by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
According to The Hill, last month Robert Mueller told Trump’s attorneys that the President is a “subject” of the Special Counsel’s investigation, not a “target.” While both Trump’s supporters and his detractors may be tempted to read a lot into this report, former federal prosecutor Ken White suggests caution:
Colloquially, most federal prosecutors and defense attorneys would probably describe it this way: calling 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 distinction has some legal significance — under the provision linked above, prosecutors aren’t allowed to subpoena a target into the grand jury without warning them that they are a target, for instance. But the practical differences are murky.
Different prosecutors have different practices about when they call someone a target. Some will use that label as soon as they think it is likely they will be indicted. Some are more “cautious” and only classify someone as a target when they are quite sure that they’ll indict. 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. Other prosecutors are overcautious in the other direction and label people targets so no one can accuse them of hiding the ball.
There’s a benefit to knowing you’re a target — there’s no ambiguity and you can focus on going to the mattresses. It’s trickier if you’re a subject. Clients — and some lawyers — will clamor to talk to the prosecutors to convince them that they shouldn’t be a subject, that they should only be a witness. They see the “subject” designation as an opportunity to talk their way out of it. But for more cautious federal defense attorneys, the “subject” classification doesn’t change the strategy very much. The client can still become a target at any time. Talking to the government may well provide the information they need to make that decision. Furthermore, talking to the government often generates its own new crimes, as we’ve seen again and again in Mueller’s investigation as defendants have been charged (and in several cases pleaded guilty) to lying to the government. The situation is still one of intense danger, and no experienced defense attorney is relieved to hear their client is “only a subject.”
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?
Robert Mueller is rather by-the-book. Even when his goals are aggressive, his methodology is not envelope-pushing — he is meticulous about seeking judicial approval in the form of warrants and court orders. Some have speculated that he’s classifying Trump as a subject only because Trump can’t be indicted while in office and therefore can’t be a target. That logic strikes me as fanciful: no court has held that a sitting President can’t be indicted, Mueller has not said or done anything to indicate he holds that constrained view of his powers, and Mueller’s more likely to take a conservative read of the U.S. Attorney’s manual and warn Trump if he’s a target under any theory without applying such concealed logic.
Given Mueller’s caution (applying for judicial approval whenever necessary) and standard methodology (developing the case through subpoenas and interviews, catching suspects in lies and using those lies to flip them as cooperators, steadily indicting new defendants as they become vulnerable), the most reasonable explanation is that he means what he says — Trump is a subject. That doesn’t mean he’s made a determination that Trump won’t be indicted, or that it’s unlikely he’ll be indicted, or that he hasn’t committed crimes or wrongdoing. It doesn’t reflect a judgment on whether there has been a crime. It means he’s not there yet. Calling Trump a subject is completely consistent with continuing to pursue evidence that would move Trump into the target column. It doesn’t reduce Trump’s exposure at all. It doesn’t change the dilemmas his godforsaken criminal defense lawyers face. It doesn’t reduce the manifest dangers of him making a statement to Mueller. It doesn’t stop the process or the process stories or the steady rolling-up of Trump associates for various crimes and foolishness.
In this post-factual and obstinately legally illiterate world, though, the distinction will be used for propaganda. Don’t fall for it.