By Frank Bowman
The Washington Post reports that Robert Mueller’s team has told Trump representatives that Mr. Trump continues to be under investigation, but is not now a “target” of the Mueller grand jury probe. The Post article contains a good deal of commentary about what this means, most of which is broadly correct. However, I think the Post misses several important nuances.
If Mueller’s people said Mr. Trump continues to be investigated (which in DOJ terminology makes him a “subject”), but that he’s not now a “target,” that allows two conclusions, one positive, one negative:
First, if Trump is still under investigation — is still a “subject” — Mueller has not exonerated Trump from criminal liability. Or putting it another way, the “subject” designation suggests Mueller has found enough evidence of Trump’s possible involvement in crime that he thinks it’s worthwhile to continue to investigate Trump.
Second, the “not a target” designation doesn’t convey much of real substance concerning Mueller’s assessment of the current evidence against Trump. The Washington Post summary of the meaning of “target” is incomplete. The article says, “A target is a person for which there is substantial evidence linking him or her to a crime.” But that’s not the whole definition in the United States Attorneys Manual (9-11.151), which reads: “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”
If Mueller really said Trump is not a “target,” all he may be saying is that, while there is substantial evidence linking him to a crime, DOJ policy precludes making him an actual indicted “defendant.” For an explanation of this policy, see this earlier post. What’s more, as several commenters in the WP article note, a subject can change to a target in the blink of an eye.
Were I one of Trump’s lawyers, I would be more alarmed than comforted by what Mueller supposedly said.
UPDATE: Jeremy Stahl over at Slate was kind enough to quote me about this point in a longer story on the Washington Post report.