Harvard law school professor Alan Dershowitz has been one of the most reasonable, thoughtful legal experts commenting on Special Counsel Robert Mueller’s investigation of the Russian meddling of 2016, so when he makes a prediction like this, we tend to listen.
Dershowitz has been an outspoken critic of Mueller from the beginning, but unlike many of Mueller’s critics, he’s not a dyed-in-the-wool Trump supporter. He’s not even a conservative. Dershowitz is criticizing Mueller from the standpoint of civil rights violations, the erosion of our democracy, and the abuse of power that we’ve seen from the special counsel. That may have cost the famous lawyer some friends out on Martha’s Vineyard, but it has made him an indispensable resource for anyone looking for sane commentary during these insane times.
This week, Dershowitz was on CNN’s “New Day,” where he predicted that Mueller, despite all that we know about the difficulties of putting a sitting president under subpoena, was going to do just that to Donald Trump in the coming weeks.
“I think they’re gearing up for what will be a difficult legal battle,” he said. “I suspect they have come to the same conclusion I came to several weeks ago — that the tactic of the Trump team (I have no inside information on this) but the tactic of the Trump team is to make the Mueller team an offer they can’t accept so that in the end, there will be no sit-down and the Trump team can say, ‘look, we made them an offer. It’s their fault. They didn’t accept it.’
“I suspect that Mueller is on to this tactic,” he continued, “and is now looking forward to filing some kind of a legal action, compelling the president to appear in front of a grand jury. You can’t compel the president to sit down with the special counsel, but you can compel him to come in front of a grand jury.”
Dershowitz’s theorizing fits in with what we heard from Rudy Giuliani last week when he told CNN that Trump’s legal team has not heard anything directly from the special counsel in weeks.
“I figured we wouldn’t hear until after the Manafort trial,” he said, “but we still haven’t. I have to figure they’re planning something.”
Issuing a subpoena to the president would be a move that would rock Washington, test the limits of executive power, and severely test the currently available legal theories governing Mueller’s investigation. Mueller would almost have to tip his hand to some degree to prove that he has SOMETHING substantial against Trump to even have a chance of succeeding in the gambit; the Supreme Court is not going to allow a sitting president to be dragged away from the Oval Office just so Mueller can parade around like he’s doing something. So if Mueller is really planning to issue a subpoena to the President of the United States…well, he’d better have something better than a hunch.