The Justice Department’s appointment of Robert Mueller as special counsel to investigate l’affaire Russe signals both the seriousness with which this matter is viewed within the nation’s top law enforcement agency and its radioactive nature. That radioactivity likely could have been absorbed by the department’s layers of bureaucracy and professional prosecutorial culture. And then President Donald Trump humiliated the department and its newly confirmed, well-respected deputy Rod Rosenstein—the man in charge of the Russia investigation on account of Attorney Jeff Sessions’ recusal—with his horrific handling of FBI Director James Comey’s firing.
Enter Mueller, a former Marine and Vietnam veteran, a highly acclaimed federal prosecutor, and the longest-serving FBI director after J. Edgar Hoover. Mueller has been granted sweeping powers to handle the matter that burned too hot for main Justice to handle. Although special counsels don’t always generate sensational prosecutions, they do almost always find something. Mueller’s open-ended mandate, and the seemingly ever-increasing extent of the misconduct by senior Trump associates like Paul Manafort and Michael Flynn, makes it likely he will uncover something during his inquiry. Special counsels rarely close their cases without a prosecution.
The recent history of special counsels is basically the story of a tug-of-war between our three branches of government over who gets to hold prosecutorial power under the U.S. Constitution, and how best to insulate prosecutors so they can conduct truly independent work. During Watergate, Congress pressured Attorney General Elliot Richardson during his confirmation process to appoint federal Judge Archibald Cox as an “independent” special prosecutor. After Nixon’s resignation, Congress passed the Ethics in Government Act in 1978, creating a mechanism whereby the legislative branch could urge the attorney general to apply to a special three-judge panel for appointment of a special prosecutor, and then formally appoint such a person to act under the Justice Department’s aegis. This unwieldy mechanism was used many times after Watergate; its most famous appointment was that of Kenneth Starr to serve as Whitewater independent prosecutor in 1994.
Mueller was appointed under Justice Department regulations promulgated in 1999 after the independent counsel statute expired. These regulations allow the attorney general to appoint “a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience” from outside the Justice Department to focus on a particular matter or issue. Special counsels are the caped crusaders of the Justice Department, but they don’t work completely outside the chain of command. Department regulations subordinate special counsels to the attorney general, although in this case it’s hard to imagine Sessions (who, again, has recused himself) or Rosenstein countermanding the requests or actions of Mueller.
The brevity and terse language of Rosenstein’s memo appointing Mueller evokes the relatively brief operations orders used by generals like Dwight Eisenhower during World War II: Do what you think needs to be done to secure your objective.
Rosenstein’s order commands Mueller to “conduct the investigation confirmed by then–FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20,” alluding to an ongoing Justice Department matter whose full scope remains known only to those inside the department. However, Rosenstein’s memo does broadly define this matter as including:
(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. 600.4(a)
While the first section appears to narrow Mueller’s sights, the second opens the door for him to conduct a more-expansive inquiry, one that could potentially include Trump’s firing of Sally Yates and Comey; communications between White House leaders and the Justice Department about the latter’s investigations; and national security actions taken (or not taken) that relate to these matters, like Flynn’s reported slow-pedaling of a military operation in Syria after taking a huge payment from a company related to the Turkish government.
The third section, which includes a reference to the department’s special counsel regulations, opens this door even more widely by explicitly including the “original jurisdiction” of a special counsel. That jurisdiction includes “authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” This empowers Mueller and his team to prosecute anyone who lies to them, and arguably anyone who has lied to federal investigators during the course of the inquiry thus far. It also could conceivably allow Mueller to extend his investigation into the president’s belligerent tweeting about Comey (which could be construed as witness intimidation) and the Trump administration’s truthfulness in dealing with congressional inquiries.
Mueller’s most important decision as special counsel, then, is how he will define the scope of his inquiry. Under his commission, he could focus mostly on whether the Trump campaign unlawfully colluded with Russia during the 2016 election. Based on the evidence that has come to light since Election Day, this inquiry seems unlikely to result in any charges. If he frames the investigation more broadly, and includes Trump administration conduct since the election to obstruct inquiries and obscure the truth about potential Russia ties, charges appear more likely based on what’s been publicly reported to date.
An old Washington cliché, made famous during Watergate, says it’s not the crime that will get you, it’s the cover-up. Recent experience suggests Trump associates (and perhaps the president himself) face far more legal risk from their interviews and potential testimony than from any substantive activities. Kenneth Starr’s searching inquiry into the Whitewater real estate deal and the Clintons never generated charges relating to the deal itself, but it did snare the president himself (and ultimately led to his impeachment) when he made false statements under oath. More recently, when pursuing the source of leaks outing CIA officer Valerie Plame, special counsel Patrick Fitzgerald’s multiyear effort generated no charges against the leakers themselves. However, Fitzgerald did prosecute and convict White House aide I. Lewis “Scooter” Libby for lying to federal investigators during the inquiry.
This dynamic owes mostly to the gray zone of intent and unlawfulness surrounding activities in the context of high government office. For instance, Flynn, as the designated national security adviser for an incoming president, had plausibly legitimate reasons to talk with Russian officials. Manafort, too, may have had plausibly legitimate reasons to do so as campaign chair. But no role in the campaign, transition, or administration comes with a license to lie to federal investigators. Former CIA Director David Petraeus arguably could have declassified and shared classified material with his biographer (who herself had a clearance by virtue of her reserve military service). What Petraeus could not do was lie to federal agents about his misdeeds, the offense he ultimately pled guilty to. Similarly, Trump associates likely broke no federal laws by having conversations with Russian officials during the campaign. But if they lie about those conversations now, or otherwise obstruct justice through destruction of documents or other actions, they could face the hammer of federal prosecution.
Aside from Trump’s paranoid tweeting about a witch hunt, or reporting relating to congressional inquiries, the news about the investigation may die down for a bit as Mueller builds his team, brings together evidence from the far reaches of the FBI and intelligence community, and plans his next investigative steps. Those steps, too, will likely occur in the shadows, becoming visible only when Mueller’s team subpoenas a witness or requests information that lies outside federal possession. White House staffers may even be able to come out of their protective crouch to focus on other parts of the president’s agenda. And then, at some future point and with little notice, an interview request, document request, or subpoena will arrive from Mueller. Hopefully, by that point, White House aides and the president will have sought outside counsel who will help them understand the gravity of the inquiries. Trump associates must then choose between their loyalty to the president and their loyalty to the Constitution, with their own personal liberty at stake. For their sake, I hope they choose to tell the truth, even at the president’s peril. Our country depends on Mueller, and them, to do the right thing.