Can President Trump breathe easy? The Washington Post reported Tuesday night that Trump is a subject of Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election, but not a target of the investigation.
There’s something there for both sides—Trump supporters can argue that the president isn’t a target, and his critics can point out that the president remains under investigation. Trump is not in the clear, but neither are criminal charges necessarily imminent. Trump might never become a target of the investigation, or he could change from subject to target at any time.
“It's not comforting to be a ‘subject’ of an investigation. Most white-collar criminal defendants started out as subjects of a grand jury investigation,” said Bruce Green, a former federal prosecutor and a law professor at Fordham. “Calling President Trump a ‘subject’ rather than a mere ‘witness’ generally means that his conduct is still being investigated, he is still suspected of having acted criminally, but no conclusion has yet been reached that he is guilty beyond a reasonable doubt.”
A subject of an investigation is usually not named a target until charges are imminent. The fact that Trump remains the subject of a criminal investigation, months after witnesses have been interviewed, documents turned over, and charges filed, could mean that Mueller thinks he’s guilty, even if he cannot yet prove it. Or it could mean that Mueller thinks Trump is innocent, and all he needs is to do is interview him to make sure.
"It isn't news that the president is a subject, but it is news that the president is still a subject, that the president is still under criminal investigation," said John Barrett, a former associate special counsel in the Iran-Contra affair and a law professor at St. John’s. "It's a fair guess that this is a live question, and some kind of direct examination is required to move him up, move him down, move him sideways, and continue to assess."
There’s one other wrinkle here, however. The Justice Department’s current position is that a sitting president cannot be indicted. If Mueller is following Justice Department regulations—and there’s no reason to believe he isn’t—Trump might never move from subject to target, no matter how much evidence of his apparent guilt Mueller obtains.
“Because of the unique position of the president, I could imagine a subject determination by a prosecutor being connected to the legal position that the Justice Department has taken that a president could not be indicted,” said Barrett. "Someone who is not the president who is up to their neck in criminality might be a target. If that's the case here and Mueller believes the president can't be prosecuted, that might be another reason to label him a subject rather than a target."
Far more likely than an indictment is a detailed assessment by Mueller of Trump’s role in whatever the special counsel investigation uncovers. The Post reports that “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.” Deputy Attorney General Rod Rosenstein would decide whether to make such reports public, Congress could decide whether or not what is in the reports merits impeachment.
The president is neither out of the woods in the Russia investigation, nor is he likely to face criminal charges any time soon, if ever. But for the president’s attorneys, who have reportedly been trying to prevent their client from firing the special counsel, the headlines that identify Trump as not currently a target of a criminal investigation may provide some comfort.