Motus Mentis

In the news today is a scathing letter from Emmett Flood, the Special Counsel to the President, to Attorney General William Barr. It was written on April 19th, shortly after the lightly redacted Mueller Report was released to the public.

The Mueller Report may have produced no indictments, but this letter charges the Mueller team with grotesque mishandling of their assignment. It begins:

Dear Mr. Attorney General:

I write on behalf of the Office of the President to memorialize concerns relating to the form of the Special Counsel’s Office (“SCO”) Report (“SCO Report” or “Report”) and to address executive privilege issues associated with its release.

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.” 300 Report v.2. p2. 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: In 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 CPR. 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.

You really should read the whole thing. You can do so here.

As Emerson said: “When you strike at a king, you must kill him.’ The Democrats have emptied their magazine at the President, who has given them full cooperation while biding his time. Now that his enemies have exhausted their ammunition without result, however, it is Mr. Trump’s turn.

Coming soon: the results of the Barr, Horowitz, and Huber investigations. There will be blood.