THE WHITE HOUSE

WASHINGTON

April 19.. 2019

Via Hand Delivery

 

The l-lonorable William P. Barr
Attorney General of the United States
United States Department ofJustice
950 Ave. NW.
Washington DC. 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 Report 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 SC 0?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 800?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
grandjury 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 ajury beyond a
reasonable doubt. Prosecutors simply are not in the business ofestablishing 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 poiitieai statements. issuing
from persons (federal prosecutors) who in our system of government are expected net-er

The Honorable William P. Barr
Attorney General of the United States
Page 2

to be political in the performance of their duties. The inverted burden ofproof 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: ln ciosing its investigation, the SCO had only one job 
to "provide the Attorney General with a con?dential report explaining the prosecution or
declination decisions reached by the Special Counsel." 28 CPR. 600.8tc). 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 signi?cance of the
gathered content. As a result, none of the Report?s Volume II complied with the obligation

imposed by the governing regulation to ?explainlij the prosecution or declination decisions
reached." Id.

The SC 0 instead produced a prosecutorial curiosity part ?truth commission? report and
part law school exam paper. Far more detailedthan the text of any known criminal indictment or
declination memorandum, the Report is laden with factual informationthat has_never been
subjected to adversarial testing or independent analysis. 'l"hat__inforrnation is accompanied by a
series of inexplicably inconclusive observations (inexplicable. that is, coming from aprosecutor)
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 specialtindependent 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 speci?c
language, prosecutors are to speak publicly through indictments or con?dentially 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, ag. Remarks of House Judiciary Committee Chairman Jerrold Nadler. 4t'18/19 (Press
Conference}.l If that was in fact the intention, it too serves as additional evidence of the
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

 

1 Some commentators have pointed to the soncalled 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 and the many separation of powers problems presented by its transmission remain
largely unexplored. But the idea that it was a straightforward, just?the?tacts 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 dosh?yourself kit for the Judiciary Committee, helping it
reassemble the individual pieces of grand-j ury testimony and other evidence into rt coherent theory oft:
criminal case as we and the [grand] jury saw it." Ben-Veniste Frampton. Stonewall: The Real Storyt of
the Watergate Prosecution 242-43 197??) (emphasis added).

The Honorable William P. Barr
Attorney General of the United States
Page 3

purpose of preventing the creation ofthis sort of ?nal report.1 Under a constitution of separated
powers. inferior Article of?cers should not be in the business of creating "road maps" for the
purpose of transmitting them to Article I committees.

With the release ofthe 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 $00 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 SC 0. This voluntary cooperation was given on the understanding (reached with the SCO)
that information 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 staffinterviews 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 advisers.
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 advisers. 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 SC 0?s underlying investigative

 

2 At the time ofthe 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 ofthe Independent Counsel Act." Hearings before the S. on
Governmental A?ut?rs. 106th Cong. 236 (1999) (letter from Robert B. Fiske. see also id. at 252
(prepared statement ot?Janct Reno. Att?y Gen. ofthe United States); oftlie Independent
Counsel Statute. Part I: Hearings Before the Sum-mum. ott rmdAdmt'tt. Law ofthe H. Contra.
on the Judiciary; 106th Cong. 36 (1999) (prepared statement of Eric H. Holder. Jr.. Deputy Att?y Gem).

The Honorable William P. Barr
Attorney General of the United States
Page 4

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 fonner 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 advisers, but also by
advisers 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 of?cials, with access to classified information
derived from a eounterintelligence investigation and from classi?ed 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 con?dence in the integrity and
impartiality of our intelligence services. The criminal investigation began with a breach of
confidentiality executed by a very senior administration of?cial 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 ofan identi?ed individual would have troubled Americans of all political
persuasions. That the head ofour 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

The Honorable William P. Barr
Attorney General of the United States
Page 5

constitutional of?cer ?for whom the entire Nation votes. and [who] represent[s] the entire Nation
both domestically and abroad.? Clinton Jones. 520 US. 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 ot?the 5C0 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 ?owed from, and
were fueled by. impmper disclosures by senior government of?cials with access to classi?ed
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.

Sincerely,

gamed?? %/oucp

Emmet T. Flood
Specie? (intense! to the President