Trump "target" not "subject" of Mueller investigation

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The big news in this Post story is not that President Trump isn’t a “target” of special counsel Robert S. Mueller III’s investigation. Rather, it’s that Mueller is planning a report on Trump’s conduct, particularly as it relates to actions on his part that could constitute obstruction of justice.

Will that report ever get released? Most likely, yes. But there are some very unpleasant scenarios that could intervene — including the very real possibility that congressional Republicans will do all they can to keep Mueller’s report under wraps. This is something they can try to do, it turns out.

The Post report notes that Mueller has informed Trump’s lawyers that he doesn’t consider him a criminal target at this point. But it says Trump is still a subject of the investigation, which means his conduct is still being scrutinized, even if there aren’t grounds for criminal charges.

It has always seemed unlikely that Trump would be indicted, particularly for obstruction of justice, as there’s a robust debate over whether the executive branch’s constitutional authority even allows for a president to be held criminally liable for such conduct. Rather, the question has been how serious his misconduct was, and we might find out soon enough:

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations. …

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 the regulations that govern appointment of the special counsel, Mueller is supposed to provide a “confidential” report explaining his conclusions to the attorney general — or, in this case, to Deputy Attorney General Rod J. Rosenstein, since Attorney General Jeff Sessions has recused himself. Rosenstein is then supposed to provide the chairmen and ranking members of the House and Senate judiciary committees with an “explanation” for any decision to conclude the investigation. This explanation can be released if he decides it would be “in the public interest.”

There has been a robust debate over what these regulations really mean. One convincing interpretation is that Mueller himself probably wouldn’t produce an exposé in the tradition of the Kenneth W. Starr report and likely would stick to a more orthodox prosecutorial role. His report probably would remain confidential, barring some sort of extraordinary actions.

But the real question may be whether Rosenstein’s report will ever come out — and what it might look like. According to legal experts I spoke with today, the regulations appear to give Rosenstein room to decide what his “explanation” to the judiciary committees will entail in detail and scope.

“He could write a two-sentence explanation — or he could write something very detailed,” Andrew Kent, a professor at Fordham University School of Law, told me today. “There appears to be a great deal of discretion vested by the regulations to determine how detailed a report to write. The regulations don’t limit that.”

Rosenstein would likely come under great pressure to produce something detailed to Congress, provided it remained within secrecy constraints, Kent continued. At that point, Rosenstein could release it himself. Or, if not, the report could leak, or portions could be described to reporters. Or, Kent said, Congress could even consider trying to legislate for its partial or complete public release.

And that raises a host of other possibilities. Republicans — who, you may recall, are in the majority — could block a vote on whether to release Rosenstein’s report, or could vote against it. If you don’t think those are real possibilities, you haven’t been paying attention. Republicans have blocked transparency on Trump’s tax returns and have perverted the oversight process into a counter-investigation that is grounded in alternate reality and is designed to frustrate accountability. So nothing should be deemed off limits.

If Republicans did block its release, Democrats could campaign against that in the midterm elections, says Stephen Vladeck, a law professor at the University of Texas at Austin. “If Democrats take the House, the report would still be sitting there when they took control in January,” Vladeck said. “If the report is not shared with the public, that could just be temporary.”

Trump could respond to a congressional vote to release the report with a veto. But Congress could override that, particularly if Democrats win big this fall. Or Trump might try some kind of executive action to block release. It seems likely some sort of showdown is coming.

Let's hope nobody tips off trump that mueller is trying to bait him.

Obviously his people are aware of the possibility and cautioning him.. but reality is that he's stupid enough to have let his guard down for a bit and may have said or done something that'll help Mueller's investigation.

Keep your fingers crossed until something finally happens. Then again if you do that for too long you might get arthritis of something.