Tuesday, April 3, 2018
The Washington Post is reporting that "Mueller told Trump's Lawyers the President isn't" a target of the Special Counsel's Investigation, but that in early March "Mueller described Trump as a subject of his investigation." (see here & here)(emphasis added). Whether President Trump currently is a subject or witness is important, especially for legal counsel in advising whether their client should testify or speak with investigators.
"A target is a person 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." U.S. Attorney's Manual 9-11.151. Being told that one is not a target is definitely something good for President Trump to hear. But "[a] subject of an investigation is a person whose conduct is within the scope of the grand jury's investigation." Id. This is something that may or may not be good for President Trump. It can mean that the government just hasn't made up their mind yet as to whether the individual will remain under investigation or move to being a witness. This last category, a witness, is obviously the preferred place to be, if one has to be anywhere near a grand jury or being asked to speak with government attorneys.
"A grand jury may properly subpoena a subject or a target of the investigation and question the target about his or her involvement in the crime under investigation." U.S. Attorneys Manual 9-11.150. "It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation." U.S. Attorney's Manual 9-11.151. Because the DOJ Manual is unenforceable at law, there is little that one can do if they are not advised of their rights as a target or subject, except perhaps report the prosecutors for not following their internal policy. In some instances, more common perhaps in white collar cases, a subject or target may "request or demand the opportunity to tell the grand jury their side of the story." Government lawyers are instructed that a "refusal to do so can create the appearance of unfairness." U.S. Attorney's Manual 9-11.152.
But should a target or subject testify or even be questioned by government attorneys? Some white collar individuals feel they can talk their way out of an indictment, when in fact they are talking their way right into one. So targets and subjects can be hesitant to speak with the government without any immunity. Even with immunity, the fear is that they will provide false evidence, perjure themselves, or if not before a grand jury say something materially false to investigators and be criminally liable under the false statement statute (18 U.S.C. 1001).
So if reports are accurate that President Trump is not a target, this does not necessarily mean he can rest easy. If he remains a subject, then it will be more time before we know where things stand. It is common in white collar cases for individuals to remain in a holding pattern for many months and sometimes years as white collar investigations take time.