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

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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 Mueller.

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 Trump 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 Barr and Deputy Attorney General Rod Rosenstein — 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. – READ MORE

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