By William Wiley, June 12, 2019
Yeah, they each messed up. And if they had participated in the FELTG Conducting Workplace Investigations program (next offered August 5-9 in Denver), they would have not. In case you’ve been adrift at sea without social contact for the past several weeks, here’s what happened.
As provided for in both law and regulation, Robert Mueller was appointed by the Attorney General (AG) of the United States as the Special Counsel (SC) assigned to conduct an investigation into questionable dealings between members of President Trump’s campaign team and representatives of the Russian government. After two years of investigation, Mueller issued a 448-page report containing a bunch of fascinating facts, but no legal conclusion as to whether those facts amounted to criminal activity on the part of the President. When asked why he did not draw a legal conclusion relative to criminal activity, Mueller noted a Department of Justice policy that stated that a sitting President cannot be criminally indicted for federal crimes prevented him from doing so.
Subsequently, when Attorney General William Barr was asked whether Mueller should have drawn a legal conclusion, the AG offered that he should have. Barr said that even though there is a DoJ policy that a President cannot be indicted, the policy did not prevent the SC from drawing a legal conclusion as to Presidential criminality without issuing an indictment.
Each of these honorable gentlemen made a mistake, mistakes that are not made by participants in FELTG investigations courses. As we have taught for nearly 20 years, an investigation begins with a “customer,” someone who needs the benefit of an investigation. That customer appoints another individual to be the investigator, with certain powers, objectives, and limitations; i.e., defines the scope of the investigation. The goal of an investigation is for the investigator to provide the information needed by the customer to do whatever it is the customer wants done. In a workplace investigations situation, that’s usually whether some poor federal employee should be fired. In the AG/SC situation just described, it’s whether the President of the United States should be impeached, thrown in jail, or at a minimum, should be re-elected.
The law that governed the appointment of Mueller states specifically that the report of the investigation is to be provided to the AG. It could have said that the report was to go to Congress, or to the public. But it did not. The law made the “customer” of the report the Attorney General of the United States. Therefore, according to basic constructs of investigation, it is up to the AG to define the scope of the investigation, so that the SC investigator knows what to look for and what to produce as an outcome.
In our FELTG classes, we recommend that this critical scope definition be memorialized in an “appointment” memo. Preferably, that memo is provided by the customer to the investigator and lays out the expectations the customer has. For example, part of the appointment memo might say something like, “I am appointing you to investigate the theft of laptop numbered 123 from the director’s office that occurred around June 3, 2019. Based on the information you collect, I will make a determination as to who most likely took the laptop and whether discipline is warranted.” Sometimes a different result might be desired by the customer. If so, it should be stated clearly in the appointment memo: “If possible, you are to identify who you believe took the laptop without authorization, and the degree of proof you believe that you have regarding that determination.” Perhaps the customer wants the investigator to go even further: “In addition to identifying the probable perpetrator, you are to consider the facts that contribute to the relevant Douglas Factors and suggest a range of penalty.”
There’s no right or wrong when it comes to the scope of an investigation. It’s up to the customer to decide what the expectations are to be, to define the scope, and then to empower the investigator to collect all the evidence that’s required. In our investigations classes, we’ve found that some agency customers just want the investigator to collect facts without any consideration of the penalty factors, and other agency customers want the whole enchilada: facts, perpetrator, and penalty. That’s why it’s so critical that the scope be understood mutually from the very beginning. Otherwise, the investigator may not be satisfying the needs and expectations of the customer.
We teach the potential investigators who participate in our classes that they should protect themselves by clarifying the scope of the work with the customer. If the customer does not draft an appointment memo, we suggest that the investigator draft a memo to the customer before the investigation is initiated that describes what the investigator believes his responsibilities; e.g., “It is my understanding that I am to collect facts surrounding the disappearance of the laptop from the director’s office, but not recommend a penalty nor identify specifically who I would conclude took the property.” That allows the customer to clarify any misunderstandings from the beginning, in case the investigator misunderstands his role.
This simple, basic step would have saved both Barr and Mueller a lot of confusion. When the SC decided early on that DoJ policy prevented him from reaching a legal conclusion as to Presidential criminality, he should have notified his customer (the AG) of this limitation early on in the investigation. Since the DoJ policy is open to interpretation (as evidenced by two really smart people disagreeing as to its meaning), and since there is no automatic right or wrong, a question presented by the SC to the AG for clarification two years ago when the investigation began would have saved a lot of disagreement and confusion at this stage now that the SC office has been dissolved. On the other hand, there’s not necessarily any fault to be assigned when it comes to being confused. When you order your eggs over easy for breakfast, and the waiter brings you (the customer) eggs that are scrambled, you simply say, “Excuse me, but I ordered eggs over easy.” It doesn’t matter if you misspoke or the waiter misheard. Your eggs were not served the way you want them, and any waiter interested in a tip will remedy the situation without hesitation. That’s how life works. There are no bonus points for assigning blame.
And that was the AG’s mistake. When Mueller submitted his report, and it was clear that he did not reach the legal conclusion that Barr expected, the AG simply should have returned the report to the SC and clarified the expectation. No harm, no foul. When you get scrambled eggs instead of over easy, you don’t jump up, run to the kitchen, and start frying eggs. You just ask them to do it over. That’s what Barr should have said to Mueller, and would have if he had attended the FELTG investigations seminar. The goal is to get an acceptable report (or an acceptable breakfast) in spite of any confusion as to expectations.
Here at FELTG, we exist to help you ladies and gentlemen do a better job of running the government. We do that by offering seminars and consulting services at a reasonable fee. Operators are standing by. Discounts offered for political appointees nominated by the President and confirmed by the Senate. We may be just a small training group, but apparently we know more about federal investigations than do some very important people. Wiley@FELTG.com