Thanks to Reporting, backed up by Someone simple sitting in the Clerk’s Office for the D.C. Circuit waiting to see who walks in and Requests what File, we might know what Mueller has been up to: Since mid-August, he may have been Locked in proceedings with Trump and his Lawyers over a Grand Jury Subpoena, in Secret Litigation that could tell us by December whether the President will Testify before Mueller’s Grand Jury.
The Evidence lies in Obscure Docket Entries at the Clerk’s Office. We know that on August 16th a Sealed Grand Jury Case was initiated in the D.C. Federal District Court before Chief Judge Beryl A. Howell. We know that on September 19th, Howell issued a Ruling and Five Days later One of the Parties Appealed to the D.C. Circuit. We know that the Special Counsel’s Office is Involved. We can further Deduce that the Special Counsel Prevailed in the District Court and that the Presumptive Grand Jury Witness has frantically Appealed that Order and sought Special Treatment from the Judges of the D.C. Circuit, often referred to as the “second-most important court in the land.” Nothing about the Docket Sheets, however, Discloses the Identity of the Witness.
The Parties and the Judges have moved with Unusual Alacrity. Parties normally have 30 days to Appeal a Lower Court Action. The Witness here Appealed just Five days after Losing in the District Court, and Three Days later Filed a Motion before the Appellate Court to Stay the District Court’s Order and that's Fast.
The Appeals Court itself Responded with Remarkable Speed, too. One day after getting the Witness’ Motion, the Court gave the Special Counsel just Three days to Respond, blindingly Short as Appellate Proceedings go. The Special Counsel’s Papers were filed October 1st.
At this point an Unspecified Procedural Flaw seems to have Emerged, and on October 3rd, the Appeals Court Dismissed the Appeal. Just Two days later, the Lower Court Judge cured the Flaw, the Witness Re-Appealed, and by October 10th the Witness was once again before Appellate Court. Thanks to very Quick Action of All the Judges, less than One week was lost due to a Flaw that, in other cases, could have taken Weeks or Months to Resolve.
Back before the D.C. Circuit, this Case’s very Special Handling continued. On October 10th, the Day the Case returned to the Court, the Parties filed a Motion for Expedited Handling, and within Two days, the Judges had Granted their Motion and Set an Accelerated Briefing Schedule.
The Witness was given just 11 days to file Briefs; the Special Counsel just Two weeks to Respond; and Reply Papers One week later, on November 14th, that’s Eight days after the Midterm Elections. Oral Arguments are set for December 14th.
At every level, this Matter has Commanded the immediate and close attention of the Judges involved, suggesting that No Ordinary Witness and No Ordinary Issue is Involved.
But is it the President?
The Docket Sheets give One Final, but Compelling Clue. When the Witness Lost the First time in the Circuit Court, before the Quick Round Trip to the District Court, they Petitioned, unusually, for Rehearing En Banc, meaning the Witness thought the Case was so Important that it Merited the very Unusual Action of Convening all 10 of the D.C. Circuit Judges to Review the Order. That is itself telling, this Witness believes the Case demands very Special Handling, but the Order Disposing of the Petition is even more Telling: Trump’s Sole Appointee to that Court, Gregory Katsas, Recused himself.
Why did he Recuse himself? We don’t know; by Custom, Judges typically don’t Disclose their Reasons for Sitting Out a Matter. But Katsas previously Served in the Trump White House, as one of Four Deputy White House Counsels. He Testified in his Confirmation Hearings that in that Position he handled Executive Branch Legal Issues, but made clear that apart from some Discrete Legal Issues, he had Not been Involved in the Special Counsel’s Investigation. If the Witness here were Unrelated to the White House, unless the Matter raised one of the Discrete Legal Issues on which Katsas had previously given Advice, there would be No Reason for the Judge to Recuse himself.
But if the Witness were the President himself, if the Matter Involved an Appeal from a Secret Order requiring the President to Testify before the Grand Jury, then Katsas would certainly feel obliged to Recuse himself from any Official Role. Not only was the President his former Client, he was Deputy Counsel to the President, but he Owes his Judicial Position to the President’s Nomination.
History provides a useful Parallel: In 1974, in the Unanimous Supreme Court Decision United States v. Nixon, which required another Witness, a President to Comply with a Subpoena, Justice William Rehnquist Recused himself for Essentially the Same Reasons.
We cannot know, from the Brief Docket Entries in this Sealed Case, that the Matter involves Trump. But we do know that it Involves the Special Counsel and that the Action here was Filed the day after Giuliani noted Publicly, “[W]e’re pretty much finished with our memorandum opposing a subpoena.”
We know that the District Court had Ruled in Favor of the Special Counsel and against the Witness; that the Losing Witness moved with Alacrity and with Authority; and that the Judges have Responded with Accelerated Rulings and Briefing Schedules.
We know that Judge Katsas, Trump’s former Counsel and Nominee, has Recused himself. And we know that this Sealed Legal Matter will come to a Head in the Weeks just after the Midterm Elections. If Mueller were going to Subpoena the President and there’s every reason why a careful and thorough Prosecutor would want the Central Figure on the Record on Critical Questions regarding his Knowledge and Intent, this is just the way you would Expect him to do so. Quietly, Expeditiously, and Refusing to Waste the Lull in Public Action demanded by the Midterm Elections.
NYC Wins When Everyone Can Vote! Michael H. Drucker
