White House complained about Mueller report to Barr

White House lawyer Emmet Flood sent a letter to Attorney General William BarrWilliam Pelham BarrSupreme Court comes to Trump's aid on immigration Words matter, except to Democrats, when it involves impeaching Trump Justice OIG completes probe on FBI surveillance of ex-Trump campaign aide MORE in April complaining that special counsel Robert MuellerRobert (Bob) Swan MuellerFox's Cavuto roasts Trump over criticism of network Mueller report fades from political conversation Trump calls for probe of Obama book deal MORE's report made "political" statements, according to multiple reports.

The letter was sent one day after Mueller's redacted report was released to the public.

In it, Flood described the Mueller report as suffering from “an extraordinary legal defect” and rebuked the special counsel for explicitly stating that his investigation did not “exonerate” President TrumpDonald John TrumpHarris bashes Kavanaugh's 'sham' nomination process, calls for his impeachment after sexual misconduct allegation Celebrating 'Hispanic Heritage Month' in the Age of Trump Let's not play Charlie Brown to Iran's Lucy MORE on allegations of obstruction of justice.

ADVERTISEMENT

“The SCO Report suffers from an extraordinary legal defect: It quite deliberately fails to comply with the requirements of governing law,” Flood wrote. “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.”

Flood took issue with Mueller’s statements on obstruction, arguing that “making conclusive determinations of innocence is never the task of the federal prosecutor.”

In his report, Mueller wrote that his prosecutors could not “conclusively” determine that Trump did not commit a criminal offense and left the question of obstruction open.

“Prosecutors simply are not in the business of establishing innocence, any more than they are in the business of ‘exonerating’ investigated persons,” Flood wrote. “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.”

“Because they do not belong to our criminal justice vocabulary, 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,” Flood wrote, arguing that Mueller and his team therefore “failed in their duty to act as prosecutors.”

Flood also criticized the special counsel for including information on the obstruction inquiry in his exhaustive 448-page report. 

He pointed to the special counsel regulations that say Mueller issue a confidential report to the attorney general at the conclusion of his investigation explaining his prosecution or declination decisions. Flood wrote that Mueller "refused" to do what the regulations call for when he declined to make a decision on the obstruction question, and therefore did not comply with the regulations. 

Flood in his letter noted that Trump was committed to transparency and therefore did not assert executive privilege to withhold any details from the publicly released redacted report. However, he noted that Trump would have been well within his rights to do so.

Flood also said Trump’s decision not to make a privilege claim over the report should not be taken as a waiver to permit disclosure of Mueller’s underlying investigative materials. The White House lawyer added that Trump can still block advisers from testifying before Congress to answer questions about Mueller’s investigation.

The letter provides an inside look at the White House’s reaction to Mueller’s report, which detailed nearly a dozen instances in which Trump may have obstructed justice, including an episode in which he told then-White House counsel Don McGahn to have Mueller removed for alleged conflicts of interest.

“If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment,” Mueller’s report states.

“The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him,” the report states.

Flood wrote in the April 19 letter to Barr that the report “is laden with factual information that has never been subjected to adversarial testing or independent analysis.” Trump has disputed Mueller’s account of the episode involving McGahn.

The White House has also signaled potential plans to exert executive privilege to block McGahn from testifying before Congress after the House Judiciary Committee subpoenaed his public appearance.

Barr wrote in his March 24 memo laying out Mueller’s top-line conclusions that he and Deputy Attorney General Rod RosensteinRod RosensteinHouse Democrats seeking Sessions's testimony in impeachment probe McCabe's counsel presses US attorney on whether grand jury decided not to indict US attorney recommends moving forward with charges against McCabe after DOJ rejects his appeal MORE judged the evidence as insufficient to accuse Trump of obstruction.

Trump and his Republican allies have celebrated Mueller’s conclusions as told by Barr, claiming they vindicate the president on allegations of Russia “collusion” and obstruction. Mueller did not find evidence to charge Trump or members of his campaign with conspiring with the Russian government.

Barr delivered a high-profile testimony on Capitol Hill Wednesday during which he was grilled by Democrats about a March 27 letter in which Mueller objected to the attorney general’s description of his findings.

Mueller wrote that Barr’s four-page memo did “not fully capture the context, nature, and substance” of his findings and spurred “public confusion about critical aspects” of the probe.

Updated 2:55 p.m.