{UAH} Allan/Edmund/Gook/Pojim/WBK: Reporters shooed away as mystery Mueller subpoena fight rages on A clerk at the courthouse took the extraordinary measure of shutting down the entire fifth floor, where the hearing was taking place.

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POLITICO originally broke the story in October that Special Counsel Robert Mueller's team had been dragged into court by a witness battling a subpoena. | Alex Wong/Getty Images
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By DARREN SAMUELSOHN and JOSH GERSTEIN 12/14/2018 01:34 PM EST
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Special counsel Robert Mueller appeared to be locked in a subpoena battle with a recalcitrant witness Friday in a sealed federal appeals courtroom, the latest development in a mystery case that has piqued the curiosity of Mueller-obsessives and scoop-hungry journalists.

Oral arguments in the highly secretive fight played out behind closed doors under tight security. Officials at the U.S. Courthouse in Washington, D.C. even took the extraordinary measure of shutting down to the public the entire fifth floor, where the hearing was taking place.

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More than a dozen reporters who had been staked out in the hallway adjacent to the courtroom — in the hopes of eyeballing attorneys for Mueller or the mystery appellant's lawyers — were kicked off the floor and lost their best chance to spot anyone involved in the months-long legal dispute as they were entering or exiting the chambers.

Journalists relocated to other stakeout spots, but few new details emerged after several hours of waiting.

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POLITICO originally broke the story in October that Mueller's team — which is investigating whether the Trump campaign coordinated with Russians trying to influence the 2016 election and whether President Donald Trump tried impede the ongoing probe — had been dragged into court by a witness battling a subpoena. POLITICO discovered the Mueller connection after a reporter sitting in the court's clerk office overheard a man request a document in the case from the special counsel's office. The man declined to identify himself or his client when approached by POLITICO.

Another clue linking the case to Mueller came a few weeks later when lawyers for the witness fighting the subpoena asked the full bench of the appeals court to review a lower court decision on the case. A notation in the legal docket said only nine of the court's 10 active judges participated — Judge Greg Katsas, the court's only Trump appointee and who had worked on the Russia probe while serving in the Trump White House, had recused himself. During his confirmation hearing, Katsas said he would take a broad view of his recusal obligations stemming from that experience.

The enigmatic case took another twist when POLITICO Magazine published an opinion piece by former federal prosecutor Nelson Cunningham suggesting Trump himself was the person who had gotten a subpoena and was fighting Mueller.

"At every level, this matter has commanded the immediate and close attention of the judges involved — suggesting that no ordinary witness and no ordinary issue is involved," Cunningham wrote.

Mueller's office has repeatedly declined comment about the case, and a spokesman for the special counsel did so again on Friday.


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Meanwhile, Trump's personal lawyers denied in early October that the president had anything to do with the case, and Trump himself insisted he wasn't locked in any kind of subpoena battle with Mueller when pressed by reporters later that month.

More anticipation had been building in recent weeks about who had gotten the subpoena after a series of additional tantalizing clues were filed in the docket, including sealed multi-page briefs and sealed letters updating the judges on recent events affecting the case.

Friday's long-scheduled oral arguments had long been seen as the best opportunity yet to identify the litigants.

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.


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As the media played cat-and-mouse with the courtroom security guards — several reporters were reprimanded for waiting in stairwells — the additional measures undertaken Friday surprised many people familiar with the federal building's practices.

"It's not the norm, that's for sure," Manuel Retureta, a Washington-based defense lawyer not involved in the Mueller probe but who is frequently at the courthouse, said as he observed the scene.

After about 90 minutes, court security officials allowed the journalists to return to the fifth-floor hallway, where the courtroom doors were still closed. A few minutes later, reporters spotted the judges walking back to their offices. No one with any apparent ties to the case were spotted leaving the building.

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Donald Trump Donald Trump 2020 Robert Mueller Subpoena Mueller Investigation
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