using a vaping pen to in a bathroom at a private New York school. “The parents are basically saying the school violated its own rules and it’s so unfair they should be forced to readmit their daughter,” Dan commented. Dan added, “’I was discriminated against because I’m not a celebrity’ is a very difficult legal argument to make.” Watch the full segment here.

Mediaite Breaks Traffic Record in March

April 4, 2016
Filed under: Blog,Writing — Tags: , , , , , — Editorial Staff @ 6:46 pm

mediaiteBig congratulations to Mediaite.com and LawNewz.com! Both sites had a banner month this March with Mediaite breaking a traffic record and LawNewz surpassing 1 million visitors (in only its second month!) Mediaite welcomed a whopping and record 7.7 million unique visitors and the site gave a shout out to Managing Editor Jon Nicosia as well as the whole Mediaite team. Check out more details here.

LawNewz.com Breaks 500,000 Unique Visitors

March 1, 2016
Filed under: Blog,Writing — Tags: , , , , — Editorial Staff @ 5:28 pm

Congratulations tCaptureo LawNewz.com! In its inaugural month, the newest Abrams Media site has welcomed over 500,000 unique visitors. With just two full time staffers and a few part-time freelancers, the site has more than doubled Mediaite’s first full month back in August of 2009 and continues to grow. LawNewz.com covers the legal angles of some of the biggest stories of the day and it has truly taken the publishing scene by storm. Dan writes, “Thank you to our viewers and readers and watch out because March has a full 31 days!”

Dan on ‘Making A Murderer’

January 20, 2016
Filed under: Blog,Writing — Editorial Staff @ 10:38 pm

mamDan has kicked off  LawNewz with a bang commenting on the Steven Avery case as well as the Brendan Dassey case from the hit Netflix documentary series, “Making A Murderer”. The true crime docu-series has struck a nerve with the public and has taken social media by storm, so Dan evaluated the evidence to weigh in on the guilt or innocence of Avery and Dassey. He writes, “Not since the OJ Simpson case brought the nation to a virtual standstill, has the American public so fiercely and antagonistically debated facts, procedures and testimony in a state murder trial”. Dan goes on to analyze the facts and evidence of the case and concludes (as the title of the article suggests) “Avery Absolutely Guilty But Dassey Innocent”. Read the full piece here. 

Dan Launches LawNewz.com

January 19, 2016
Filed under: Blog,Writing — Editorial Staff @ 6:40 pm

CaptureDan has just launched his latest website, LawNewz.com! The site aims to be the only place on the internet to offer real-time legal analysis on the top stories of the day. Dan commented , “This is a site a longtime in the making after all my entire professional career has been focused on covering high-profile cases,”. The site will livestream big court cases, play-by-play updates on high-profile criminal trials and bring you the very latest on celebrities who find themselves in legal trouble. Explore the new site today!

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