White House lawyer blasted 'political' Mueller report in letter to Bill Barr and said Trump could invoke executive privilege to block congressional Democrats from grilling his aides
- White House lawyer Emmet Flood wrote to Attorney General Bill Barr in April
- Flood claimed Mueller report was a 'political document' because Mueller didn't follow the normal procedures of a prosecutor
- Mueller left obstruction of justice as an open question for Congress to determine, which had the effect of forcing Barr and Rod Rosenstein to decide
- Flood argued that Mueller should either have asked a grand jury to charge Trump with a crime or closed the case and described that finality in writing
- Also wrote that even though Trump let aides participate in the special counsel probe, he might stop them from testifying in congressional probes
- Presidents can invoke executive privilege, something Trump hasn't done to date
A White House lawyer told Attorney General William Barr in writing last month that President Donald Trump will protect his option to invoke executive privilege in response to demands from Congress.
Attorney Emmet Flood also derided Robert Mueller's final Russia report as a 'political' document, complaining about the special counsel's contention that Trump could not be exonerated on obstruction of justice.
Such conclusions 'do not belong in our criminal justice vocabulary,' Flood wrote, insisting that Mueller and his team 'failed in their duty to act as prosecutors and only as prosecutors.'
He wrote that Mueller had an obligation to 'either ask the grand jury to return an indictment or decline to charge the case.'
Instead, his office 'produced a prosecutorial curiosity – part 'truth commission' report and part law school exam paper,' Flood claimed.
The latest episode in the battle between Donald Trump's White House and Special Counsel Robert Mueller is the revelation of a letter in which a White House lawyer told the attorney general that Trump could invoke executive privilege to keep his aides from testifying before congressional Democrats
Mueller completed his report on Russia's election interference in late March; White House lawyer Emmet Flood called it a 'political' document
Mueller laid out substantial but conflicting evidence related to the question of whether Trump obstructed justice, and then declined to decide whether he should face prosecution.
The White House sent the letter to Barr last month, a day after Mueller's report was released publicly. CNN first published it Thursday.
Flood told Attorney General Bill Barr that Mueller should have either asked a grand jury to charge Trump with obstruction of justice or made it clear he was dropping the case
Flood's position on executive privilege makes it clear that even though Trump allowed Mueller to conduct interviews with senior administration aides, he hasn't waived his right to block congressional Democrats from doing the same.
But the attorney's most stinging argument is that Mueller's operation wildly strayed from the mission it was handed in order to publish a road map for presidential impeachment and, possibly, aid prosecutors in charging Trump with a crime after he returns to private life.
Mueller wrote in his report that he embraced the role of fact-finder, as opposed to a traditional prosecutor's posture, because of Justice Department rules that would preclude him from charging a sitting president with a crime.
He noted that his work involved documenting the granular details of events as his investigation established them, in part because Trump 'does not have immunity after he leaves office.'
He also concluded that his investigation 'does not exonerate' the president, a position that Flood found unacceptable.
In his letter to Barr, Flood claimed Mueller should have decided the state of the obstruction investigation instead of leaving it an open question for Congress to resolve; the end result was forcing the attorney general and deputy attorney general to make the call
'[Mueller'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,' Flood wrote.
'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,' he added.
