Thread by @CBHessick

One item in the #MuellerReport that seems to have largely escaped attention is the fact that Donald Trump Jr. committed a crime--specifically, he violated the computer fraud and abuse act. It appears that he wasn't charged only because of prosecutorial discretion. A few thoughts:

Although the report recounts the facts that would support a criminal charge under the CFAA, it redacts Don Jr's name from the legal analysis for "personal privacy" reasons. Here are the relevant facts:

And here is a very helpful post by @OrinKerr at @lawfareblog explaining how this conduct violated section 1030 of the computer fraud and abuse act: lawfareblog.com/did-donald-tru…

Anyone who knows anything about the computer fraud and abuse act (or anyone who read Orin's post) would immediately realize that this section is referring to Don Jr.
So I'm not really sure what purpose the redactions in the legal analysis section are actually serving

Anyway, I'm more interested in the decision not to prosecute, rather than the decision to redact. It looks like the decision not to prosecution was not based on weak facts or unfavorable law--it was a policy decision that the crime wasn't serious enough to warrant charges.

Here is the key passage:

I'm not criticizing the decision not to prosecute Don Jr.
To the contrary, I support prosecutorial decisions not to bring charges for trivial conduct that gets swept into statutes that are written in terms that are far to broad.

I talk about the problems with overly broad laws in this new paper papers.ssrn.com/sol3/papers.cf…
That paper offers a statutory interpretation solution for the problem of overly broad laws because our only real option now--prosecutorial discretion--has serious flaws.

One major flaw is that most people don't realize that prosecutors routinely fail to enforce overly broad laws for policy reasons and, as a result, prosecutors do not have to justify the policy decisions of enforcement and non-enforcement.

Which brings me back to the #MuellerReport

I wish that we saw more analysis about this decision not to prosecute. It could have helped better educate the public about this important feature of the criminal justice system.
And it could have prompted a public debate too

We need a good debate about when nonenforcement is appropriate. Because, right now, the few prosecutors who are publicizing their nonenforcement policies are taking an awful lot of heat. slate.com/news-and-polit…

If we had an official nonenforcement explanation from the likes of Robert Mueller and the amazing career DOJ officials (like Michael Dreeben) who worked with him, I think it could go a long way towards improving the quality of the current debate.

At a minimum, I hope there is more public acknowledgement that this nonprosecution decision was made about Don Jr.
I've seen it mentioned by only very few people up until now--most notably @normative in this tweet:

https://twitter.com/normative/status/1118951219555438592

And @OrinKerr saw this issue coming -- including the potential decision not to bring charges -- more than a year ago. lawfareblog.com/notes-mueller-…

But mostly this issue is being crowded out by Mueller's decision not to make a “traditional prosecutorial judgment” about the President's criminality in the report and Barr's subsequent statement that obstruction charges for the President weren't warranted.

Both of those nonprosecution decision are extremely important, and they deserve scrutiny.
But this more mundane decision not to prosecute Don Jr. is far more representantive of what happens in the justice system every day.
And so I hope we spend more time talking about it. /end

Addendum:
I've pulled these thoughts together--plus a bit more on nonprosecution decisions and overly broad laws--in this @PrawfsBlawg post: prawfsblawg.blogs.com/prawfsblawg/20…

Another addendum (responding to @ScottGreenfield and @OrinKerr):

https://twitter.com/CBHessick/status/1123236556645502977