This week’s news that Special Counsel Robert S. Mueller III informed Trump’s lawyers a month ago that he is continuing to investigate the president but does not consider him a criminal target at this point is a puzzler. At the White House, it seemed a premature finding of no fault for Trump in the all-things-Russia probes, but everywhere else, there was a foreboding sense that the President of the United States formally had been fingered as a subject for investigation.
Maybe the news actually is a good sign for the president. Maybe it is a feint to allow Mueller’s team to finish its work. Maybe it portends a different kind of finish for the special counsel’s investigation — a written report that could be the basis for congressional action.
At the minimum, it is a note somewhere between confusion and possible misinterpretation for those of us who have been awaiting the conclusions of the probe, if not its end. It may have more to do with the legal complications of trying to indict a sitting president than with innocence.
On its face, the president seems to have gone out of his way to halt an unwanted investigation into a variety of contacts with Russians by himself, family and associates. But the question throughout has been whether those activities rise to the level of criminal charges as obstruction of justice. The president’s folks have lied repeatedly. But again, if they didn’t lie to the FBI, was there a crime? And, in the end, “collusion” is not a formal crime.
The idea is that these statements about status in the investigation arose in negotiations for an interview with the president. That interview was necessary to complete the work toward a written report to explain exactly what happened between the Trump campaign and Russians. But for an anxious nation, the drama of that pending interview feels like much, much more — a final confrontation between the key participants that could end a presidency or not.
With time to process the news, the story behind the story seems to be that while the president is not a current “target” for criminal charges, he may well be a “subject” for investigation who still might trip over truth-telling during a session with Mueller’s team. Prosecutors view someone as a subject when that person has engaged in conduct that is within the scope of the investigation and a target where there is a preponderance of evidence to bring charges. You can easily move from subject to target, particularly by being careless with the truth.
The special counsel did tell Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.
As columnist Jennifer Rubin noted, “In other words, he is under investigation” and could be nailed for perjury and lying to the Justice Department. But, she argues, and I agree, “the most frightening news for Trump (if he was paying attention) is confirmation that Mueller will write out a report, even before his full investigation is complete, likely making the case that Trump has obstructed justice. That could then be made public by Deputy Attorney General Rod J. Rosenstein and used by Congress — in all likelihood only if Democrats win one or both chambers — to commence impeachment proceedings.”
Apparently, the intention to have a written report is noteworthy. Most prosecutors either bring charges or not. The intention to produce a written guide to the events of the last two years thus would be a guide to Congress on what actions it could take, even if a criminal process is not possible. Depending on where you are on the Trump love scale, you could believe that the decision to publish a report suggests there has been wrong-doing.
For the president himself, this news apparently prompted him to feel good.
In a column for The Hill.com, Jonathan Turley criticized reporters and publishers who cannot accept good news for Trump: “This continued refusal to acknowledge positive developments for Trump is a disturbing pathology. Just because Trump is a subject of the investigation does not mean he cannot become a target. Moreover, Mueller — as expected — indicated he will prepare a report on his investigation. This is a positive development for Trump. What it shows, however, is that Trump’s status has not changed but neither has the status of much of the coverage. Many media commentators clearly are stuck on denial and are a long way from acceptance in dealing with the legal status of Donald Trump.”
Rubin argues: “Trump, you will recall, was convinced at one time he was not under investigation. He even added that to his letter firing [former FBI Director James B.] Comey. But of course, the firing of Comey set off a chain of events which in fact put him under investigation.”
A report to Congress “brings us back to the president’s greatest peril — impeachment proceedings, which may include subpoenas for financial records (e.g., tax returns) he has insisted remain secret. Republicans have shown themselves entirely unwilling to confront Trump on the smallest matters (e.g., foreign emoluments) and so are highly unlikely to take impeachment seriously. By contrast, Democrats, if they get a damning report from Mueller and win the House, will almost certainly open hearings at least to determine if impeachment is appropriate. There should be no doubt that the midterms may turn on a single question: Should Trump be held accountable if he obstructed justice?”
Still, columnist Greg Sargent noted: “Will that report ever get released? Most likely, yes. But there are some very unpleasant scenarios that could intervene — including the very real possibility that congressional Republicans will do all they can to keep Mueller’s report under wraps. This is something they can try to do, it turns out.”
To me, the question all along has been the Senate. Will 17 Republican senators actually vote against Trump? If not, the impeachment question is moot.