There's No Way James Comey Said What Trump Claims He Did

There is no such thing as "under investigation" in federal criminal investigations.

President Trump claimed on Wednesday that former FBI Director James Comey had assured him on three occasions that he was not “under investigation” by the FBI.

While this may sound like a clear, unequivocal statement, it isn’t. And it almost certainly isn’t what Comey told him. At best, it is a self-serving characterization of something Comey said, not what he actually said. Comey would have been far more precise.

There is no such thing as “under investigation” in federal criminal investigations. Federal law enforcement officers and prosecutors use specific terms of art to describe the status of people who are somehow involved in federal investigations. “Under investigation” isn’t one of them.

Federal prosecutors characterize the status of persons involved in criminal investigations into three categories: target, subject and witness.  Anyone involved in a federal criminal investigation falls into one of those three categories. 

A “target” is just what it sounds like ― the person that the prosecutor believes committed, or may have committed a crime. If a prosecutor believes that there is substantial evidence to believe that a person was involved in a crime, that person is classified as a “target” of the investigation.

A “subject” is generally a person whose conduct is within the scope of an investigation, but who is not yet (and may never become) a specific target. While the potential exposure of a subject is less than that of a target, it is still a status that needs to be taken seriously. Nobody wants to hear that they are the subject of a federal criminal investigation. Anybody who does should run, not walk, to find a good criminal lawyer.

The third category is “witness.” A person classified as a witness is just that, a witness. If the prosecutor believes that a person has information relevant to a criminal investigation, but has no reason to believe that that person has criminal exposure, that person will usually be classified as a “witness.”

If there is any truth to Trump’s claim that Comey advised him that he wasn’t “under investigation,” it almost certainly would mean only that Comey had advised Trump, at most, that he had not yet been personally identified as a “target.”

When Donald Trump, or anyone else, throws out terms like “under investigation,” understand that they either don’t know what they are talking about, or they are trying to be cute.

It simply doesn’t make sense that Comey would have assured Trump that he wasn’t even a “subject” of the investigation. Comey has already publicly acknowledged that the FBI is conducting a criminal investigation into whether anybody in the Trump campaign collaborated in Russia’s interference with the election. That can only mean that Trump himself is a “subject” of that investigation. It is not credible to suppose that the FBI isn’t investigating whether Trump himself collaborated with the Russians, or knew that others were doing it on his behalf. They may not have sufficient evidence at this point to classify him as a target, but he is most certainly a subject.

Moreover, Trump’s interview with Lester Holt included a clue that what he meant by not being “under investigation” meant only that he wasn’t a target, not that he wasn’t the subject of a criminal investigation.  Trump suggested that if he were personally “under investigation,” he would have received some kind of formal paperwork.

Taken at face value, the idea that everybody who is the target of a federal criminal investigation receives some kind of written notification is nonsense. The fact that Trump hasn’t received any paperwork identifying him as a target doesn’t mean he isn’t one.

But Trump might have been referring to the fact that he hasn’t received something called a “target letter.”

Prosecutors don’t send target letters to everybody who is the target of a criminal investigation. To the contrary, they often go to great pains to avoid alerting targets that they are under investigation.

Federal prosecutors only send target letters when they want something from the target of an investigation. For instance, they may want to start negotiating a plea bargain, or request a meeting, or ask for grand jury testimony.  The letter, usually from an Assistant U.S. Attorney, states the request and warns the recipient that he or she is a target.

Panic and despair are always appropriate responses to the receipt of a target letter.

But while receiving a target letter will definitely ruin your day, you don’t get to breathe a sigh of relief just because you didn’t get one.

The moral of this story is listen carefully. When Donald Trump, or anyone else, throws out terms like “under investigation,” understand that they either don’t know what they are talking about, or they are trying to be cute.

When people who actually know what they are talking about, like federal prosecutors or senior FBI officers, start using words like “target” or “subject,” it pays to pay attention.

Wait for it. It’s coming.

Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.