The new report that special counsel Robert Mueller has told Trump’s team that the president is not a “target” in his investigation — but is, instead, a “subject” — has set off a frenzy of speculation in the political world.
Is it good news for Trump on the legal front? Or is that just what Mueller wants Trump to think, as he negotiates for a sit-down interview? Or is it a mere statement of the obvious, given the Justice Department’s view that a sitting president can’t be indicted? Or is it a fairly straightforward statement of how Mueller views the investigation — one that’s subject to change?
The questions have sprung out of the Washington Post’s Carol Leonnig and Robert Costa’s Tuesday night report on Mueller’s communication to Trump’s legal team, which occurred in early March during negotiations about the president potentially sitting for an interview.
It is important to keep the sourcing for the Post’s scoop in mind. The reporting describes what Mueller’s team is said to have told Trump’s team. Its sources appear to be from the Trump side. So obviously, it should not be viewed as an entirely reliable window into Mueller’s own strategy.
Furthermore, the US Attorneys’ Manual lays out guidelines for what, exactly, a “target” is. It’s someone about whom investigators have “substantial evidence” that ties them to a crime, and who is a “putative defendant” (someone likely to face charges).
Meanwhile, a “subject” is someone whose conduct is “within the scope” of the investigation — basically, someone who’s under scrutiny. Other people whom investigators want to talk to but aren’t specifically investigating are deemed simple “witnesses.”
So from another angle, the Post’s report that Trump is a subject of Mueller’s probe (rather than just a witness) does confirm that, as expected, his conduct is still very much under investigation here.
Interpretation 1: take it at face value — Mueller has little on Trump, and that’s good news for the president
Some commentators responded quickly to the Post report, deeming it fantastic news for Trump. “Mueller has been at this now for nine months with an aggressive staff. He has issued indictments of various figures and might be going after others. So telling Trump that he’s not a target is a very big deal,” Commentary’s John Podhoretz wrote. He concludes: “This story could very well be game over for everyone who has hoped against hope that the Mueller probe was going serve as the deus ex machina of the #Resistance and surgically remove Trump from the presidency.”
Fox & Friends host Ainsley Earhardt sounded a similar note Wednesday morning: “He’s being investigated but not a criminal target, which I guess means, hasn’t committed a crime.”
Indeed, if you did think Mueller had such damning evidence against President Trump in hand that he was already resolved to defy Justice Department policy and proceed with a legally dubious indictment of a sitting president — think again. If the Post’s information is accurate, we can conclude that this was not the case as recently as last month.
Still, using Trump associates’ leaks of what Mueller told them to conclude that Trump is probably in the clear seems a bit ... too hasty. And if this news was so good for Trump, why did he start attacking Mueller much more aggressively after he got it back in early March?
Interpretation 2: Mueller is straightforwardly describing where he is now — but that shouldn’t be too comforting for Trump
Even the news that Trump is a “subject” of the investigation shouldn’t necessarily be all that reassuring since he could still become one, attorney Ken White argues in a smart post at Popehat.
White is unconvinced by some of the more elaborate theories on what Mueller may be up to, and thinks the most reasonable explanation “is that he means what he says — Trump is a subject.” But, he goes on, we shouldn’t overread what that means:
That doesn’t mean he’s made a determination that Trump won’t be indicted, or that it’s unlikely he’ll be indicted, or that he hasn’t committed crimes or wrongdoing. It doesn’t reflect a judgment on whether there has been a crime. It means he’s not there yet. “Calling Trump a subject is completely consistent with continuing to pursue evidence that would move Trump into the target column.
White then provides this unsettling analogy:
The analogy I sometimes use with clients is this: if you’re a target, you’re walking across an open field and a sniper is shooting at you from a tower. If you’re a subject, you’re walking across an open field and a sniper is shooting, but not shooting at you at this particular moment. How much safer do you feel?
Interpretation 3: this is what Mueller wants Trump to think, for his own strategic reasons
Other interpretations, however, try to game out Mueller’s strategy a bit more. They focus on the apparent sourcing of the Post story — Trump associates describing what Mueller told them — to explore the possibility that this is merely what Mueller currently wants Trump to think.
Now, why exactly Mueller might want Trump to think this is impossible to say for sure. Maybe it’s simply the truth that Trump isn’t a target and Mueller is just trying to convey accurate information. But there are also a host of other strategic possibilities (particularly because we don’t have the exact wording of what Mueller said, making it unclear whether there were any ambiguities or wiggle room in his statement).
For instance, maybe Trump is already a target and Mueller’s not saying so because he doesn’t want to be fired. As National Review’s Jim Geraghty points out, the US Attorneys’ Manual says investigators can refrain from notifying the target if doing so would “jeopardize the investigation or prosecution.” Obviously, since Trump can have Mueller and other Justice Department officials fired, telling Trump he’s a target could jeopardize the investigation.
Others point out that Mueller is currently in the midst of months-long negotiations with Trump’s team over a sit-down interview. The special counsel’s team clearly wants Trump to agree to this interview, and whatever assurances Trump has been given could be designed to achieve this strategic aim. Perhaps Mueller does not think he can declare Trump a target until getting a sense of his state of mind by interviewing, since “intent” plays an important role in obstruction of justice.
These possibilities are purely speculative, but the gist of this interpretation is that we should only view this assurance as something that Mueller’s team wants Trump to think — and not necessarily something we should take for granted.
Interpretation #4: this is a statement of the obvious because you can’t indict a sitting president
What does it even mean to tell someone you can't charge that you don't intend to charge him?— emptywheel (@emptywheel) April 4, 2018
Another odd aspect to all this is that the Justice Department’s Office of Legal Counsel has long held that a sitting president constitutionally cannot be indicted. So, some argue, of course President Trump wouldn’t be a target and “putative defendant,” if he just can’t be indicted. (The legal theory that the president can’t be indicted has never been tested in court and some dispute it, but it is DOJ’s current view of the law, and it would be truly shocking if Mueller and his boss Rod Rosenstein were to toss out that interpretation in favor of their own novel legal theory.)
So, this line of thinking goes, the endgame regarding Trump’s personal conduct was always going to be a report (or multiple reports) rather than an indictment. However, it’s unclear exactly whom the report would end up being aimed toward. Rosenstein? Congress, as a prelude to potential impeachment? Just the American people generally?
Now, what’s interesting here is that the new Post story confirms that Mueller’s team is planning a report — and specifically about Trump’s actions in office (i.e., obstruction of justice, rather than collusion). A stray line in the Post story quotes someone, apparently from the Trump side, saying that Mueller’s team says “they want to write a report on this, to answer the public’s questions.”
Robert Costa, one of the story’s authors, shed more light on this in an MSNBC appearance:
We have nailed down that the Mueller team is working on different tracks. They’re working on the Russia investigation in terms of Russian interference. But they also are working on a specific report they would like to come out with in June or July of this year that has different conclusions about the president’s conduct, his behavior while in office, looking at key decisions like the firing of former FBI director James Comey.
It’s unclear how much to make of this, though — former Justice Department official Eric Columbus ran down some of the complications with making a public report in a recent op-ed. And of course, the implications of any report — that is, whether it’s an effort to put impeachment on the table or not — will depend on how damning it ends up being.