WHEN IT REIGNS, IT FLOODS

Congress and the White House are hurtling toward a constitutional crisis.  Now is as good a time as any to put down my thoughts on the letter Emmet Flood wrote to AG Barr on April 19, 2019, concerning Volume II of Special Counsel Robert Mueller’s report on obstruction of justice.  One caveat:  I haven’t yet read Volume II.  I’ve only briefly skimmed the first few pages of the Introduction.

(Here is the link to Flood’s letter, if you haven’t read it:  https://www.scribd.com/document/408445903/Flood-letter-to-Barr#from_embed?campaign=VigLink&ad_group=xxc1xx&source=hp_affiliate&medium=affiliate). 

Emmet Flood is the Special Counsel to the President.  In other words, he is the President’s lawyer, not a lawyer for the Department of Justice, and not a lawyer for We the People.  When I first read his letter, I recognized it as political.  After all, it came out the day after the redacted Mueller Report was released to the public.  At the time, I thought Flood made some good points that were potentially damaging to Mueller.  Then, the more I thought about it, the more I thought Flood’s letter might have been just as misleading as Barr's 4-page summary of the Report. 

Here, then, are my thoughts on Flood’s letter.  I’m going to adopt his quite odd and a bit hysterical use of italics to emphasize important points.  And I'm going to bold them, too, just for fun and because I can!

Flood is right when he says a prosecutor's duty is to investigate and not to "conclusively" determine that no criminal conduct has occurred, or to "exonerate."  But Flood accuses Mueller of acting as judge and jury.  Without knowing the context in which Mueller used those words in Vol. II, there is the possibility that Flood distorted their meaning.  That is what AG Barr did in his 4-page summary when he said Mueller failed to “establish” a criminal conspiracy, thereby implying to the non-lawyer (>90% of the population?) that there was no evidence of conspiracy.  That is false.  There was evidence.  But Mueller judged it insufficient to support a unanimous verdict of conspiracy sustainable on appeal.  However, until I read Vol. II for myself, I’m willing to give Flood the benefit of the doubt on this point.

But not on this one.  Flood is misleading and wrong when he states unequivocally that the only reason prosecutors decline to charge, is because they don't believe the investigated conduct constitutes a crime for which all elements can be proven to the satisfaction of a jury beyond a reasonable doubt.  On the contrary, when the subject of the investigation is a sitting president, a prosecutor must decline to charge if he believes the criminal conduct can be proven beyond a reasonable doubt.  And that situation occurs only because of the Office of Legal Counsel (OLC) policy against indicting a sitting president--which Flood conspicuously fails to mention. 

So Mueller declined to charge the President with obstruction not because he couldn't prove obstruction beyond a reasonable doubt, but precisely because he thought he could, and that the grand jury was likely to return an indictment for obstruction, which is against OLC policy.  (Side note:  The standard of proof applicable to grand jury proceedings is a “preponderance of the evidence,” not “beyond a reasonable doubt.”  This lower standard of proof makes it even more likely that a grand jury would have indicted the President for obstruction had Mueller decided to charge him, as Flood later incorrectly contends was Mueller’s duty.)

Flood’s contention that Mueller did not do his “only one job” in closing his investigation, namely to “provide the Attorney General with a confidential report explaining prosecution or declination decisions,” seems unlikely.  But I haven’t read Vol. II.  Perhaps Mueller’s explanations were completely missing or inadequate.   So let’s accept for the sake of the argument that they were.  Then why didn’t AG Barr reject the Report, send it back to Mueller, and tell him to revise it?  AG Barr had the Report for a month before Flood wrote his letter.

Flood complains that “the Report is laden with factual information that has never been subjected to adversarial testing or independent analysis.” This is not only misleading but disingenuous.  How could the factual information have been tested?  Even if Mueller had brought the evidence before the grand jury, that proceeding is specifically not an adversarial proceeding.  There are no lawyers present, and even the judge is absent during testimony to preserve secrecy.  And if Flood is implying that Mueller didn’t make an independent analysis, that’s controverted by everything we know about the Special Counsel.  He tied himself into a pretzel trying to maintain independence.

I find Flood’s jibe that Mueller “indulged in creative departures from governing law” by declining either to prosecute or to decline to prosecute offensive.  More importantly, it’s also clearly wrong--in the case of a sitting president.   Flood says that under the Special Counsel regulations, prosecutors are to speak publicly through indictments.  He neglects to add that Mueller cannot under OLC policy speak through an indictment about a sitting president.  Flood’s argument here is circular.  Since the letter is political, it may also be designed to confuse.

Flood opines that “it has been suggested that the Report was written with the intent of providing Congress with some kind of ‘road map’ for congressional action,” as if that were inappropriate or impermissible.  He goes on to say that, “If that was in fact the SCO’s [Special Counsel's Office] intention, it too serves as additional evidence of the SCO’s refusal to follow applicable law.”  I would argue the contrary is more likely the case and perfectly permissible, given Section 9-27.220, Grounds for Commencing or Declining Federal Prosecution, set out in the Justice Department Manual outlining its Principles of Federal Prosecution (emphasis added): 

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

A prime example of exception (3) is the congressional impeachment process as provided in the Constitution.  It would not surprise me to find in Vol. II that Mueller relied on this section when he outlined the raw evidence and created the "road map" Flood decries. 

Flood goes onto say how transparent and forthcoming the President was in cooperating with the Special Counsel, even though he could have asserted executive privilege, and preserving it for future reference, while omitting to mention that members of the President’s Campaign deleted text messages, used encryption, destroyed evidence, lied, etc., as Muller notes in Vol. I.  It's become apparent that Flood’s clear purpose in the letter was to intimidate and cut off any further investigation of obstruction, telling the House in no uncertain terms that they will get nothing from the Administration.  We’re seeing that play out right now with members of the Administration and others connected to it refusing to comply with congressional subpoenas.

 

One final observation.  The opening sentence of Flood's letter says he is memorializing his concerns about the form of the Report.  He doesn't express concerns about its contents, other than to lament that the evidence hasn’t been subjected to adversarial testing—a false concern.  In other words, Flood doesn’t dispute the evidence that the President obstructed justice.  He just doesn’t like the form of the Report.  Interesting.

This constitutional crisis is headed for the Supreme Court.  To quote the President, “We’ll see what happens."

Keep it real!

Marilyn