A special counsel for a special investigation

A special counsel for a special investigation

How independent can Robert Mueller be?

We’ve seen this play before. Except this time, the scenes and the actors are a tad different. Rod Rosenstein, the deputy attorney general, has appointed a special counsel, former FBI Director Robert Mueller, to investigate contacts between the Trump campaign and Russian officials. The idea is to have an outsider, someone not connected to the executive, investigate persons close to the president with the hope that the public and Congress will accept whatever emerges from the inquiry.

Americans of a certain age are familiar with independent counsels. The most famous such investigator and prosecutor was Judge Kenneth Starr, appointed to investigate Whitewater and, eventually, the Monica Lewinsky scandal.  In the wake of Watergate, Congress had created an Ethics in Government Act, one section of which established “independent counsels” who could investigate the alleged misdeeds of certain high executive officials. The hope was that such counsels would be independent of the executive because they would be appointed by courts (not the executive) and because they could be removed only for limited reasons (“cause”). The president could not fire someone investigating him—or so people supposed.

In the wake of the controversial Ken Starr investigation of President Bill Clinton, Congress chose not to extend the independent counsel statute. What emerged in its place was an administrative fix, a Department of Justice rule authorizing the creation of a “Special Counsel.” Essentially, the Department of Justice might appoint someone to investigate high executive officials and give that person a measure of independence. While the special counsel also had “for cause” protection, the attorney general (rather than a court) appointed the special counsel. Moreover, the attorney general might rescind the regulation granting “for cause” protection and then remove the special counsel without regard to whether there was cause. So while the special counsel was to have a measure of independence, the office was not as well shielded as the independent counsel constructed by the Ethics in Government Act.

Going forward, the president might order the Justice Department to fire Mueller. He would have to find an attorney general willing to carry out such an order, something hardly assured. Or the president might try to fire Mueller himself. The special counsel regulations proclaim that the special counsel may be removed “only by the personal action of the attorney general.” But I can’t discern the Department of Justice’s basis for supposing that it may derogate from the president’s power to remove executive officers. Hence perhaps the president can ignore the regulation’s attempt to limit his constitutional power to remove and fire Mueller himself.

Of course, having a legal power to take an act is not the same thing as saying it would be wise or prudent to take a particular decision. Having fired one investigator—former FBI Director James Comey—it would be politically foolish for the president to fire Robert Mueller who is, in a sense, Comey’s replacement. But President Trump does not play by conventional rules and one cannot rule anything out. The early months of his presidency bear that out—in spades.