Friday, March 22, 2019

Rosenstein's Letter To Grassley: No Uncharged Allegations

Last night Paul Sperry tweeted out a core Bill Barr quote, which I believe is from Barr's confirmation testimony before taking office as Attorney General. Barr is addressing the politically motivated demands of Dem senators that the much anticipated "Mueller Report" be made public. Few things are that easy, as Barr notes: a special counsel report is explicitly supposed to be "confidential" (for sound and principled legal reasons of long standing) and it is the Attorney General--not the special counsel--who reports to Congress regarding the conclusion of any investigation. The reason should be obvious to anyone concerned for fairness: a special counsel is a prosecutor and as such works for the Executive Branch, nor for Congress. As Barr made clear in his testimony, he favors transparency but will not sacrifice fairness and legality to satisfy partisan demands. Anyway, here's the tweet of Barr's remark:

AG Barr: "Under current rules, that [Mueller] report is supposed to be confidential and the attorney general would report to Congress about the conclusion of the investigation. There may be discretion there about what the attorney general can put in that report [to Congress]."

The tweet itself was, I assume, prompted by an ABC News article: Letter from deputy Attorney General Rod Rosenstein offers potential road map to special counsel Robert Mueller's probe: Sources familiar with the probe believe there are no more indictments expected.

The letter in question was written on June 27, 2018, by Deputy AG Rod Rosenstein--acting as the supervisor of Team Mueller in place of the recused Jeff Sessions--in response to a request by Chuck Grassley for information regarding the status of the Special Counsel. Grassley was, at the time, Chairman of the Senate Judiciary Committee. The letter is quite lengthy but also quite informative. And it has a direct bearing on what we can expect from the Mueller Report--or, for that matter, the Barr Report. Rosenstein, as he expresses himself in the letter, is very much in agreement with the views that Barr expressed in his confirmation testimony. Here are three highlights.

Earlier, regarding the possibility of Barr appointing a new special counsel to investigate such matters as the Hillary email server and the Uranium One case--or the Clinton Foundation--I stated that I was unsure what Barr's general attitude was toward the institution of special counsels. Rosenstein puts that uncertainty totally to rest by citing three special counsel investigations that were initiated by Barr the last time Barr was AG (the early 90s). So we can take it that Barr has absolutely no theoretical problems with the general idea of a special counse.

Next, Rosenstein, reviewing the history of special counsels, is at great pains to point out that, unlike in some past special counsel investigations, this special counsel--Robert Mueller--is in no way independent of DoJ supervision and is bound by all applicable regulations and guidelines. The buck stops with Rosenstein--or, now, Barr. Here are Rosenstein's words:

Your May 17 letter asks a series of questions concerning the scope of the Special Counsel's authority. The current Special Counsel differs from an "independent counsel" and some previous "special counsels," because Special Counsel Mueller was appointed by the Department of Justice and remains subject to ongoing supervision. 
What a prosecutor is called - including "independent" or "special" - is a separate question from whether that prosecutor is subject to supervision by the Attorney General. Under the terms of his appointment, both by statute and by regulation, Special Counsel Mueller remains accountable like every other subordinate Department official. 
When asked about supervision of Mr. Fiske, Attorney General Reno said, "I do not expect him to report to me, ... and I do not expect to monitor him."  That is not true of Special Counsel Mueller. 
Then-Deputy Attorney General James Comey took a different approach in 2003, when he invoked his authority as Acting Attorney General to appoint Patrick Fitzgerald as a special prosecutor to investigate the Valerie Plame matter. Mr. Comey did not make that appointment under the Department's Special Counsel regulation. Instead, he delegated to the special prosecutor "all the authority of the Attorney General ... independent of the supervision or control of any officer of the Department." Mr. Corney followed up with a letter reinforcing that his delegation was "plenary ." That is not true of Special Counsel Mueller's appointment. 

So, while we may disagree with the actions of Team Mueller, Rosenstein leaves us in no doubt who is ultimately responsible for those actions. He is--or was. And, by the terms of the appointment, Bill Barr is now responsible.

Finally, and perhaps of most immediate interest, Rosenstein strongly lays out the DoJ view that any report should refrain from any prejudicial allegations unless a crime is charged.

First, Rosenstein lays out the general shape of the Special Counsel regulations regarding reporting to Congress--I have slightly formatted this paragraph for the sake of clarity:

When the Independent Counsel statute expired, the Department adopted the current Special Counsel regulation as an internal policy concerning the "appointment and management of Special Counsels. The regulation provides for
  • congressional notification when an appointment is made and when it concludes. 
  • At the conclusion of the investigation, it requires notification to Congress of instances when the Attorney General concluded that a proposed action by the Special Counsel should not be pursued. 
The regulation contemplates ongoing consultation with Department components and continuing oversight by the Attorney General (or the Acting Attorney General), who remains accountable as in all other cases handled by the Department of Justice. The regulation achieves the objective of conducting an independent investigation while following normal Department policies, including supervision by a Senate-confirmed officer. 

What should jump out from this is simple. Since an indictment is public, there is no need to report that to Congress: it will be known by all. However, if no indictment issues, the Special Counsel is under no obligation to report that fact. His silence will speak for itself.

What if the Attorney General wishes to address the lack of an indictment? Rosenstein goes on to explain that DoJ policy is strongly against any such statements. In explaining this position, Rosenstein proceeds methodically.

First, he takes full responsibility for the appointment of Special Counsel Mueller. My hat is off to him--to publicly take ownership of such a reckless and irresponsible decision must be very humbling:

I determined that the appointment of Special Counsel Mueller to take charge of criminal matters that were already under investigation by federal agents and prosecutors was warranted under the Special Counsel regulation. The appointment order mentions 28 C.F.R. §§ 600.4 to 600.10 because they bear on the authority and duties of the Special Counsel. The public order did not identify the crimes or subjects because such publicity would be wrong and unfair, just as it would have been wrong and unfair to reveal that information prior to Special Counsel's appointment, and just as it would be wrong and unfair in other cases handled by a U.S. Attorney or Assistant Attorney General. 

Rosenstein next shares some of that responsibility with Mueller--quite rightly, in my opinion:

When Special Counsel Mueller was appointed, he received comprehensive briefings about the relevant allegations and documents that described them in considerable detail, as with previous special counsel appointments. Some of the FBI agents who were investigating those matters continued to do so [i.e., Strzok, Page, and possibly others]. The Department assigned a team of career and non-career officials to provide supervision and assist the Acting Attorney General in determining which leads should be handled by the Special Counsel and which by other Department prosecutors, and to review any proposed indictments in conjunction with Department components that ordinarily would review them. 

We now know, as most reasonable persons could have easily determined at the time, that the "allegations and documents" in question were politically motivated and produced. The decision that no Special Counsel was warranted should have been an easy one.

Rosenstein next references the August, 2017, "scope memo," and characterizes it in general terms. In Rosenstein's account, this memo does not appear to expand Mueller's authority:

In August 2017, Special Counsel Mueller received a written internal memorandum from the Acting Attorney General. The memorandum eliminated the ability of any subject, target, or defendant to argue that the Special Counsel lacked delegated authority under 28 U.S.C. § 515 to represent the United States. The names of the subjects were already in Department files, but we did not publicly disclose them because to do so would violate the Department's confidentiality policies. 

After addressing a few other matters, such as the distinction between criminal and counterintelligence investigations, Rosenstein gets to the heart of the matter, strongly supporting traditional DoJ policy on principle:

Regardless of political affiliation, thoughtful former Depattment leaders recognize that departures from our confidentiality policies pose an extraordinary threat to the Department's independence and integrity. Former Deputy Attorneys General Larry Thompson and Jamie Gorelick explained that the Department of Justice "operates under long-standing and well established traditions limiting disclosure of ongoing investigations to the public and even to Congress .... These traditions protect the integrity of the department ...." Violating those policies and disclosing information about criminal investigations constitutes "real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation" that is "antithetical to the interests of justice."
Punishing wrongdoers through judicial proceedings is only one part of the Department's mission. We also have a duty to prevent the disclosure of information that would unfairly tarnish people who are not charged with crimes. In 1941, Attorney General Robett Jackson explained that disclosing information about federal investigations to Congress could cause "the grossest kind of injustice to innocent individuals," and create "serious prejudice to the future usefulness of the Federal Bureau oflnvestigation."

In support of this position, Rosenstein quotes former AG Robert Jackson, later a Supreme Court Justice, at length. Jackson is speaking of the disclosure of FBI reports, and I will quote only a section of his remarks:

Disclosure of information contained in the reports might also be the grossest kind of injustice to innocent individuals. Investigative reports include leads and suspicions, and sometimes even the statements of malicious or misinformed people. Even though later and more complete reports exonerate the individuals, the use of particular or selected reports might constitute the grossest injustice, and we all know that a correction never catches up with an accusation.
In concluding that the public interest does not permit general access to Federal Bureau of lnvestigation reports for information by the many congressional committees who from time to time ask it, I am following the conclusions reached by a long line of distinguished predecessors in this office who have uniformly taken the same view .... 

All that seems clear enough, and is directly applicable to any report that Mueller may submit to the Attorney General. However, Rosenstein continues to make his case. Because he clearly feels so strongly about this--something that, in my opinion, he should considered just as earnestly when he appointed Mueller--I'll provide some more excerpts, even though they amount to the same thing. However, I have another reason for including these further remarks. I would urge all readers to consider how these high statements of principle regarding confidentiality square with the known abuses of Team Mueller, including rampant leaks as well as Andrew Weissmann's long, narratival indictments that contain lengthy assertions of "facts" for which no proof at trial will ever be offered. How does that square with these fine words?

Requiring the Department of Justice to disclose details about criminal investigations would constitute a dangerous departure from important principles. Criminal prosecutions should be relatively transparent - because the public should know the grounds for finding a citizen guilty of criminal offenses and imposing punishment - but criminal investigations emphatically are not supposed to be transparent. In fact, disclosing uncharged allegations against American citizens without a law-enforcement need is considered to be a violation of a prosecutor's trust. ... 
Even when we file federal charges, Department policy strongly counsels us not to implicate by name any person who is not officially charged with misconduct. 
... The Department of Justice must not proceed along the unhappy road to being perceived as a partisan actor, deciding what information to reveal and what information to conceal based on the expected impact on the personal or political interests of its temporary leaders and congressional allies. 


  1. I think Barr will give a general summary- what was looked at, what prosecutable crimes were charged and the result. That will be it.

    Of course, Mueller's deputies will leak insinuations all over the place, and Barr will likely shoot them down as they do.

    1. I tend to agree--as far as I can make a stab at his attitude. I believe he's sincere in stating that he wants transparency, and I believe that that's motivated by 1) the seriousness of the allegations and 2) his knowledge that it's all part of an incredibly divisive and destructive HOAX that he wants to put paid to. With that in mind, I suspect he'll want to preemptively shoot down any forseeable insinuations.

    2. Here's the thing about that inuendo thing, however. I think that's exactly the kind of breach of confidentiality that Barr will go after--aggressively. Also, in contrast to tin foil hat innuendo, I think we're going to be seeing a virtual tsunami of documentary and documentable information--including declassed docs. And this will all come back to Hillary. Will she go down as the destroyer of the Dems?