White House counsel Emmet Flood derides Mueller report for failing to ‘comply’ with DOJ regulations

May 4, 2019

The White House is ridiculing Robert Mueller’s Russia report, saying it reads like a law student’s paper while not following the law or regulation for a special counsel.

The criticism comes in an April 19 letter from White House counsel Emmet T. Flood, President Trump’s new point man for the Russia legal battles ahead. Mr. Flood also accused Mr. Mueller’s team of Democratic-donor prosecutors of being political and lashed out at former FBI Director James Comey.

It marked Mr. Flood’s first salvo against the Muller report and signals a tough White House stance against congressional Democrats who are reinvesting Russia and targeting President Trump’s businesses.

“The SCO Report suffers from an extraordinary legal defect: It quite deliberately fails to comply with the requirements of governing law,” Mr. Flood wrote to Attorney General William Barr in a hand-delivered letter.

Mr. Flood said Justice Department regulation calls for the special counsel to do one of two tasks: prosecute or decline.

“The SCO instead produced a prosecutorial curiosity part ‘truth commission’ report and part law school exam paper,” said Mr. Flood, a veteran of President Bill Clinton’s impeachment.

Mr. Mueller punted to Mr. Barr a decision on whether to find that Mr. Trump obstructed justice. Mr. Barr concluded he did not.

Mr. Muller said he couldn’t conclude that “no criminal conduct occurred.” Mr. Flood said that is not a federal prosecutor’s job.

“In closing its investigation,” Mr. Flood said, quoting the regulation, “the SCO had only one job to ‘provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.’ Yet the one thing the SCO was obligated to do is the very thing the SCO intentionally and unapologetically refused to do.”

Mr. Flood bluntly accused Mr. Mueller’s staff of politicizing the report when they wrote they couldn’t “exonerate” Mr. Trump.

“The SCO’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,” he said. “The inverted burden of proof knowingly embedded in the SCO’s conclusion shows that the Special Counsel and his staff failed in their duty to act as prosecutors and only as prosecutors.”

Conservatives believe Mr. Mueller’s staff leaked a letter to the news media in which the special counsel criticized Mr. Barr’s four-page outline of the final report. The leak came on the eve of Mr. Barr’s Senate testimony last Wednesday. Mr. Barr later released the entire 448-page report with relatively light redactions.

Mr. Flood noted that Mr. Trump made his entire White House staff available for Mueller questioning, following the advice of then-defense counsel John Dowd.

“With the release of the SCO Report, and despite all of the foregoing, the President has followed through on his consistent promise of transparency,” Mr. Flood said. “He encouraged every White House staffer to cooperate fully with the SCO 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 SCO.”

Mr. Flood warned that the White House may invoke executive privilege in dealing with Democrats’ demands for witnesses and documents.

He harshly criticized Mr. Comey for leaking to the New York Times his memos on his meetings with Mr. Trump with the aim of causing a special counsel appointment, which happened.

“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 of an identified individual would have troubled Americans of all political persuasions,” Mr. Flood said. “That the head of our country’s top law enforcement agency has actually done so to the President of the United States should frighten every friend of individual liberty.”

Mr. Mueller’s report did not establish the existence a Trump-Russia conspiracy to interfere in the 2016 election.

Mr. Flood was a partner in the high-powered Williams Connolly law firm before taking the temporary post of acting-White House counsel in 2018 with the departure of Don McGahn.

A Republican, Mr. Flood advised Mr. Clinton during impeachment and served as a special counsel to President George W. Bush.