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.
In other words, he is under investigation. On the way out the door after an interview with Mueller, he could be informed that he has just become a target. In other words, the “subject but not a target” designation is at best for Trump meaningless and at worst a sign he’s in jeopardy at any moment of becoming a target. There is a further complication here. Under the Justice Department’s current Office of Legal Counsel memo, a sitting president cannot be indicted; in other words, he cannot be charged — hence is not a target — until he leaves office. Jed Shugerman of the Fordham University School of Law agrees that, most likely, “all it means is Mueller probably has no intention of indicting a sitting president (who thus is not a target).”
The most frightening news for Trump (if he was paying attention) is confirmation that Mueller will write out a report, even before his full investigation is complete, likely making the case that Trump has obstructed justice. That could then be made public by Deputy Attorney General Rod J. Rosenstein and used by Congress — in all likelihood only if Democrats win one or both chambers — to commence impeachment proceedings.
“I think the bigger news is that Mueller has decided to write a report on obstruction,” says former Justice spokesman Matt Miller. “Whether he would do so has been one of the big outstanding questions, since that is not what DOJ prosecutors usually do.” He continues, “That tells me two things: First, he must think there is some evidence of criminality or he probably wouldn’t be writing one. He would more likely just close up shop. Second, if he has told Trump’s lawyers about it, he has likely already have gotten some sort of green light from Rosenstein to either release it or send it to Congress. Hopefully that is the case — the pressure on Rosenstein will be immense if and when this report is ever written.”
If Trump truly has felt “relief” — as opposed to blustering — he is either not getting adequate legal advice, rejecting that advice or incapable of absorbing legal advice. It is one more indication that an interview with Mueller may prove catastrophic for Trump. Ethics guru Norman Eisen tells Right Turn, “I think the now departed John Dowd was right: Trump should take no great comfort from this. Many was the time that I had a client move from being a subject to a target.” He continues, “If I were representing the president, I would not let him testify because of the risk of him doing that to himself, and the risk of a false statement. Moreover, the report is unlikely to be flattering to Trump; just look at what [then-FBI Director James] Comey’s expressions about Hillary Clinton did to her.”
Trump you will recall was convinced at one time he was not under investigation. He even added that to his letter firing Comey. But of course, the firing of Comey set off a chain of events which in fact put him under investigation. Former prosecutor Renato Mariotti explained in a series of tweets: “As a practical matter, federal prosecutors typically don’t decide until late in an investigation whether they will charge a person who is under investigation. Usually prosecutors don’t make that judgement until they’ve interviewed witnesses and reviewed the relevant documents. … The prosecutor can just continue to collect evidence and make the decision to indict at a later time. That’s why any good federal criminal defense attorney knows that what really matters most is whether your client is a subject.”
This in turn brings us back to the president’s greatest peril — impeachment proceedings, which may include subpoenas for financial records (e.g., tax returns) he has insisted remain secret. Republicans have shown themselves entirely unwilling to confront Trump on the smallest matters (e.g., foreign emoluments) and so are highly unlikely to take impeachment seriously. By contrast, Democrats, if they get a damning report from Mueller and win the House, will almost certainly open hearings at least to determine if impeachment is appropriate. There should be no doubt that the midterms may turn on a single question: Should Trump be held accountable if he obstructed justice?