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Last night, The Washington Post broke its latest scoop in the Trump-Russia saga, this one appearing on the surface to be good tidings for the president. Or, at least, he seems to believe so. Last month, the Post reports, Mueller told President Trump’s lawyers that the president was not currently a “target” of his investigation, but he was a “subject” of the investigation. Those terms have very specific meanings, but Trump apparently took the news as vindication.
- “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.”
- “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.”
- “However, legal experts said Mueller’s description of Trump as a subject of a grand jury probe does not mean he is in the clear. Under Justice Department guidelines, a subject of an investigation is a person whose conduct falls within the scope of a grand jury’s investigation. A target is a person for which there is substantial evidence linking him or her to a crime. 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.”
WHAT IT MEANS: We’ve become inured somewhat to the big picture here, but step back and think about it. This report confirms that the president of the United States is under investigation by a federal grand jury for obstruction of justice and collusion with Russia. He is not, at least as of last month, a target, which is a phrase prosecutors use when they are about to indict someone. And there’s good reason to think he may never be. The current Department of Justice position is that a sitting president cannot be indicted; rather, his misdeeds must be addressed by Congress through impeachment. But there’s also the possibility, which the Post raises, that Mueller told Trump’s lawyers that to bait him into an interview in which Trump is quite likely to lie or otherwise incriminate himself.
- That’s exactly what many legal experts believe is going on, according to Politico: “Indeed, some formal and informal advisers to Trump have been urging him not to sit for an interview because of the legal peril it could create. Several of the guilty pleas Mueller has already netted in his investigation
arefor false statements made in interviews with FBI agents working for his office. ‘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,’ former federal prosecutor Renato Mariotti wrote on Twitter. ‘ Usuallyprosecutors don’t make that judgementuntil they’ve interviewed witnesses and reviewed the relevant documents. … All today’s news tells us is that Mueller hasn’t decided to indict Trump at this time. If Trump’s lawyers know what they’re doing, they’ll tell him he’s still under great risk.’”
- “The more intriguing possibility mentioned by the Post is that Mueller has indicated he plans to draft a report on his investigation and wants Trump’s account for that purpose. ‘The key isn’t that Trump is not (yet) a “target” but that he IS a SUBJECT of Mueller’s investigation & that Mueller will write a REPORT on what Trump did, why, and what it adds up to. That is HUGE,’ Harvard Law Professor Laurence Tribe wrote on Twitter. Such a report could be significant because it could serve as a trigger to impeachment proceedings, particularly if the House falls into Democratic control in November.”