The Justice Department’s appointment of former FBI Director Robert Mueller as special counsel to investigate alleged Russian interference in last year’s presidential election has excited both delight and dismay. Some Democrats have lauded the appointment, seeing it as corroborating their allegations about collusion between the Trump campaign and the Kremlin to flip the election. Others, including the President himself, have attacked the appointment as further evidence of a design to overturn the election results and oust Trump from office.
Mueller’s appointment may halt the rising tide of criticism and demands for investigation into the Russia controversy and even give Trump breathing room to get his house into order. Some hope that Mueller’s well-won reputation for integrity and independence will lead to a final conclusion that will settle the matter. But the longer-term consequences will be to continue the political fighting, perhaps even prolong it, and to expand the scope of the controversies under investigation.
First, it’s crucial to distinguish between a “special counsel,” such as this is, and an “independent counsel.” The office of Independent Counsel was created by a statute that Congress has allowed to lapse. A special counsel, by contrast, is an official appointed by the Justice Department and subject, like many other federal criminal investigators and prosecutors, to the Justice Department’s supervision and control.
Normally, a special counsel like Mueller would answer to the Attorney General. But since Attorney General Jeff Sessions has recused himself from the Russia investigation, Mueller will answer to Sessions’ deputy, Rod Rosenstein. Under Justice Department regulations, Mueller will enjoy certain protections against removal by Rosenstein. But under the Constitution, both Rosenstein and Mueller are ultimately answerable to the President as head of the Executive branch.
The rules governing Mueller’s appointment differ from those that applied to an independent counsel, which were provided by an Act of Congress rather than by internal Justice Department regulations. The investigation of President Bill Clinton was spearheaded by former Judge Ken Starr, an independent counsel appointed under the statute. Many Clinton supporters were critical of Starr’s investigation, which seemed to them unfairly broad and vindictive. Republicans had earlier raised similar objections to the statute when independent counsels were investigating Ted Olsen, a Reagan era official (and later Solicitor General under George W. Bush), and Iran-Contra. Even though the Supreme Court had upheld the constitutionality of the statute, both parties agreed that it had worked disastrously in practice, and decided not to renew it.
Congress’ decision not to renew the Independent Counsel Act was a wise one, not only because of its policy misfires, but also because the Supreme Court had erred badly in upholding its constitutionality. The Court’s opinion drew forth a magnificent dissent from the late Justice Antonin Scalia, which many now regard as his finest effort, and which over the years has come to be widely accepted by liberal and conservative legal scholars alike. (In the aftermath of the Starr investigation, leading liberal scholar Cass Sunstein wrote that “Scalia nailed it.”)
Scalia argued that under fundamental constitutional separation-of-powers principles, the powers to investigate and prosecute criminal activity in violation of federal law belonged exclusively to the President. Congress had no power to assign those powers to officials not subject to the President’s authority to supervise, control and remove. The safeguards established to ensure the “independence” of the relevant investigators and prosecutors were invalid. The President controlled their activities, and politics – not a statute – controlled the President.
It is vital to understand that Mueller is not and cannot be “independent” in the sense in which that term is often understood. President Trump may remove him for any cause or for none – though a political firestorm would ensue if he did. One caveat. There is language in the Supreme Court's decision in a Watergate era case that could be taken to imply that the regulatory restrictions on the Attorney General's power to remove a special counsel would apply to the President as well. But if Scalia's understanding of executive power is correct, as we believe it is, then the President cannot be fettered by those restrictions, even if the Attorney General is.
Second, it is obvious that no one can predict the outcome of Mueller’s investigation. Much will depend on the scope of the investigative jurisdiction that Rosenstein has assigned him, and on how he interprets his mandate. The Justice Department’s terse announcement said only that he had been appointed “to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters.”
If Mueller focuses on the repeated (but so far unproven) claim that Trump or his campaign officials “colluded” with the Russian government to swing the election, the investigation could well be over quickly, and might well prove to be a vindication for Trump. If Mueller extends his investigation into the conduct of Obama’s National Security Adviser Susan Rice and other Obama officials in the aftermath of November’s election, the results could prove to be extremely embarrassing for the former President, his associates, and his party. (Indeed, they might also embarrass former FBI Director James Comey, whom Trump believes slow-walked the investigation of possible wrongdoing and criminality by Obama appointees.) And if Mueller choses to engage in a broad-gauged investigation that includes all the business dealings between Trump’s associates or Trump’s business empire and Russian persons (whether governmental or not) reaching back over years, the investigation would likely be agonized, prolonged, politically polarizing, and deeply damaging to the public confidence in our legal system.
Of special interest, of course, is what might result if Mueller investigates the charge – tossed about rather cavalierly by Trump’s opponents – that he sought to “obstruct justice” by telling Comey to drop the investigation of General Michael Flynn, who briefly served as National Security Adviser before Trump discharged him. The only evidence to have surfaced so far is a memorandum Comey prepared for his own use that purported to record a conversation between himself and Trump. According to Comey’s memorandum, Trump said that he “hope[d] you can see your way clear to letting this go, to letting Flynn go . . . . He is a good guy.”
Barring far more evidence, we doubt that a statement as ambiguous as that would prove obstruction of justice. Furthermore, the interpretation put upon Trump’s alleged statement – that it amounted to an order to drop the Flynn investigation – has been emphatically denied by the White House. And, of course, it is only Comey’s version of what appears to have been a private conversation between the two men. In itself, it is a slender reed on which to build a criminal charge of a sitting President. And remember, the Constitution vests in Trump alone the power to supervise federal criminal investigations.
We wish Robert Mueller success in executing a task that will test him to the limit. But in light of the President’s continuing constitutional authority over all federal law enforcement, and the tendency of independent counsel investigations to go beyond their original mandates, expect the political controversy to only continue and perhaps get worse.
Robert Delahunty is a law professor at University of St. Thomas (Minneapolis) and was a career Justice Department official from 1986-2004.
John C. Yoo is Heller professor law at UC Berkeley School of Law and a visiting fellow at the American Enterprise Institute, and the author of the new book “Striking Power: How Cyber, Robots and Space Weapons Change the Rules of War.”