When a storm brews, it draws warm air into the storm system, pulling it upward and spitting it out at the top beyond the menacing thunderclouds. As it descends towards lower altitudes, the air becomes drier and warmer, and stabilizes, giving the illusion of calm, right before the storm hits.
In the months before the midterm elections, Robert Mueller’s investigation into Russian interference in the 2016 Presidential election has gone silent.
Justice Department policy dictates that prosecutors should avoid any actions that may interfere with the imminent elections. But a new report from Politico indicates that Mueller’s silence could be the calm before the storm.
Out of the public eye, there have been storm clouds gathering since mid-August. Politico reported that Mueller may have filed legal proceedings to subpoena the president to testify in front of Mueller’s grand jury as far back as mid-August.
On August 16, a sealed grand jury case was triggered in the Washington D.C. federal district court. Chief Judge Beryl A. Howell presided over the case and, according to Politico, issued a ruling on September 19.
A conversation overheard by Politico’s Nelson W. Cunningham in the D.C. clerk’s office revealed that the special counsel was involved in the sealed grand jury case and prevailed. However, five days after Chief Judge Howell’s ruling, one of the parties appealed the decision, referring the case to the D.C. Circuit.
Although the identity of the witness on the docket remains undisclosed, the docket entry reveals prominent information about the case. Firstly, the anonymous witness appealed to the D.C. Circuit exceptionally fast, just five days after losing in the district court.
The appeals court was also swift in its response. The appeals court responded the day after receiving the motion.
Politico reported that on October 3, the appeals court dismissed the appeal due to a procedural flaw.
By October 5, the lower court judge had fixed the flaw and the witness was able to re-appeal. Once again, when the case was re-appealed, the appellate court acted with surprising speed. In normal cases, a procedural mistake in the lower court could take weeks or months to correct. In this case, it caused a delay to the proceeding of less than a week.
Once the case was back on the D.C. Circuit, the case continued to proceed at breakneck speed. The witness had only 11 days to file briefs and the special counsel had two weeks to respond. Oral arguments are set for after the midterms, on December 14.
It isn’t just the speed at which the case proceeded that suggested the President himself could be the witness. Following the anonymous witness’ loss in the district court, he petitioned for a hearing en banc. This means that the case is deemed so important that all 10 D.C. Circuit judges would convene immediately and review the order.
It is telling that when this petition arose, Judge Gregory Katsas, President Trump’s only appointee to the D.C. Circuit recused himself. Katsas previously served in the Trump administration as a deputy to the White House counsel. In his role in the White House, he would have handled legal issues for the executive branch.
If the witness on the case was President Trump, Katsas would feel pressure to recuse himself. He owes his appointment to the President and the President was his former client, indicating a clear conflict of interest in the case.
There is no definitive proof pointing to Trump as the witness. However, we know that special counsel Robert Mueller was involved in the case and that Judge Howell ruled in the special counsel’s favor.
It is also clear that the case has been given extreme priority in the D.C. Circuit and that Judge Katsas recused himself from the en banc petition.
These legal rumblings could represent storm clouds gathering in the distance. There will be no rain before the midterms. But once they are out of the way, if the witness on the docket is the President, there might just be a December storm heading for Washington D.C.
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Oliver is a UK-born freelance writer and journalist based in Boston. He is a self-confessed politics junkie with a passion for foreign and environmental policy. His work has been featured on Open Democracy, International Policy Digest, and the London Economic. He was a regular contributor for ASEAN Today.