Maybe it’s time to untie the hands of special counsels
The way Mueller interpreted the special counsel’s limits to make a ‘prosecutorial judgment’ about a sitting president needs to be explored
ANALYSIS — Former special counsel Robert S. Mueller III made clear he wouldn’t discuss “deliberations within our office” when he took questions from two House committees July 24 about his investigation of Russian interference in the 2016 election and what Donald Trump’s presidential campaign knew and did about it.
That’s unfortunate. Even if you put aside the argument that Mueller writing that his report “does not exonerate” Trump really means he is “guilty” or “should be impeached,” the way Mueller interpreted the special counsel’s limits to make what he called a “prosecutorial judgment” about a sitting president needs to be explored further.
The current state of politics means this won’t be the last time law enforcement is called upon to investigate a president or people close to the president, regardless who wins in 2020. And if a Democrat is inaugurated in 2021 and investigated after that, people may be surprised if investigators don’t take the hands-off approach Mueller did with Trump.
It would have been nice to know it back in 2017, but here’s how Mueller in his report describes the constraints he saw on what he could do: Justice Department rules prohibited indicting a sitting president, and it would be unfair to say a president deserved to be charged if he couldn’t answer that charge in court. Mueller therefore decided his team’s job was to conduct a “factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
Mueller wrote that his office decided “not to apply an approach that could potentially result in a judgment that the president committed crimes.” He was free to make the opposite judgment when he saw no evidence of crimes.
So while there was plenty of evidence of Russian meddling, and some Trump campaign officials contacted Russian operatives and welcomed dirt on Hillary Clinton, Mueller concluded there was not evidence to charge anyone with conspiring to, say, hack the computer of Clinton’s campaign chairman. Or to have an army of Russian trolls manipulate the public through Facebook and Twitter, even going so far as lining up unsuspecting voters to organize pro-Trump rallies in battleground states.
The Constitution is pretty clear about who has the power to make “a judgment that the president committed crimes.” The House is the sole arbiter of impeachable conduct, and the Senate is the jury that decides whether an impeached president is guilty and should be removed from office.
Before things get to that stage, however, someone has to investigate. And if that’s going to be the FBI and the Justice Department, their marching orders should be clear.
Until Mueller issued his report, even people intimately familiar with federal investigations did not know that the rules as he described them were the rules. While it was no secret that indictment wasn’t an option, even Attorney General William Barr has said Mueller may have been able to go further than he did in determining if crimes were committed.
“Most people thought he was going to say he either thought it was a crime or it was not,” says Solomon L. Wisenberg, who served as independent counsel Kenneth Starr’s deputy in the Whitewater/Lewinsky investigation and conducted the grand jury questioning of President Bill Clinton.
“The distinction he tried to make was silly,” he says. “He should just have made the call.”
Paul Fishman, a former U.S. attorney for New Jersey who prosecuted the “Bridgegate” case involving aides to then-Gov. Chris Christie, says Mueller did make the call.
“It’s clear he would have indicted him if he wasn’t president: There’s no other reason to write it that way,” Fishman says.
Robert Ray, who succeeded Starr as the Whitewater counsel, says Mueller was playing a bad hand as well as he could. Ray believes Mueller anticipated that Barr would have overruled him if he found sufficient evidence to prosecute Trump were he not president.
“I figure if he knows at the end of the day Barr’s going to reverse him, then it’s not in the country’s best interests to have the Justice Department speak in anything other than a unified voice,” Ray says.
But Mueller wouldn’t discuss “deliberations within our office,” so we don’t know.
This much is clear: The investigations of Clinton by Ray and Wisenberg operated under an independent counsel law that put them outside the Justice Department.
“I was bound to consult the DOJ and consider its views, but if I did not agree, I did not agree,” Ray says.
That law expired in 1999 after, as Ray put it, “presidents of both parties had been burned” and Congress made a bipartisan decision not to renew it.
It’s probably time to ask if this is what they wanted instead.