Scathing remarks directed at Special Counsel Robert Mueller’s Russia probe by John Dowd, President Trump’s previous criminal defense legal representative, are understandably drawing attention. I am less interested in the ad hominem than in the prominent issues Dowd has raised.

Dowd described Mueller’s examination as a “terrible waste of time,” recommending that there are no crimes and that the exercise was one of score-settling for “a cabal in the FBI” opposed to the president.

For that reason, the legal representative anticipates that the unique counsel’s much-anticipated last report will never ever emerge, a minimum of for public intake. “I will be shocked,” Dowd declaimed, “if anything relating to the president is revealed besides, ‘We’re done.'”


This brings to the fore some legal problems worth figuring out.

Initially, there certainly will be a last report by the unique counsel. The regulations governing unique counsel appointments by the Justice Department state: “At the conclusion of the Special Counsel’s work, she or he will provide the Chief law officer with a personal report discussing the prosecution or declination choices reached by the Special Counsel.”

Note both that the special counsel’s report need to explain his charging choices to the lawyer general which the report need to beprivate.

Even if, as I anticipate, the special counsel finds there is no basis to submit criminal charges versus the president, an explanation of that choice would be needed. However it would be an explanation for the attorney general of the United States’s eyes just.

It is the policy of the Justice Department not to speak openly about the proof against uncharged persons.

Remember that when FBI Director James Comey was dismissed, based in part on a memorandum composed by Deputy Chief law officer Rod Rosenstein (who supervised the Mueller investigation for over a year), the primary condemnation of Comey involved his public revelation of the evidence in the Hillary Clinton email investigation– notwithstanding that Clinton had actually not been charged with a criminal activity.

There is hence a great chance that Dowd is appropriate that Mueller’s report will not result in any declaration about the president aside from that the examination is closed.

Subsequently, even if the special counsel guidelines did not mandate confidentiality, ordinary Justice Department standards versus public commentary about uncharged individuals would do so. (Obviously, when individuals are charged, the indictments normally promote themselves.)

There is thus a great chance that Dowd is correct that Mueller’s report will not lead to any statement about the president aside from that the examination is closed.

In fact, the Justice Department normally will not even verify or reject the existence of an investigation, so it may not even acknowledge the closing of the case– although it should do so in this circumstances, not least because the Justice Department and FBI gratuitously revealed, in Comey’s March 2017 Home statement, that the Trump project was under investigation for possible “coordination” in Russia’s election meddling.

If you are going to create the impression that someone is a suspect, you owe it to that individual to correct the impression if the case is closed without charges.

Even if there are no charges, that does not suggest Mueller’s overall investigation has actually been a waste of time. Mueller, after all, was not assigned a criminal examination.

Rosenstein appointed Mueller to take control of the FBI’scounterintelligenceexamination of Russia’s interference in the 2016 governmental election. The point of a counterintelligence investigation is not to build criminal cases; it is to understand the actions and intents of foreign powers, such as Russia, to the degree they may threaten American interests.

Therefore, the criminal examinations and prosecutions have only been a subset of Mueller’s assignment. His overarching objective has actually been to examine the nature and extent of the Kremlin’s election-meddling operations. The objective is to thwart such operations in the future.

As I have often times kept in mind, the assignment of a counterintelligence examination to an unique counsel was inappropriate. The guidelines license visit of an unique counsel just when (a) there is a factual predicate for a criminal examination or prosecution, and (b) the Justice Department has such a profound dispute of interest that it can not ethically perform the investigation, requiring the appointment of a legal representative from outside the federal government.

Here, particularly as to President Trump and any alleged connections in between Trump project authorities and the Russian federal government, no factual basis has actually been offered to believe there was a criminal conspiracy or other prosecutable chastening offenses.

Additionally, there is no dispute of interest so severe that Justice Department disqualification was required. (A disqualifying dispute is supposed to come from the truths that trigger a needed criminal investigation or prosecution– here, to repeat, no such realities have been offered, at least publicly.)

All that stated, however, Deputy Attorney general of the United States Rosenstein’s decision to appoint a special counsel may not be reversed. The regulations specifically specify that they do not create enforceable rights to challenge alleged infractions in court.

For That Reason, Mueller is conducting the counterintelligence probe of Russia’s disturbance in the campaign, despite whether he needs to have been appointed.

Plainly, it was essential for the federal government to investigate Russia’s operations against our country, whether that examination was led by the FBI (which usually handles domestic security from foreign threats, under the supervision of the Justice Department) or by a district attorney (though that is not usually done).

To the extent Dowd’s remarks can be taken to suggest that the overarching objective to investigate Russia was a wild-goose chase, that is not so– and knowing Dowd, I’m confident he did not suggest it that way.


What he was talking about, specifically, was the investigation of President Trump. On that score, it deserves noting that counterintelligence investigations are classified. They are conducted not for courtroom prosecution or public disclosure, but to help the president in bring out his national security responsibilities.

The truth that counterintelligence examinations are secret further supports Dowd’s main point: If the special counsel concludes that President Trump should not be charged with a criminal offense, absolutely nothing need be stated other than, perhaps, that the examination has actually been closed. The regulations need the special counsel to report findings to the attorney general, not to Congress.


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