The Washington Post reported last week that special counsel Robert Mueller’s team may have told President Donald 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.” Trump was reportedly relieved by this. He probably shouldn’t be. If Trump is a subject, Mueller has not exonerated him from criminal liability. Indeed, it suggests Mueller has found enough evidence of Trump’s possible involvement in crime that he thinks it’s worthwhile to continue to investigate him.
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.
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But that ain’t necessarily so. The Justice Department 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 that policy, but Mueller is bound by it. Therefore, all Mueller may be saying is that while there may be 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, Trump 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 those 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 norm with his report to Congress on the Hillary Clinton email investigation — the ostensible reason for his firing.
Regulations governing 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 that require or permit disclosure.
The decision about whether to release a report critical of Trump, and to whom, would probably rest with 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, its release will depend on the judgment of Rosenstein or the courts’ willingness to enforce a congressional subpoena.
Frank Bowman is a professor at the University of Missouri School of Law, a former federal prosecutor and the author of the blog “Impeachable Offenses?” at impeachableoffenses.net.