Special counsel Robert Mueller has not subpoenaed President Trump in secret, according to one of Trump's personal lawyers.
“The report in Politico is completely false,” Jay Sekulow told the Washington Examiner on Wednesday. “There has been no subpoena issued and there is no litigation.”
Nelson Cunningham, a former federal prosecutor, as well as former general counsel under former President Bill Clinton, examined the available evidence and raised the possibility in an article published Wednesday in Politico that Mueller’s team is “secretly litigating against President Trump for the right to throw him in the grand jury.”
"Since mid-August, he may have been locked in proceedings with Trump and his lawyers over a grand jury subpoena – in secret litigation that could tell us by December whether the president will testify before Mueller’s grand jury," wrote Cunningham.
On Aug. 16, a sealed grand jury case was initiated in Washington federal district court before Chief Judge Beryl Howell, who issued a ruling on Sept. 19, notes Cunningham. The docket sheets do not identify the witness, but Cunningham said Trump’s only appointee to the D.C. Circuit Court, Gregory Katsas, has recused himself. That led to speculation that Trump may have been subpoenaed.
"If Mueller were going to subpoena the president – and there’s every reason why a careful and thorough prosecutor would want the central figure on the record on critical questions regarding his knowledge and intent – this is just the way we would expect him to do so," Cunningham argued.
Mueller took over the federal government’s investigation into Russian election interference and possible connections to the Trump campaign in May 2017. So far, his team has indicted or gotten guilty pleas from 32 people and 3 companies, including four former Trump advisers and 26 Russian nationals.
Mueller has also handed off investigations into two others elsewhere within the Justice Department, including the case involving former Trump attorney Michael Cohen. Cohen cut a deal in August after pleading guilty to eight counts and admitting to participating in a hush money scheme at the direction of Trump.
Trump has continually railed against the special counsel’s investigation on Twitter and in interviews and press conferences.
There has been debate for some time whether Trump would sit for an interview with Mueller’s prosecutors, but for now it appears his legal time will simply respond to written questions provided by the special counsel.
In an interview with Fox News Monday, Trump suggested he would provide some answers to Mueller. However, he did not directly address whether he would sit for an interview.
"But we will probably do something where we respond to some questions,” Trump said.
Besides those remarks, Trump and his legal team have said very little about the Mueller investigation in recent weeks. The special counsel has been for the most part quiet since May 2017, and has rarely made any public statements.
Mueller’s team has been even more quiet as of late because of a Justice Department memo that is aimed at making sure his work— and the department’s as a whole — doesn’t influence elections. The 2018 midterm elections are next week.
[Related: Robert Mueller said to be ready to release key findings in Russia investigation]
Guidance on how to act near elections was put in place by former President Barack Obama's attorney general, Eric Holder, in 2012.
“Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party,” reads the March 2012 memo from Holder.
A Justice Department official told the Washington Examiner in May that the guidance is still in effect.
After nearly 18 months, some have wondered if Mueller’s investigation is winding down. The Washington Examiner reported earlier this month that there are now just 13 prosecutors left on his team, compared to 17 at its peak.
But the reduction in prosecutor numbers could be deceptive. Mueller's team has been virtually leak-proof, leading to speculation that fills the vacuum.
“Who the heck knows? My guess is he is getting close to done, but that is only a guess,” said Peter Zeidenberg, a former Justice Department prosecutor, recently told the Washington Examiner. “I think anyone who tells you the answer to this question [of winding down] with a high degree of confidence is mistake."