This post offers you five reasons to view Part II of the Mueller Report as a purely political document without any supporting legal rationales.
Part I of the Mueller Report conclusively found no evidence that President Trump or anyone close to him ever conspired with, or attempted to conspire with, the Russian government to affect the outcome of the 2016 election. That should put the matter to bed.
Those who say that the Mueller report also doesn’t find affirmative proof that President Trump did not conspire with the Russians need to go back and study their basic American jurisprudence. In America, individuals do not have to prove their innocence; it is the prosecution that bears the high burden of proving their guilt. Case closed.
With Russian Collusion a dead-in-the-water talking point, the President’s critics have swung to Part II, which implies that the president of obstructed justice, whether it came about in the form of fulminating against what he knew was a witch hunt, debating with his attorney whether it was possible to fire the chief witch hunter, issuing orders to keep quiet about those discussions, or refusing to appear for an oral deposition.
See that, say President Trump’s critics. President Trump clearly had bad motives, which makes him unfit for the office he holds.
But for presidents, just as for everyone else, having bad motives doesn’t matter unless they’re followed by conduct. The fact that I put myself to sleep at night, not by counting sheep but by figuring out different ways to poison my enemies is irrelevant if I never poison my enemies or inflict any other criminal harm on them. My motives also do not make it a crime if someone later catches me sneering at one of those enemies, because sneering, while rude, is not a criminal act.
The record shows that Trump did not fire anyone and that his subordinates spoke freely to investigators. As for refusing to appear for a deposition, Mueller acceded to Trump’s request that he be subject only to written questions. That was a bargain, not an obstruction.
I’ve also noted before that it’s questionable whether one can claim “obstruction of justice” when there was no actual justice going on. The laws about obstruction of justice posit a known, actual crime; a prosecutor honestly investigating who did that crime; and a person, even an innocent one, deliberately engaging in affirmative acts (destruction of evidence, silencing of witnesses, etc.) to block that investigation.
In this case, however, the facts we know argue against “justice” having any part in this farce. Instead, a continuously emerging stream of new information tells us that government investigative agencies under Obama used illegal means to spy on the Republican presidential candidate. Then, when Trump won, he was accused of doing something bad with the Russians, although no one could quite finger what the precise illegality was. Trump’s FBI director then illegally leaked classified material to the media to trigger a special prosecutor. Although Mueller lacked evidence of an actual crime, he zealously spent two years and $35 million hunting for a crime, any crime, that he could pin on Trump.
That’s not justice. That’s Soviet-style political persecution.
So, is it “obstruction of justice” to fulminate against political persecution (because Trump knew at all times that he had done nothing wrong) and to explore avenues to make it stop, but then, at the end of the day, to cooperate completely with the farce? I say no, but I’ll freely admit my bias on this one.
But there’s more wrong with Part II than just the fact that Trump fulminated about but did not block investigators or that there was no justice present here. The public recently got to see a letter from Emmet T. Flood, Trump’s new White House counsel. (In addition to embedding the actual letter at the bottom of this post via Scribd, I’ve included the full text in this post, as I find Scribd documents hard to read.)
I highly recommend reading Flood’s every word. He details how Mueller’s office deviated from the special prosecutor’s mandate in order to write a blatantly political document intended to give Democrats an impeachment road map. It also explains how Mueller & Co. violated the special prosecutor’s law when they refused either to recommend indicting Trump for obstruction of justice or to state that he should not be indicted. Instead, they spelled out all sorts of things that prosecutors are never supposed to make public . . . only to punt.
By the way, what Mueller did is the fun house mirror of how James Comey screwed Hillary in July 2016 — only instead of punting after telling all the illegal things she did, Comey shoved aside AG Lynch and unilaterally and improperly decided that she should not be prosecuted. That is, Mueller detailed that Trump did nothing criminal (see below) he nevertheless refused to say Trump should not be prosecuted, while Comey detailed textbook criminality but refused to say Hillary should be prosecuted. Both Comey and Mueller are political hacks of the highest order.
Before you read the Flood letter, though, I want to direct your attention to one more thing, which was Bill Barr’s recently revealed quarrel with Mueller about the applicable federal statute for determining whether someone obstructed justice. The part I want to focus on is something that Scott Adams, a very astute observer, misunderstood because he’s not a lawyer. I realized then that a lot of people might not understand it.
The whole matter came out thanks to an excellent post that Will Chamberlain wrote for Human Events, entitled Checkmate. How President Trump’s Legal Team Outfoxed Mueller. A large part of that outfoxing boils down to a statutory quarrel that’s central to Part II of the Mueller Report, the part regarding obstruction:
At the end of Volume II of the Mueller Report, however, there were 20 pages of genuinely new material.
There, the former FBI director turned Special Counsel Robert Mueller defended his “Application of Obstruction-Of-Justice Statutes To The President.” These overlooked 20 pages were dedicated to defending Mueller’s interpretation of a single subsection of a single obstruction-of-justice statute: 18 U.S.C. § 1512(c)(2).
Before Mueller issued his report, way back in June 2018, the White House got wind of the peculiar interpretation Mueller and his team intended to put on the statute. William Barr got wind too and, in his capacity as a private citizen he wrote an entire letter to Rod Rosenstein expressing his concerns about what he was hearing. You can read the whole debate in Chamberlain’s article, but I just want to focus on the core issue, which is the language in 18 U.S.C. § 1512(c)(2):
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
Read literally, the above statute says that whoever intentionally messes with records, documents, or other objects so as to interfere with an investigation is subject to a fine and a long prison sentence. In addition, whoever intentionally does anything else to interfere with an investigation is subject to a fine and a long prison sentence. This is how Scott Adams understood the statute. It is not the law’s way of understanding it and, moreover, had Adams drilled down, with his fine mind he would have realized that his instincts are completely illogically.
Re-read the statute and ask yourself this: Why would subjection (1) focus tightly on a very specific type of interference if subsection (2) says any type of interference is criminal?
Let me simplify things by giving a more relate-able example. Imagine reading the following two-part statute:
(1) Any person who owns a Chihuahua, a Pomeranian, or a Toy Poodle shall be fined $100 a day.
(2) Any person who owns any other dog shall be fined $100 a day.
Again, you find yourself asking why subsection (1) goes to the effort of singling out three types of dogs when subsection (2) fines owners for any and all types of dog. Given that subsection (1) is obviously a subset of subsection (2), subsection (1) is redundant, pointless, meaningless, and confusing.
The same goes for the Mueller team’s preferred reading of 18 U.S.C. § 1512(c)(2). Mueller desperately wanted to say that, in addition to criminal penalties for destroying documents or other tangible objects in a way that interferes with an investigation, a personal is also subject to criminal penalties for anything and everything else that interferes with an investigation.
But here is where the rules of statutory interpretation come to our aid. (And this is what Barr argued, although I’m doing so in more user-friendly and less lawyerly fashion.)
There is a very old doctrine (we know it’s old because it’s a Latin-named doctrine) called ejusdem generis. Per the Black’s Law Dictionary’s definition of ejusdem generis:
Of the same kind, class, or nature. In statutory construction, the “ejusdem generis rule” is that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. Black, Interp. Laws, 141 ; Cutshaw v. Denver, 19 Colo. App.341, 75 Pac. 22; Ex parte Le- land, 1 Nott & McC. (S. C.) 462; Spalding v. People, 172111. 40, 49 N. E. 993.
To go back to our canine example, let me show you how ejusdem generis works:
(1) Any person who owns a Chihuahua, a Pomeranian, or a Toy Poodle shall be fined $100 a day.
(2) Any person who owns any other dog shall be fined $100 a day.
Logic tells us that subsection (1) delineates a very specific class of dogs: toy or miniature dogs. Under the doctrine of ejusdem generis, subsection (2) must mean “any other dog that falls within the class of toy or miniature dogs.” That means those who own Labbies and and German Shepherds can breathe a sigh of relief, but people owning Miniature Pinschers, Italian Greyhounds, etc., had better decide whether to start paying or give up their doggies.
The same holds true for interpreting 18 U.S.C. § 1512(c)(2). Subsection (1) manifestly describes someone deliberately destroying or manipulating tangible evidence, since as documents or records or other “objects.” It does not refer to talking to people or engaging in behavior other than destroying or manipulating tangible evidence.
Once we have classified the type of wrongdoing described in subsection (1) we know that subsection (2) is a catch-all to describe any deliberate destruction of similar types of evidence. For example, when 18 U.S.C. § 1512(c)(2) was originally enacted in 1982, there was no such thing as being able to wipe out a hard drive using BleachBit. By using the catch-all, the legislators didn’t have to amend the statute every time new technology for storing or erasing data came along. Subsection (2) effectively sweeps in newer technology that’s clearly within the same class of tangible evidence as old-fashioned paper documents.
Finally, please read Andrew McCarthy’s latest post, Mueller’s Preposterous Rationale for Tainting the President with ‘Obstruction’ Allegations. Here’s just a snippet, but you must read the whole thing:
In gross violation of Justice Department policy and constitutional norms, a prosecutor neither charges nor recommends charges against a suspect, but proceeds to smear him by publishing 200 pages of obstruction allegations. Asked to explain why he did it, the prosecutor says he was just trying to protect the suspect from being smeared.
This is the upshot of the Mueller report’s Volume II. It might be thought campy if the suspect weren’t the president of the United States and the stakes weren’t so high.
The smear-but-don’t-charge outcome is the result of two wrongs: (1) Mueller’s dizzying application of Justice Department guidance, written by the Office of Legal Counsel (OLC), holding that a president may not be indicted while he is in office; and (2) the media-Democrat complex’s demand that only laws they like — those that serve their anti-Trump political purposes — be enforced.
The rest of this post is Emmet T. Flood’s letter. I hope that all these things give you a new way of thinking about Part II of the Mueller Report.
The White House
April 19, 2019
Via Hand Delivery
The Honorable William P. Barr
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Ave. N.W.
Washington D.C. 20530
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.” SCO Report v.2, p.2. 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 SCO’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. The inverted burden of proof knowingly embedded in the SCO’s 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 SCQ 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 C.F.R. § 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 nor 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.” Id.
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).[Fn 1] If that was in fact the SCO’s intention, it too serves as additional evidence of the SCO’s 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.[Fn 2] 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.
[Fn 1] Some commentators have pointed to the so-called Watergate “Road Map” as precedent for giving Congress a prosecutor’s report containing no legal conclusions. That “Road Map” is shrouded in a bodyguard of myths, and the many separation of powers problems presented by its transmission remain largely unexplored. But the idea that it was a straightforward. just-the-facts type summary is easily dispelled. As two top Watergate prosecutors wrote years after the events of 1973-74, the Watergate Task Force created the “road map [to] serve as a do-it-yourself kit for the Judiciary Committee, helping it reassemble the individual pieces of grand-jury testimony and other evidence into a coherent theory of a criminal case as we and the [grand] jury saw it.” Ben-Veniste & Frampton. Stonewall: The Real Story of the Watergate Prosecution 242-43 (1977) (emphasis added).
[Fn 2] At the time of the Special Counsel regulations’ creation in 1999. it was widely understood that Section 600.8(c) was not intended to provide for “a report which discusses the evidence at length,” much less its public dissemination. The Future of the Independent Counsel Act: Hearings before the S. Comm. On Governmental Affairs, 106th Cong. 236 (1999) (letter from Robert B. Fiske, Jr.); see also id. at 252 (prepared statement of Janet Reno, Att’y Gen. of the United States); Reauthorization of the Independent Counsel Statute, Part I: Hearings Before the Subcomm. On Commercial and Admin. Law of the H. Comm. On the Judiciary, 106th Cong. 36 (1999) prepared statement of Eric H. Holder, Jr., Deputy Att’y Gen.).
With the release of the SCO Report and despite all of the foregoing, the President has followed through on his consistent promise of transparency. He encouraged every White House staffer to cooperate fully with the sea and, so far as we are aware, all have done so. Voluntary interviewees included the Counsel to the President, two Chiefs of Staff, the Press Secretary and numerous others. In addition, approximately 1.4 million pages of documents were provided to the SCO. This voluntary cooperation was given on the understanding (reached with the SCO) that information (i) gathered directly from the White House or White House staffers and (ii) having to do with Presidential communications, White House deliberations, law enforcement information, and perhaps other matter may be subject to a potential claim of executive privilege and, for that reason, would be treated by the SCO as presumptively privileged. Volume II of the report contains a great deal of presumptively privileged information, largely in the form of references to, and descriptions of, White House staff interviews with the SCO. It also includes reference to presumptively privileged documentary materials.
The President is aware that, had he chosen to do so, he could have withheld such information on executive privilege grounds, basing such an assertion on the established principle that to permit release of such information might have a chilling effect on a President’s advisors, causing them to be less than fully frank in providing advice to a President. Notwithstanding his right to assert such a privilege, and with a measure of reluctance born of concern for future Presidents and their advisors, the President has in this instance elected not to assert executive privilege over any of the presumptively privileged portions of the report. As a consequence, not a single redaction in the Report was done on the advice of or at the direction of the White House.
The President therefore wants the following features of his decision to be known and understood:
(1) His decision not to assert privilege is not a waiver of executive privilege for any other material or for any other purpose;
(2) His decision to permit disclosure of executive-privileged portions of the report does not waive any privileges or protections for the SCO’s underlying investigative materials such as, for example, FBI Form 302 witness interview summaries and presumptively privileged documents made available to the SCO by the White House.
(3) His decision does not affect his ability as President to instruct his advisors to decline to appear before congressional committees to answer questions on these same subjects. It is one thing for a President to encourage complete cooperation and transparency in a criminal investigation conducted largely within the Executive Branch; it is something else entirely to allow his advisors to appear before Congress, a coordinate branch of government, and answer questions relating to their communications with the President and with each other. The former course reflected the President’s recognition of the importance of promoting cooperation with a criminal investigation. The latter course creates profound separation of powers concerns and — if not defended aggressively — threatens to undermine the integrity of Executive Branch deliberations. The President is determined to protect from congressional scrutiny not only the advice rendered by his own advisors, but also by advisors to future Presidents.
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 U.S. 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.
I respectfully ask you to include a copy of this letter in the Department’s records relating to the SCO investigation.
Emmet T. Flood
Special Counsel to the President
Flood letter to Barr by on Scribd
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