Special prosecutor Robert Mueller, by referring to President Donald Trump as a subject of his investigation into Russian activities and not a target, was sending him a "magic code word" that means he has no excuse not to testify, Harvard Law professor emeritus Alan Dershowitz said Wednesday.
"It's very simple," Dershowitz told Fox News' "America's Newsroom" co-host Bill Hemmer. "He has to be a subject, not a target, before the Justice Department can ask him to testify."
The DOJ does not ask targets to testify, Dershowitz continued, "because if you are a target that means you're going to be prosecuted. So, telling him he is a subject is just another way of saying we want you to testify. We will subpoena you in front of the grand jury if we can't make a deal with you. It is a magic code word."
The wording also does not mean Trump is out of danger of becoming a target, as that happens often when people are subjects. The difference in the terms is that a target means there is evidence that could lead to criminal charges, while there is not at the present time for a subject in an investigation.
On Tuesday, The Washington Post reported that Mueller told Trump's attorneys last month that he doesn't consider Trump a criminal target, but a subject of investigation.
The Post, citing three people familiar with the discussions, said Mueller made the comments during a private negotiation session to discuss a possible interview with Trump.
However, Dershowitz said he does think Mueller's comments are good news for Trump, but the president will have to remain "very cautious."
"Targets sometimes evolve from subjects, particularly if they testify and they testify in a way that the prosecution thinks is false," said Dershowitz. "Caution is still the byword."
Dershowitz, meanwhile, thinks the true development that's been revealed in recent days is that "it's obvious that Mueller thinks, and he is wrong, that collusion is a crime."
Last August, Deputy Attorney General Rod Rosenstein, in a classified memo to Mueller, said he should investigate Paul Manafort, a former campaign chairman for President Donald Trump, for "allegedly colluding with the Russian government, CNN reported.
"In the memo, he talks about colluding with the Russians or collusion as a crime against the federal government," said Dershowitz.
"I want to issue a challenge to him right now. I challenge special counsel Mueller to cite the statute or the case or the source or any legal information that would make collusion or colluding with Russia a crime. He is not going to be able to find it. There isn't a case."
Rosenstein authorized Mueller to investigate collusion, said Dershowitz, but "you just can't make up a crime."
"Special counsels have a lot of power, attorney generals have a lot of power," Dershowitz said.
"They do not include making up a crime. Only Congress can enact criminal statutes. . . Without a statute making collusion a crime, a special counsel can't magically create a new crime where there is no crime. Collusion is simply not a crime."
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