(Bloomberg) -- Prosecutors working for Robert Mueller have made clear to Donald Trump’s legal team that the special counsel would consider a subpoena compelling the president to testify before a grand jury if he refuses to participate in a voluntary interview, according to two current U.S. officials.
Mueller, who’s leading the investigation into Russian meddling in the 2016 presidential campaign, believes he has legal standing to subpoena a sitting president, even though such a move has never been fully tested, the officials said Tuesday night. The Washington Post reported earlier Tuesday that Mueller had raised the possibility of forcing Trump before a grand jury.
Trump’s legal team is well aware Mueller could issue a subpoena, a possibility they have calculated in their strategy on negotiating an interview, according to people familiar with the team’s thinking. They have discussed a possible defense against a subpoena, including citing a 1990s ruling involving President Bill Clinton that set a standard for when a president can invoke executive privilege.
Negotiations over an interview with Trump have been going on since last year. Several Trump advisers, including his former lawyer John Dowd, are said to have opposed exposing the president to questioning by Mueller and his experienced team of federal prosecutors.
Resorting to a subpoena would be risky for both sides. It probably would lead to a prolonged legal battle and extend the timeline for Mueller’s investigation, said Harry Sandick, a former prosecutor with the U.S. Attorney for the Southern District of New York.
“I predict that the president could be compelled to sit in the grand jury,” said Sandick, now a partner with Patterson Belknap Webb & Tyler LLP in New York.“ But most witnesses would prefer an informal interview as opposed to grand jury testimony under oath."
Trump could bring his own lawyers to a voluntary interview but not to the grand jury, one possible point of leverage for Mueller in the negotiations.
The president and his lawyers could threaten to litigate the question of whether a grand jury subpoena against him could be enforced, Sandick said. “There’s litigation risks for Mueller and we don’t know ultimately how the courts would rule on that.”
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