Like many, I was discouraged to hear reports that Robert Mueller stated back in March that the president was only a “subject” to the investigation, not yet a “target.”
Obviously there are some serious caveats that come from that story that should guard any conclusions.
First, the most obvious point is that the revelation came about through discussions about possibly interviewing Trump, something Mueller finds essential with respect to possible charges regarding obstruction. Under no circumstances is Mueller going to lead with “Your client is now a target in my criminal probe regarding obstruction …” in a situation where he is attempting to GET an interview. On the other hand, Mueller is not going to lie to Trump’s lawyers, either. It is very possible that Trump’s lawyers asked “Is Trump currently a criminal target?” Mueller would not lie, and I suspect that is one reason that we have all of this framed within the context of preparing a report for Congress regarding crimes committed while in office, which, by their very nature, would almost surely be limited to obstruction, until Trump lies to Mueller, which he obviously could.
Last night on Brian Williams’ “11th Hour” (Which is an excellent show because he gets fantastic guests), Williams interviewed a mess of lawyers and people smarter than me (even though I’m a lawyer, too). One of the attorneys noted that he believed it important to keep the caveat in mind; “crimes committed while in office.”
Robert Costa, a co-author of the story said it was a fair distinction, that the Mueller team believes there to be a clear distinction between crimes committed while in office (which would be the subject of the report, “obstruction” and I believe was the context of the Mueller-Trump team discussions), versus crimes committed prior to taking office. I believe (I am going off memory), that Costa said that the Mueller team did not believe they had authority to indict a president for crimes committed in office, that such an action could only be undertaken by Congress. I happen to agree (FWIW). I know some here think that a prosecutor should be able to indict a sitting president, but I think that is one extremely hazardous road that is much better avoided. You can argue; “But, with such a corrupt Republican Congress, he’s insulated and no one should be above the law ….” and you’d be correct. However, I believe that Congress is actually “less” corruptible (on the whole) than one lone rogue prosecutor — think Ken Starr, who also believed he could indict a sitting president for crimes committed while in office. To me, that is one sobering thought, and if Congress is too corrupt, than the country is fk’ed and we need take it back.
Thus it is that Robert Mueller’s office is preparing a report for Congress on “Obstruction” that the Mueller office wants to release in June (approx). This report will focus on possible crimes committed “while in office.”
I believe the discussion likely did NOT include requesting an interview about possible crimes committed prior to coming to office.
First, Mueller would have far less need to speak to Trump about pre-election crimes. When one launders money, there is often little to talk about. The money was either reported properly, or was not, not a ton of nuance.
Moreover, it sounded to me like Robert Costa stated that Mueller’s team did believe that they could indict a sitting president based on crimes committed prior to taking office (whether he could prosecute while in office is another question). Therefore, I think that these particular questions would be the subject of a separate report, one that will both report to Congress, and seek guidance on whether to move to prosecute or not, based upon the political fallout, which can’t be ignored when investigating the president, it is inherent to the process, much as we wish it were not.
The other reason that I think he limited this solely to “crimes committed while in office” and that the “subject-target” distinction does not apply to the crimes committed prior to office, is that — to our knowledge, and it would be impossible to hide, Jared Kushner has not been interviewed or subpoenaed.
There is no conceivable way that anything regarding Russia and/or possible crimes involving Russia and the Trump White House can be considered anywhere close to finished until Jared Kushner is forced to tell all.
Sure, it is easy to forget about him now, now that he’s lost his security pass, along with every shred of credibility (and dignity) he might have once claimed. But, there was a time when “Jared” was the center spoke of the Trump wheel, the guy who got Comey fired, the guy who got Trump elected! The Minister Without Portfolio, he was in charge of everything.
And he also has walked his scrawny ass straight into a meeting to ask if they could use the mother f’ing Russian EMBASSY as a means of communication between the transition team and top Kremlin officials. Of said meeting, Business Insider said this:
Experts have said that if the Kushner-Kislyak meeting and reported discussion were an isolated incident, then it could be spun as normal back-channel communication arrangements among states. But Kislyak and the Trump campaign interacted extensively, and Trump associates either kept those interactions secret from US officials or misrepresented them, as was the case with Flynn, who was forced to resign in February for similar reasons. ……
But what Kushner appears to have done is “substantially different, in two ways,” he said.
“First, he is not seeking a back channel for a low-level staff exchange,” Olson said. “He wants high-level direct-contact communication. This is extremely dangerous because it results in verbal (and therefore undocumented and unwitnessed) agreements, which are binding on governments. Free governments do not work this way. They can’t. If they do, they are no longer free.”
“Second, he asked to use a foreign government’s communication facilities. This is way beyond a private server. This is doing US government diplomatic business over a foreign government’s communication system. It’s not an off-the-record conversation. It’s a conversation recorded by the opposing party. This shows a staggering lack of understanding of the US and its place in the world. Actually, it shows a staggering lack of common sense. When he negotiates a business deal does he use the other guy’s notes?”
I do not believe that Jared is all that smart a guy. But, I also do not believe that he is that dumb a guy. I believe that what Jared did makes perfect sense in light of what they actually said and actually wanted.
It is just that no one can say what was actually said or wanted, not if they want to avoid jail. Similarly, only Jared knows exactly what Trump was told about the meeting, and whether Trump directed it. Flynn likely knows one end of the equation, what was said, but Flynn would not be able to testify as to whether Trump sent Jared (who then took Flynn as, “the guy who knows what he’s doing”) and Flynn likely doesn’t know what Jared then turned and told Trump.
I believe it is highly likely that this pattern, Jared being sent out to do the inexplicable, dates back prior to the election, likely involving Cambridge Analytica, and whether Jared took Cambridge data and got into the hands of the Russians. ONLY Jared can talk about what he told Trump about those actions, and I find it HIGHLY likely that ONLY Jared had the “clearance” to tell Trump directly. Trump would keep his hands as clean as possible, and like any good mafia boss, would use “family” for sensitive communication.
Do I even need to get into all the other suspicious Kushner activity?
Oh, and then there is this. Jared Kushner AND Donald Trump just act so fking guilty. Innocent people actually don’t act guilty. It’s true. Want to know what guilty people almost always do? They worry about the investigation, a lot.
As Kushner’s Russia troubles mount—last Friday the Senate disclosed that he had not turned over e-mails about WikiLeaks, a claim his attorney, Abbe Lowell, denied—insiders are again speculating, as my colleague Emily Jane Fox reported last month, about how long Kushner and Ivanka Trump will remain in Washington. Despite Kushner’s efforts to project confidence about Robert Mueller’s probe, he expressed worry after the indictments of Paul Manafort and Rick Gates about how far the investigation could go. “Do you think they’ll get the president?” Kushner asked a friend, according to a person briefed on the conversation.
“Do you think they’ll get the president?” is not a question that people who, know “the president” did nothing wrong, ask. As an attorney, I can tell you, if that quote is accurate, word for word, it is the question someone who KNOWS someone committed a crime would ask. The tell is asking first about the process, the commitment, the access, and not about the underlying behavior. He didn’t ask: “Do you think the president did something wrong?”
Mueller has not talked with Kushner yet, and no possible investigation of Trump-Russia is anywhere near complete until Kushner is forced to confront going to jail “for the president.” Because that is the other thing Jared had to be thinking while asking the above? “Because the way to get the president is to get me, first.”
I also doubt that it is lost on Mueller that the aid pushing to get Comey fired, the aide who convinced “the president” that “there is no Russia” was — Jared.