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Texas Republican Rep. John Ratcliffe delivered a sharp rebuke to Special Counsel Robert Mueller’s handling of obstruction of justice in his report.
During Mueller’s testimony on Capitol Hill July 24, Ratcliffe said the entire section went beyond the rules for special counsels and broke with the presumption that a person is innocent until proven guilty.
"You wrote 180 pages about ... potential crimes that were not charged or decided," Ratcliffe said. "Now respectfully, by doing that you managed to violate the most sacred of traditions of prosecutors not offering extra prosecutorial analysis about potential crimes that are not charged."
Ratcliffe emphasized, "You didn’t follow the special counsel regulations. It clearly says write a confidential report about decisions reached. Nowhere in here does it say write a report about decisions that were not reached."
But experts say Mueller followed the rules to the letter.
"Ratcliffe is making a pretty strained reading of the DOJ regulations," said University of St. Thomas law professor Mark Osler.
Federal regulations say, "At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel."
"It clearly includes declinations, which is taking no action," Osler said.
Ratcliffe also erred about the need to avoid "extra prosecutorial analysis about potential crimes that are not charged," said Ric Simmons at Ohio State University College of Law.
"Mueller was offering evidence that could be used if the attorney general did in fact decide to charge him," Simmons said. "Not only is that not barred, it is precisely the kind of evidence that Mueller would be expected to bring to give proper advice to the attorney general."
Doubling down on that, Saikrishna Prakash, professor at the University of Virginia, said "nothing in the American legal system precludes a prosecutor from commenting upon a case she investigated."
Ratcliffe confuses the content of the report with the publication of it. Mueller was required to give a full report to Attorney General William Barr. It was Barr’s decision to release any portion of it, not Mueller’s. If Ratcliffe has an issue, it is with Barr, though we should note there was immense public pressure on Barr to release the report.
Ratcliffe said Mueller overstepped the rules for prosecutors by writing about potential crimes that were not charged. This is wrong.
Federal regulations specifically require special prosecutors to explain their decisions not to prosecute. That explanation goes to the attorney general, who then decides what to make public.
We found no legal scholar who agreed with Ratcliffe.
We rate this claim False.
Washington Post, Transcript: House Judiciary Committee hearing, July 24, 2019
Legal Information Institute, 28 CFR § 600.8 - Notification and reports by the Special Counsel, accessed July 24, 2019
Email exchange, Mark Osler, professor of law, University of St. Thomas School of Law, July 24, 2019
Email exchange, Ric Simmons, professor of law, Ohio State University College of Law, July 24, 2019
Email exchange, Saikrishna Prakash, professor of law, University of Virginia School of Law, July 24, 2019
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