The day after Mueller’s Report was released to the public, Emmet Flood, Trump’s personal lawyer, sent a remarkable letter to Bill Barr.
Here it is in full:
As Ted Lieu pointed out, this letter was released to distract from the terrible press Bill Barr had received from his disastrous appearance before the Senate Judiciary committee, and from Speaker Pelosi calling Barr a criminal who had lied to Congress.
However, this reporter found the content of the letter more interesting. On the face of it, Mueller deciding not to call for a prosecution of Trump one way or the other was a ‘get out of jail free’ card. Why on earth would Trump be unhappy about it?
The letter offers us some interesting clues. It shows that Trump’s legal team perceived a great deal of danger to him in Mueller’s call on obstruction. First, had he simply indicted the President, it is not at all clear that AG Barr could not simply have prevented this. The ‘titanic row’ that several reporters with good sources, including this one, said went down at Justice was over indicting the President. Mueller wanted to do so, some sources said; Barr said ‘no’. In fact, Mueller makes reference to the Special Counsel regulations, per se, in the report in explaining his decision.
Before Barr was confirmed, Neal Katyal, the former Acting US Solicitor General, who drew up the Special Counsel regulations that Mueller had to work under, explained on MSNBC that Mueller would have to seek permission to depart from a Justice Department norm or policy, in this case, indicting the President. Mueller could not indict the President without the Acting AG (now the AG) granting him an exception.
Bill Barr’s testimony made it painfully clear that Barr was determined not to grant an exception. Barr was determined to squash any obstruction charge. Under the regulations, a Mueller decision to indict would have been stymied, simply overruled, by Bill Barr. Reporting of the non-decision has, I believe in retrospect, been grounded in a fallacy – that Bob Mueller effectively had the power to charge Trump.
While other prosecutors could choose to charge the President – Barr made it very clear that Trump could have been charged, could have been indicted – as a Special Counsel, Mueller was subject to an additional restriction. He had to follow the guidance and ask permission, seek an exception. And Bill Barr was not going to grant that exception.
Emmet Flood’s letter makes it clear how frustrated Trump is with Mueller’s savvy next move. Having been told “no” in advance by Barr on March 5th – or words to that effect – Barr must have expected the rewritten Report to give Mueller’s reasons for charging that he, Barr, could then say were insufficient. And that would be the end of it. Mueller, instead, made a beautiful feint. He punted on the obstruction issue to Congress. He declared in writing that Trump was not exonerated. He declared, in writing, that criminal prosecutors could use his materials after Trump has left office to charge Trump criminally, just as Congress could use them for impeachment. Emmet Flood’s letter reeks of fear at what Mueller has done: preserve evidence that, because Mueller states as much, can be used in future criminal proceedings against Trump.
Had Mueller simply asked for an exception, and perhaps he even did so on March 5th and was told ‘no’, Barr’s bias meant this evidence against Trump would have been lost to future prosecutors.
In fact, since Barr admitted to the Democrats at his hearing that he and Rosenstein made the decision not to charge in two days flat after receiving the report, what it suggests to this reporter is that Barr was shocked by Mueller’s clever means of ensuring future prosecutors kept the ability to charge Trump himself in Russia’s attack on America. Given that Mueller did not bow to Barr’s wishes to request an exception to the rules which Barr could deny, Barr simply declared (falsely) that it was his choice anyway, and said that Trump was innocent. This will likely not stand up in court under a new Attorney General. Trump and Flood are right to be scared.