Flagpole about to look even more ridiculous than when he guaranteed Trump's loss.
In terminal medical cases, doctors often deal with patients who move through “stages” that begin with denial. These so-called Kübler-Ross stages can be a long road toward acceptance. A weird form of Kübler-Ross seems to have taken hold of the media. Rather than refusing to accept indicators of impending death, many journalists and analysts seem incapable of accepting signs that the Trump presidency could survive.
That painful process was more evident Tuesday night when the Washington Post reported that special counsel Robert Mueller told the White House last month that Trump was not considered a “target” but only a “subject” of the investigation. After a year of being assured that “bombshell” developments and “smoking gun” evidence was sealing the criminal case against Trump, the dissonance was too great for many who refuse to accept the obvious meaning of this disclosure.
The U.S. Attorney’s manual defines a “subject” as a “person whose conduct is within the scope of the grand jury's investigation.” It is a designation that can change but it is also a meaningful description of the current status of an individual. Mueller at this time apparently does not believe Trump meets the definition of a target or 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.” That would have been less notable when Mueller was appointed in 2017 than it is now, after more than a year, dozens of criminal counts, hundreds of thousands of documents, and a bevy of cooperating witnesses.
That Mueller does not believe there is “substantial evidence linking [Trump] to the commission of a crime” would seem to merit some, albeit grudging, recognition. However, there has been a disturbing lack of objectivity in the coverage of this investigation from the start. Throughout it, some of us have cautioned that the criminal case against Trump was far weaker than media suggested. Fired FBI Director James Comey himself told Congress that Trump was not a target of his investigation. Indeed, Trump was reportedly upset with Comey largely because Comey would not say that publicly.
When Trump fired Comey, I supported the call for a special counsel, and I still support Mueller in completing his investigation. However, the case of criminal conduct by Trump has not materially improved over the last year. Last October, Mueller brought the first indictments against former Trump campaign chairman Paul Manafort and his deputy, Richard Gates. Notably, none of the indictments were linked to the campaign, let alone Trump. When that obvious point was raised, we were told that it meant nothing and Mueller was likely holding back the really damaging indictments while pressuring Trump aides. Commentators continue to announce “bombshell” disclosures against Trump on a daily basis, with experts alleging clear cases for treason to obstruction to witness tampering and other crimes.
Then, in November, came the disclosure of plea agreements with former Trump national security adviser Michael Flynn and former campaign foreign policy adviser George Papadopoulos. However, these pleas were for making individual false statements to federal investigators. Neither the charges nor the narratives in the filings tied Trump or his campaign to any criminal act. Later indictments involving lawyer Alex van der Zwaan and internet operator Richard Pinedo involved a false statement and a single count of identity fraud, again unrelated to Trump or his campaign. Nevertheless, commentators insisted Mueller was just laying the groundwork for his major filing.
In February, Mueller handed down indictments of 13 Russian nationals and three Russian organizations for election-related crimes, from hacking to identity fraud. Not only did these charges not implicate Trump or his campaign, but the filing expressly stated that no one in the Trump campaign knowingly engaged Russians in these efforts. Now, Mueller reportedly has said he does not consider Trump a “target” of the criminal investigation. Looking at each of the prior filings, the disclosure would seem consistent with a lack of compelling evidence of a crime by Trump. Indeed, it would indicate Trump’s status has not changed from when Comey told Congress that Trump was not a target.
Still, some analysts immediately denied that Mueller’s disclosure was anything but bad news for Trump. On CNN, legal analyst Jeffrey Toobin insisted that “being a ‘subject’ is a very serious thing” and a “very significant designation” because it is clear “the FBI is investigating the president.” Of course, the only lower designation in a criminal investigation would be “witness.” Moreover, it was confirmed last year that Trump was being investigated.
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The obvious point is that, after months of investigating Trump, Mueller still does not have sufficient evidence to make him a “target.” True, a “subject” can become a “target” and a “target” can then become a “defendant,” but so can a “witness.” Clearly, Trump is a subject since he was the subject of the election itself and directly involved in the underlying matters under investigation. What is new is that Mueller confirmed Trump’s status has not changed.
Later, CNN analyst John Dean declared that an assurance Trump is not a target “does not mean a whole lot.” Dean’s rationale was that a president “cannot be indicted,” so Mueller would never have listed him as a target, regardless of the evidence. First and foremost, some of us believe a president can be indicted in office. While there is disagreement, including within the Justice Department and past independent counsels, the Supreme Court has never accepted such immunity from indictment.
More important, even if true, such immunity would not mean Mueller would declare Trump is not a target. Rather, Trump would remain a target as an unindicted co-conspirator or simply an unindicted person pending impeachment. Once impeached, he still could be indicted. Thus, it would be both illogical and unethical for Mueller to say Trump is not a target when he was pursuing possible charges, either as an unindicted co-conspirator or a post-impeachment defendant.
CNN analyst Philip Mudd was not satisfied with the “soft” depictions of the Mueller disclosure and declared that it was devastating news that Mueller was now investigating Trump and that, if Trump were declared a subject, “I would wet my pants.” CNN analyst Ryan Lizza went even further, suggesting that this was all a sham and Mueller is playing “chess to get the president into an interview.” Of course, such a bait-and-switch would be unethical in making false representations to the president’s counsel if Trump is already considered a target.
This continued refusal to acknowledge positive developments for Trump is a disturbing pathology. Just because Trump is a subject of investigation does not mean he cannot become a target. Moreover, Mueller — as expected — indicated he will prepare a report on his investigation. This is a positive development for Trump. What it shows, however, is that Trump’s status has not changed but neither has the status of much of the coverage. Many media commentators clearly are stuck on denial and are a long way from acceptance in dealing with the legal status of Donald Trump.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.