One of the defining events of the Trump presidency was Special Counsel Robert Mueller’s investigation of Russian contacts with the 2016 Trump presidential campaign, which led to the opening of an investigation of Trump himself. The Mueller investigation was the first extended experience with special counsel regulations adopted to succeed the controversial 1970s independent counsel statute, which expired with bipartisan approval in 1999. Under any circumstances, a special counsel investigation on the scale of Mueller’s would have provided a lot of important information about how the regulations performed and how they might be improved. But the Mueller investigation was also characterized by unprecedented opposition and interference by the president, which put maximum stress on the already-difficult task of the executive branch investigating the president.
That task is difficult because the Constitution vests “the executive Power” in the president, but the president and senior executive officials cannot be fully trusted to investigate themselves when credible evidence of criminal wrongdoing emerges. The appointment of a special counsel with some independence from the president and the attorney general has been the traditional response to this situation. And this response has always run the risk that the special counsel’s “independence” would translate as a practical matter into a loss of political accountability, which would leave too much room for enforcement of the law in a politicized or otherwise unfair manner and thereby replicate the very problem the special counsel was designed to avoid. In this chapter, we examine how these factors have played out in history and especially during the Trump presidency before offering lessons learned and proposing reforms.
Background
The history of special counsel investigations of high-level executive branch officials divides into five periods: pre-Watergate (1876–1972), Watergate (1973–1975), the independent counsel statute regime (1978–1999), the special counsel regulations regime (1999–2016), and the Mueller investigation pursuant to these regulations (2017–2019). The semi-independent investigators have had different names during these different periods—special counsel, independent counsel, or special prosecutor. We refer to the general category as “special counsel” but will use the appropriate name when speaking about particular investigators.
Pre-Watergate
During the long first period, the president or attorney general appointed nine special counsels during five presidencies—Ulysses S. Grant, James A. Garfield, Theodore Roosevelt, Calvin Coolidge, and Harry S. Truman—in connection with six different executive branch scandals. [328] In every instance, the president or attorney general appointed special counsels under public pressure to establish a credible and independent investigation of alleged executive branch wrongdoing. The president or attorney general appointed these special counsels pursuant to general statutory or constitutional authorities, and in one instance (the Teapot Dome scandal) the Senate confirmed the special counsel. The president during this first period was never the target of a special counsel. But the special counsels’ success sometimes turned on the support or resistance of the president, which often reflected the political context and political constraints, if any, of the moment.
Consider the fate of the first special counsel, John Henderson. Grant appointed him to investigate a scheme between whiskey producers and federal officials to underreport whiskey production and divvy up the tax savings. Henderson had success prosecuting “Whiskey Ring” conspirators in St. Louis until he zeroed in on Grant’s friend, Orville Babcock, who was up to his eyeballs in the scandal. Grant was not involved in the scandal or under investigation, but he was loyal to Babcock and duped by him. Grant tried to slow Henderson’s investigation of Babcock. When Henderson in the course of the trial of another Ring member accused Babcock of obstruction and implied that Grant might be involved in the scandal, the president fired Henderson.
Grant then appointed a new special counsel, James Broadhead. Grant and his attorney general also put up hurdles to Broadhead’s investigation of Babcock, who was eventually acquitted (in part due to Grant’s supportive testimony). As Andrew Coan has noted, “Grant paid no personal political price for scuttling the prosecution of Babcock.” [329] In part this was because “the American public maintained faith in [Grant’s] personal integrity,” according to Ron Chernow. [330] And in part it was because partisan newspapers “relentlessly attack[ed] Henderson’s motives and actions,” with the result that Henderson more than Grant was delegitimated, says Coan.
Watergate
Contrast this episode with the second landmark in the history of special counsels, and the first to focus on the president: Watergate. As the scandal increasingly implicated Richard Nixon by spring 1973, Elliot Richardson—as a condition of receiving Senate consent to become attorney general—appointed a special prosecutor, Archibald Cox, and gave him extraordinary independence. Nixon’s proxies, like Grant’s, attacked the special prosecutor as biased and vindictive. But the attacks lost steam after former Nixon White House Counsel John Dean’s damning June testimony and the revelation about Nixon’s taping system. Cox subpoenaed the tapes and refused a compromise proposal from Nixon. Nixon then directed Richardson to fire Cox on Oct. 23. Richardson (and his deputy) resigned instead, but Solicitor General Robert Bork carried out the order.
This “Saturday Night Massacre” sparked a hostile public reaction and a significant loss of support among Republicans. Nixon’s vice presidential nominee, Gerald Ford, implored the House of Representatives to “carry on” with its impeachment inquiry and pledged support for removing the Watergate investigation from Department of Justice purview. At that point, Nixon pledged “total cooperation” to Bork’s replacement for Cox, Leon Jaworski, who was given greater independence than Cox. Jaworski pursued the subpoena case to the Supreme Court, which affirmed the subpoena’s validity and led to Nixon’s resignation.
Watergate was in a sense the high-water mark for special counsels. The institution of the special prosecutor asserted and maintained extraordinary independence, even in the aftermath of Nixon’s firing of Cox, and successfully investigated the White House and the president to uncover multiple crimes. It did so, formally, entirely within the structure of the executive branch. But it was aided by several convergent external factors. Various congressional committees investigating aspects of Watergate provided strong support. The press famously uncovered and published accounts of many White House sins. Starting in spring 1973, the American public grew increasingly interested in, and increasingly supportive of, the special prosecutor’s work, and the Nixon-proxy attacks on the special prosecutor faltered due to increasing public evidence of White House complicity and the Saturday Night Massacre. The courts played a crucial supportive role in several respects, most notably in upholding the special prosecutor’s subpoena of the tapes. So too did executive branch officials, in particular Mark Felt (“Deep Throat”).
The Ethics in Government Act
The third period of special counsels concerns the experience under the Ethics in Government Act of 1978. [331] The act grew out of congressional efforts in the days after the Saturday Night Massacre to establish a mechanism for investigating the president that was to some degree independent of the Justice Department. Even though the system “worked” during Watergate, many commentators noted after the scandal that it almost didn’t work or that it might not work in the future. So Congress for the first time placed the appointment of a special counsel outside the executive branch and tied such appointments to easy-to-meet criteria.
The statute in its final amended form gave the federal judiciary a key role in guaranteeing investigatory independence. It required the attorney general to report to a special federal court when he or she determined, after an initial brief investigation, that there were “reasonable grounds to believe that further investigation or prosecution is warranted” of certain high-ranking government officials who “may have violated any Federal criminal law.” [332] The court was then charged with appointing an “independent counsel” vested with “full power and independent authority to exercise all investigative and prosecutorial functions” of the Justice Department and attorney general, and with defining his or her jurisdiction. [333]
The attorney general could remove the independent counsel for “good cause” or some debilitating disability, and with notice to the court and Congress. [334] The independent counsel was required to send the appointing federal court occasional reports on his or her activities, including a final report on the conclusion of the investigation, and was required to inform the House of Representatives of “substantial and credible information … that may constitute grounds for an impeachment.” [335] And the congressional judiciary committees, and certain subcommittees, could request that the attorney general appoint an independent counsel.
The independent counsel statute attracted bipartisan support in Congress and broad support among legal and journalistic elites in 1978. By 1999, even after several amendments, the bipartisan conventional wisdom had reversed entirely, and there was bipartisan support for allowing the statute to expire and for returning control over special counsels to the Justice Department. In the interim, courts had appointed independent counsels in twenty cases. Most of these cases were successful in the sense that the independent counsel cleared senior officials of allegations of wrongdoing without controversy, and in a few cases prosecuted or reached plea deals with executive officials, all without serious controversy.
But several cases under the independent counsel statute were politically contested and controversial. The two most controversial cases focused on the White House and the presidency. First, the Iran-Contra scandal traversed the Ronald Reagan and George H.W. Bush administrations and resulted in (among other things) an indictment of Defense Secretary Caspar Weinberger and other officials on the eve of the 1992 election (later mooted by presidential pardons). Second, the Whitewater investigation of the Clinton administration ultimately shifted to a focus on the president’s affair with an intern and ended in President Clinton’s impeachment following Special Prosecutor Ken Starr’s submission of a long impeachment report to Congress in 1998 regarding Clinton’s alleged misdeeds.
These cases made plain that in high-profile investigations, the desired enhanced credibility of an “independent” counsel is difficult if not impossible to attain. Both Starr and Lawrence Walsh, the special prosecutor in the Iran-Contra case, drew fierce partisan attacks on their credibility, and their alleged partisanship and indiscipline were exacerbated, in the eyes of their critics, precisely because they were acting with minimal political accountability. Stated differently, in high-profile cases under the independent counsel statute, “independence” became synonymous with “rogue” even before the present era of intensified polarization.
Many lessons about the experience with the independent counsel statute emerged from two lengthy hearings in 1999 on whether the statute should be modified or allowed to expire. [336] These lessons are worth keeping in mind in efforts to reform the regulations that replaced the statute. The most salient lessons for our purposes are the following:
On the basis of these generally accepted propositions, Congress allowed the independent counsel statute to lapse. This was not merely the outcome of a political deal between the two major political parties after each separately concluded that it lost more than it gained from the keeping the law alive. Independent analysis of the experience with the independent counsel yielded much the same bipartisan consensus that the attorney general should control the appointment and supervision of the special counsel. In 1999, for example, former Senate Democratic and Republican leaders George Mitchell and Robert Dole headed a bipartisan task force to examine the independent counsel experience. The members included senior lawyers with executive branch and Justice Department experience, including former Solicitor General Drew S. Days and future Supreme Court Chief Justice John Roberts. Their unanimous recommendations foreshadowed many of the key elements of the special counsel regulations, such as the more central role and enhanced control of the attorney general. Of particular note is the members’ observation that “[w]hen regular Justice Department authority is displaced, we risk uneven application of the law and a weakening of the Department.” [339]
Special Counsel Regulations
The Reno Justice Department embraced these views and promulgated regulations—still in force today—for a special counsel centered in the executive branch. [340] This marks the fourth period in the history of special counsels. The regulations (in the words of their introduction) sought “to strike a balance between independence and accountability in certain sensitive investigations, recognizing that there is no perfect solution to the problem.” [341] The main balance struck was to give the special counsel “day-to-day independence” but to place “ultimate responsibility for the matter and how it is handled” in the attorney general.
The regulations authorize the attorney general to appoint a special counsel when a criminal investigation raises a conflict of interest or “other extraordinary circumstance,” and when appointing a special counsel is in the public interest. This is a higher bar that gives the attorney general much more discretion than did the lapsed statute. [342] The regulations also authorized the attorney general to determine the special counsel’s jurisdiction, to overrule an “inappropriate or unwarranted” investigative or prosecutorial action by the special counsel, to discipline or remove the special counsel for specified bad acts, and to control the special counsel’s budget. [343]
The regulations eliminated the final report provision of the independent counsel statute because it “provide[d] an incentive to over-investigate, in order to avoid potential public criticism for not having turned over every stone, and create[d] potential harm to individual privacy interests.” [344] They also eliminated the impeachment referral provision. In their place, the regulations contemplate “a limited reporting requirement … in the form of a summary final report to the Attorney General” that should be handled as “a confidential document, as are internal documents relating to any federal criminal investigation.” [345] The attorney general has a duty to “notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” upon the appointment and removal of a special counsel, and “[u]pon conclusion of the Special Counsel’s investigation.” [346] Finally, the attorney general has discretion to “determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” [347]
These regulations have been on the books for more than two decades. Yet, in contrast to the twenty investigations authorized under the independent counsel statute over its twenty-two years (1978–1999), only one special counsel has been appointed pursuant to the special counsel regulations in the twenty-one years of their existence—in 1999, to investigate government actions at the Branch Davidian compound in Waco, Texas. The stark difference in numbers is probably not explained altogether by higher ethical standards or compliance in administrations during the latter period. The main explanation is surely that the jurisdictional trigger for an investigation is harder to satisfy under the regulations than the statute and is entirely under the control of the attorney general. In addition, after 1999, presidents of both parties—perhaps wary of the dangers of special counsels based on the experiences of the 1980s and 1990s—were especially careful to return to the tradition of appointing attorneys general who were political loyalists. There have been no Edward Levis or Janet Renos appointed since the 1990s, and there likely will not be again.
There is another explanation for the rare invocation of the regulations: The attorney general (or acting attorney general) has an alternate route to appoint a special counsel. In 2003, Deputy Attorney General (and Acting Attorney General) James Comey appointed U.S. Attorney Patrick Fitzgerald to investigate the unauthorized disclosure of CIA employee Valerie Plame’s identity. (Attorney General John Ashcroft was recused.) Comey invoked Sections 509, 510, and 515 of Title 28 of the U.S. Code, which together authorize the attorney general to appoint a Justice Department officer, “or any attorney specially appointed,” to “conduct any kind of legal proceeding, civil or criminal,” which U.S. attorneys are authorized to conduct. [348] This appointment, like so many other special counsel investigations of the White House, proved controversial, especially when Fitzgerald subpoenaed reporters, jailed New York Times reporter Judith Miller, and indicted and later convicted the vice president’s chief of staff, Scooter Libby, for perjury.
The Fitzgerald appointment shows that the special counsel regulations promulgated in 1999 are in many respects optional , and that an attorney general often has an alternative to appointing a special counsel under the regulations. [349] Comey said he chose this route because Fitzgerald, a sitting U.S. attorney, could move forward with the investigation “immediately” without the delays that would attend an outside special counsel’s initial staffing and clearance process. [350] This route also enabled Comey to confer more independence, at least in some respects, on Fitzgerald than he could have conferred on a special counsel under the regulations. Comey’s charge to Fitzgerald gave him broader leeway and subject him to less attorney general supervision than did the regulations, and made clear that Fitzgerald’s authorities were not limited by the regulations. That said, Fitzgerald might be deemed to have had less independence than a special counsel under the regulations, since he was a Justice Department employee and was not protected by the regulations’ for-cause removal provision.
The Mueller Investigation
The Mueller investigation grew out of concerns about Russian interference in the 2016 presidential election and possible Trump campaign involvement in that interference. The matter had been under investigation in normal Justice Department channels since July 2016. When then–Attorney General Jeff Sessions recused himself from the investigation, Deputy Attorney General Rod Rosenstein became acting attorney general for that purpose. After President Trump fired FBI Director James Comey on May 9, 2017—and under pressure following news reports of Comey’s damning memos about the president’s conduct toward the investigation—Rosenstein appointed Mueller as special counsel.
Rosenstein did not appoint Mueller pursuant to the special counsel regulations. Rather, he appointed Mueller pursuant to the same general Justice Department authorities under which Comey appointed Fitzgerald in 2003. [351] He likely did so because the special counsel regulations apply by their terms to a “criminal investigation,” and the focus of the Russia matter, at the time Mueller was appointed, was on counterintelligence. Rosenstein’s order nonetheless incorporated by reference and made “applicable” Sections 600.40–600.10 of the regulations—concerning, primarily, the relationship between the acting attorney general and the special counsel. And Rosenstein defined Mueller’s jurisdiction to cover “(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).” [352]
Mueller came to the task of special counsel with bipartisan credibility as a law enforcement officer of unimpeachable integrity. Like all previous special counsels investigating the White House, he was soon subject to criticism from the president’s proxies for his alleged bias or alleged malfeasance. Unlike every previous special counsel, however, he was also subject to direct public criticism by the president. The criticism was not mild or restrained. Rather, Trump’s criticism—of Mueller, his staff, Sessions, Rosenstein, and others involved in or related to the investigation—was incessant, vicious, inflammatory, and personal. In its scale, tone, and authorship, Trump’s criticism was entirely unprecedented in American history. Trump also on numerous occasions publicly threatened to fire Mueller, and behind the scenes (as we learned from the Mueller Report) he tried but failed to direct subordinates to fire him.
Mueller submitted his 448-page, two-volume “final report” to Attorney General William Barr on March 22, 2019. Barr released the report in lightly redacted form on April 18, 2019. Volume I showed in great detail how Russia interfered in the 2016 election. As to the Trump campaign’s involvement, the report “established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome” and “that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts” but “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” [353]
Volume II addressed the president’s actions toward the FBI’s original investigation of the Trump campaign and the Mueller investigation that commenced in 2017. It laid out ten episodes that the Mueller team believed potentially implicated the president in obstruction of justice. The special counsel declined to make “a traditional prosecution or declination decision” about these episodes, because he determined “not to apply an approach that could potentially result in a judgment that the President committed crimes.” He explained that fairness dictated this result in light of the Justice Department position banning indictment or prosecution of a sitting president, since the president would have no adversarial forum during the presidency to contest a conclusion of his guilt. The report’s authors added, however, that “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” The report did not, however, “conclusively determin[e] that no criminal conduct occurred.” Therefore, “while this report does not conclude that the President committed a crime, it also does not exonerate him.” [354]
The Mueller investigation provides the most extensive evidence to date about how the regulations operate. [355] Mueller’s report acknowledged that he was bound by the regulations, as well as by department legal interpretations and policies, in conducting his investigation. Yet there were several instances in which Mueller and Barr disagreed on legal and policy matters, or where Mueller appeared to depart from the regulations and Justice Department rules and policies, at least as understood by the attorney general.
Mueller’s lengthy report was clearly intended for public dissemination. The regulations had eliminated the impeachment referral provision of the expired independent counsel statute and contemplated only a “confidential report explaining the prosecution or declination decisions reached by the Special Counsel”—a report that the Justice Department defined upon adoption as a “limited reporting requirement.” [356] Mueller was perhaps justified in laying out his detailed findings in Volume I of his report nonetheless, since the main aim of his investigation—which was originally conceived as a counterintelligence investigation, even if not conducted as one—was to uncover links between Russia and the Trump campaign. The hundreds of pages of factual and legal discussion in Volume II about the president’s potential criminal culpability on obstruction of justice were more controversial under the regulations.
Mueller also acted in tension with the regulations when he sent a letter to Barr, soon made public, to object to the way the attorney general had summarized his report after receiving it from Mueller. Barr had been widely criticized on the grounds that this summary was misleading. These criticisms aside, the regulations make clear that the special counsel’s job is complete when he or she transmits the report to the attorney general and that the attorney general has full discretion under the rules to decide on the extent and shape of any public release.
Volume II was also notable for the dissonance it produced between the special counsel and the attorney general on legal interpretive matters. The regulations state that the attorney general maintains “ultimate responsibility” for the special counsel investigation. Further, they require the special counsel to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice” and to “consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department.” [357] Mueller accepted—correctly in our view—that he was bound by the Office of Legal Counsel opinions in the course of making his decisions. And of course the Office of Legal Counsel exercises interpretive authority delegated by and subject to the views of the attorney general. The regulations thus appear to contemplate that the special counsel is subordinate to the attorney general on legal interpretive matters. [358]
Despite these prescriptions, Attorney General Barr stated that he “didn’t agree with … a lot of the legal analysis” in the Mueller Report, which, Barr believed, “did not reflect the views of the department.” [359] There seem to be at least three matters on which Barr believed that Mueller departed from the “views” of the department.
First, the regulations call for the special counsel in the final report to explain “prosecution or declination decisions.” But on the obstruction of justice issue, Mueller laid out the relevant facts as he found them and opted against making any decision. Mueller explained that he declined to apply the normal “Justice Manual standards governing prosecution and declination decisions,” because making a traditional prosecutorial decision that might result in conclusions that the president acted criminally would raise “fairness concerns” to the president in light of the Office of Legal Counsel ruling that a sitting president cannot be indicted. [360] The attorney general, by contrast, believed that the proper reading of the Office of Legal Counsel opinions, the regulations, and department policy was that Mueller could have and should have reached a decision to prosecute or decline prosecution, even if the president could not be indicted while in office. [361]
Second, Barr objected to Mueller’s statements that he “could not conclusively determine” whether the president committed a crime and that his report “did not exonerate” the president. Barr stated that this is “not the standard we use at the department” and added that the department’s standard was “to determine whether there is a clear violation of the law” and, if not, to decline prosecution. [362] Third, Barr disagreed with how Mueller interpreted the “clear statement rule” as interpreted in Office of Legal Counsel opinions, in reaching his conclusion that the obstruction of justice statutes reach “facially valid exercise of core presidential authority or official authority.” [363]
We do not here endorse Barr’s legal interpretations on these matters. The important point for present purposes is that the open legal disagreements between Barr and Mueller represent a breakdown of the regulations. The regulations subordinate the special counsel to Justice Department policy and the attorney general’s (or acting attorney general’s) legal views and ultimate review, and give to the attorney general the final decision on “any investigative or prosecutorial step,” the removal of special counsel, and the shape of any public report. It should not have been possible under the regulations for the special counsel to issue a report that embodied so many matters of department legal interpretation and policy to which the attorney general objected. The Mueller investigation showed that if a special counsel resists the attorney general review mandated by the regulations, the attorney general can be deprived of the contemplated mechanism of supervisory control. Regardless of whether Mueller and his team consciously adopted this strategy, this was the result.
While Mueller did not always strictly follow the regulations, it is important to keep in mind the extraordinary context in which he worked. The Russian interference in the 2016 election, and the possible involvement by a presidential campaign that benefited from that interference, was unlike anything the regulations contemplated. The regulations also did not contemplate a criminal investigation that implicated the legitimacy of a presidential election. Nor did they contemplate a president who would be hostile to the investigation beyond anything ever seen or even imagined in American history.
The Mueller investigation was in many ways a success despite these unusual circumstances. Volume I of the Mueller Report is the definitive account of Russian interference in the 2016 election. Absent an aggressive investigation using the full array of evidence-gathering techniques that only a prosecutor with full Justice Department backing possesses, this account would not have been possible. Moreover, while few politicians and journalists seemed happy with the overall outcome of Mueller’s investigation, the American people (in some polls, more than two-thirds) approved in various ways of Mueller’s conduct of the investigation. [364] The general public support for the Mueller investigation is remarkable in light of the unprecedented ways that the president and some of his allies went after Mueller and the infrastructure supporting him. It is impossible to say how much this support was attributable to Mueller himself—his sterling reputation when he entered the job, and how he conducted the investigation—and how much was attributable other factors, including the complex outcome of the investigation.
Finally, it is a testament to post-Watergate norms that Mueller was able to complete his investigation and report despite the president’s strident criticisms, threats, and efforts to have him fired. These norms guided Trump’s political appointees—including Rosenstein and Comey’s successor as FBI director, Christopher Wray, both of whom faced presidential pressure and threats—in seeing through the Mueller investigation. They might also have informed Barr’s decision to release the report relatively quickly and with relatively few redactions despite disagreeing with Mueller’s legal analysis and his pass on a definitive prosecutorial judgment.
As Volume II of the Mueller Report makes clear, these norms also guided Trump subordinates and allies, who in various ways resisted the president’s attempts to interfere with the investigation. And at crucial points, even many of the president’s Republican allies in Congress supported Mueller in the face of the president’s threats. We don’t know how these norms will operate in the future—whether, for example, Trump’s failures to manipulate his appointees to stop the special counsel will provide a road map to opportunities for more competent future presidents. But in this instance, with respect to almost everyone in the executive branch save the president, the norms seemed to have had real bite.
Background Principles for Reform
Any reform of the special counsel regulations will be politically charged and thus controversial. Memories of the Mueller investigation, and of Trump’s behavior in connection with that investigation, remain fresh. And for many observers, the main reform focus—like the main focus after Watergate, which led to the independent counsel statute—will be to enhance special counsel independence and narrow the attorney general’s and the president’s control. We take a different view. We think that proper reform requires enhancing special counsel independence in some respects but narrowing it, and enhancing the attorney general’s authority, in other respects.
We also believe that the overriding objectives to be served by a special counsel can be effectuated primarily by regulation, adopted by the Justice Department, and not by statute. A substantial question is the extent to which Congress can regulate the manner in which the president or attorney general conduct the core executive law enforcement function. The Supreme Court upheld the constitutionality of the independent counsel statute in Morrison v. Olson , but the continuing force of that decision was questioned even before the Supreme Court began to cut back on its foundations in recent years. [365] A recent Supreme Court decision pointedly quoted Madison’s dictum that “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” [366] Despite these points, Congress still has a role to play in our scheme. We propose a statutory “good cause” restriction on the attorney general’s removal of a special counsel—though, as we note, even this is subject to constitutional challenge. The rest of our redesign depends on self-regulation, namely, a president and an attorney general committed to reform in this area. Two background principles should guide the reforms that we describe below.
The Special Counsel’s Accountability Function
Mike Rappaport distinguishes between the Criminal Prosecution Model and the Accountability Model for special counsels. [367] The Criminal Prosecution Model “views the special counsel as an institution necessary to ensure that high executive officials have not violated the laws, especially the criminal laws.” On this view, the special counsel’s role is to determine in a credible way whether senior executive officials violated the law. The special counsel makes an up-or-down decision on criminality and, like a typical prosecutor, offers no public explanation for decisions not to prosecute.
The Accountability Model, by contrast, “views the special counsel as an institution necessary to determine what actions were taken by high executive officials.” The principal goal of this model is “to reveal to the public and other institutions what happened, so that those officials can be held accountable through elections, removal, or impeachment.” On this model, the special counsel’s main goal is to collect and release to the public facts that will allow other institutions—Congress, the press, the American people—to hold senior executive officials accountable for their actions.
The independent counsel statute’s final report and impeachment referral provisions emphasized accountability in addition to criminal prosecution. This emphasis was criticized in the 1999 hearings. The special counsel regulations that replaced the statute sought to diminish the accountability function of special counsels by enhancing attorney general control, by eliminating the impeachment referral provision, by insisting that the special counsel’s final report on prosecution or declination decisions be “confidential,” and by giving the attorney general discretion (but no mandate) to release the special counsel’s report “to the extent that release would comply with applicable legal restrictions.” [368]
But as the Mueller investigation made plain, the regulations did not eliminate the accountability function. While Mueller obtained numerous indictments and convictions, the main function of his final report was to collect important information—about Russian interference, the Trump campaign’s role, and the president’s possible obstruction of justice. With regard to obstruction, Mueller believed, plausibly, that since the Justice Department had ruled out an indictment of the president while in office, it was important to collect and preserve possible evidence of a crime for when the president left office. Barr had the discretion under the regulations not to disclose, or to selectively disclose, the contents of Volume II. But the overwhelming public expectation was that Mueller’s report should be disclosed as fully as possible. The result was something similar to what the independent counsel statute required and the regulations sought to eliminate: an extensive public airing of facts and potentially damning legal analysis that did not result in indictment.
The Mueller investigation—like the experience with the Nixon special prosecutor, and the Whitewater independent counsel—shows that a special counsel will always play an accountability function to some degree, especially when he or she investigates the president and vice president. If the president or vice president has acted in a fashion that warrants appointment of a special counsel, there will be tremendous public interest in knowing facts related to corrupt or at least controversially norm-busting actions that do not rise to the level of illegality. This is unfair to the subjects and, in some instances, even witnesses of the investigation, at least from a traditional prosecutorial perspective. But it is inevitable, and we think appropriate, in the context of high-level executive branch misdeeds. Our reforms propose ways to accommodate this reality.
Transparency
We have explained why we—along with the drafters of the 1999 regulations—believe that the attorney general must remain in charge of the legal interpretation and prosecution decisions for the Justice Department. And we propose additional mechanisms to enhance attorney general authority. This raises the large challenge of ensuring that the attorney general acts with integrity in all elements related to the special counsel’s job—from appointment, to supervision, to legal interpretation, to the ultimate prosecutorial decision, to the release of information related to the investigation after it is complete. In every difficult case, most if not all of these decisions will be contested. Many observers will view the attorney general to have acted tendentiously, and in some instances he or she might have done so. As the various experiences since Watergate have shown, there is no perfect solution to this problem. Even the independent counsel statute gave the attorney general unreviewable authority to make law-informed but discretion-infused prior decisions before the Special Division could appoint an independent counsel.
The most important tool against attorney general abuse is transparency of decision-making so that the other elements of our constitutional democracy—Congress, the press, voters—can assess the actions of the attorney general, the special counsel, and the persons under investigation, and then pass judgment. As noted earlier, transparency-induced political constraints, including by Republicans in Congress and the executive branch, were important safeguards against Trump moving from attacks on the special counsel to his firing, and in checking other untoward or norm-breaking actions by the administration. Such transparency was a primary strategy of the 1999 regulations, and we propose additional transparency mechanisms in the next section.
As we have acknowledged throughout this book, such transparency ultimately works only if other institutions in the political system, and the American people, act on the information to check an abusive president or attorney general. This mechanism operated much more extensively during the Trump administration than has been appreciated. But there is no guarantee that it will continue to work. If a political system becomes so degraded and fragmented that political checks lose all or most of their bite, then no legal reform can help prevent abuse in this context.
Reform
Our reform proposals concern six topics: (1) the jurisdictional trigger, (2) the relationship between the attorney general and the special counsel, (3) the statute of limitations problem, (4) impeachment, (5) protection of the special counsel, and (6) obstruction of justice. A common feature of many of the proposals is to enhance transparency to Congress and the public about decisions of and about the special counsel.
Jurisdictional Trigger
The regulations currently in force vest the attorney general with considerable discretion, and the final say, in deciding whether to appoint a special counsel. According to the regulations, the attorney general “will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted,” but only if the attorney general additionally determines that a normal investigation by the Justice Department “would present a conflict of interest or other extraordinary circumstances,” with no further detail or guidance on what those circumstances might be. [369] The regulations do not specify the threshold for when a criminal investigation is warranted. They do not explain the circumstances that justify a “conflict of interest,” though it seems that credible allegations of misconduct against a senior government official, and in particular the president and vice president, invariably raise the specter of conflict of interest and compel an appointment. And they do not give meaningful guidance about the public interest concern that would dictate appointment.
This vagueness in standards for appointment is guaranteed to generate significant controversy in application. The main danger is that the attorney general will protect a senior executive branch official by declining to appoint a special counsel when one is warranted. It is no accident that the two White House–focused special counsel investigations since the 1999 regulations were promulgated—the Fitzgerald investigation of the Valerie Plame matter, and the Mueller investigation—were initiated and appointed by deputy attorneys general (Comey and Rosenstein, respectively) who were previously career prosecutors and who were charged with the matter only because the attorneys general were recused. It is also no accident that special counsels since 1999, in contrast to the period before, have been exceedingly rare. Especially going forward, we must worry about the danger that an unrecused attorney general will read the regulations or relevant law opportunistically to protect senior executive branch officials from a special counsel investigation.
Two solutions to this problem have been tried and rejected, both in the lapsed independent counsel statute. One is to have a lower or tighter threshold for the appointment of a special counsel. We are not opposed to such a change if it can be achieved without inviting the evil that was present from 1978 to 1999: a too easily weaponized special counsel who over-investigates the executive branch and thereby lessens rather than enhances confidence in law enforcement. We doubt that a change without those risks is achievable. Another approach is to place the decision to appoint the special counsel in an independent body outside the executive branch. The latter approach was rejected in 1999, for reasons already canvassed, with which we agree.
To address this problem, we propose to maintain the current standard for the appointment of a special counsel, but to impose five important requirements on attorney general decision-making.
First, we would clarify that for the attorney general to conclude whether an investigation is warranted, he or she would have to make that determination on the basis of “credible information or allegations.”
Second, we would add a transparency and reporting requirement when the attorney general declines to appoint a special counsel in the face of credible allegations of criminal wrongdoing. The attorney general would be required to submit written reasons for the decision, including a factual and legal analysis, to the House and Senate Judiciary committees that would also be made public. The difficult issue here is to specify what level of allegation is credible enough to trigger the reporting requirement. There is a danger that the attorney general would be flooded with allegations just to trigger the duty to report. We propose that the attorney general be given the discretion to determine which allegations are credible enough to trigger such reporting.
Third, to underscore the special counsel’s accountability function, the regulations should put squarely in the balance the public’s need to know the facts related to possibly criminal activity in determining whether a criminal investigation is warranted. We thus propose that the attorney general must take into account the need for an independent factual inquiry in assessing whether, under the regulations, the “public interest” is served by the appointment of a special counsel.
Fourth, the special counsel may believe that his or her jurisdiction should be expanded to include new matters that may have come to light during the investigation. At present the special counsel is required to consult with the attorney general, who is empowered to determine whether to proceed with the expansion of jurisdiction or “assign [the new matters] elsewhere.” [370] We propose that if this consultation results in the attorney general’s deciding against a grant of additional jurisdiction, then the attorney general should have to notify the House and Senate Judiciary committees of the special counsel’s views and the reasons for this determination. We would create an exception to this duty to report and allow the attorney general to delay the report, if the attorney general makes a finding in writing that such a report would compromise the ongoing investigation, and he or she reports this fact to the majority and ranking minority members of the committees.
Fifth, we would require the attorney general to use the special counsel mechanism in any investigation of the president or vice president if he or she determines that a criminal investigation is warranted. As the Fitzgerald investigation of the Plame matter shows, the current regulations give the attorney general discretion to use “normal” Justice Department mechanisms in place of the special counsel mechanism, presumably under the rationale or determination that the public interest requires it or the risk of conflict is low. We would disallow that option. In short, only a duly-appointed special counsel should have the authority to investigate the president or vice president.
The Relationship Between the Attorney General and the Special Counsel
The 1999 special counsel regulations sought to make the special counsel “free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought, within the context of the established procedures of the Department” and under the “ultimate responsibility” of the attorney general. [371] The Mueller investigation demonstrated that this allocation is not as clear as it could be under the regulations. The lack of clarity affected the public debate and contributed to a sense of irregularity in the process.
Our basic approach is to maintain but significantly clarify the 1999 regulation’s basic allocation of authority between the attorney general and the special counsel, but also to give the special counsel a more clearly delineated and protected role in finding facts needed for the accountability function.
Reforms Concerning Special Counsel Fact-Finding
We propose that the special counsel’s fact-finding role be clarified and protected, and that opportunistic attorney general decision-making be deterred, as follows.
First, as already noted, the regulations should provide that the public interest in the appointment of a special counsel includes an assessment of the need for an independent factual inquiry.
Second, as noted, the regulations should require the appointment of a special counsel in all cases involving the president and vice president (if the attorney general determines that there is credible information or allegations to support the inquiry).
Third, the special counsel should have wide latitude to conduct his or her investigation, and the attorney general should have to satisfy certain requirements before interfering with the special counsel’s specific investigative decisions and, in the event that he or she takes any such action, report it to Congress. Had Mueller elected to subpoena Trump’s testimony and provoke a legal test in the courts, Barr could have blocked that action under the current rules if Mueller’s subpoena was “inappropriate or unwarranted under established Department practices.” [372] The triggers for any such blocking action—an “inappropriate” or “unwarranted” investigative step—are insufficiently precise to protect the special counsel’s fact-finding role, which is a central feature of our proposal. We would tighten this standard by providing that “the attorney general shall not direct the special counsel to omit or abandon pursuit of any investigative step, except where any such step is plainly inconsistent with law or established department practices.” Moreover, if the attorney general concludes that those standards have been met and blocks any investigative step, he or she must notify the leadership of the House and Senate Judiciary committees in a final report upon the investigation’s conclusion.
Fourth, upon the special counsel’s conclusion of an investigation, or earlier if the attorney general closes the investigation upon dismissal of a special counsel, the special counsel would be authorized to provide the public and Congress with the facts found within the jurisdiction of the investigation. Whatever controversy may follow a declination or a dismissal, there should not also be a dispute about the special counsel’s fact-finding process. The “cover-up” most feared in these cases involves the concealment of facts by those politically close to the president. The special counsel has a unique role in protecting against those concerns, and with ensuring that the American people and Congress will learn the basic facts uncovered in the investigation, so that they can judge for themselves, through public argument, the appropriate non-prosecutorial responses (including oversight and impeachment) to those facts, if any. This is functionally what happened with the Mueller Report, but the legitimacy of this function and its consistency with the regulations were contested under the current regulations. We propose to make this role for special counsel unambiguous.
The special counsel’s protected role in fact-finding will supply a check on the attorney general’s decision to decline prosecution or to end an investigation by firing the special counsel. But the special counsel’s role too is subject to abuse, especially since the special counsel in this context will operate with a freer hand from normal accountability checks. And the facts found and reported—like the ones included in the Mueller Report and the Starr Report—will be untested by a grand jury, a trial process, or any other adversarial process. There is thus a danger of the special counsel’s fact-finding getting out of control. The regulations should limit the special counsel fact-finding role to the scope of the approved criminal investigation and should require special counsel expressly to consider and not disclose facts that unduly harm privacy interests. But beyond these limitations, we believe the risk of special counsel abuse in this context is outweighed by the benefits described earlier.
The special counsel would be required to redact the publicly released report to avoid disclosure of grand jury material protected under Section 6(e) of the Federal Rules of Criminal Procedure. We do not believe that the redaction of this material would seriously undermine the informational value of the special counsel’s reporting function. The Mueller Report was redacted for this purpose but provided more than 400 pages of detailed information about the investigation. Moreover, Congress may have the option upon receiving the report to seek the omitted material upon application to the court.
An additional and special set of issues arises as a result of standing Office of Legal Counsel opinions that conclude that the president cannot be prosecuted while in office. The issue would arise if a special counsel concludes, and the attorney general agrees, that the president did violate the law and that indictment was warranted but could not be issued until after the president’s term ends. Even in this difficult circumstance, the special counsel should retain the obligation to issue a factual report to Congress and the public. There is a powerful public interest in information about the facts of the president’s conduct, as found by the special counsel. And if a known investigation comes to an end with the special counsel’s factual findings somehow withheld, an administration would face toxic suspicion and runaway speculation. There would surely be leaks of information, of varying degrees of accuracy, about what the special counsel found, often via the counsel to witnesses, even if the special counsel’s office is scrupulous in keeping its distance from the press. Moreover, Congress will have a strong constitutional claim to the information in order to determine whether the facts as found warrant impeachment. For all these reasons, the special counsel’s office should issue its fact-finding and leave no question about what it found—or did not find.
This approach raises a legitimate concern about the unfairness to the president of charges leveled but not tried, since it leaves him without the means of a defense. Mueller cited this concern in declining to reach a “traditional prosecutorial judgment” about presidential obstruction in the Russia matter. However, the complex issues surrounding the investigation and prosecution of the president necessarily present hard choices and trade-offs. While there is unquestionably unfairness in a fact-finding coupled with a prosecutorial judgment but only a deferred prosecution, or fact-finding in a case that is not prosecuted, the public interest and Congress’s need for the information weigh in favor of disclosure. The president also has a vast communications apparatus available to contest the facts and argue his innocence, and recent experience, especially the investigations of Clinton and Trump, demonstrates the power of the public defenses that presidents can mount outside of formal legal process.
Reforms Concerning Attorney General Legal and Prosecutorial Control
We also propose that the attorney general’s control over legal and prosecutorial decisions be clarified.
First, we would expand the attorney general’s authority to supervise the investigation overall. Under the current rules, it is up to “the special counsel [to] determine whether and to what extent to inform or consult with the Attorney General or others within the department about the conduct of his or her duties and responsibilities.” [373] We would give the attorney general express authority to seek information as he or she sees fit, including requests for periodic updates by the special counsel on the course of the investigation.
Second, consistent with the attorney general’s authority to receive, review, and either affirm or reject prosecution or declination decisions by the special counsel, the attorney general should have the ability to superintend the development of the special counsel’s legal positions. This end can be achieved by requiring the special counsel to submit his or her legal conclusions on prosecution or declination for the attorney general’s review prior to issuing a decision. Or the regulations could give the attorney general the discretion, in case of concern, to direct that, on any pertinent legal question, the special counsel must consult with the Office of Legal Counsel and be bound by its decision, subject (as is always the case with Office of Legal Counsel decisions) to the attorney general’s final decision. We support the latter approach.
In either case, in order to clarify the lines of decision-making authority, the regulations should specify that the attorney general retains final responsibility for the legal conclusions, while, as described, the special counsel is responsible for the fact-finding unless plainly inconsistent with law or established department practice. In the event that the special counsel and the attorney general disagree about the applicable law, the attorney general directs that a question be referred to the Office of Legal Counsel, or the attorney general directs the special counsel not to pursue an investigative step, the attorney general must notify Congress in a final report upon the investigation’s conclusion.
Third, the regulations should constrain the special counsel from straying into legal argumentation in the course of performing his or her fact-finding mission. In a report upon dismissal or at the investigation’s conclusion, the special counsel should avoid any commentary on the legal significance of the facts reported. We propose that the regulations be amended to bar the inclusion in any such fact-finding document of “any discussion of whether the evidence tended to support prosecution or declination.” Relatedly, the regulations should clarify that the special counsel is strictly bound by the regulations’ review and approval procedures. The current regulations make such compliance mandatory. But they create an ambiguity by acknowledging extraordinary circumstances that “would render inappropriate compliance with required review and approval procedures,” and by giving the special counsel the option (“may”) on this question to “consult directly with the attorney general.” [374] We propose that the rules be clear on the point and require that the attorney general be consulted and specify that he or she “shall make the final determination” on prosecution and declination of charges.
We appreciate that concentrating power in the attorney general in this way risks the possibility that an ill-motivated or feckless attorney general will ignore or purposefully misinterpret the law. This concern can be addressed only, if at all, through enhanced transparency and political checks. We have proposed several new requirements to make the attorney general’s decision-making function subject to greater public scrutiny. In sum, these include notice (with reasons) to Congress and the public:
● If the attorney general concludes that a criminal investigation of the president or vice president is not warranted and a special counsel need not be appointed;
● If the attorney general rejects a request by the special counsel for additional jurisdiction;
● If the attorney general determines before the beginning of a fiscal year that an ongoing special counsel investigation should not continue; and
● If the attorney general and the special counsel disagree on a question of law, including any such question that the attorney general directed the special counsel to refer to the Office of Legal Counsel.
As noted many times, there is no guarantee that transparency-induced political checks will work here, but in the end that is all there is.
In assessing how to control an ill-motivated attorney general, it is important to keep in mind the problem of unaccountable law enforcement. As noted earlier, the “independence” of a particular independent or special counsel has turned out to be highly contested in practice in high-profile cases, with the result that both parties in different cases passionately believed and complained that the president was the victim of both a biased and an unaccountable law enforcement official. In these cases, there was no agreement about the outcome somehow dictated by the “law.” Many Democrats rejected any notion that Ken Starr upheld the rule of law with the case he built for obstruction of justice. Republicans reacted with similar indignation to the Mueller theories of obstruction and even the premise that there was any such thing as “collusion” that warranted investigation. Our view is that political accountability is especially important when prosecutorial judgment must be made in the hard or controversial case.
Tolling the Statute of Limitations
The Office of Legal Counsel has issued two opinions, in 1973 and 2000, concluding that the president cannot be prosecuted while in office. As noted earlier, we propose that in these circumstances, unlike in other cases of nonprosecution, the special counsel would issue to Congress and to the public his or her factual findings.
The Office of Legal Counsel opinions present but do not answer the question of whether a president’s immunity while in office could result in a statute of limitations bar on a criminal prosecution once the president’s term or terms end. The 2000 opinion notes the possibility (but no more than the possibility) that the statute could be subject to tolling by judicial decision, “either as a constitutional implication of temporary immunity or under equitable principles.” [375] But it acknowledges that in any event, “Congress could overcome any such obstacle by imposing its own tolling rule.” [376]
In the wake of the Mueller Report, the chairman of the House Judiciary Committee introduced a bill to establish such a rule, entitled the “No President Is Above the Law Act.” [377] It provides that in “the case of any person serving as President of the United States,” the statute of limitations would be tolled for the “duration of [the president’s] tenure in office.” It would also apply to “offenses committed during any period preceding such tenure in office.”
Congress should at a minimum enact a tolling statute for criminal acts the president commits while in office. The Office of Legal Counsel emphasized in its 2000 opinion that presidential immunity was only temporary and that one important alternative means to “securing the rule of law” was prosecution upon leaving office. [378] For this to be a real alternative, all uncertainty about time bars on the applicability of the criminal law the president violated should be removed.
Whether the tolling statute should extend to offenses that precede office is a tougher question. On the one hand, one might think the president should not escape trial for crimes committed before taking office but discovered while in office just because a temporary immunity allowed the statute of limitations to run. On the other hand, the main focus of a special counsel should be on crimes that constitute abuse of office, and extending the tolling statute to crimes committed before taking office enhances incentives for mischief in looking for and alleging such crimes in a context—the prosecution of a former president—that is inherently dangerous in a constitutional democracy. We have seen this before: The “Whitewater” investigation into President Clinton’s financial affairs concerned an Arkansas real estate transaction the Clintons entered into fourteen years before he became president. However, the tolling statute could be applied to offenses committed by the president in the course of seeking election to the presidency. A president engaged in those election-related offenses may incur corrupt obligations that, if he is elected, could influence the conduct of official duties. In this case, there is a clear potential connection between the period prior to assuming office and abuse of power.
Indeed, the nation would take a step in a dangerous direction by merely setting up legal structures that overtly contemplate the prosecution of former presidents, especially since it will often be the case that a president and attorney general of one party will be making decisions about prosecuting former presidents of another party. Such structures, once in place, will enhance the legitimacy of political discourse about prosecuting former presidents, and will make it more likely that such prosecutions will occur. The case for a tolling statute is to enhance ex ante clarity about presidential accountability in the hope of deterring bad presidential acts.
Impeachment and the Role of Congress
The independent counsel statute required the independent counsel to report to Congress any credible evidence of the commission of impeachment offenses. The special counsel rules were designed to omit any such requirement. Yet as noted earlier, the Mueller case generated significant expectation that Mueller would find a way to communicate to Congress any information potentially relevant to impeachment. This appeared to be Mueller’s expectation as well, since he produced a 448-page report—including 187 pages on the president’s possible obstruction of justice—that he was well aware would be made public.
We do not support a revision of the rules to empower the special counsel to assess the evidence under the constitutional standards for impeachment. As a prosecutor within the executive branch, the special counsel has no special capacity for making even a preliminary judgment of this kind. Impeachment is a political process, and the evaluation of the grounds for impeachment, including the assessment of the constitutional precedents, is laden with political implications and necessarily influenced by the politics of the moment. The special counsel’s credibility depends heavily on the perception that he or she is a law enforcement professional working at a safe distance from the political battlefield.
Moreover, the special counsel’s direct involvement in impeachment issues presents a high risk of distorting the constitutional process. The indication that he or she finds evidence of impeachable offenses alters the debate by introducing a purportedly “professional” or independent view that could be assigned far too much weight. Partisans favoring impeachment will point to the special counsel as a singularly reliable voice. Partisans in opposition will have the incentive to relentlessly attack the special counsel’s credibility. Independent Counsel Ken Starr’s experience in the Clinton case is instructive in this respect. The House Republicans relied virtually entirely on his report to Congress, and Starr became the leading witness on their behalf in the House. The Democrats made it their mission to discredit his arguments and his motives. No single episode had more impact in moving public opinion against the renewal of the independent counsel statute.
This is not to say that Congress should not have access to the special counsel’s findings of fact, which our proposal calls for. Its formal purpose is to ensure that the public and its elected representatives have access to the answers to the question “What actually happened?” Consistent with our view that the fact-finding and the legal analytic functions should treated separately in constructing the role of the special counsel, we would argue for the reports to Congress to be limited to the facts—and leave it to the lawmakers to judge the constitutional meaning of that record.
Protection of the Special Counsel
During Mueller’s service as special counsel, he came under persistent attack from the president, who also took steps to fire him but did not do so. The fear that Mueller might be dismissed and the investigation derailed or ended led to a number of proposals for legislation to protect him.
As Watergate showed, the president can order the attorney general, on pain of dismissal, to fire a special counsel. Congress can, of course, pressure the president to desist from a dismissal. In the Mueller case, even the Republican congressional leadership signaled that the president should leave Mueller in place to finish his work. The Senate Judiciary Committee also reported out a bill, with bipartisan support, that would authorize a special counsel to contest his or her dismissal in the U.S. District Court for the District of Columbia. Congress has other tools, of course: It can also threaten to hold up nominations or action on pending legislation important to the president.
We propose statutory codification of the removal provisions currently contained in the special counsel regulations, which allow for dismissal for “ misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. ” [379] The codification would further include the requirement that “the Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal. ” [380] As we have noted, there are constitutional questions of how far Congress can go to tie the executive’s hands in matters like this, and Supreme Court jurisprudence on this question is in flux. But a targeted restriction of this kind is worth testing, and it may survive scrutiny if the court retains in significant part the analysis in Morrison v. Olsen that upheld a “good cause” restriction on the removal of an independent counsel because it “did not see how the President’s need to control the exercise of that discretion is so central to the functioning of the executive branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.” [381]
We would not go further to authorize the special counsel to appeal dismissal to the courts. As we discussed in reviewing the experience with the independent counsel statute, there are serious costs to bringing courts into the resolution of what are inevitably, at bottom, intensely political disputes over the sensitive exercises of executive discretion. If the attorney general bears responsibility for the appointment and supervision of the special counsel, then the attorney general should have responsibility for making and answering for the decision to dismiss. Accountability for that decision is best left to the political process and, in the end, Congress, which can act in a variety of ways to ensure that the attorney general must account for this action if taken.
Congress may, however, enact measures to discourage a special counsel’s firing while also, and critically, ensuring that it does not impede access to the record he or she compiled while still in office. One proposal is legislation to provide that, in the event that the special counsel is removed, he or she would provide a report to Congress on factual findings through the date of dismissal. The president would be prevented from using the firing to cover up the special counsel’s work. With this trigger for reporting requirements in place, the president might also think twice about removal for any other than the most substantial grounds. We propose a revision to the rules to provide that upon dismissal, the special counsel would be afforded access to the investigative record for no less than thirty days for purposes of preparing and submitting a report to Congress.
Obstruction of Justice
Finally, and vitally, Congress must make plain the extent to which the obstruction of justice statute applies to the president.
There is significant uncertainty over whether and to what degree the president is subject to the current array of federal obstruction of justice statutes. Several Office of Legal Counsel opinions dating back decades hold that “statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.” [382] The Office of Legal Counsel in dicta has stated an exception to this rule for the bribery statute, which it reasoned “raises no separation of powers questions were it to be applied to the President” because the Constitution “confers no power in the President to receive bribes.” [383]
The Office of Legal Counsel’s clear statement rule is controversial because it goes further than the Supreme Court precedents on which it relies. Even accepting the rule, which Mueller did, its impact on whether the president can obstruct justice is unclear. Simplifying only a bit, Barr thought the plain statement rule precluded application of the obstruction of justice statutes to most if not all of the ten episodes in Volume II of the Mueller Report. By contrast, Mueller thought the rule would be no hurdle to a conclusion that the president violated the statutes for all ten episodes (though Mueller did not reach this conclusion). Legal academics hold an array of intermediate positions.
It is an intolerable state of affairs for the president, Congress, and the American people not to have a clearer sense of whether and under what circumstances the president can obstruct justice, and especially how the exercise of undoubted Article II powers such as removal and supervision of prosecutions constitutes obstruction of justice. We can expect administrations of different parties to take very different views on the interpretation of the current statutes going forward. Only Congress can fix this problem, at least in the first instance, with a plain statement of presidential liability.
Two related questions arise: First, what presidential acts should Congress criminalize? And, second, what are the constitutional limits on Congress in criminalizing presidential actions through obstruction of justice?
Begin with the constitutional question first. The basic issue, as Mueller noted, is when the application of the obstruction of justice statute to presidential actions would unduly burden a presidential power. To put it mildly, this is not a determinate inquiry. Mueller believed that the obstruction statute’s corrupt intent standard provided a good test: “Congress can validly make obstruction of justice statutes applicable to corruptly motivated official acts of the President without impermissibly undermining his Article II functions.” [384] When a president acts corruptly, Article II is no barrier.
This formulation begs the question of what Article II actions are done with corrupt intent. Setting aside the facts of the Trump case, does a president act with corrupt intent if he or she fires the FBI director in order to slow an investigation that he or she believed was concocted and was having a negative impact on U.S. foreign policy? What if this president also thought it was hurting him or her politically? What if he or she also worried that the FBI director might uncover that he or she had engaged in criminal conduct? Surely that would be a corrupt intent. But what if the president was motivated by all of these concerns? Should the normal judicial standard for mixed-motive cases—the presence of bad motives suffices for liability even if legitimate motives are also present, and even dominate—be applied straightforwardly to the president, or does Article II demand a more forgiving standard? [385]
All Mueller said about how the corrupt intent standard would apply to the president is as follows:
Direct or indirect action by the President to end a criminal investigation into his own or his family members’ conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct. So too would action to halt an enforcement proceeding that directly and adversely affected the President’s financial interests for the purpose of protecting those interests. In those examples, official power is being used for the purpose of protecting the President’s personal interests. In contrast, the President’s actions to serve political or policy interests would not qualify as corrupt. The President’s role as head of the government necessarily requires him to take into account political factors in making policy decisions that affect law-enforcement actions and proceedings. For instance, the President’s decision to curtail a law-enforcement investigation to avoid international friction would not implicate the obstruction-of-justice statutes. The criminal law does not seek to regulate the consideration of such political or policy factors in the conduct of government. And when legitimate interests animate the President’s conduct, those interests will almost invariably be readily identifiable based on objective factors. Because the President’s conduct in those instances will obviously fall outside the zone of obstruction law, no chilling concern should arise. [386]
This is fine as far as it goes, but it avoids all the hard questions, including hard cases about mixed motives.
Against this background, we propose that Congress amend the obstruction of justice statute to specify that presidents commit the crime of obstruction of justice when they commit an obstructive act, with a nexus to an official proceeding, and with a corrupt intent, in three specific cases: (1) intervention to affect the outcome of elections; (2) protection of family members; and (3) self-protection, when the president is either the “subject” or the “target” of a criminal investigation. We do not think it is fruitful for Congress to further specify precisely what counts as “corrupt intent” in these contexts, except to specify, for reasons we explained in Chapter Seven, that presidents do not act with corrupt intent under the statute if they are motivated in part to carry out legitimate Article II functions.
We close by emphasizing two points related to obstruction of justice. First, it is clear from the Mueller Report that Trump’s subordinates would not carry out his orders to obstruct justice. Whether they did this because of a sense of governing norms or because they worried about obstruction of justice, or some combination of the two, is hard to figure out. As the Trump experience shows, it is hard for the president to obstruct justice without the cooperation of subordinates. Subordinate criminal liability for obstruction of justice is thus vital to keeping presidents in check—it may be just as important in practice, if not more, than applying the obstruction statute to presidents themselves. To clear away (or at least reduce) constitutional questions of whether subordinates can be liable under the obstruction statutes if they are carrying out the president’s orders in the exercise of his or her Article II powers, we propose that subordinate criminal liability be made explicit.
Second, everyone should be clear-eyed about the fact that a future attorney general who holds views akin to the current attorney general might conclude that our statutory proposals are unconstitutional, and thus not allow the Justice Department, including the special counsel, to even investigate the president for these actions, much less conclude that the president committed obstruction of justice. Here we meet the nub of attorney general (and ultimately presidential) control over legal interpretive matters underlying law enforcement actions. At the end of the day, this problem cannot be avoided without amending the Constitution in ways that we think would introduce more problems and uncertainty than gain, even assuming it were possible.
As we have emphasized throughout this chapter and Chapter Seven, political processes and political pressure (including the confirmation process) are ultimately all that can keep the attorney general in check. These background political forces were the ultimate sources of power and protection for both the Watergate special prosecutor and Robert Mueller. Whether and to what degree these forces will continue to work is hard to know. But the prospects of politics serving this checking function can be improved, we hope, through the comprehensive, well-targeted transparency requirements that we have proposed.