Mueller’s assurances that Trump is not a ‘target’ don’t mean much

The office of Special Counsel Robert Mueller appears to be trying to entice President Donald Trump into an interview by assuring him last month that he is not a “target” of its investigation and is only a “subject” of the probe, at least for now, a source familiar with the discussions told POLITICO.

The recent assurance that Trump is not officially a target — first reported by the Washington Post — may not be worth much, since offering what prosecutors consider to be a false statement can easily tip someone over into the target category after an interview, lawyers said.

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More significant, some said, is Mueller’s intention to write a report on his findings about Trump’s potential obstruction of justice in the probe, according to the Post. Mueller has no obligation to submit a written report on any of his findings and it had not previously been known that he intends to write one. There is no assurance that such a report would be provided to Congress or become public.

When it comes to an interview, some formal and informal advisers to Trump have been urging him not to sit for an interview because of the legal peril it could create. Several of the guilty pleas Mueller has already netted in his investigation are for false statements made in interviews with FBI agents working for his office.

“As a practical matter, federal prosecutors typically don’t decide until late in an investigation whether they will charge a person who is under investigation,” former federal prosecutor Renato Mariotti wrote on Twitter. “Usually prosecutors don’t make that judgement until they’ve interviewed witnesses and reviewed the relevant documents. … All today’s news tells us is that Mueller hasn’t decided to indict Trump at this time. If Trump’s lawyers know what they’re doing, they’ll tell him he’s still under great risk.”

In Trump’s case, Mueller’s reported concession that Trump isn’t a target of the investigation may mean even less than in a more typical probe. That’s because Justice Department legal opinions issued in 1973 and 2000 say a sitting president cannot be indicted criminally while in office.

Mueller appears to have little option but to follow that legal guidance since he is generally bound to obey Justice Department policies.

A more intriguing possibility mentioned by the Post is that Mueller has indicated he plans to draft a report on his investigation and wants Trump’s account for that purpose.

“The key isn’t that Trump is not (yet) a ‘target’ but that he IS a SUBJECT of Mueller’s investigation that Mueller will write a REPORT on what Trump did, why, and what it adds up to. That is HUGE,” Harvard Law Professor Laurence Tribe wrote on Twitter.

Such a report could be significant because it could serve as a trigger to impeachment proceedings, particularly if the House falls into Democratic control in November.

A private lawyer for Trump, Jay Sekulow, declined to say Tuesday whether Mueller’s office has raised the possibility of a report or offered an assurance about Trump’s status in the ongoing probe.

“We do not discuss real or alleged conversations between our legal team and the Office of Special Counsel,” Sekulow said. White House attorney Ty Cobb also declined to comment.

However, a source informed about the discussions said Mueller’s office had offered the assurance that Trump is not a target of the probe and solely a subject. The source could not immediately confirm that prosecutors had revealed plans for a report that could be made public.

A spokesman for Mueller’s office declined to comment on the reports of discussions with Trump’s legal team.

Legal experts have been divided in recent months over the feasibility of Mueller issuing a report on his findings about alleged collusion between the Trump campaign and Russia. While the laws used to appoint independent counsels in the 1980s and 1990s allowed for release of a report with the approval of a judicial panel, the statute expired in 1999.

Mueller was appointed by Deputy Attorney General Rod Rosenstein last May under little-used Justice Department regulations that seem to limit the possibility of a far-ranging report on the special counsel’s findings. The rules do require reporting to Congress in the event that Rosenstein were to block a proposed prosecution by Mueller, but without such a disagreement it’s unclear that lawmakers would be automatically notified.

Congress might try to subpoena whatever written summary Mueller’s team gives to Rosenstein, but the regulations suggest that would only come at the end of the special counsel’s probe, which seems certain to continue until the end of this year and perhaps well into 2019. Indeed, the rules Mueller was appointed under appear to have been animated by the criticism of lengthy reports drafted by Whitewater Independent Counsel Ken Starr and others appointed under the old law.

“We think that the best reading of the special counsel regulations in their historical context rules out a Starr-like report to Congress that lays out hundreds of pages of factual allegations as well as legal analysis and conclusions,” Harvard Law Professor Jack Goldsmith and student Maddie McMahon wrote on Lawfare last month. “The drafters of the regulations criticized that approach and took steps to preclude it, and on the whole, the regulations achieve that goal.”

However, a former Justice Department attorney who drafted the regulations, Neal Katyal, said the rules do allow for more detailed reports. Whether and how they could be made public is a more complicated question.

“The regs only discuss the mandatory final report, and yes, it is contemplated to be brief due to privacy and other interests. But interim reports to the AG could be very detailed (and in order for them to be effective), likely would be,” Katyal told POLITICO on Tuesday night.

One of the biggest obstacles to the Justice Department making public findings about the investigation is that Rosenstein has repeatedly said publicly that prosecutors should not discuss their reasons for not filing charges in a specific case, particularly when individuals are involved.

Indeed, the memo Rosenstein prepared last year that the White House initially seized upon to justify the firing of FBI Director James Comey sharply faulted him for publicly revealing and assessing the evidence found in the course of the probe into Hillary Clinton’s use of a private email account while secretary of state.

“Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously,” Rosenstein wrote. “The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.”