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Mueller is investigating Trump, whether he’s a “criminal target” or not

“Being a subject is better than being a target of criminal investigation ... but it is cold comfort.”

Left, President Donald Trump at the White House on Jan. 04, 2018. Robert Mueller on Capitol Hill in 2013.
President Donald Trump and Robert Mueller
Jabin Botsford/The Washington Post via Getty Images; Kevin Lamarque/Reuters

Special counsel Robert Mueller reportedly told President Trump’s legal team in March that the president is not a “criminal target” of the Russia investigation and merely a “subject” in the probe.

That may make Trump feel safe — but according to legal experts, Mueller is still clearly investigating Trump.

“Target” is a specific legal term; it refers to someone who investigators believe committed a crime and whom they are likely planning to bring charges against. Calling Trump a “subject” of the investigation, however, means that Mueller is looking into Trump’s conduct for evidence of a crime but has no plans to bring charges imminently.

“Being a subject is better than being a target of criminal investigation by a federal grand jury, but it is cold comfort,” said Andrew Wright, a professor at Savannah Law School. “In effect, Robert Mueller told the Trump legal team that he is investigating the president’s conduct but has not determined as yet whether the president has committed specific federal crimes.”

So this isn’t evidence that Trump is out of the woods when it comes to the Russia investigation. In fact, it confirms the opposite.

Why Trump isn’t a “criminal target”

It’s important to keep in mind the context of the “criminal target” comments, which came over the terms of a potential Mueller interview of Trump under oath. Mueller’s staff told Trump’s legal team that they want to ask Trump about why he fired FBI Director James Comey and what Trump knew about contacts between his team and Russian officials.

Trump himself reportedly wants to sit down with Mueller’s staff, and his legal team is divided over whether it’s a good idea. Saying that Trump isn’t a target doesn’t hamper Mueller’s investigation into his conduct, and might raise the odds of Trump agreeing to an interview.

“It’s important to stress the fluidity between categories,” Miriam Baer, a law professor at Brooklyn Law school and a former federal prosecutor, told me in an email. “Depending on the prosecutor’s case, a subject can very quickly become a target (and although less likely, a target might for some reason morph back into a subject).”

It’s also possible that Mueller sees Trump as a subject rather than target because he has concluded he literally cannot indict Trump.

White House lawyers have argued since the Nixon administration that the president can’t face criminal charges because it would interfere with his or her ability to run the country. Legal experts disagree on whether this is correct, but many believe that Mueller wouldn’t risk testing this theory in court. The target of an investigation is likely to face charges, and Mueller could decide that Trump could never be a target while in office.

“Mueller may believe that he cannot currently indict Trump no matter how much evidence he has against him,” Jens David Ohlin, a professor of law at Cornell, told me. “Designating him a ‘subject’ as opposed to a ‘target’ may reflect nothing more than the fact that Trump is the current occupant of the Oval Office.”

Mueller reportedly insisted that he needs to interview Trump before he can finish his investigation, but Trump’s lawyers have hesitated to allow Trump to testify, partially based on Trump’s history.

Trump sued journalist Timothy O’Brien for statements in his 2005 book TrumpNation, which claimed that Trump was only worth about $250 million. Trump disputed that number, saying he was worth billions. Eventually, O’Brien’s lawyers forced Trump to sit for a deposition in 2007.

O’Brien’s lawyers caught Trump lying 30 times, acknowledging that he’d repeatedly exaggerated or outright misrepresented facts about his business in the past. At times he tried to exaggerate during the deposition as well, claiming that he charged $250,000 for membership to a golf club when he only charged $200,000.

The writer won the case, and it’s a reminder that Trump might have a hard time avoiding exaggerations or lies during testimony for the Russia investigation. Thus far Mueller has charged five people with lying during interviews with the FBI, including Alex van der Zwaan, who on Tuesday received a one-month sentence for lying. Even if Mueller can’t charge Trump criminally, lying under oath is exactly what got Bill Clinton impeached.