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By Frank Bowman

After my last post on the implications of the Washington Post report that Robert Mueller’s team had told Mr. Trump’s lawyers that he was not a “target,” the good folks at the Kansas City Star asked me to explain the situation a little further.  I was happy to oblige.  The result appeared in this morning’s paper (link here).  I reproduce it below:

Trump shouldn’t relax to hear he isn’t a ‘target’ in Mueller investigation (Kansas City Star, April 8, 2018)

The Washington Post reported this week that Special Counsel Robert Mueller’s team may have told Mr. Trump’s representatives that, although Trump remains under investigation, he is not a “target” of the investigation. The same sources said that Mueller wants to interview Trump as a last step before writing a “report” to Deputy Attorney General Rod Rosenstein. 

If either or both of these things are true, what do they mean?

First, if Trump is still under investigation, he is what the Department of Justice calls a “subject.” Mr. Trump was reportedly relieved by this status report.  He probably shouldn’t be.  If Trump is a “subject,” Mueller has not exonerated him from criminal liability. Indeed, 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 about Mueller’s current assessment of the evidence against Trump. DOJ rules define a “target” as “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.”  Trump’s reported relief probably stems from focus on the first half of the “target” definition.  Perhaps he thinks that not being a target means that Mueller doesn’t have “substantial evidence” of crime.

But that ain’t necessarily so. The Department of Justice has long taken the position that a federal prosecutor (like Mueller) may not indict a sitting president – even if there is plenty of evidence that the president committed a crime. There are many reasons to question the correctness of DOJ’s policy, but Mueller is bound by it.  Therefore, if Mueller really said Trump is not a “target,” all he may be saying is that, while there is substantial evidence linking Trump to crimes, the president cannot be a “putative defendant” because DOJ policy bars indicting him.  

Third, in any case, the real danger to Trump is not indictment, but impeachment (or at least the politically debilitating trench warfare of a formal impeachment investigation). That’s where a Mueller report comes in.

If Mueller were to write a report largely exonerating Trump, the administration would surely want to release it publicly.  On the other hand, if Mueller finds criminality, or simply a plethora of unindictable, but arguably impeachable, conduct, the Trump administration would be quite desperate to keep it secret.  For the rest of us, the big question is – regardless of what Mueller concludes, will Congress and the public see his conclusions?

The answer is surprisingly complicated and uncertain. The DOJ norm is that the reasons behind a decision not to charge someone are not made public, particularly if describing the reasons would make the subject of the investigation look bad.  Former FBI Director James Comey broke this DOJ norm with his report to Congress on the Hillary Clinton email investigation.  And that was the ostensible reason for his firing.

DOJ regulations governing Special Counsel Mueller require him to make certain reports to his departmental superiors, and in certain circumstances to Congress.  But a report finding that a president committed crimes for which DOJ won’t indict him doesn’t fit automatically into special counsel regulations requiring or permitting disclosure.

The decision about whether to release a report critical of Trump, and to whom, would probably rest with Deputy Attorney General Rosenstein.  And the rules give him little guidance about how to use his discretion.

That leaves the possibility that Congress, having gotten wind of a Mueller report, could subpoena it.  That would probably work, but might be vigorously resisted by Trump’s people.

At this point, the most that can be said is this: If Mueller’s report is favorable to Trump, it will be released immediately, regardless of the technicalities.  If Mueller’s report alleges criminal or impeachable conduct, release will depend on the judgment of Rod Rosenstein or the courts’ willingness to enforce a congressional subpoena.