Mueller Tells Trump Lawyers That Trump Isn’t Currently A Target, That Doesn’t Mean Much

Robert Mueller is telling the President's lawyers that Trump is a "subject" of his investigation, but not a "target," that's not as significant a distinction as it may seem to be.

The Washington Post is reporting that Special Counsel Robert Mueller has told President Trump’s attorneys that the President is a “subject” of his investigation but is not currently a target, but this doesn’t mean as much as it seem to mean:

Special counsel Robert S. Mueller III informed President Trump’s attorneys last month that he is continuing to investigate the president but does not consider him a criminal target at this point, according to three people familiar with the discussions.

In private negotiations in early March about a possible presidential interview, Mueller described Trump as a subject of his investigation into Russia’s interference in the 2016 election. Prosecutors view someone as a subject when that person has engaged in conduct that is under investigation but there is not sufficient evidence to bring charges.

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Mueller reiterated the need to interview Trump — both to understand whether he had any corrupt intent to thwart the Russia investigation and to complete this portion of his probe, the people said.

Mueller’s description of the president’s status has sparked friction within Trump’s inner circle as his advisers have debated his legal standing. The president and some of his allies seized on the special counsel’s words as an assurance that Trump’s risk of criminal jeopardy is low. Other advisers, however, noted that subjects of investigations can easily become indicted targets — and expressed concern that the special prosecutor was baiting Trump into an interview that could put the president in legal peril.

John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned last month amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend.

Trump’s chief counsel, Jay Sekulow, and Dowd declined to comment for this report. White House press secretary Sarah Huckabee Sanders referred questions to White House attorney Ty Cobb.

“Thank you, but I don’t discuss communications with the president or with the Office of Special Counsel,” Cobb said Tuesday.

Peter Carr, a spokesman for the special counsel’s office, declined to comment.

The wide-ranging special counsel investigation, which began as an examination of Russia’s interference in the 2016 election, has expanded into other areas, including whether Trump sought to obstruct the probe.

Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages — with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

“They’ve said they want to write a report on this — to answer the public’s questions — and they need the president’s interview as the last step,” one person familiar with the discussions said of Mueller’s team.

A subject could become a target with his or her own testimony, legal experts warn.

“If I were the president, I would be very reluctant to think I’m off the hook,” said Keith Whittington, a professor of politics at Princeton University and impeachment expert.

“My sense of it is the president — given that information — ought to have pretty fair warning anything he’s saying in the deposition would be legally consequential. Depending on what he says, it could wind up changing how the special counsel is thinking about him.”

Still, several legal scholars and impeachment experts believe Mueller may conclude he does not have the authority to charge a sitting president with a crime under an opinion written by the Justice Department’s Office of Legal Counsel in 1973 and reaffirmed in 2000.

If Mueller finds Trump engaged in criminal conduct, he could detail it in a report, experts argue, and let Congress to decide whether to launch impeachment proceedings based on Mueller’s findings.

“The president’s personal risk is primarily on the impeachment front,” Whittington said. “Even if there are not things that lead to indictment, there may be matters that warrant an impeachment investigation and proceedings.”

Some of Trump’s advisers have warned White House aides that they fear Mueller could issue a blistering report about the president’s actions.

While Trump and his supporters will no doubt jump on this news as vindication of some kind, the President’s attorneys likely realize that this is far from the case and that the President remains vulnerable as long as the Mueller investigation continues. As noted above, the difference between being a “subject” of an investigation and being the target isn’t nearly as meaningful as it sounds, and the distinction hardly means that Trump is out of the woods at this point. Generally speaking, saying that someone is the “subject” of an investigation means that their conduct is in some way part of the investigation. Being a “target” means that the prosecutor has most likely gathered substantial evidence against the person in question, that this evidence links them to a criminal act or acts, and that they are someone the prosecutor either intends or is threatening to indict. Depending on where the evidence goes in a particular investigation, the “subject” of an investigation can evolve into a “target” at any point assuming that the evidence gathered ends up pointing in that direction. Typically, though, prosecutors don’t decide until late in an investigation whether they will charge someone.

Additionally, it’s worth noting that there is a significant legal debate over whether or not a sitting President can be indicted. Many legal scholars take the position that he cannot and that the only proper means of pursuing charges against a President is via impeachment and removal from office, either voluntarily or by being found guilty by the Constitutionally required number of Senators in a trial. At that point, a President could be indicted either for charges related to his time in office, or charges related to something that may have happened before he took office. This was the approach that Watergate prosecutors took in 1974 when they named President Nixon as an “unindicted co-conspirator” in the investigation but did not formally charge him since he was still in office at the time. At least theoretically, that could have evolved into an indictment but for the fact that President Ford chose to pardon his predecessor in what was without question the most controversial decision of his Presidency. Given this, Mueller could decide that he does not have the authority to indict the President while he’s in office. In that case, he’ll leave it to Congress to decide whether or not the President should be impeached based on whatever evidence he may uncover. In that sense, technically speaking, Trump will never officially be a “target” of Mueller’s investigation, but that doesn’t mean he’s out of the woods either politically or legally.

In any case, this report, if true, doesn’t mean quite as much as it may seem on the surface. The fact that Mueller isn’t saying that Trump is a target doesn’t mean that he might not develop into one, whether its related to evidence his investigation uncovers regarding collusion during the campaign or due to evidence that his consistent efforts to undermine the Russia investigation or actions such as firing former F.B.I. Director James Comey amount to obstruction of justice. It also doesn’t mean that the President is out of the woods either criminally or politically. If his attorneys are smart, they’re telling Trump this. Whether he’s listening is, of course, another question.

Update: Ken White at Popehat, who once worked as a Federal prosecutor, goes into further detail regarding the “subject” versus “target” distinction.

FILED UNDER: Law and the Courts, Politicians, Russia Investigation, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. CSK says:

    So…when will Trump be tweeting that he’s been vindicated? Or exonerated?




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  2. michael reynolds says:

    You’re wrong, Doug, this means it’s all over. We were all so very, very wrong and Trump is going to go down in history as our bestest president ever and his sycophants toadies cult members fans have been totally right.

    It’s all over folks. Nothing more to see.

    Bung and JKB and John4321 and Guarneri, you should all be celebrating! It’s over. Yay! You were right and libtards like me were wrong. Vindication.

    Of course some might make the point that once Mueller names Trump as a target he can probably no longer be called before the Grand Jury. And the threat of a Grand Jury – where the Clown in Chief would have no benefit of counsel – is what puts pressure on Trump to sit down with Mueller for an interview. One might suspect that Mueller, knowing just how unhinged Trump is and how absurdly weak his legal team is, is playing games.

    No, you’re not a target, said the spider to the fly.




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  3. Daryl's other brother Darryl says:

    It’s almost as if Mueller is baiting Dennison into sitting for a perjury trap…er…I mean…an interview.




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  4. al-Ameda says:

    Well, Trump is the self-styled master of the art of deal making.

    Perhaps now would be a good time for Trump to settle for resignation, and, like Martha Stewart, and a 5 month sentence to be served at a minimum security Federal Prison Camp, plus 5 months of home confinement (at Mar-a-Lago or Trump Tower in Manhattan).

    Seriously, I hope this is the beginning of the end, but it’s far too early .




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  5. Tyrell says:

    “Currently not a target” which means that Mueller is scraping the barrell, cleaning out drawers, and playing with paper clips while his people are out checking the unpaid parking tickets and tax returns from 1967.




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  6. michael reynolds says:

    @Tyrell:
    It means nothing of the sort.

    You really need to stop watching Fox News. You seem like a decent guy, but you show up here with the latest horsesh!t from Fox and no one takes you seriously because we all know you’re just spouting nonsense you heard from Trump TV.

    In the nine months since Robert S. Mueller III was appointed to oversee the investigation into possible links between the Trump campaign and Russian officials, he has issued more than 100 criminal counts against 19 people and three companies. Of the 19 people, five — including three Trump associates — have pleaded guilty. Thirteen are Russians accused of meddling in the 2016 presidential election.”

    The Trump administration thus far has produced 5 felony convictions, including his National Security Advisor. Many more please and arrests and convictions are coming. Fox tells lies, Tyrell. They target older white people the same way a bogus siding salesman does. They lie to you and you believe it, so they tell you more lies. And then what happens? You bring us your Fox lies and we destroy them one by one. Every time.

    When are you going to wise up?




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  7. Guarneri says:

    And now, for something completely different: rationality.

    http://thehill.com/opinion/judiciary/381593-when-will-the-media-accept-that-trump-is-not-a-criminal-target

    You poor dears.




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  8. Guarneri says:

    I see Mueller got himself a scalp. Some lawyer named van den Heineken or something. 30 days splitting rocks. What was the charge? Not cleaning up after his dog?

    Prosecutorial gold.




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  9. al-Ameda says:

    @Guarneri:

    I see Mueller got himself a scalp. Some lawyer named van den Heineken or something. 30 days splitting rocks. What was the charge? Not cleaning up after his dog?

    I know it seems implausible but Mueller knows a lot more than FoxNews viewers know about the Trump Swamp.

    Here, let me save you the time, this is from a known media (Russian-apologist) source, ZeroHeadge:

    In the most revealing glimpse yet into the rationale underpinning Special Counsel Robert Mueller’s “pivot” toward investigating financial improprieties, obstruction and other potential crimes committed by Trump and his associates – instead of “Russian collusion” – a “secret” memo penned by Mueller’s team was released by the DOJ last night.

    In the memo, Mueller’s investigators defend their decision to indict Trump campaign executive Paul Manafort on charges of financial crimes related to foreign lobbying. The heavily redacted memo cites heavily from Rosenstein’s statement about the appointment of the special counsel. The special counsel quietly released it late Monday night and Bloomberg, the Wall Street Journal and others published details from the memo Tuesday morning.

    And yet, in a bizarre sequence of events which has raised numerous eyebrows, the memo was dated August, 2017 – weeks after the FBI raided Paul Manafort’s home in what was the first sign that he might soon be indicted, per Bloomberg, prompting speculation that the memo is merely an exercise in CYA.

    Perhaps they have not yet got the word?
    Mueller can go wherever the facts and leads take him.




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  10. Guarneri says:

    You go, al Beat Meater. Maybe there will be something in the next decade or two……..




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  11. Mister Bluster says:

    goonariSmart feller or fart smeller?

    Only time will tell!




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