Why Mueller Probably Shouldn’t, and Won’t, Subpoena Trump

(The “probably” in the title is my acknowledgment that these issues are complex, and that — although I’ve been playing close attention on an ongoing basis — I recognize that, because of limitations to my knowledge, there may be factors I’m not taking into account. With that disclaimer….)

The Sooner the Better

It’s not clear that issuing a subpoena to President Trump, and getting Trump in front of a grand jury, would serve any necessary purpose.

1) Trump is such a liar that he’d be unlikely to add anything of value to what the investigators already know via other means. My impression is that the Mueller team has no need to hear from Trump to complete their important work.

2) And it’s not clear how Trump’s lying would further the process. Yes, it might be easy to get him to perjure himself. But I would bet strongly that Mueller’s team will have more than enough to prove Trump guilty of “high crimes and misdemeanors” without having any need to add perjury to the charges.

3) Many have wondered if Trump would plead the 5th, which it is widely said would be politically damaging. But again, in the context of all the other things that Trump has publicly done — plus whatever Mueller’s team will likely be able to show he’s done behind the scenes — the President’s pleading the 5th doesn’t seem likely to be a political game-changer, not likely to cost him much of the support that props him up. (It falls short of shooting someone on 5th Avenue.)

So, while there is nothing much to gain from hitting Trump with a subpoena, going the subpoena route does entail real costs.

The big cost is time.  It’s already reasonably clear that the Trump strategy is to play for time, and his legal team has clearly signaled that they would fight a subpoena all the way. From what I’ve heard, that would take months before the Supreme Court would hand down a decision.

That in itself would be a kind of victory for Trump. Even if Trump eventually lost in the Supreme Court — which, based on the decisions made in the case of Nixon and Clinton, seems the likely outcome. (Even with these Republicans-in-robes on the bench).

But in the meanwhile, Trump continues to be President, inflicting still more damage to the nation. For that reason, the sooner Mueller can issue his report to the nation (through Rosenstein) — can present to the American people the ugly picture that is sure to come– the better for America.

Which is why I think Mueller should not bother with a subpoena, but should just roll the investigation on to its conclusion without Trump.

Does Thoroughness Have Diminishing Marginal Utility?

The issue of time is the one place where I hesitate to assume that what Mueller “should” do and what he “will” do are exactly the same.

Mueller — who seems to be one of the most admirable figures in American public life — has a long and distinguished career in investigating and prosecuting important cases. It is that deep experience that makes him so good at building a case.

But never before has he dealt with a case like this one: where the ultimate target of the investigation is a wrecking-ball of a man who is wielding the powers of the presidency.

The unprecedented nature of this case might mean that Mueller’s long-standing professional habits of dotting every “i” and crossing every “t” could conceivably get in the way of his doing what’s best for the country.

So what’s best for the nation might be to move to a conclusion more quickly than Mueller is doing.

I’m not agreeing in the least with the Trumpites’ complaint that this has gone on too long. It is still short compared with any other such Special Prosecutor investigation. And clearly, Mueller is reaping abundantly as he moves along.

However, never before — in any prosecution — has time’s passage come with such potential costs. And I’ve wondered — without reaching any firm conclusion — whether Mueller might have done a “complete enough” job more quickly.

(“Complete enough” meaning getting a substantial and well-substantiated picture in front of the public more rapidly than is happening with the Mueller team’s impressive and systematic step-by-step uncovering of the whole vast picture.)

But, even if I can imagine that Mueller might err in the direction of unnecessary thoroughness — with the attendant costs of time’s passage — I would not for a moment substitute my imaginings for the judgments of Mueller and his crackerjack team. Though it’s not certain, it does seem reasonable to bet that they understand all the costs, and are taking them properly into account.

Which is why I’d wager that Mueller actually will forgo getting the grand jury to issue a subpoena to this President, and will move with all deliberate speed to a powerful conclusion.