Rudolph W. Giuliani, President Trump’s lead lawyer for the ongoing Russia probe, said Wednesday that he is still awaiting a response from special counsel Robert S. Mueller III to the Trump team’s latest terms for a presidential interview, which were made last week in a letter that argued against Trump’s having to answer questions about his possible obstruction of justice.
In the meantime, Trump’s lawyers are preparing to oppose a potential subpoena from Mueller for a Trump sit-down by drafting a rebuttal that could set off a dramatic fight in federal courts.
“We would move to quash the subpoena,” Giuliani said in an interview. “And we’re pretty much finished with our memorandum opposing a subpoena.”
Giuliani added that Trump’s attorneys are ready to “argue it before the Supreme Court, if it ever got there.”

An important caveat is in order: Just because Giuliani says something does not mean it is true now or predictive of what Trump will do. There might not be any “memo” — but you would think that competent lawyers would have written one months ago. Moreover, after an adverse ruling by a district court (and possibly an appellate court), Trump might rethink a Supreme Court appeal. (It is noteworthy that after Kenneth Starr issued a subpoena, President Bill Clinton relented, an interview was mutually agreed upon and the subpoena was withdrawn.

Trump’s apparent reassertion that, contrary to the rules in U.S. v. Nixon and the Paula Jones case, he can avoid a duly authorized subpoena raises the stakes in the Supreme Court confirmation hearing of Judge Brett M. Kavanaugh. Allowing Trump to pick a judge to obtain a favorable ruling on an issue of this magnitude would set the stage for a true constitutional crisis.

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The Senate and Kavanaugh, I would suggest, have two options. First, and most preferable, Kavanaugh can give a firm, unequivocal assurance that he will recuse himself on cases regarding Trump personally in the Russia matter (e.g. the obligation to respond to a subpoena, the ability to prosecute a sitting president) in order to avoid even the appearance of a conflict of interest. That is what a judge of high intellectual and ethical stature would insist upon, if he had the interests of the Supreme Court at heart. If not, it is essential that Kavanaugh directly answer a number of questions that are germane to the issue:

  • What was his involvement in the issuance of the Clinton subpoena?
  • Did he conduct or review legal research?
  • Was his view then that a president must respond to a subpoena in a civil matter?
  • Is there any way to distinguish a subpoena to testify in a civil matter from one in a possible criminal matter?
  • If anything, is the necessity for the president to respond to a criminal subpoena even greater since it implicates others’ liberty and due process rights?
  • If a grand jury issues a subpoena to a president who has information germane to a duly authorized criminal and/or national security investigation, is there any legal basis for him to refuse to comply?

Normally, a Supreme Court nominee would trot out the usual excuses for not answering. I can’t comment on an issue that might come before the court. But here, it is absolutely essential that Kavanaugh answer because the matter almost certainly will come before the court.

The country cannot risk a situation in which Trump’s handpicked justice spares him from complying with the law. That would constitute the constitutional crisis we have feared and would permanently damage the court’s integrity. Any senator who would vote to confirm Kavanaugh without an ironclad recusal or definitive answers to the questions above could be failing to uphold his or her oath and should be voted out of office when he or she next appears on the ballot. It would behoove Democrats to make their position on this clear and to ask their Republican colleagues to do the same.

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