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.