It was March 2018, nearly 10 months into his Russia investigation, when special counsel Robert Mueller, a man of few words, raised the stakes dramatically in a meeting with President Trump's lawyers.
But with that prospect hanging over them, Trump's legal team conducted a quiet, multi-pronged pressure campaign to avert such an action and keep the president from coming face-to-face with federal investigators – fearful he would perjure himself.
It is an open question whether a subpoena would have survived the court challenge that Trump's lawyers say they would have waged. The US Supreme Court has never issued definitive guidance on issuing a subpoena to a president, but had Mueller pursued one, the courts could have established a precedent for future presidents.In assessing whether to pursue such a high-stakes move, the special counsel was not operating with complete autonomy.
In the final months of the probe, there was upheaval in the department's leadership. Trump ousted Attorney-General Jeff Sessions, who had recused himself from the investigation. He was replaced temporarily by his former chief of staff, Matthew Whitaker, who was publicly critical of the special counsel before joining the department.A month before Mueller submitted his report, Barr was confirmed as Attorney-General.
But John Dowd, then the President's lead attorney, cancelled the session. He had argued against it because he feared Trump could misspeak or even lie. And a practice session with the President further convinced Dowd that he could be a problematic interviewee, these people said.Over the next 12 months, Mueller tried repeatedly to reschedule the interview, to no avail.
Robert Ray, a former independent counsel now in private practice at Thompson & Knight, said Mueller's team would have had to weigh whether a subpoena could survive the court challenge that was all but certain to come from the Trump White House. "That's a major fight, and you have to decide whether, in the country's best interests, it's worth it," Ray said.
Still, the Trump's legal advisers felt after the March meeting that a subpoena threat hung over the President. Giuliani said that roughly 80 per cent of the Trump team's interactions with the special counsel's office were handled by Jane Raskin, who has known both Mueller and Quarles for years. She knew Mueller from her time as a federal prosecutor in Boston, while her husband had worked with Quarles.
Their goal: to satisfy Mueller's hunt for information to the extent that the special counsel would not have legal standing to subpoena the President's oral testimony. All the while, Giuliani said, the legal team was not convinced that it would have prevailed in court. "Honestly, I don't know who would have won," he said. "I think our argument got better as time went on. But I don't know if we would have won."As Mueller's lawyers quietly laboured, a political storm was raging around them.
"Under the terms of his appointment, both by statute and by regulation, Special Counsel Mueller remains accountable like every other subordinate Department official," Rosenstein wrote. Mueller and Quarles would stress that they needed to know Trump's intentions when he fired Comey and took other actions that could have thwarted the Russia investigation. Jane Raskin would respond by pressing them for a legal justification for seeking to interview the President, according to a person familiar with the negotiations.
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