Michael Gaynor
President Trump, please turn the tables on Special Counsel Mueller by challenging him to subpoena you instead of letting him interview you
By Michael Gaynor
May 7, 2018

If Special Counsel Mueller subpoenas President Trump to appear before a grand jury, President Trump will have the subpoena quashed and Special Counsel Mueller will belong on trial for malfeasance in office for issuing it.

It's time for President Donald J. Trump to turn the tables on Special Counsel Robert Mueller.

If Special Counsel Mueller subpoenas President Trump to appear before a grand jury, President Trump will have it quashed and Special Counsel Mueller will belong on trial for malfeasance in office for issuing it.

Upon the obvious advice of competent counsel, President Trump should decline to be interviewed by Special Counsel Robert Mueller.

Expecting the Special Counsel and his team to be fair would be foolhardy.

Mueller apparently was appointed Special Counsel although was no underlying crime and he's pursued an alleged crime by foreign National Security Adviser Michael Flynn that allegedly after his appointment – a "lie" to FBI agents that the agents did not detect but Flynn pleaded to as part of a plea bargain reportedly to protect his son.

To date former Trump Presidential Campaign Manager Paul Manafort has refused to plea bargain and instead has challenged Special Counsel Mueller's authority to pursue him on matters long predating the 2016 United States presidential campaign and apparently not connected to it.

To date Special Counsel Mueller has not disclosed his claimed authority to prosecute Manafort on those matter, even to a federal judge considering a motion to dismiss, T.S. Ellis III.

That is intolerable.

Not to mention deplorable.

That judge really must determine whether Special Counsel Mueller has standing to prosecute Manafort and his insistence on seeing all documentation on which Special Counsel Mueller is relying is plainly correct.

The first thing a federal judge assigned a case is supposed to do after being assigned a case is to ascertain whether there is standing.

Special Counsel Mueller reportedly has been pressuring President Trump to submit to interview by suggesting that he might subpoena him to appear before a grand jury if the President does not submit to an interview.

Mr. President, please call that bluff.

Special Counsel Mueller would subject himself to prosecution for malfeasance in office by subpoenaing the President to appear before a grand jury.

Presidents are not to be prosecuted while in office or subpoenaed to appear before a grand jury.

In Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956), the West Virginia Supreme Court stated:

"Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not, to do."

"Malfeasance in office, or official misconduct, is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties." Wikipedia (https://en.wikipedia.org/wiki/Malfeasance_in_office).

The United States Department of Justice has been stating unequivocally since 1973 that a President of the United States cannot be indicted.

There is no exception for Presidents who shock the liberal media and the Deep Swamp by winning.

After quoting from Daugherty, Wikipedia continued as follows:

"The court then went on to use yet another definition, 'malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, through ignorance, inattention, or malice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses their powers, they are guilty of malfeasance.'

"Nevertheless, a few 'elements' can be distilled from those cases. First, malfeasance in office requires an affirmative act or omission. Second, the act must have been done in an official capacity – under the color of office. Finally, that that act somehow interferes with the performance of official duties – though some debate remains about 'whose official' duties.

"In addition, jurisdictions differ greatly over whether intent or knowledge is necessary. As noted above, many courts will find malfeasance in office where there is 'ignorance, inattention, or malice,' which implies no intent or knowledge is required."

If Special Counsel Mueller subpoenas President Trump to appear before a grand jury, President Trump will have it quashed and Special Counsel Mueller will belong on trial for malfeasance in office for issuing it.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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