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Justice Department Letter to Mueller Isn’t Legal Advice

Justice Department Letter to Mueller Isn’t Legal Advice

(Bloomberg Opinion) -- You can take the letter that the Department of Justice has sent to former special counsel Robert Mueller offering “guidance” on his testimony to Congress as evidence of several interesting things. For one, Mueller seems to have wanted an official document from the Justice Department to help him avoid answering questions. For another, the Trump administration seems worried about questions concerning unindicted persons, such as President Donald Trump and his family.

But whatever you do, don’t take the Justice Department letter as the law. The only legal bars to Congress’s demanding answers from Mueller on Wednesday are the Constitution and federal statutes. Those are invoked in the letter, but without much bite. The core of the guidance focuses on departmental policy.

Policy on what Justice Department lawyers should say publicly might get respectful deference from members of the House Judiciary and Intelligence committees. It might even deserve that respect. But departmental policy has no official legal standing — especially not when a former Department of Justice employee like Mueller is testifying before Congress, a branch of government in principle on par with the executive branch.

The letter, released Monday, comes from the pen of Associate Deputy Attorney General Bradley Weinsheimer. If you’ve never heard of him before, don’t worry about it — neither had I. It seems that Weinsheimer is a loyal career attorney, having served the Department of Justice for an impressive 27 years as a prosecutor, in the Office of Professional Responsibility and in the National Security Division, before taking up his current job a year ago.

Weinsheimer’s obscurity prior to this letter is a signal that its content comes straight from Attorney General William Barr. The associate deputy attorney general is a messenger, one with the tremendous advantage of having never been involved in any aspect of Mueller’s investigation into Russian meddling in the 2016 presidential election and whether the president obstructed that inquiry.

The letter starts by making it clear that it’s being written in response to a request from Mueller himself for guidance with respect to any “privilege or other legal bars” to his testimony under subpoena.

Mueller is an experienced enough lawyer that he would never ask a question to which he didn’t already know the answer. His request for guidance shows that he wanted a letter from the Justice Department to strengthen his hand when he tells House representatives that he’s not going to say anything he doesn’t want to say.

Getting the letter also cleverly positions Mueller as on some level aligned with the Justice Department. That will give House Republicans greater incentive to help him out during the hearing, should he need backing when Democrats push him harder than he wants to be pushed.

After a paragraph in which Weinsheimer repeats Mueller’s public desire not to be required to testify at all, and praises the Department of Justice for letting him testify anyway, the letter gets to brass tacks. First, it says “there should be no testimony concerning the redacted portions of the public version of your report.” It says there are court orders applicable, as well as Federal Rule of Criminal Procedure 6(e), which bars public disclosure of grand jury testimony.

As for the orders issued by courts in the cases against former Trump adviser Roger Stone and against a Russian-owned company, Concord Management and Consulting LLC, it is arguable that they apply only to current Department of Justice employees, not Mueller, who is now retired. And it is far from clear that they would apply to testimony subpoenaed by another branch of government like Congress.

Rule 6(e) probably does apply even before Congress, because the rules are quasi-statutes. In any case, it’s hard to imagine Congress asking Mueller to testify about matters disclosed in the secrecy of a grand jury.

The letter then points to Department of Justice policy “not to discuss the conduct of uncharged third parties.” This policy is exactly that: a policy of the Department of Justice, not backed by any law or constitutional principle. There is no reason Congress should defer to it. And, again, Mueller is no longer a Justice Department employee.

It also makes little sense to apply the policy so as to try to block Mueller from speaking about Trump or his family — because much of the Mueller report is in fact about the conduct of uncharged parties, including Trump and his son-in-law Jared Kushner.

Finally, the letter makes a wildly broad assertion of executive privilege. Such a privilege, where it applies, is constitutional — based on the idea that for the president to do his job effectively, he must be able to keep confidential his conversations with his closest advisers. The letter says that “matters within the scope of your investigation were covered by executive privilege.” But that only means some matters, not everything in the investigation. What’s more, Trump waived executive privilege several times with regard to the investigation — for example, when he allowed the White House counsel to speak to Mueller’s team.

The letter goes further still by asserting that executive privilege would cover “discussion about investigative steps or decisions made during your investigation.” Those were not pieces of advice made to the president. They don’t fall within executive privilege in its ordinary meaning.

The letter concludes by reminding Mueller that Department of Justice witnesses “should decline to address potentially privileged matters.” That guidance is even broader than an assertion of privilege, because it essentially says that if there is even the potential for privilege, then the witness should shut up. There is simply no reason for Mueller to go this far.

The upshot is that Mueller may well want to stick to the text of his report, as he said in his brief news conference in May, his only public statement thus far on the matter. But in his testimony before Congress that will be his choice — not an obligation under the Justice Department letter.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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