Is this news? The fact that Rosenstein said this to Trump personally a few days after signing off on the Michael Cohen raid is newsy in an “oh, to be a fly on the wall” way, I suppose. But WaPo reported a few weeks ago that Mueller’s office already told Trump’s lawyers in March that he wasn’t a target. All Rosenstein did was reaffirm that fact a few weeks later.
I do think there’s something legitimately newsy here, though.
Deputy Attorney General Rod Rosenstein told President Donald Trump last week that he isn’t a target of any part of Special Counsel Robert Mueller’s investigation, according to two people familiar with the matter…
After the meeting, Trump told some of his closest advisers that it’s not the right time to remove either [Rosenstein or Mueller] since he’s not a target of the probe. One person said Trump doesn’t want to take any action that would drag out the investigation…
“They’ve been saying I’m going to get rid of them for the last three months, four months, five months,” Trump said [yesterday to reporters] at his Mar-a-Lago resort in Palm Beach, Florida. “And they’re still here. We want to get the investigation over with, done with, put it behind us. And we have to get back to business.”
Actually, firing Rosenstein and Mueller now makes more sense than waiting until Trump is named a target. If he fires them now, he can point to the fact that he hasn’t been designated a target (yet) as evidence that he wasn’t trying to obstruct the probe because it threatened him. It doesn’t threaten him! He isn’t a target.
But let’s back up, as there’s legalese at work here. Trump isn’t a “target” of Mueller’s investigation — but he may be a “subject.” What does that mean? Former federal prosecutor Ken White explained earlier this month:
[C]alling someone a target means “we’re planning on indicting you if we can.” Calling someone a subject means “we’re developing evidence about what you did and if we find support for it we may indict you.”…
The analogy I sometimes use with clients is this: if you’re a target, you’re walking across an open field and a sniper is shooting at you from a tower. If you’re a subject, you’re walking across an open field and a sniper is shooting, but not shooting at you at this particular moment. How much safer do you feel?
Has someone put it in those terms for POTUS? He might not feel as comfortable “merely” being a subject of the probe if they did. There’s another wrinkle, which Ed noted in his post about the WaPo piece on April 4: It may be that Mueller intends to go to Congress rather than to a grand jury if he finds probable cause to believe Trump committed a crime, on the theory that the proper authority for dealing with a criminal in the Oval Office is the House (at least in the short term). If that’s the case then Trump would *never* be considered a “target” of Mueller’s probe. Mueller may have a mountain of evidence of criminality that he’s prepared to publish in a report to Rosenstein but because he wouldn’t be seeking an indictment, Trump wouldn’t be a “target.” If that’s the case then Rosenstein’s assurances mean nothing. Trump could be in dire jeopardy and Rosenstein would be tricking him into believing otherwise via a legal term of art.
In fact, prosecutors might classify someone as a “subject” rather than a “target” as a means to an end, per White: “Some prosecutors — ones who risk a bad reputation — will disingenuously classify someone as a subject in order to lure them and their attorneys into talking to the government, even if talking to the government would be manifestly a bad idea.” Trump has reportedly been wavering lately on sitting for an interview with Mueller. Could Mueller and Rosenstein be downplaying their suspicions about his behavior in order to make him feel safer about talking to them?
Assume, though, that Mueller is being above board, which is probably a safe assumption. He’s not playing word games for purposes of luring Trump into an interview or because he’s looking at impeachment instead of an indictment. In that case, how can it be that Trump isn’t a “target” of the obstruction prong of the investigation? That’s the newsy part here, potentially. The collusion wing of the probe involves many players but the obstruction wing has always centered on Trump and his inner circle. Did POTUS lean on Comey to cut Mike Flynn a break? Did he fire Comey to try to thwart the Russiagate probe? Did he help craft a misleading statement last year about Don Jr’s meeting with the Russian lawyer in 2016? Remember too that per various media reports the obstruction probe is winding down, with Mueller possibly set to issue a report as early as next month if Trump decides not to do an interview. Barring any new evidence at the eleventh hour or a disastrous decision by Trump to sit for an interview, If he isn’t a “target” of the obstruction investigation by now, it has to mean that Mueller is leaning towards clearing him on that charge, no? If they don’t have enough at this point to be working towards an indictment, they’re probably never going to have it.
Speaking of WaPo and Trump’s inner circle, your exit question: What does this mean, exactly?
Former New York mayor Rudolph W. Giuliani, a combative former prosecutor and longtime ally of President Trump, told The Washington Post on Thursday that he has joined the president’s legal team dealing with the ongoing special counsel probe.
“I’m doing it because I hope we can negotiate an end to this for the good of the country and because I have high regard for the president and for Bob Mueller,” Giuliani said in an interview.
What is there to “negotiate”? Mueller’s wrapping up the obstruction probe already. He’s not going to drop the collusion probe if there are still leads to follow just because Trump’s annoyed by it. If Trump fires him, it’ll hurt Trump far more than it will Mueller or the investigation. In which case, what’s his and Rudy’s leverage? Giuliani’s going to go to Mueller and ask him to do him a solid, one old prosecutor to another, for old time’s sake?