Friday, May 3, 2019

UPDATED: Emmet Flood's Critique Of The Mueller Dossier

On April 19, 2019, Emmet Flood, special counsel to the president, sent a letter to Attorney General Bill Barr. In the five page letter, Flood expresses concerns about the Mueller Dossier, arguing that the Dossier, particularly regarding obstruction of justice, "fails to comply with the requirements of governing law." The letter, which can be read here or here, is well worth the time it may require to read and reflect upon it, as it amounts to a trenchant criticism of the entire Mueller inquisition. I say this because, while the letter focuses on obstruction, it attacks the deliberately lawless spirit in which the Dossier was produced. I say this, also, because the letter contains a direct attack on James Comey's conduct and the authorization of a Special Counsel that followed upon that conduct.

I reproduce significant portions of the letter below, while editing out citations and extraneous matter--for our purposes here. The text that I've omitted--mostly on page three--is largely concerned with matters of executive privilege. I refrain from comment simply because I find the letter eloquent, cogent, and clearly expressed. It speaks for itself.


The SCO Report suffers from an extraordinary legal defect: It quite deliberately fails to comply with the requirements of governing law. Lest the Report's release be taken as a "precedent" or perceived as somehow legitimating the defect, I write with both the President and future Presidents in mind to make the following points clear.

I begin with the SCO's stated conclusion on the obstruction question: The SCO concluded that the evidence "prevent[ed] [it] from conclusively determining that no criminal conduct occurred." ... But "conclusively determining that no criminal conduct occurred" was not the SCO's assigned task, because making conclusive determinations of innocence is never the task of the federal prosecutor.

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. Prosecutors simply are not in the business of establishing innocence, any more than they are in the business of "exonerating" investigated persons. 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 SCO standard and citizens were obliged to prove "conclusively . . . that no criminal conduct occurred."

Because they do not belong to our criminal justice vocabulary, the 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 expected never  


to be political in the performance of their duties. The inverted burden of proof knowingly embedded in the conclusion shows that the Special Counsel and his staff failed in their duty to act as prosecutors and only as prosecutors.

Second, and equally importantly: ln closing its investigation, the SCO had only one job -- to "provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel." 28 CFR. 600.8(c). Yet the one thing the SCO was obligated to do is the very thing the SCO intentionally and unapologetically refused to do. The SCO made neither a prosecution decision not a declination decision on the obstruction question. Instead, it transmitted a 182-page discussion of raw evidentiary material combined with its own inconclusive observations on the arguable legal significance of the gathered content. As a result, none of the Report's Volume II complied with the obligation imposed by the governing regulation to "explain[] the prosecution or declination decisions reached."

The SCO 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 possible applications of law to fact. This species of public report has no basis in the relevant regulation and no precedent in the history of special/independent counsel investigations.

An investigation of the President under a regulation that clearly specifies a very particular form of closing documentation is not the place for indulging creative departures from governing law. Under general prosecutorial principles, and under the Special Counsel regulation's specific language, prosecutors are to speak publicly through indictments or confidentially in declination memoranda. By way of justifying this departure, it has been suggested that the Report was written with the intent of providing Congress some kind of "road map" for congressional action. See, e.g., Remarks of House Judiciary Committee Chairman Jerrold Nadler, 4/18/19 (Press Conference). If that was in fact the intention, it too serves as additional evidence of the refusal to follow applicable law. Both the language of the regulation and its "legislative" history make plain that the "[c]losing documentation" language was promulgated for the specific


purpose of preventing the creation of this sort of final report. Under a constitution of separated powers, inferior Article II officers should not be in the business of creating "road maps" for the purpose of transmitting them to Article I committees.


A great deal is said these days about the rule of law and the importance of legal norms. In that spirit, and mindful of the frenzied atmosphere accompanying the Report's release, the following should not be forgotten. Government officials, with access to classified information derived from a counterintelligence investigation and from classified intelligence intercepts, engaged in a campaign of illegal leaks against the President. Many of those leaks were felonies. They disclosed the identity of a U.S. person in violation of his civil rights; they misused intelligence for partisan political purposes; and they eroded public confidence in the integrity and impartiality of our intelligence services. 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 SCO itself -- precisely as he intended it 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. Under our system of government, unelected Executive Branch officers and intelligence agency personnel are supposed to answer to the person elected by the people--the President--and not the other way around. This is not a Democratic or a Republican issue; it is a matter of having a government responsible to the people and, again, not the other way around. In the partisan commotion surrounding the released Report, it would be well to remember that what can be done to a President can be done to any of us.

These leaks and this investigation also caused immense and continuing interference with the functioning of the Executive Branch. Our constitution makes the President the sole


constitutional officer "for whom the entire Nation votes, and [who] represent[s] the entire Nation both domestically and abroad." Clinton v. Jones, 520 US. 681. 711 (1997) (Breyer. J., concurring). As a result, "[i]nterference with a President's ability to carry out his public responsibilities is constitutionally equivalent to interference with the ability of the entirety of Congress, or the Judicial Branch, to carry out its public obligations." Id. at 713. It is inarguable that the now-resolved allegation of "Russian collusion" placed a cloud over the Presidency that has only begun to lift in recent weeks. The pendency of the SCO investigation plainly interfered with the President's ability to carry out his public responsibility to serve the American people and to govern effectively. These very public and widely felt consequences flowed from, and were fueled by, improper disclosures by senior government officials with access to classified information. That this continues to go largely unremarked should worry all civil libertarians, all supporters of investigative due process. and all believers in limited and effective government under the Constitution.

UPDATE: Rush has an extremely long monologue on this letter. He spends quite a bit of time on the Executive Privilege angle--which I edited out. I did that because I think we've known that when push came to shove Trump would assert his privileges. But here's Rush's final bottom line. What he has said leading up to this is that what the Dems really want is to get Don McGahn in front of their committee and they want to convince the public that there's some sort of "coverup." Rush states flatly--that won't work because they're gonna get buried by the declass and Trump's bully pulpit (with able assistance). There's a bit of a problem with one sentence, but I think he's saying that in addition to declass happening soon, so will indictments:

So I think, since the Trump team knows full well what’s gonna happen (they’ve got it all gamed out), I think you can expect (we can expect) rapid-fire disclosure of the inspector general report. I think we’re gonna get rapid declassification of the origination documents for the FISA warrants, this stuff that Trump’s gonna declassify. Barr’s investigation into the origination of the investigation…  I think this stuff is going to happen rapid fire.
I don’t think we’re looking at years for all this to play out.  We’re looking at months for this to play out, and I think any indictments for anybody in the FBI or the DOJ who lied to investigators, who actually conducted a spy operation on the Trump campaign, anybody who lied to Congress like Comey has, or anybody that leaked classified information — and that list is as long as your arm!  The New York Times and the Washington Post survived for two years on leaked classified data.  I think you’re gonna see all of this be made public rapid fire.


  1. This eloquent synopsis of the core harm that has been done to the nation, it's governance, and ultimately to Constitutional principles, is why Barr should not abide the Deep State coverup interest and instead fully investigate prior criminality by high ranking officials within both the Obama Administration and career Executive Branch agencies. If the coup conspirators are not held to account, then there will future coups or the problem will be remedied by a citizen-based revolution. Putting the crooks in prison is a far better solution than either of those other options.

    1. I totally agree, and this letter is probably a sign that Trump is now going on the offensive. Having two lawyers like Barr and Flood on your side can only help.