The President of the United States learned last month that he was the subject of an ongoing criminal investigation.
He was apparently pleased.
The Washington Post reported on Tuesday night about conversations between Mueller and Trump’s legal team:
Special counsel Robert S. Mueller III informed President Trump’s attorneys last month that he is continuing to investigate the president but does not consider him a criminal target at this point, according to three people familiar with the discussions.
In private negotiations in early March about a possible presidential interview, Mueller described Trump as a subject of his investigation into Russia’s interference in the 2016 election. Prosecutors view someone as a subject when that person has engaged in conduct that is under investigation but there is not sufficient evidence to bring charges.
According to the Washington Post, “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.”
In one sense, Trump may be correct. The risk of criminal jeopardy for any president is low. But that’s because many legal experts believe that a sitting president cannot be criminally indicted.
An October 2000 opinion from the Department of Justice’s Office of Legal Counsel takes that view:
In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination. We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.
So while Trump may be pleased he is not considered a target, it does not necessarily mean the evidence against him collected by Mueller is weak. Rather, it may indicate that Mueller believes that a sitting president cannot be the target.
An alternative route for Mueller is to prepare a report that would be submitted to Congress that would contain evidence of “high crimes and misdemeanors” that could serve as the basis for impeachment. The Washington Post suggests that is the route Mueller is pursuing. “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 the report.
Instead of being pleased he is not the target, Trump should be concerned that Mueller is considering a report on obstruction. Media reports — and Trump’s public comments — suggest Trump may have obstructed Justice when he fired former FBI Director James Comey after Comey refused to end the Russia investigation.
Issuing a public report regarding the possible criminal conduct of a sitting president is no small thing. That Mueller is apparently considering it suggests he believes there is substantial evidence that Trump did break the law.
If Mueller believes that a sitting president can be indicted, and is prepared to litigate the issue, things could be even worse. The subject of an investigation, as CNN’s Jeffrey Toobin explains, can easily become a target of an investigation as new information emerges.
Chief legal analyst @JeffreyToobin explains how Trump can be a subject in Mueller's probe but not a target.
A target "is almost certainly going to be indicted"; a subject is "someone who is being scrutinized, who may be indicted, who may not be indicted" https://t.co/J3RCGNmrAU pic.twitter.com/0r3vsPzfFT
— New Day (@NewDay) April 4, 2018
One way new information can emerge is by Trump answering questions from Mueller — something Mueller has requested.
Trump, according to the Washington Post, is keen to sit down for an interview with Mueller’s team in order, believing it would put the investigation behind them. His lead attorney, John Dowd, disagreed with this strategy so vigorously that he resigned. Trump has been unable to recruit a replacement.