The Washington Post reported late on Tuesday what sounded like two pieces of relatively bombshell news in the Mueller investigation. First, special counsel Robert Mueller’s team has reportedly told the president’s legal team that he is not yet considered a target of the probe. Second, the special counsel’s office reportedly told the president’s lawyers that it wants to issue a report on its investigation into whether or not the president committed obstruction of justice but would like to do an interview with Trump first.
This may sound like a mixed bag for the president. Indeed, the Post reports that Trump has been privately expressing relief at his apparent legal status, telling “allies that he is not a target of the probe and believes an interview will help him put the matter behind him.” In actuality, though, there is very little for the president to be relieved about. In fact the entire report is terrible news for the president.
First, the Post’s summary of the meaning of “target” is incomplete and makes not being one in this case sound better for Trump than it actually is. The Post reports:
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. ….
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.
This would imply that Mueller does not yet see substantial evidence linking Trump to a crime, which implies that he’s unlikely to find such evidence in an obstruction probe that appears to be winding down. In actuality, though, it implies no such thing.
As University of Missouri School of Law professor Frank Bowman notes, that is not all that the DOJ guidelines say about the definition of a “target.”
The full DOJ definition also offers that a target is someone “who, in the judgment of the prosecutor, is a putative defendant.” This is relevant, because current Department of Justice guidelines say that a sitting president cannot be indicted, which means that according to these guidelines he cannot technically be a putative defendant—at least not while in office.
“The ‘not a target’ designation doesn’t convey much of real substance concerning Mueller’s assessment of the current evidence against Trump,” Bowman told me over email. “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.’”
The upshot is that his “subject” versus “target” designation could be relatively meaningless given the unusual circumstances. It might just mean that Mueller accepts the current DOJ guidance on whether or not a sitting president should be indicted, which would seem to be an in character, small “c” conservative approach.
What would be consequential, however, is the news that Mueller is seeking to issue a report on whether Trump obstructed justice or not. From the Post:
“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.
As former Enron prosecutor Samuel Buell noted in Slate last July, there has long been a significant amount of public evidence that Trump obstructed justice.
That Mueller wants to issue a public report is an indication that he feels some sort of legal conclusion about the evidence in the case is warranted. It’s generally DOJ protocol to not issue a full public finding in cases where someone has been exonerated—that James Comey did this in the Hillary Clinton investigation was the justification used for firing him.
Additionally, if Mueller does accept the DOJ guidance that precludes him from recommending indictment, he would have to get permission from Deputy Attorney General Rod Rosenstein to issue a public report on his findings.
That he would seek such a dramatic step sounds like more terrible news for Trump.
If Mueller ultimately were to issue a finding that the president engaged in a conspiracy to obstruct justice but could not be indicted because of DOJ guidelines, then the issue would be kicked to Congress.
“[T]he appropriate response from Congress would be for the House Judiciary Committee to immediately open an impeachment inquiry,” says Bowman, who authors the blog “Impeachable Offenses?”.
With Republicans in control of the House having shown zero interest in even investigating Trump’s possible crimes, much less holding him accountable for them, the question would then likely be up to midterm voters in November.