Subject, target, and the Mueller investigation

  • 9 April 2018
  • NormanL
Subject, target, and the Mueller investigation

There has been a lot of commentary on special counsel Robert Mueller's revelation that the President is a "subject," not a "target," of his invetigation into potential Russian interference in the 2016 election.

But what do "target" and "subject" mean to a lawyer? Former federal prosecutor Ken White offers us a very useful explanation:

Different prosecutors have different practices about when they call someone a target. Some will use that label as soon as they think it is likely they will be indicted. Some are more "cautious" and only classify someone as a target when they are quite sure that they'll indict. Some prosecutors — ones who risk a bad reputation — will disingenuously classify someone as a subject in order to lure them and their attorneys into talking to the government, even if talking to the government would be manifestly a bad idea. Other prosecutors are overcautious in the other direction and label people targets so no one can accuse them of hiding the ball.

There's a benefit to knowing you're a target — there's no ambiguity and you can focus on going to the mattresses. It's trickier if you're a subject. Clients — and some lawyers — will clamor to talk to the prosecutors to convince them that they shouldn't be a subject, that they should only be a witness. They see the "subject" designation as an opportunity to talk their way out of it. But for more cautious federal defense attorneys, the "subject" classification doesn't change the strategy very much. The client can still become a target at any time. Talking to the government may well provide the information they need to make that decision. Furthermore, talking to the government often generates its own new crimes, as we've seen again and again in Mueller's investigation as defendants have been charged (and in several cases pleaded guilty) to lying to the government. The situation is still one of intense danger, and no experienced defense attorney is relieved to hear their client is "only a subject."

The analogy I sometimes use with clients is this: if you're a target, you're walking across an open field and a sniper is shooting at you from a tower. If you're a subject, you're walking across an open field and a sniper is shooting, but not shooting at you at this particular moment. How much safer do you feel?

In short, Mr. Mueller hasn't decided whether to make the President a target. He might do so in the future. He might not.

As you watch and read the developments in Mueller's investigation, knowing how federal investigators use the terms they do is essential to understanding what comes next.

Right now, no one -- not the President's lawyers, the press, the punditocracy, or even Mueller -- knows what the next developments will be. Your first, and best, tip will be watching what happens to the word "subject."