Did Trump’s lawyers ask the right questions?

The Washington Post reports that, last month, Special Counsel Robert MuellerRobert (Bob) Swan MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE told President TrumpDonald John TrumpFed saw risks to US economy fading before coronavirus spread quickened Pro-Trump super PAC hits Biden with new Spanish-language ad in Nevada Britain announces immigration policy barring unskilled migrants MORE’s lawyers that Donald Trump is a “subject” of his investigation, not a “target.” Sounds pretty good, doesn’t it? It almost sounds, at least to the layman, that Mueller is not actually, at least currently, going after the president with his investigation into Russia’s interference in the 2016 U.S. election. If I were the president — having been bombarded with all of these witnesses popping up as Mueller-cooperators and all these potential areas of investigation — I’d be happy, indeed, that Mueller doesn’t see me as a target of his investigation. But is that happiness justified, or justifiable?   

Many recent articles asked this question: Should Trump be happy, or should Trump be sad? Despite what many talking heads or columnists are saying, we — and they — really don’t know the answer, because we’re all simply not sure if the right (or at least most probative) questions were asked of Mueller. We don’t know what it really means that Trump is a “subject” of the investigation.

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To be sure, it is preferable to be a subject rather than a target. In the Justice Department’s lexicon, being a “target” means that the prosecutor actually has in the grand jury or in his possession “substantial evidence linking him to the crime.” It means, basically, that the government is in a position to indict, unless talked out of it. That’s serious business.

 

Being a subject can be totally different, but maybe not. A subject is defined as “a person whose conduct is within the scope of the grand jury’s investigation.” As a colleague of mine used to say, the status as “subject” has the elasticity of a rubber band — meaning, one can be a subject if the prosecutor is suspicious (and interested) but simply doesn’t yet have the goods; or one can be a subject if he was in the wrong place at the wrong moment even if the prosecutor thinks he is innocent.

No question, the president’s lawyer(s) would have asked Mueller about Trump’s status — target or subject (or, perhaps they hoped, nothing at all except a possible witness). But any experienced criminal lawyer gains no comfort when he hears that his client is a subject. Indeed, when he hears that, he hears the words, “Your client is not a subject at this time.” Criminal lawyers understand that the status could change to target tomorrow if a piece of evidence falls into the prosecutor’s lap. In fact, most careful prosecutors say subject “at this time” as a matter of course.

The more valuable questions for the lawyer to ask the prosecutor may require a more candid response. Specifically, “Are you looking to prosecute my client?” And, if the answer is “yes,”  “Are you open to not prosecuting him?” Those are the real questions for which defense counsel needs answers. If the prosecutor answers “yes” to the first, the defense lawyer knows that yielding to an interview or giving grand jury testimony are actions fraught with considerable danger. And assuming the prosecutor answers “yes” to the second question, this danger exists even if that interview or testimony might be sufficiently compelling to end the investigation and the prosecutor’s interest in that client.    

The problem is that prosecutors may be unwilling to give a candid answer to such questions. They may beat around the bush with some evasive statement — “I can’t answer at this time”; “My office’s policy is not to answer questions like that”;  “As I told you, he’s a subject.” This, of course, leaves the lawyer with nothing more than he had before: a client as a subject.

The Supreme Court once said in another context, involving the providing of exculpatory material to the defense, that there should not be a “sporting theory of justice.” Yet, prosecutors (I’m not referring here to Mueller, since I don’t know) frequently are willing to hide behind rhetoric and decline to let defense counsel know the true status of a client. This is so even at critical moments where the prosecutor may stand on the verge of that make-or-break decision of whether to prosecute.

But isn’t there something wrong with that? I understand that prosecutors need not show their hand, and I also understand that they cannot outright lie. But why should they be allowed to obfuscate when asked a direct question — not one about the specifics of their case evidence or findings, but one about whether they are seeking to prosecute a particular person? It should be noted that Trump’s lawyers may not have wanted to ask, “Are you seeking to indict him?,” fearful that an adverse answer could leak into the public discourse.

We obviously don’t know the full content of the conversations between the president’s counsel and Mueller. That said, it is important that the president’s counsel has been accorded a fair explanation of the president’s status in the investigation, since how Trump is treated may be viewed as an exemplar for how justice is dispensed generally.

If Mueller actually is seeking to indict Trump, as he may be, the president’s counsel probably  asked him the right questions. And if so — and if Mueller is looking to interview him, particularly given the political considerations — doesn’t the president deserve an answer so that he and his lawyers can fairly evaluate their options?

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.