For pretty much the entire time that he has been president, Donald Trump has been almost obsessed with telling anyone who'll listen that he is not personally under investigation in the Russia scandal. "I know that I'm not under investigation," he said in May. "I'm not under investigation, as you know," he said in November. "I'm not under investigation," he said in January. "Maybe Hillary is, I don't know, but I'm not." When he fired FBI Director James Comey, the letter he wrote thanked Comey for "informing me, on three separate occasions, that I am not under investigation." Just so it's clear.
But President Trump is most certainly under investigation.
Special Counsel Robert Mueller has informed Trump's attorneys, we learned this week in a Washington Post story, that while he is not a "target" of the investigation, he is a "subject." I imagine Trump pounding his desk in triumph upon learning this news, or shouting, "Yes! Not a target!" That is, until his attorneys explained to him that generally speaking, prosecutors don't call someone a target until they're nearly certain they're going to indict him. Up until that point he's just a subject, someone whose actions are being investigated but who might or might not turn out to have committed crimes that can be proven beyond a reasonable doubt.
If Mueller is assuming that a sitting president can't be indicted — as many legal scholars believe and the Justice Department's Office of Legal Counsel declared in 2000 — then by definition, he can't make Trump a target. But that doesn't mean Trump is safe, not by a long shot.
Because after all, the president of the United States should be asking himself questions that go beyond "Am I going to wind up in jail?" In that same Post story, it was revealed that Mueller "is preparing a report about the president's actions while in office and potential obstruction of justice." Up until now that had been a critical question: When all this is over, is Mueller going to indict whoever he can, then close shop? Or will we get some kind of report that lays out who did what, not only with regard to crimes but everything else that happened?
The catch, though, is that under the special counsel rules, Mueller is only supposed to provide his report to the attorney general, or in this case to Deputy Attorney General Rod Rosenstein, who is overseeing his investigation. Rosenstein will then be required to inform the chair and ranking minority member of the judiciary committees in the House and Senate about what happens next, i.e. if he'll be accepting Mueller's recommendations. He doesn't have to make Mueller's entire report public if he doesn't want to.
But just think about how much pressure Rosenstein will be under to make public whatever reports Mueller produces. Even though Trump and his allies will want to keep them secret, cries of "Coverup!" will reverberate, as well they should. Even many Republicans will say that the American people should be allowed to see Mueller's evidence and conclusions, since this is one of the most serious scandals in American history. The idea that it would be forever buried is unconscionable.
And there's also a good chance this will all be happening in the fall — just in time for the midterm elections.
Even if Trump himself is protected from prosecution while he's in office, one has to wonder whether in all his copious denials (No collusion!), he has convinced himself that the fact that he may not wind up behind bars is really a victory. His own culpability will ultimately be decided in the political realm, through the fortunes of his party, his re-election campaign, and perhaps even impeachment.
Mueller has already flipped multiple former Trump aides — Michael Flynn, Rick Gates, George Papadopoulos — and he wouldn't have offered them the deals he did unless they in turn had useful information. Because Mueller's team has been so unusually leak-proof, we tend only to learn about what he's up to when someone else talks, like people close to those he has cut deals with (or those associated with Trump), or from the occasional court filing. But that doesn't mean they aren't getting closer to the Oval Office with each passing day.
Mueller's team is full of experienced, serious prosecutors, none more than the man in charge, and if there's something there to find out, it's a good bet they'll find it. As one former FBI and CIA official said on CNN earlier this week, "If someone walked into my office and said I was the subject of a multi-year criminal investigation led by … Robert Mueller, I'd wet my pants."
We know that President Trump is exasperated, irritated, and angered by the Mueller investigation. But he may not be as afraid as he ought to be.