With the Washington Post’s revelation that President Trump is not the “subject” of criminal investigation, special prosecutor Robert Mueller’s strategy for completing his probe is coming into view.
Mueller has pinned down Trump with two grand juries, issuing a wide net of indictments on diverse charges that have kept the president off-balance. The sentencing of Alex van der Zwaan, a Dutch lawyer working for indicted Trump aide Rick Gates, underscored a message for the president: those who lie to investigators face swift consequences.
What has seemed like an interminable inquiry now looks like it will terminate in a one-two punch: an interview with Trump followed by a report on the question of obstruction of justice.
All of this may well happen before the 2018 midterm elections.
Subject to Change
The president’s defenders can take solace in the studiously telegraphed message of the Post’s article: that Trump is not the “target” of investigation. In law enforcement terms, a subject is a person who has engaged in conduct that is under investigation, but there is not sufficient evidence to bring charges.
Substantively, this is not a huge new development. The Post reported last June that Mueller was investigating Trump for possible obstruction of justice. What’s new is how Mueller plans to finish the job.
What Mueller is saying, via the Post, is that he does not have sufficient evidence to charge the president with wrongdoing. Through deft use of leaks—and we can be sure Mueller is not unhappy about the Post story—Mueller is sending the message that he wants to talk to the president, sooner rather than later.
Some of the president’s advisers intuit Mueller’s endgame, according to the Post. They “noted that subjects of investigations can easily become indicted targets—and expressed concern that the special prosecutor was baiting Trump into an interview that could put the president in legal peril.”
That is exactly what Mueller is doing.
With the president’s legal team in turmoil, Trump is already in peril. His attorney John Dowd, a heavy-hitter from Wall Street, resigned last month after Trump rejected his advice to refuse Mueller’s request for an interview.
As Mueller closes in, Trump is poorly equipped to fight back.
He can’t find a replacement for Dowd. In normal circumstances, the most famous and capable conservative lawyers in Washington would welcome the chance to represent a Republican president. Ted Olson was the lead attorney in the Bush v. Gore case, which decided the 2000 election. Brendan Sullivan was attorney for right-wing hero Oliver North during the Iran-contra scandal. Both men declined to join Trump's team.
Trump then hired hatchet man Joseph diGenova, a former U.S. attorney whose TV talking-head skills exceed his courtroom reputation. DiGenova lasted only a few days and was relieved, apparently for reasons of "chemistry."
Mueller is also letting the public know that his investigation is beginning to end, at least on the question of obstruction of justice.
From the Post:
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.
“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.
If the president refuses to be interviewed, Mueller’s team can start writing their report. If Trump agrees to sit down with Mueller, the report will have to wait a little longer. Either way, Mueller’s report on the obstruction of justice question seems likely to be finished well before the November midterm elections.
Mueller then has to submit his findings to Deputy Attorney General Rod Rosenstein, who supervises the special prosecutor because Attorney General Jeff Sessions has recused himself. It is Rosenstein, not Mueller, who must decide if Mueller’s findings should be made public.
It is not hard to figure what Rosenstein will do. He is a career Justice Department attorney and a civil servant, like Mueller. He appointed Mueller last May. In December, he deflected demands for Mueller’s head. And—another timely disclosure by Mueller’s office this week—Rosenstein authorized Mueller’s investigation of Trump campaign manager Paul Manafort.
All in all, it's bad news for the White House. Mueller’s clock is running out and Team Trump is in disarray.