The ex-federal prosecutor who questioned President Bill Clinton before a grand jury during the Monica Lewinsky scandal in 1998 said Wednesday that Russia special counsel lacked the authority to challenge President Donald Trump on executive privilege.
"There's a very interesting constitutional point here," Solomon Wisenberg, who was chosen by independent counsel Kenneth Starr to question Clinton in August 1998, told Brooke Baldwin on CNN.
"There's no question that Mueller has the authority to subpoena a sitting president," he explained. "We subpoenaed a sitting president.
"But there is a real question about whether Bob Mueller has the right in court to contest executive privilege."
Wisenberg said reports Emmet Flood, who was on Clinton's team during his impeachment proceedings, was joining Trump's team most likely meant the Republican president was going to invoke executive privilege and challenge Mueller should he be subpoenaed before a grand jury.
Trump hinted Wednesday he might go that route in retweeting comments from former U.S. Attorney Joe diGenova, an unofficial legal adviser, on the Mueller questions leaked to the The New York Times on Monday:
In his CNN interview, Wisenberg said Trump's case rested on the reality Mueller is "an inferior officer to the president," before referencing the June 1974 Supreme Court decision involving President Richard Nixon and the Watergate tapes.
"In U.S. vs. Nixon, the 8-0 Supreme Court opinion that said that Richard Nixon had to hand over the tapes, Richard Nixon made the argument that [special prosecutor] Leon Jaworski was an interior officer to me, this is an intra-branch dispute — and, Supreme Court, you don't have the right to look at it.
"But the Supreme Court said, 'no, no, no,'" Wisenberg told Baldwin.
"The regulation that appointed Jaworski gave him the explicit authority to contest executive privilege.
"There's no such authority for Bob Mueller," he said.
"So, it's going to be a real legitimate question whether or not Mueller can litigate this.
"The argument would be that Mueller doesn't even get to come into court and talk about executive privilege — and whether it's been waived: 'I'm the president. I'm telling him he can't do it — and I'm invoking executive privilege.'"
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