... the fact that the President of the United States is the subject of a criminal investigation by the FBI ...
Remind me again, which one?
This, perhaps?
http://time.com/5228122/donald-trump-not-criminal-target-mueller/
Not a target (yet) but it's confirmed he's a subject of the investigation... There's really only a few choices....not involved with ANY investigation, being a witness in an investigation, being the subject of the investigation or being a target of the investigation. And it can be a very subtle change to go from subject to target.
As far as I know, this particular taxonomy is unique—at least in the United States—to federal investigations. I don't think the individual states, where most crimes in this country are prosecuted, use it.
A
witness is someone who might know something relevant to an investigation, and may be invited or required to testify.
A
subject is someone whose conduct falls within the scope of an investigation, and who may be charged with a crime.
A
target is someone who the investigators believe was involved in the commission of a crime, and who is likely to be charged.
Trump reportedly has been informed that he is a subject of the federal investigation into Russian interference in the 2016 election.
While it's true that the distance between
subject and
target is narrow, I would be surprised if Trump was actually indicted. There's reason to believe that a U.S. president cannot be required to answer in court to criminal charges while he is in office.
During Watergate—which I covered as a news reporter (I'm also a lawyer)—the special prosecutor only named President Nixon as an "unindicted co-conspirator," despite compelling evidence that he had been involved in criminal obstruction of justice.
There is no clear case law (the United States is a
common law jurisdiction) determining whether a president can be brought to trial in court for criminal conduct. The remedy for "high crimes and misdemeanors" specified in the U.S. Constitution is impeachment—a political process by which the president is charged by the House of Representatives and convicted or acquitted by the Senate.
Robert Mueller is a careful and conservative (politically as well as professionally) investigator. I doubt he would be inclined to test the boundaries of criminal jurisprudence by indicting a president, no matter how egregious he might consider the president's crimes. (And at this point there is no public evidence that Trump was personally involved in the commission of any crime.)
Since Trump's personal activity with respect to the Russian meddling is within the scope of the investigation, it was appropriate for Mueller to inform the president's lawyers that he is a "subject."
But that doesn't mean he will be promoted to the status of "target" even if Mueller's investigators discover evidence that Trump was indeed engaged in illegal activity. Mueller might well believe—and I suspect he would—that the determination of how to deal with crimes committed by a president is within the purview of the Congress, not the judicial system.