Mueller’s revelation that Trump is not a target of the Russia probe means less than you think

Donald Trump.

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Donald Trump.
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  • The special counsel Robert Mueller’s claim that President Donald Trump is a subject, not a target, of the Russia investigation likely doesn’t mean much.
  • Prosecutors designate someone a subject when they’re under criminal investigation, and a target is someone investigators have enough evidence against to charge with a crime.
  • “As a practical matter, if your client is a ‘subject,’ a statement that the prosecutor doesn’t intend to indict you at this time doesn’t mean much,” wrote one former federal prosecutor.
  • “The prosecutor can just continue to collect evidence and make the decision to indict at a later time,” he added. “That’s why any good federal criminal defense attorney knows that what really matters most is whether your client is a subject.”

The special counsel Robert Mueller’s reported statement that President Donald Trump is a subject – not a target – of the Russia investigation is less significant than one might think.

A subject is someone under criminal investigation, which Trump has been since Mueller started building the obstruction case against him last year.

A target, meanwhile, is someone who prosecutors have enough evidence to charge with a crime.

Trump has long been the central focus of Mueller’s obstruction-of-justice investigation, which is looking at whether the president sought to hamper the Russia investigation when he fired FBI director James Comey last year. Comey had publicly confirmed the existence of the Russia probe months before his firing, and he was overseeing the investigation at the time of his firing.

The White House initially said Comey was fired because of the way he handled the FBI’s investigation into former Secretary of State Hillary Clinton’s use of a private email server to conduct government business. But Trump later said on national television that “this Russia thing” was a factor in his decision. He also reportedly told two top Russian government officials that Comey’s firing had taken “great pressure” off of him.

Mueller is said to be in the final stages of the obstruction investigation. But there’s still one key component he needs to obtain before he can draw conclusions: a face-to-face interview with the president.

Legal experts said Wednesday that until Mueller sits down with Trump, prosecutors will be unable to determine whether the president should remain a subject of the investigation, or whether to change his status to that of a target.

“Prosecutors often withhold a final determination on who is designated a ‘target’ until all the evidence is in and evaluated,” said Alex Whiting, a former federal prosecutor who is now a professor at Harvard Law School.

For that reason, “defense attorneys typically complain that a ‘non-target letter’ isn’t worth the paper it’s printed on,” longtime former federal prosecutor Renato Mariotti wrote on Twitter. “As a practical matter, if your client is a ‘subject,’ a statement that the prosecutor doesn’t intend to indict you at this time doesn’t mean much.”

“The prosecutor can just continue to collect evidence and make the decision to indict at a later time,” he added. “That’s why any good federal criminal defense attorney knows that what really matters most is whether your client is a subject.”

Investigators typically start at the bottom and work their way up the food chain in criminal investigations like the Russia probe. For that reason, Trump is likely the last person the special counsel needs to interview.

The president has reportedly been “chomping at the bit” to sit down with Mueller. But Trump’s lawyers have been angling to sidestep or significantly narrow the scope of a Mueller interview for the last few months, out of fear that their client – who has a history of making exaggerated and misleading statements – could land himself in legal jeopardy.

Last month, lead Trump defense attorney John Dowd resigned because he was frustrated Trump was not following his advice to decline an interview with Mueller. Dowd was the biggest roadblock standing in the way of Trump and Mueller, and with his departure, Trump is said to be much more inclined to agree to an interview.

Legal experts urged caution on the president’s part in the event that he faces off against some of the country’s most skilled prosecutors. But they added that Mueller would likely have succeeded in securing an interview with Trump regardless of any objection from his team.

If Trump refuses to submit to an interview, Mueller could respond by serving the president with a grand-jury subpoena. The courts could then decide whether a sitting president can be compelled to appear before a grand jury.

“The one thing that will not happen is for the president to refuse the interview and Mueller simply shrugging his shoulders and walking away,” said Jeffrey Cramer, a former federal prosecutor who spent 12 years at the Department of Justice. “There is nothing in Bob Mueller’s impressive past … to indicate he will balk at that fight. No one in their right mind would want Bob Mueller on their trail.”