The appointment of Robert Mueller as Special Counsel for the Department of Justice’s investigation of Russia’s interference with the 2016 election looks like a game-changer.
Prior to Mueller’s appointment, it was impossible to have any confidence that the Department of Justice, an agency within Donald Trump’s executive purview, or any of the Republican-controlled House and Senate Committees, would conduct honest, independent investigations.
Mueller’s appointment changes that, and gives us hope that the truth will come out.
But at the risk of raining on your parade, I’d like to inject a note of caution.
First, a little history. The Department of Justice’s current Special Counsel regulations were established in 1999, after the expiration of the so-called “Independent Counsel” provisions of the Ethics in Government Act expired.
Several high-profile investigations were conducted under the old Independent Counsel statute, including Iran-Contra and Whitewater.
Remember Whitewater? Maybe not, because the central allegations of the Whitewater “scandal” ― mostly having to do with the Clintons’ involvement in a failed real estate development in Arkansas ― never amounted to anything.
But I bet you remember Ken Starr. Starr was one of three Independent Counsels assigned to the Whitewater investigation. And if you do remember Starr, it is almost certainly NOT because of Whitewater. It is because of his dogged pursuit of Bill Clinton’s Monica Lewinsky scandal, which led to his impeachment.
What does Bill Clinton’s affair (or whatever it was) with Monica Lewinsky have to do with Whitewater?
Except that Starr used his platform as the Whitewater Independent Counsel to investigate everything Clinton, and what he found was sex, lies and a blue dress. It seems almost comical now that the infamous Starr Report, the product of Starr’s epic pursuit of the Clintons, mentioned Whitewater only in passing, and instead treated the nation to an R-rated account of Clinton’s tawdry sexual misconduct.
And therein lies the key to understanding the rationale, and the limitations, of the current Special Counsel regulations adopted in 1999.
It was no mere semantic accident that the new 1999 DOJ regulations substituted the word “Special” for the word used in the previously expired statute, “Independent.” Although couched in high-minded language about finding “the right balance” between independence and accountability, that “balance” was achieved by curtailing independence and adding accountability.
To the Attorney General. And, ultimately, to the President. Donald Trump.
The 1999 Special Counsel regulations were designed in large part to curtail the kind of excessive zeal so clearly demonstrated by Ken Starr. Congressional testimony at the time focused on “two vexing problems” under the old Independent Counsel statute, “the tendency of some investigations to sprawl beyond the reason for their initiation and to do so without the discipline of limits on the public resources they consume.”
In plain English, the current Special Counsel regulations were designed to rein in the powers of independent counsels, not to expand them.
And that’s why you might curb your enthusiasm, just a bit, over Mueller’s appointment.
Yes, Mueller is a prince. Nobody questions his integrity or independence. Yes, Deputy Attorney General Rod Rosenstein’s appointment of Mueller gave him broad jurisdiction to investigate any links or coordination between the Russian government and the Trump campaign. Yes, Mueller is authorized to prosecute any crimes that may be uncovered by the investigation.
But no, he is not entirely immune from political interference by the Attorney General, the Deputy Attorney General, or the President.
While the Special Counsel is not subject to day-to-day management by the DOJ, the Attorney General (or Deputy Attorney General if the Attorney General is recused, as is the case here) “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
In other words, the Deputy Attorney General can stop the Special Counsel from doing things that are believed to be inconsistent with DOJ practices. The regulations don’t provide any additional guidance on this point. Would issuing a subpoena to a sitting President be “inappropriate” under established DOJ practices? Who knows.
The Special Counsel’s proposed budget is also subject to review and approval by the Attorney General on an annual basis. No money, no investigation.
But the DOJ’s heavy artillery is the power to terminate the investigation and/or fire the Special Counsel.
The regulations require the Special Counsel to provide the Attorney General not only with an annual budget request, but also with an annual report on the status of the investigation. Based on the budget request and the status report, the Attorney General “shall determine whether the investigation should continue and, if so, establish the budget for the next year.”
The regulations provide absolutely no limitations on the Attorney General’s authority to decide each year whether to continue or terminate the investigation. If he says it’s over, it’s over. Full stop.
And that’s not the only big political gun. The Attorney General can fire the Special Counsel. The circumstances under which the Special Counsel may be fired are broad and vaguely worded. The Attorney General may remove a Special Counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”
There’s more than enough wiggle room in that language to provide a motivated Attorney General with cover for political interference.
The regulations don’t provide the President with any direct authority to control an investigation or fire a Special Counsel, but don’t be fooled. At the end of the day, he’s the one who calls the shots by appointing and directing the Attorney General and Deputy Attorney General.
The levers of political interference are mitigated somewhat by the reporting requirement built into the regulations. For instance, if the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, or fires the Special Counsel, the Attorney General is required to notify Congress.
While the requirement of reporting to Congress is a significant check on direct interference by the Attorney General, it is an imperfect check at best.
The idea that a president, or a politically motivated attorney general acting on the president’s orders, might exercise restraint out of fear of public disclosure and shaming seems quaintly obsolete in the Age of Trump. Or have you forgotten the Access Hollywood tapes? Or Trump’s firing of the FBI director who was investigating him?
So don’t declare victory quite yet.
A battle has been won, but there’s a long and dangerous war ahead.
Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.