Friday saw a very unusual scene unfold at the courthouse where the D.C. Circuit Court of Appeals meets. There has been an ongoing battle over a grand jury subpoena there, but no one knew who the target was because everything was sealed. Reporters were hoping to get more information on Friday, but before a scheduled hearing they cleared the entire floor of the building and forbid them from seeing even who was in the courtroom other than the judges.
We know that it involves the Mueller investigation because the only judge on the circuit to recuse themselves is a Trump appointee who had told the Senate he would recuse himself of any case involving that investigation. But who the target of the subpoena was no more clear after Friday than it was before.
More than a dozen reporters lined up in the hallway outside the courtroom about an hour before the first of three cases were set to be argued before U.S. Court of Appeals Judges David Tatel, Thomas Griffith and Stephen Williams.
Reporters and members of the public were free to enter the courtroom during the first two cases. But the secrecy clampdown quickly followed as the court shifted gears to the sealed grand jury case. A security officer wearing blue rubber gloves checked the chambers for any devices left behind. The live audio feed went dead.And then the clerk kicked the journalists off the entire fifth floor.
Determined to keep covering the story, reporters spread out around the courthouse and quickly set up a group email chain to pool their resources and communicate about who saw what in the hallways, elevators, staircases and entrances throughout the building. One television network reporter even stood guard at the top of a ramp leading to a secure parking garage where Mueller’s team has been known to bring in clandestine grand jury witnesses.
This is all very weird and it doesn’t seem like the sort of thing they would do involving just a routine witness trying to get a subpoena quashed. That led one former Southern District of New York prosecutor to speculate a few weeks ago that it probably involves Trump himself, saying that the secrecy of it all suggest that “no ordinary witness and no ordinary issue is involved.” If he’s right, this could get very, very interesting. While the DOJ has long taken the position that the president can’t be criminally indicted, there is no support in judicial precedent for the argument that the president can’t be subpoenaed by a grand jury. Indeed, the only two precedents, one involving Nixon and the other involving Clinton, clearly suggest the opposite.