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April 5, 2018

In Russia probe, the difference between ‘target’ and ‘subject’ matters a great deal

The following was originally published in the Boston Globe on April 4th, 2018

President Trump is not a target of special counsel Robert S. Mueller III’s criminal investigation, but he will continue to be investigated. That is what Mueller told Trump’s lawyers last month, according to a report in the Washington Post.

In the wake of this report, commentators have rushed breathlessly to explain the significance of this news. Trump’s supporters have claimed that the fact that he is not a target of the investigation shows he has been cleared, and vindicates his long-held position that there was “no collusion” and no basis for investigating him. Others less kindly disposed to the president have asserted that the fact that he is a “subject” of the investigation means that he is being actively investigated, and is in real jeopardy of being indicted or charged.

In reality, neither side is correct. That is because the reported communication from Mueller does not reveal enough to support either position. As news, it is a real nothingburger.

The reason for this is that “target” and “subject” are terms of art, defined by the Justice Department Manual and refined by decades of practice in the world of white-collar criminal investigations. “Target” means someone “as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” A “subject” of a federal criminal investigation is “a person whose conduct is within the scope of the grand jury’s investigation.” There is a third, and most benign, category, and that is “witness,” which in practice is confined to people who have no role in the conduct under investigation, but who may have information about those who are involved.

This stratified structure places “targets” in great jeopardy, “witnesses” in virtually none (as long as they don’t lie to the prosecutors or grand jury), and “subjects” in a broad and amorphous category falling between the two. In the real world, nearly everyone who is subpoenaed or questioned during a federal criminal investigation, or who comes to the prosecutors’ attention, falls under the broad rubric of “subject.” Very few people are “targets,” except for those who are ultimately indicted.

For this reason, it is unsurprising that Mueller would not designate Trump a “target” at this time. In most cases, a “target” designation would only be earned as an investigation winds down, and people who were previously considered “subjects” are converted to “targets” as prosecutors amass and assess the evidence against them, and prepare to indict them.

But the difficulty in assessing the report that the president is a “subject” of the investigation is that the definition and interpretation of “subject” in practice are too broad to have any real meaning. A “subject” who is closer to the “target” end of the wide spectrum is in very real jeopardy. But a subject who is closer to the benign “witness” end of the spectrum has little likelihood (at least at the time of the designation) of being prosecuted. The Post report furnishes no information about where on this spectrum the president currently falls, and so precludes an informed judgment about the significance of a mere “subject” status, without more.

That is not to say that informed guesses cannot be made from publicly available information. It is clear that Mueller and his team are actively investigating conduct and events that could seriously implicate the president. The involvement of three of his top campaign aides in the infamous “Trump Tower meeting” in June 2016, with Russians having government links who had offered negative information about Hillary Clinton, clearly puts his son, son-in-law, and campaign manager (who has been indicted for unrelated financial crimes) in the crosshairs of the collusion investigation. And it imperils the president if he knew about it before-the-fact.

Public reporting appears to demonstrate that the president was well aware of the meeting at least after the fact, as he actively participated in the preparation of a statement onboard Air Force One to mislead the public that the meeting concerned adoption of Russian children rather than negative information about his campaign foe. This and other publicly available information about the firing of James Comey after he would not agree to end the investigation of former National Security Adviser Michael Flynn shows that the Mueller team is actively investigating the president for obstruction of justice. But how far along the “subject” spectrum this investigation has placed the president is the great unknown.

What we do know for certain is that we know far less than Mueller and his team. When he told Trump’s lawyers that their client was a subject but not a target of the investigation, the famously tight-lipped Mueller intended to convey only the sparsest of information to them. And he succeeded.

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