After more than a year of investigations and accusations, has the “collusion” case against Donald Trump come up empty? Or will it just shift into a purely political form? Last night, the Washington Post’s Carol Leonnig and Robert Costa reported that special counsel Robert Mueller told Trump’s attorneys in March that the president is not the target of a criminal investigation, although he remains a subject of the investigation.
Don’t pop the corks just yet in the Oval Office, however:
Special counsel Robert S. Mueller III informed President Trump’s attorneys last month that he is continuing to investigate the president but does not consider him a criminal target at this point, according to three people familiar with the discussions.
In private negotiations in early March about a possible presidential interview, Mueller described Trump as a subject of his investigation into Russia’s interference in the 2016 election. 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.
The special counsel also told 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.
What precisely does that mean? In legal terms, it probably means that Mueller doesn’t have enough evidence of a crime committed by Trump to indict him. Subjects of investigations can become targets easily enough (more on that in a moment), but the passage of time and the hyperbolic attention to this investigation matter here. Mueller has had free rein and massive resources for ten months, and the FBI had been investigating the circumstances surrounding the 2016 election for months before that. If they haven’t come up with evidence of a crime by Trump at this point, it seems doubtful if they ever will.
But is that all it really means? Leonnig explains that Mueller’s team may be more interested in taking a page from James Comey’s playbook. Rather than indict Trump — which the Office of Legal Counsel believes is impossible for a sitting president — Mueller may want to issue a report that makes it clear his “subject” crossed legal lines, leaving it up to Congress or the American people to take action themselves:
If Mueller accepts the finding of the OLC that a sitting president cannot constitutionally be indicted, then Trump couldn’t ever be a “target” of an investigation. That, however, doesn’t mean that Mueller hasn’t found enough evidence to create other headaches for Trump. And that could still leave open what happens to Trump after he leaves office.
Even if this isn’t a decision driven by the OLC opinion, Mueller can still do a lot of damage. Remember Comey’s July 5th statement about Hillary Clinton? That may be what Mueller has in mind for Trump. Rather than blow up the Department of Justice by filing an indictment that might never get pursued, Mueller may just be preparing to challenge Congress to impeach Trump. Failing that, a harsh report might be intended to ensure that Trump looks bad enough in the end to keep him from being re-elected in 2020, or perhaps discourage Trump from running at all.
Plus, “subjects” can turn into “targets” easily enough. Usually they do so by opening their mouths to investigators or grand juries, which brings us back to the sudden departure of John Dowd from Trump’s legal team almost two weeks ago. Leonnig and Costa report that Dowd left because he didn’t want Trump talking to Mueller at all, even after hearing that Trump wasn’t a target of the Mueller probe, but that the rest of his legal team apparently thinks Trump has to follow through on his promises:
Dowd told the president the case against him was weak, but warned Trump he could create criminal jeopardy for himself if he agreed to an interview and misspoke under oath, the friend said. Dowd repeatedly pointed to the Trump campaign advisers who have pleaded guilty to making false statements in the Mueller probe — including Flynn, adviser George Papadopoulos and former campaign official Rick Gates. …
However, Sekulow and Cobb gave the president the opposite advice as Dowd: that it would be politically difficult for Trump to refuse to answer questions after insisting for months there was no collusion or crime, according to three people familiar with their advice.
Still, the lack of target status at this stage seems significant, even if it may not final yet. After more than a year of hyperventilation about Russian “collusion” by Trump, it appears that Mueller has not been able to connect dots to Trump himself. And with as much resources and time that have gone into the probe over the last fifteen months or so, that certainly raises the question as to whether there were any dots to connect all along.