A letter to William Barr

Emmet T. Flood, special counsel to President Trump, has sent a letter to Attorney General Barr. Although Barr is the addressee, Robert Mueller is the main target. The letter is a blistering attack on Mueller’s report with a shot at James Comey thrown in.

Flood gets right to the point:

The [special counsel’s report] suffers from an extraordinary legal defect: It quite deliberately fails to comply with the requirements of governing law.

Flood cites two major ways in which the Mueller report suffers from this defect. The first problem centers around its statement that the evidence “prevent[ed] [the special counsel’s office] from conclusively determining that no criminal conduct occurred” with respect to possible obstruction of justice. Flood explains that “conclusively determining that no criminal conduct occurred” was not Mueller’s assigned task, because making conclusive determinations of innocence is never the task of the federal prosecutor. Instead:

What prosecutors are supposed to do is complete an investigation and then either ask the grand jury to return an indictment or decline to charge the case. When prosecutors decline to charge, they make that decision not because they have “conclusively determin[ed] that no criminal conduct occurred,” but rather because they do not believe that the investigated conduct constitutes a crime for which all the elements can be proven to the satisfaction of a jury beyond a reasonable doubt.

That’s because:

In the American justice system, innocence is presumed: there is never any need for prosecutors to “conclusively determine” it. Nor is there any place for such a determination. Our country would be a very different (and very dangerous) place if prosecutors applied the [special counsel’s] standard and citizens were obliged to prove “conclusively. . .that no criminal conduct occurred.”

Why, then, did Mueller resort to terminology that is foreign to our criminal justice vocabulary? Flood’s answer is straightforward and difficult to dispute:

[T]he [special counsel’s] inverted-proof standard and “exoneration” statements can be understood only as political statements, issuing from persons (federal prosecutors) who in our system of government are rightly expected never to be political in the performance of their duties.

(Emphasis in the letter)

The second big problem with Mueller’s report is that it didn’t do the one job Mueller was tasked with. Under the relevant regulation, his duty was to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” 28 C.F.R. Section 600.8(c). But on the question of obstruction of justice, Mueller made neither a prosecution decision nor a declination decision. Thus, says Flood, “none of the Report’s Volume II complied with the obligation imposed by the governing regulation to ‘explain[] the prosecution or declination decisions reached.'” (Emphasis in the letter)

Flood continues:

The [special counsel] instead produced a prosecutorial curiosity — part “truth commission” report and part law school exam paper. Far more detailed than the text of any known criminal indictment or declination memorandum, the Report is laden with factual information that has never been subjected to adversarial testing or independent analysis. That information is accompanied by a series of inexplicably inconclusive observations (inexplicable, that is, coming from a prosecutor) concerning the possible application of law to fact. This species of public report has no basis in the relevant regulations and no precedent in the history of special/independent counsel investigations.

Flood goes on to describe President Trump’s cooperation with the special counsel, including his decision not to invoke executive privilege over any presumptively privileged portions of the Mueller report.

He then condemns the “campaign of illegal leaks against the President,” many of which “were felonies.” These leaks “disclosed the identity of a U.S. person in violation of his civil rights; they misused intelligence for partisan political purposes; and they eroded confidence in the integrity and impartiality of our intelligence services.”

Flood complains:

The criminal investigation began with a breach of confidentiality executed by a very senior administration official who was himself an intelligence service chief. This leak of confidential information, personally directed by the former Director of the FBI, triggered the creation of [the special counsel’s office] itself — precisely as it was intended to do.

Not so long ago, the idea that a law enforcement official might provide the press with confidential governmental information for the proclaimed purpose of prompting a criminal investigation of an identified individual would have troubled Americans of all political persuasions. That the head of our country’s top law enforcement agency has actually done so to the President of the United States should frighten every friend of individual liberty.

Flood notes in his letter that some view the Mueller report as a kind of “road map” for congressional action against President Trump. Flood’s letter, though not a road map, will perhaps reinforce Attorney General Barr’s resolve to investigate and, if appropriate, prosecute the high government officials who may have violated the law in their zealous efforts to undermine the President of the United States.

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