Deputy Attorney General Rod Rosenstein reportedly told President Donald Trump that he’s not the “target” of Special Counsel Robert Mueller’s Russia probe or the investigation into Trump Attorney Michael Cohen being overseen by the US Attorney for the Southern District of New York. But, that does not mean that the President is off the hook. Not being a target merely indicates that prosecutors have not yet decided to pursue criminal charges. Further, under the standing Justice Department interpretation of the law, a sitting President cannot be subject to a criminal indictment anyway — at least while they are in office.
Witness, Subject, Target
In a federal investigation, people fall into one of three categories: witness, subject or target. Each of these categories has a very precise meaning under Department of Justice rules. A witness is obviously someone who can provide information relevant to a case; subject is someone whose conduct merely falls within the scope of a grand jury investigation, and; a target, according to the Department of Justice’s U.S. Attorneys’ Manual, is someone “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.”
Earlier this month, The Washington Post reported that Mr. Trump was a subject of the Mueller probe but not a target. But, a subject of an investigation may become a target. “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,” Bruce Green, a former federal prosecutor and a law professor at Fordham University told The Atlantic. “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.”
In the peculiar circumstances of an investigation involving a sitting President, it’s not clear that a sitting President could technically be considered a target of an investigation. This is because under a longstanding interpretations by the Justice Department’s Office of Legal Counsel (OLC), “a sitting President is constitutionally immune from indictment and criminal prosecution.” An OLC memo in 1973 written during the Nixon administration and subsequently affirmed by a 2000 OLC memo during the Clinton administration, found that “the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers.”
Since prosecutors could not bring criminal charges, a President would never technically meet the definition of a target, at least while holding office. While it’s unclear whether Mr. Rosenstein’s assurances to Mr. Trump rely on such a technical interpretation of the definition of a target, it’s possible that the distinction between a subject and a target is meaningless in the peculiar circumstances of an investigation of a sitting President.
Of course, it’s also very possible that when Mr. Rosenstein told President Trump he wasn’t a target, the Deputy Attorney General meant it in the more conventional sense of prosecutors having not yet acquired sufficient evidence that a crime was committed by the President.
Impeachment Versus Criminal Prosecution
Regardless, none of this means that a President is above the law, just that impeachment rather than prosecution is the appropriate venue to hold a sitting President accountable. Once he no longer holds office, a President could still be subject to criminal charges.
It is very likely that Special Counsel Robert Mueller accepts the Office of Legal Counsel’s view that a criminal indictment against the President is not a valid outcome of his investigation. Mr. Mueller may intend instead to produce a report to Congress and leave it to would the House of Representatives to determine whether the President’s actions meet the Constitution’s “high crimes and misdemeanors” standard for impeachment.
“High crimes and misdemeanors” is sufficiently vague that impeachment is rendered an inherently political question. No matter what Mr. Mueller reports, if Democrats win the House in November, it’s near certain that they will find his conclusions worthy of impeachment. But, so long as Republicans hold the House, it’s likely they won’t.
The Washignton Post reported a few weeks ago that in negotiations with the President’s legal team in early March, Mr. Mueller told the President’s lawyers that he is preparing a report detailing potential obstruction of justice. While Mr. Trump may not be the target of either investigation in a literal sense, he’s not out of the woods either.