It is reasonably clear now that the MUELLER REPORT is a very long (we don’t know yet how long) 28 C.F.R. 600.8(c) report — with lots of incriminating counterintelligence stuff in it
(Posted to Twitter on March 24)
I’m continuing to think my way through the Barr letter today. Here are my latest thoughts. 1/21
I was assuming that Mueller’s report would be a counterintel report — as I had long argued it would be, along with @therealNWC and @Marty_Lederman. 2/21
But that turned out to be wrong. Instead, it is reasonably clear now that the MUELLER REPORT is a very long (we don’t know yet how long) 28 C.F.R. 600.8(c) report:
28 CFR § 600.8 — Notification and reports by the Special Counsel.https://tinyurl.com/y64dh55f
3/21
That’s it. Just prosecutorial decisions. Prosecution or declination. Indict or don’t indict. And with the reasons for each decision. 4/21
A 600.8(c) report is important, because it addresses the question whether or not a special counsel believes that he or she has found enough evidence to show beyond a reasonable doubt in a court of law that one or more crimes have been committed. 5/21
That is the responsibility Mueller has discharged in his report. And what he has concluded is that there isn’t sufficient evidence on collusion that meets this very high bar, and is undecided about whether or not the bar has been met on the obstruction of justice question. 6/21
(So I must take back what I said about @AlanDersh in a previous post. Because the Report was a 600.8(c) report, Mueller actually was obliged to either advise prosecution or declination on obstruction of justice. He couldn’t leave it as an open question.) 7/21
But these are not the only questions that Congress and the American people want to have answered. For one thing, the question of whether a person X is guilty is wider than the question whether it can be PROVEN in a court of law that X is guilty. 8/21
And that is the way it should be. It is a good thing that we live in a country where the law cannot declare a person guilty until the government has has proven to a jury’s satisfaction that he or she is guilty according to the very high beyond a reasonable doubt standard. 9/21
But this is not the appropriate standard of evidence in the political sphere. In that sphere, Trump is not a defendant in a court of law, and must answer to the electorate’s judgment 10/21
about whether they think he is guilty according to an evidentiary standard that they think is appropriate for the nation’s *president*. 11/21
The electorate should be fair in coming to a conclusion about that, and it needs to consider whether or not the exacting legal standard has been met, but it need not, nor should it, use that exacting legal standard as the determining one. 12/21
And here is the emerging problem that I see: Not enough of the evidence that Congress and the public need to make the all-important political decision about Trump-Russia is likely to be in the MUELLER REPORT. 13/21
Instead, it is in the massive, mind-boggling pile of evidence that Mueller collected during his investigation. Furthermore, there is no reason to think that Mueller will ever write a counterintelligence report analyzing and making intelligible that mass of material, 14/21
yet Congress and the public have every right to expect such a report.
Marty Lederman is particularly good on this subject (and note that these inquiries inevitably go well beyond the question whether any *crimes* have been committed: 15/21
Note that these reports are not intended to be closed, in-house reports. The FBI and the DOJ are expected to brief and give such reports to Congress. (The Gang of Eight exists precisely to receive such briefings and reports, including highly classified ones.) 16/21
But who is going to write that important report? Mueller has split the scene. The DOJ? Democrats are not likely to have confidence in a CI report on Trump-Russia by the Republican-controlled DOJ unless they can confirm it by comparing it against the underlying evidence. 17/21
And why should they be put in that position? All that makes releasing, not just the MUELLER REPORT but all of the underlying investigative findings, an absolute necessity. 18/21
Conceivably, Congress (or at least the relevant Democratic committees in the House) could commission and pay for their own report based on the totality of the Mueller investigative findings. 19/21
And of course, once the materials are publicly available (like a Wikileaks dump), a million people (like me), and probably world-wide, are going to be going over it and writing our own “reports.” 20/21
This story isn’t over. More likely, it’s hardly started. 21/21
