Note to Team Mueller: If you don't indict, you can't incite

I’ve covered the Justice Department for three decades, and seldom have I seen a story like the one published in The New York Times this week under the headline, “Some on Mueller's Team Say Report Was More Damaging Than Barr Revealed.”

What concerned me most is that the story’s anonymous allegations reflect a fundamental misunderstanding of the role prosecutors play, including special counsels such as Robert MuellerRobert (Bob) Swan MuellerMueller report fades from political conversation Trump calls for probe of Obama book deal Democrats express private disappointment with Mueller testimony MORE.

ADVERTISEMENT

The job of prosecutors is not, as the Times headline suggested, to pen “damaging” narratives about people they couldn’t indict. And it’s not their job to air those people’s dirty laundry, or that of suspects outside of a grand jury room or a courtroom.

Mueller concluded there wasn’t evidence President TrumpDonald John TrumpGraham: America must 'accept the pain that comes in standing up to China' Weld 'thrilled' more Republicans are challenging Trump New data challenges Trump's economic narrative MORE colluded with Russia to hijack the 2016 election, and therefore no indictment was warranted. And he punted on the question of obstruction, leaving his bosses — Attorney General William BarrWilliam Pelham BarrFeds charge five in international ID theft ring targeting military members, veterans The road not taken: Another FBI failure involving the Clintons surfaces Correctional officers subpoenaed in Epstein investigation: report MORE and Deputy Attorney General Rod RosensteinRod RosensteinSanders, Warren back major shift to fight drug overdoses 10 declassified Russia collusion revelations that could rock Washington this fall Why the presumption of innocence doesn't apply to Trump MORE — to determine that there wasn’t enough evidence to indict the president on that charge.

And, most significantly, there were no other people charged. That means Trump legally could not be named as an unindicted co-conspirator in an obstruction plot.

At that point, no federal prosecutor has the right to impugn an uncharged investigative target’s reputation through anonymous leaks or literary reports. They are not allowed to anonymously inject into the court of public opinion any “damaging” information about what they couldn’t succeed at offering in a court of law as proof of criminality.

Prosecution isn’t a game of horseshoes or hand grenades where prosecutors get to score points or inflict damage without indicting the target. In fact, the Founding Fathers built a legal system specifically to avoid the tarring of citizens when there wasn’t enough proof to meet a criminal charge.

And nowhere is that intention to protect the citizenry more clear than in the rules governing grand juries. The federal justice system created grand juries so that evidence that was embarrassing or damaging to defendants could be weighed behind closed doors but never released if it did not rise to the level of provable criminality.

ADVERTISEMENT

The Justice Department rules threaten any law enforcement officer or prosecutor with prosecution if they leak any proceeding that occurred before a grand jury. And the Justice Department rules governing grand juries unequivocally talk about the sanctity of protecting citizens who end up not being charged.

“The prosecutor must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges,” the Justice Department rules say.

We know from statements the Justice Department made Thursday that grand jury subpoenas and testimony were so essential to the Mueller probe that nearly every one of the 400 pages of his final report contained some form of grand jury or classified information that needs to be redacted — i.e., protected from being used to level “unfounded criminal charges” against those not indicted.

When you see the rules by which prosecutors must abide, and compare it to the anonymous narrative in the Times article, one can see a real reason for concern.

Going to the court of public opinion to state there was “damaging” information in a probe that failed to prove criminal charges violates the letter and the spirit of the Justice Department manual. It also offends the essence of American justice that one remains innocent until proven guilty.

What’s most ironic about this Mueller probe leak is that it comes less than a year after former FBI Director James ComeyJames Brien ComeyThe road not taken: Another FBI failure involving the Clintons surfaces Sarah Huckabee Sanders becomes Fox News contributor 3 real problems Republicans need to address to win in 2020 MORE was admonished publicly for holding a news conference to criticize Hillary ClintonHillary Diane Rodham ClintonTrump preps conspiracy theory to explain faltering economy The ideological divide on vaping has a clear winner: Smokers Biden struggles to hit it off with millennials MORE for how she handled classified emails based on the results of an investigation that resulted in no criminal charges.

“We concluded that Comey’s unilateral announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct,” the Justice Department inspector general wrote.

You’d think the Mueller prosecutors might have taken note of the admonishment.

So the first fault in the Times story rests clearly on the federal prosecutors who leaked to associates or directly to reporters.

I also believe the Times shares some fault. As a lifelong journalist I won’t criticize a news organization for reporting on a story such as this and quoting sources, especially if they were in a first-person position to really know. Journalists should strive to find out what their elected leaders such as Trump have done, whether criminal or not.

But I strongly believe — as did the news organization for which I worked for the longest in my professional career, The Associated Press — that we have an obligation as reporters to quote information anonymously only from first-hand sources.

There is compelling evidence — starting with the lead of the story — that the Times information comes anonymously from “associates” of the actual prosecutors. In other words, it is second-hand hearsay.

I’m not sure that rises to a strong journalistic standard.

Nonetheless, the bigger lesson here should be clear, both to the Mueller team members and the reporters who facilitated their anonymous griping.

In the American justice system, if you don’t indict, you cannot incite.

John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists’ misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He serves as an investigative columnist and executive vice president for video at The Hill.