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April 4, 2018

Leak that Trump is not a 'criminal target' of Mueller team looks like manipulation

By Thomas Lifson

I am suspicious of the latest "news" regarding the Mueller probe that has morphed from its original charter to investigate Russian interference into the 2016 election into something far broader, based on a secret memo from Rod Rosenstein.  According to leaks to the Washington Post by "two people with knowledge of the conversations":

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.

Before any Trump-supporters take comfort in this, consider that this is far from a final dismissal of charging Trump.  The difference between a "subject" and a "target" is explained in The Week:

A "subject" is someone whose conduct prosecutors are investigating but they don't have sufficient evidence to bring charges against.  Mueller and Trump's attorneys were negotiating the terms of a possible presidential interview when he made the announcement, and Mueller said he wants to ask Trump about whether he tried to block the investigation so he can finish this part of the probe, the Post reports.  Mueller also told Trump's attorneys he is working on a report about Trump's actions while in office and potential obstruction of justice, two people with knowledge of the matter told the Post.

Josh Gerstein in Politico adds:

"As a practical matter, federal prosecutors typically don't decide until late in an investigation whether they will charge a person who is under investigation," former federal prosecutor Renato Mariotti wrote on Twitter.  "Usually prosecutors don't make that judgement [sic] until they've interviewed witnesses and reviewed the relevant documents. ... All today's news tells us is that Mueller hasn't decided to indict Trump at this time.  If Trump's lawyers know what they're doing, they'll tell him he's still under great risk."

But what leaped out at me is something highly irregular, it seems.  From the WaPo:

Mueller's investigators have indicated to the president's legal team that they are considering writing reports on their findings in stages – with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

The key word here is "confidentially."  Yet the very next paragraph in the story, written by Carol D. Leonnig and Robert Costa, tells us:

"They've said they want to write a report on this – to answer the public's questions – and they need the president's interview as the last step," one person familiar with the discussions said of Mueller's team.

Clarice Feldman notes that Mueller has no authority to issue a public report.  The statute governing him is different from the one that that applied to the Kenneth Starr investigation.

(c)Closing documentation. At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

Yet left-wing Trump-hating Harvard Law School professor Laurence Tribe is exultant about the prospect of a report that has no basis in law:

It appears to me that, based on the WaPo's leaks (if accurate), the Mueller team is planning to manipulate public opinion and thereby Trump's decision on whether to speak with the investigators:

Mueller's investigators have indicated to the president's legal team that they are considering writing reports on their findings in stages – with the first report focused on the obstruction issue, according to two people briefed on the discussions. ...

The president's allies believe a second report detailing the special counsel's findings on Russia's interference would be issued later.

Obstruction would be a process crime.  We have no information about what exactly might be in such a report, but there have been suggestions that President Trump's firing of James Comey as FBI head – his clear constitutional prerogative – could be taken as obstruction.  I am no lawyer, but this would require mind-reading of a high order.  And criminalizing the exercise of constitutionally stipulated powers seems highly dubious.

The Post cites anonymous "experts" who believe that the goal is not criminal charges, but impeachment:

If Mueller finds Trump engaged in criminal conduct, he could detail it in a report, experts argue, and let Congress to decide whether to launch impeachment proceedings based on Mueller's findings.

"The president's personal risk is primarily on the impeachment front," [Princeton professor Keith] Whittington said.  "Even if there are not things that lead to indictment, there may be matters that warrant an impeachment investigation and proceedings."

I am highly suspicious that the leak that he is not a criminal target and prospect of a public report by Mueller – despite the fact that the law specifies that his report must be confidential – is being used to manipulate President Trump into speaking with the Mueller investigators.  As General Flynn learned, even innocent memory lapses or inadvertent misunderstanding of the scope of a question can lead to criminal charges with this group made up of mostly or exclusively Democrat partisans.

The Trump legal team is remaining silent for now.

Private lawyer for Trump, Jay Sekulow, declined to say Tuesday whether Mueller's office has raised the possibility of a report or offered an assurance about Trump's status in the ongoing probe.

"We do not discuss real or alleged conversations between our legal team and the Office of Special Counsel," Sekulow said.  White House attorney Ty Cobb also declined to comment.

I am suspicious of the latest "news" regarding the Mueller probe that has morphed from its original charter to investigate Russian interference into the 2016 election into something far broader, based on a secret memo from Rod Rosenstein.  According to leaks to the Washington Post by "two people with knowledge of the conversations":

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.

Before any Trump-supporters take comfort in this, consider that this is far from a final dismissal of charging Trump.  The difference between a "subject" and a "target" is explained in The Week:

A "subject" is someone whose conduct prosecutors are investigating but they don't have sufficient evidence to bring charges against.  Mueller and Trump's attorneys were negotiating the terms of a possible presidential interview when he made the announcement, and Mueller said he wants to ask Trump about whether he tried to block the investigation so he can finish this part of the probe, the Post reports.  Mueller also told Trump's attorneys he is working on a report about Trump's actions while in office and potential obstruction of justice, two people with knowledge of the matter told the Post.

Josh Gerstein in Politico adds:

"As a practical matter, federal prosecutors typically don't decide until late in an investigation whether they will charge a person who is under investigation," former federal prosecutor Renato Mariotti wrote on Twitter.  "Usually prosecutors don't make that judgement [sic] until they've interviewed witnesses and reviewed the relevant documents. ... All today's news tells us is that Mueller hasn't decided to indict Trump at this time.  If Trump's lawyers know what they're doing, they'll tell him he's still under great risk."

But what leaped out at me is something highly irregular, it seems.  From the WaPo:

Mueller's investigators have indicated to the president's legal team that they are considering writing reports on their findings in stages – with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

The key word here is "confidentially."  Yet the very next paragraph in the story, written by Carol D. Leonnig and Robert Costa, tells us:

"They've said they want to write a report on this – to answer the public's questions – and they need the president's interview as the last step," one person familiar with the discussions said of Mueller's team.

Clarice Feldman notes that Mueller has no authority to issue a public report.  The statute governing him is different from the one that that applied to the Kenneth Starr investigation.

(c)Closing documentation. At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

Yet left-wing Trump-hating Harvard Law School professor Laurence Tribe is exultant about the prospect of a report that has no basis in law:

It appears to me that, based on the WaPo's leaks (if accurate), the Mueller team is planning to manipulate public opinion and thereby Trump's decision on whether to speak with the investigators:

Mueller's investigators have indicated to the president's legal team that they are considering writing reports on their findings in stages – with the first report focused on the obstruction issue, according to two people briefed on the discussions. ...

The president's allies believe a second report detailing the special counsel's findings on Russia's interference would be issued later.

Obstruction would be a process crime.  We have no information about what exactly might be in such a report, but there have been suggestions that President Trump's firing of James Comey as FBI head – his clear constitutional prerogative – could be taken as obstruction.  I am no lawyer, but this would require mind-reading of a high order.  And criminalizing the exercise of constitutionally stipulated powers seems highly dubious.

The Post cites anonymous "experts" who believe that the goal is not criminal charges, but impeachment:

If Mueller finds Trump engaged in criminal conduct, he could detail it in a report, experts argue, and let Congress to decide whether to launch impeachment proceedings based on Mueller's findings.

"The president's personal risk is primarily on the impeachment front," [Princeton professor Keith] Whittington said.  "Even if there are not things that lead to indictment, there may be matters that warrant an impeachment investigation and proceedings."

I am highly suspicious that the leak that he is not a criminal target and prospect of a public report by Mueller – despite the fact that the law specifies that his report must be confidential – is being used to manipulate President Trump into speaking with the Mueller investigators.  As General Flynn learned, even innocent memory lapses or inadvertent misunderstanding of the scope of a question can lead to criminal charges with this group made up of mostly or exclusively Democrat partisans.

The Trump legal team is remaining silent for now.

Private lawyer for Trump, Jay Sekulow, declined to say Tuesday whether Mueller's office has raised the possibility of a report or offered an assurance about Trump's status in the ongoing probe.

"We do not discuss real or alleged conversations between our legal team and the Office of Special Counsel," Sekulow said.  White House attorney Ty Cobb also declined to comment.