Robert Mueller’s report on his investigation into Russian interference in the 2016 election highlighted a fundamental paradox of the special counsel’s role. Although Mueller laid out extensive evidence that President Trump might have criminally obstructed justice, Mueller concluded that he couldn’t make a legal determination because of a Justice Department policy that says a sitting president can’t be indicted. And it was this hesitance to come to a concrete legal judgment that illuminated the strangeness of Mueller’s position — a special prosecutor can investigate potential criminal wrongdoing by a sitting president, but it’s nearly impossible to charge him.
Before the public saw the report Attorney General William Barr issued an initial summary that presented Mueller’s decision to not charge the President as relatively straightforward. He also concluded that in his view, charges against Trump weren’t warranted. But Mueller reportedly objected to Barr’s characterization of his findings in a Mar. 27 letter recently obtained by the Washington Post, writing that it “did not fully capture the context, nature, and substance of this office’s work and conclusions.”
To some legal experts, the process surrounding the release of Mueller’s report, and the report itself, reopens an old debate about what kind of presidential accountability a special prosecutor can or should deliver. They questioned whether the guidelines surrounding special counsels like Mueller should be changed to avoid the uncertainty and political spin that accompanied his report’s release — or whether Congress should have had a bigger role from the outset.
“The Mueller report seems to have exposed a fault in our system,” said Lance Cole, who is a professor of law at Penn State University and studies government investigations. “The purpose of a criminal investigation is to either bring charges or not. So it’s severely undermining if a special counsel is tasked with investigating presidential misconduct but then can’t pursue an indictment.” (Of course, as Mueller noted in his report, it’s clear that a president can be charged with a crime after he leaves office — but that’s not necessarily up to a special prosecutor.)
The notion that a neutral, independent party be appointed to look into potential wrongdoing by the president and senior executive branch officials is not especially controversial. But the special prosecutor’s power and accountability to the executive branch have shifted dramatically since Watergate. Some of Mueller’s predecessors had more power but were accused of running amok. The trade-off, as seen in the Mueller report, may be ambiguity and tension with the president or members of his administration — and it’s not clear whether a middle ground exists.
How much power should special prosecutors have?
The special prosecutor is an odd creature within our political system, not least because he’s often needed at moments of dysfunction or crisis. There’s no specific provision for a special prosecutor in the Constitution. Instead, presidents and attorneys general have sporadically tapped prosecutors to investigate executive branch wrongdoing since the 19th century. In the years since Watergate, both Congress and the executive branch have taken stabs at clarifying the scope of the special prosecutor’s role, usually because the previous system wasn’t working. For example, Nixon’s dramatic firing of the first Watergate special prosecutor led to a push to limit presidents’ control over the people investigating them. In the late 1970s, Congress passed a law creating a new species of special prosecutor — the independent counsel — with broader power and more independence from the executive branch.
But that new law’s potential to overstep became clear when independent counsel Ken Starr, who was originally appointed to investigate a failed land deal involving Bill and Hillary Clinton, expanded his work to include whether Clinton had lied about his affair with Monica Lewinsky. Starr produced a lengthy report that was full of intimate details about Clinton’s affair and outlined a case for impeachment. But the Starr report was viewed as partisan, the product of an investigation that had strayed too far from its original purpose and turned into an attempt to sink Clinton’s presidency.
In response to perceived overreach by Starr and other independent counsels, Congress let the law lapse in 1999. And in its place, Justice Department officials created the special counsel regulations that are still in place today. These rules, written partially in response to Starr’s investigation, put the special counsel under the supervision of the attorney general and scaled down the reporting requirement. The aim was to put the special prosecutor on a shorter leash while still preserving his ability to probe misconduct by a president or members of his administration. But it resulted in a special counsel with less independence and more accountability to the executive branch. In Mueller’s case, this meant that Attorney General William Barr — a political appointee — was ultimately responsible for determining when and how the report would be released.
Does a special counsel’s criminal focus narrow the scope too much?
Some tension between a prosecutor’s narrow focus on potential violations of criminal law and the lower and vaguer standard for a political consequence like impeachment may be inevitable in any special counsel investigation. The special counsel’s criminal focus, for example, may create an unreasonable expectation about his ultimate role in determining whether presidential misconduct took place and what the response should be. “The danger of the special prosecutor is that everyone becomes very focused on whether criminal wrongdoing occurred,” said Katy Harriger, who is a political science professor at Wake Forest University and the author of “The Special Prosecutor in American Politics.” That criminal framework can be hard to translate into a political context — especially if the findings are related to the president and ambiguous from a legal perspective.
Mueller’s decision not to comment on the broader political significance of what his investigation discovered did bolster the credibility of his findings, said Paul Rosenzweig, who is a fellow at the R Street Institute and worked on the Whitewater investigation. And according to a recent ABC News/Washington Post poll, majorities of Republicans, Democrats and independents still view Mueller’s handling of the report as fair.
However, several legal experts told me that the Justice Department should clarify how the guidance about indicting a sitting president applies to investigations like Mueller’s (or even revise or rescind the policy) so that it’s clearer to everyone what kind of outcome is possible. And if a special counsel isn’t allowed to come to the conclusion that a president may have committed a crime, Cole said that future special counsels should be required to create a public report in the event that potential presidential misconduct is uncovered. That, he said, would remove some potential for political interference and emphasize the value of the special prosecutor as an independent investigator with relevant information for the political process. “We need to make it clearer what the special counsel should do with the information he finds,” he said.
Does Congress need to have a clearer role?
Another big structural challenge for special counsels who are probing potential presidential wrongdoing is that in today’s political climate, they’re expected to go at it alone. Ideally, Congress should be simultaneously investigating misconduct, said John Q. Barrett, who is a law professor at St. John’s University and worked on the Iran-Contra investigation. This has its risks, since the investigations have the potential to overlap and conflict, but a congressional probe has the benefit of allowing a special prosecutor like Mueller to produce evidence and go after lower-level criminal wrongdoing while relieving him of the weighty task of determining whether action against the president is warranted — at least, while he’s in the White House.
Timothy Naftali, who is a presidential historian at New York University and was the first director of the federal Nixon presidential library, said that the special prosecutor in the Watergate case decided not to bring charges against Nixon — even though he believed he had the evidence to do so — because the wheels of impeachment were already turning in Congress. “Rather than take on the burden of fighting in the courts about the indictability of a sitting president, he wanted to let Congress do its constitutional duty first,” he said. “But he was able to do that because there was already a robust investigation in Congress.”
The intervening decades have shown that running simultaneous probes isn’t always easy. Congressional investigations have the power to derail a special counsel’s work because Congress’s goal — getting information into the public eye — often runs counter to a prosecutor’s need for secrecy. Barrett saw this firsthand when Congress immunized two Reagan administration officials who were implicated in Iran-Contra in exchange for public testimony, a move that ultimately led to their criminal convictions being overturned. And the increasing political polarization in Congress means that congressional investigations against the president are more and more partisan, arguably deepening the need for a neutral arbiter like Mueller.
But Barrett and other experts still blamed Congress for largely outsourcing the investigative work to Mueller. And in the absence of congressional action, the special counsel’s work takes on extra political weight — perhaps more than it can reasonably be expected to bear. “For the most part, impeachment is about fitness for office, and we shouldn’t expect prosecutors to be our moral judge and jury,” Rosenzweig said. “In fact, history shows that we don’t want them to be.”
Now, however, the investigative ball is squarely back in Congress’s court, where House Democrats are starting to follow up with some of the witnesses from Mueller’s report. Barr is also due to appear before committees in both the Senate and the House this week, where he will almost certainly be grilled about how and why he created the summary of Mueller’s report, including why he took charges for the president off the table. And House Democrats have said they want Mueller to testify — which means we may yet hear from Mueller himself what he thinks about the role he inhabited for nearly two years.
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