After months of circling President Donald Trump during NFL depositions and discovery, Colin Kaepernick’s lawyers are expected to force Trump directly into the ongoing legal battle between the quarterback and league.
Kaepernick’s legal team is expected to seek federal subpoenas in the coming weeks to compel testimony from Trump, Vice President Mike Pence and other officials familiar with the president’s agenda on protesting NFL players, sources with knowledge of the quarterback’s collusion case against the NFL told Yahoo Sports.
The aim will be a dive into the administration’s political involvement with the NFL during Kaepernick’s free agency and the league’s handling of player protests, sources said. This after recent disclosures that multiple owners had direct talks with Trump about players kneeling during the national anthem. The content of those conversations between Trump and owners – as well as any forms of pressure directed at the league by the administration – are expected to shape the requests to force the testimony of Trump, Pence and other affiliated officials, sources said.
What has to happen for Trump to be subpoenaed?
Due to the nature of the rules in collective bargaining grievances, reeling in sworn testimony from the political sector will create at least one additional hurdle for Kaepernick’s camp. The quarterback’s legal team first must notify the system arbitrator of the need for targeted depositions beyond the boundaries of the agreement between the NFL and the player’s union. That would entail presenting a detailed argument to the system arbitrator overseeing the grievance, spelling out the relevance and impact that testimony from Trump or others could have on the grievance. If the arbitrator rules the testimony would be justifiable, that would open the door for Kaepernick’s attorneys to seek the subpoenas in a district court under the Federal Arbitration Act.
That’s also where the process would get more complicated and contentious.
Should the system arbitrator and a federal judge find there is a basis to force Trump or others to sit for depositions, it would raise an argument over whether the president can actually be compelled by the courts to sit for a deposition. Trump could choose to ignore the order or simply decline, leaving it up to the justice system to enforce the subpoena.
Whether that would ever happen is a significant matter of debate.
Trump’s lawyers already fighting subpoenas in Mueller case
Multiple media outlets have reported Trump’s lawyers have already argued to special counsel Robert Mueller that the president couldn’t be compelled to comply with a criminal subpoena in the Russian collusion probe. It stands to reason if Trump would refuse to sit for a deposition in an investigation by the U.S. Department of Justice, he’s also likely to refuse to comply with a subpoena from a district court stemming from Kaepernick’s arbitration case.
Complicating matters further? Even if Trump was attracted to lock horns more directly with Kaepernick, doing so in a deposition could potentially expose the president legally if it is found he somehow bore responsibility for NFL owners refusing to offer Kaepernick a job.
Still, there is also a flip side for Trump, whose head-on verbal barrage against the NFL over protesting players has been a red-meat issue politically, stoking his base and creating a staple talking point he has continually revisited. In theory, taking part in the Kaepernick case would give him the opportunity to air his thoughts about the quarterback face-to-face in a deposition – much the same way multiple NFL owners have done in the process. It would also offer Trump fertile material for his steady diet of social media and “Fox & Friends” appearances, which can’t be discounted.
How will Kaepernick’s team build an argument to subpoena Trump?
But long before that quandary comes to fruition, Kaepernick’s attorneys will be tasked with illustrating a connection between the quarterback’s unemployment and Trump’s pressure on the NFL regarding protests during the national anthem.
With that in mind, multiple incidents could factor prominently into the request for subpoenas. Among a few (but not all) that could ultimately be referenced by Kaepernick’s attorneys:
• In August 2016, as a Republican presidential candidate, Trump went on Seattle radio station KIRO and remarked of Kaepernick protesting during the national anthem: “I think it’s personally not a good thing, I think it’s a terrible thing. And, you know, maybe he should find a country that works better for him.”
That could prove to be significant, because it can be framed as the “clock-starting” moment when Trump’s interference in Kaepernick’s livelihood first began, then extended and became amplified into the presidency.
• In March 2017, New England Patriots owner Robert Kraft joined Trump on a flight aboard Air Force One in which the two men engaged in conversation. The next day, at a speaking event in Kentucky, Trump bragged that NFL owners weren’t signing Kaepernick because they were afraid of him.
“Your San Francisco quarterback, I’m sure nobody ever heard of him,” the president said. “… There was an article today that was reported that NFL owners don’t want to pick him up because they don’t want to get a nasty tweet from Donald Trump. Do you believe that? I just saw that. I just saw that.”
In a later deposition in the Kaepernick case, Miami Dolphins owner Stephen Ross testified Kraft told NFL owners he had spoken to Trump about players kneeling during the anthem. It wasn’t clear if that conversation occurred on the Air Force One flight or a different date.
• In September 2017, Trump spoke directly to Dallas Cowboys owner Jerry Jones, who later revealed during his deposition in the Kaepernick collusion case that the president told him, “Tell everybody [in the NFL], you can’t win this one. This one lifts me,” and that the player-kneeling issue was a “very winning, strong issue for me [politically].”
• Also in September 2017, Trump blasted NFL players during a speech in Alabama, taking direct aim at the jobs of kneeling players.
“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’ ” Trump said.
• In October 2017, Trump again spoke directly about Kaepernick, and again suggested NFL retribution against the quarterback for his kneeling during the anthem.
“I watched Colin Kaepernick [in 2016], and I thought it was terrible, and then it got bigger and bigger and started mushrooming, and frankly the NFL should have suspended him for one game, and he would have never done it again,” Trump said in an interview with Fox News’ Sean Hannity. “They could have then suspended him for two games, and they could have suspended him if he did it a third time, for the season, and you would never have had a problem. But I will tell you, you cannot disrespect our country, our flag, our anthem. You cannot do that.”
• Also in October 2017, Trump admitted to orchestrating a walkout of an NFL game between the San Francisco 49ers and Indianapolis Colts, in which Pence attended the game briefly and then left when players knelt during the national anthem.
• In late October 2017, a handful of NFL owners met with a select group of players during the league’s New York meetings. In a confidential meeting that was secretly taped and then leaked to the New York Times, Kraft can be heard referring to kneeling as the elephant in the room.
“The problem we have is, we have a president who will use that as fodder to do his mission that I don’t feel is in the best interests of America,” Kraft said, according to the Times. “It’s divisive and it’s horrible.”
The Times also quoted other owners at the meeting talking specifically about Trump’s impact. They included Philadelphia Eagles owner Jeff Lurie, who reportedly said, “We’ve got to be careful not to be baited by Trump or whomever else,” and Buffalo Bills owner Terry Pegula, who reportedly worried that, “All Donald needs to do is to start to do this again. We need some kind of immediate plan because of what’s going on in society. All of us now, we need to put a Band-Aid on what’s going on in the country.”
• In March 2018, Ross told the New York Daily News that Trump had influenced him to reverse his support of players who chose to kneel during the anthem. It was the first time that an owner said publicly that Trump had influenced their stance on the issue.
“I think initially I totally supported the players in what they were doing, because it’s America – people should be able to really speak about their choices and show them [in] doing that,” Ross said. “But I think when you change the message, about, is it support of our country or the military, it’s a different message. When that message changed, and everybody was interpreting it as that was the reason, then I was against the kneeling. …[Trump’s] message became what kneeling was all about. From that standpoint, that’s the way the public is interpreting it. So I think that’s really incumbent upon us to adopt that, because that’s how I think the country is now interpreting the kneeling issue.”
• In May 2018, after the NFL passed a rule prohibiting kneeling during the national anthem – but allowing players to remain in the locker room during the ceremony if they wish – some owners admitted that Trump had impacted the league’s motivation for creating a rule. The day after the NFL passed the rule, Trump once again revisited his remarks about players’ job statuses or whether they should be in the country if they didn’t stand for the anthem.
“You have to stand proudly for the national anthem or you shouldn’t be playing – you shouldn’t be there,” Trump told “Fox & Friends.” “Maybe you shouldn’t be in the country.”
That is only a handful of some of the incidents reflecting Trump potentially influencing NFL owners on either Kaepernick or kneeling players. It doesn’t account for all of his statements or address the multitude of tweets he has sent about the issue – nor other private conversations that have reportedly occurred inside the NFL about his impact.
It remains to be seen whether the totality of those incidents will be enough to convince the system arbitrator in Kaepernick’s case or a federal judge to conclude that forcing depositions of Trump, Pence or others is necessary. But that appears to be the next avenue of pursuit for Kaepernick’s legal team, in a case that has only seemed to gain more traction with each passing month.
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