Mueller’s inducement

The Washington Post reports that special counsel Robert Mueller told President Trump’s lawyers last month that Trump isn’t currently a criminal target in the Russia investigation. Mueller reportedly added, however, that Trump remains a subject of his investigation.

What should we make of this? Given what we have seen from Mueller and what we know about his staff’s political leanings, I view Mueller’s statement as comparable to Leopold and Loeb saying they haven’t decided to kidnap your teenage son, but they’re interested in him.

In context, Mueller’s statement seems like an attempt to induce Trump to be interviewed by Mueller. It is said that Trump’s legal team clashed over whether the president should agree to such an interview, and that John Dowd, who was adamant that Trump should not agree, quit the team over this issue.

Dowd was right. The risk that an interview would enable Mueller to accuse or charge Trump with making false statements is enormous. The risk that Trump would make true statements that Mueller could use against him is substantial. And these two consequences are not incompatible.

Mueller’s statement leaves open the possibility that Trump might become a criminal target. Subjects can easily become targets, especially if they make statements to investigators that the investigators deem false.

But does Mueller’s statement mean that his team has failed to find evidence of collusion between Trump and Russians? After all, Mueller has been probing this issue for a year. If he hasn’t uncovered evidence sufficient to make Trump a criminal target, then he has probably come up empty on this front, at least.

The problem with this view is that Mueller may have concluded he lacks the power to charge Trump with any crime. The Justice Department’s Office of Legal Counsel twice concluded (once in 1973 and again in 2000) 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.”

If Mueller agrees, then his statement that Trump is not a criminal target probably tells us nothing about how he evaluates the evidence.

Trump can take some comfort if Mueller believes he lacks the power to indict and prosecute the president. At least he, and the nation, would be spared of that.

But this comfort does not change the analysis regarding an interview with Mueller. In lieu of an indictment, Mueller could write a report savaging Trump. The report would serve as a vehicle for impeaching Trump if Democrats gain control of the House. Any false statements Mueller finds Trump to have made would likely be its own article of impeachment.

So far, my focus has been on the Russia collusion angle. However, obstruction of justice should probably be of greater concern for Trump and his lawyers.

Looking at the matter from the outside, a case of obstruction seems problematic. A president asking, but not requiring, the FBI director to consider going easy on Michael Flynn isn’t obstruction of justice under any reasonable analysis. Neither is firing the FBI director, especially since the decision does not appear related to the director’s handling of the Flynn matter and since the decision clearly was not intended to, and did not, end the Russia probe. The notion that tweeting negative things about the special counsel constitutes obstruction is laughable.

But making false statements to the special counsel? That looks like obstruction of justice. In any case, it’s a crime in itself.

Not agreeing to an interview with the special counsel? That might look bad, but I don’t think it’s a sound basis for alleging obstruction of justice.

Trump shouldn’t talk to the special counsel.