Mueller Can Avoid Delay: Let the President Decide Whether to Appear Before the Grand Jury

There is much debate about whether Robert Mueller can or should serve the president with a subpoena, forcing him to testify before the grand jury. The president would undoubtedly fight a subpoena, causing litigation delays, with the case likely winding its way up to the Supreme Court.

This avenue is unnecessary. Mueller should treat the president no different than any other target of an investigation. While Mueller can subpoena a target of an investigation, it is rarely done. Instead, Mueller can notify the president that he is a possible target of a grand jury proceeding and give him a date to voluntarily appear to testify before that grand jury. If the president does appear and testify, he will need to waive immunity and his 5th Amendment right to remain silent. If he refuses to voluntarily appear, everyone will know that he had his opportunity to tell his side of the story and refused to do so.

If the president appears, his testimony could be used against him as to any charges that may be under consideration, and he would also be exposed to a perjury charge if the grand jury believes that he lied to them on a material matter.

Currently, the posture is that Mueller has asked for an interview – not grand jury testimony – and the president and his legal team have engaged in seemingly endless delay regarding the interview. Mueller’s concern is twofold: he wants to get at the truth and wants everyone to know that he gave the president every opportunity to give his side of the story.

But the endless negotiations must come to an end and the president cannot set the terms for his questioning. If he appears before a grand jury, he must answer every relevant question. Indeed, the grand jurors themselves can ask a witness anything they deem relevant, so the president should not be able to pick and choose his topics.

Providing the president the option of appearing voluntarily is a lawful procedure for every target or potential target of every federal grand jury investigation. Since the president is not “above the law”, this everyday process should be followed.

It would not be Mueller making a decision as to an indictment, but rather the grand jurors. The president can go into the grand jury chamber and rail against the investigation, play to his audience, and proclaim that he did nothing wrong, as he loves to insist, nearly every day. The grand jurors will then decide what to do.

If the president refuses to appear, stating that he will not participate in what he claims is a sham investigation, he can publicly explain why he would not speak to the grand jurors directly. But that won’t insulate him from the legal process. If indicted, he must answer to a judge and jury, and any political arguments regarding the reason why the investigation started or why it is being pursued will not be relevant. At that point, the only issue would be sizing up the evidence and the law: is he guilty or not guilty of the crimes he has been accused of?

The country needs to know what happened regarding Russia’s interference in the election and whether any Americans participated or conspired with the Russians. The delay is not good for anyone.

Let’s get on with it.