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Free Robert Mueller: here’s how to make his investigation truly independent

Trump’s Justice Department still has way too much control over the Russia investigation.

Rod Rosenstein, who recommended that James Comey be fired, at his confirmation hearing last month.
Deputy Attorney General Rod Rosenstein, the man who will decide the rules under which the Trump administration is investigated.
The Washington Post / Getty

Deputy Attorney General Rod Rosenstein should take a page from the playbook of the man whose firing he recommended: former FBI Director James Comey. Comey once stood in Rosenstein’s shoes: He served as deputy attorney general from 2003 to 2005. And Comey’s handling of the investigation into the CIA leak scandal that rocked the George W. Bush administration holds valuable lessons for the current inquiry into the Trump campaign’s ties to Russia.

There are strong similarities between the challenges facing Rosenstein and the ones that Comey previously encountered. Today, the possibility of political interference hangs over the investigation by Robert Mueller, a former FBI director selected by Rosenstein to serve as special counsel. Similar doubts swirled around Patrick Fitzgerald, a US attorney from Illinois whom Comey picked to investigate the CIA leak in 2003.

Much to his credit, Comey recognized that regulations laid out by the prior attorney general, Janet Reno, failed to give the special counsel sufficient independence from higher-ranking officials at the Justice Department. So Comey implemented a more robust set of safeguards to shield his special prosecutor.

Rosenstein has thus far failed to follow Comey’s lead. That’s unfortunate, because it leaves Mueller’s investigation vulnerable to interference by political appointees. A few simple changes would raise the confidence of the American people that Mueller is free to follow the evidence where it leads.

Kenneth Starr’s excesses led to the creation of a not-so-independent special counsel

To understand the limits on Mueller’s independence, let’s rewind to the middle of 1999, when then-Attorney General Reno put forth the regulations that now govern Mueller’s investigation. The context was the imminent demise of the independent counsel law. At the time, independent counsel Kenneth Starr’s investigation of the Clintons was about to enter its sixth year. What started as an inquiry into the Whitewater land deal had morphed into a probe of President Clinton’s extramarital affair with White House intern Monica Lewinsky — and there was a widespread sense, especially but not exclusively among Democrats, that the independent counsel had gone too far.

Starr was indeed independent from the Justice Department in virtually every sense of the term. Under the independent counsel statute, the scope of his authority was determined by a three-judge panel of the US Court of Appeals for the DC Circuit, and he had “full power and independent authority to exercise all investigative and prosecutorial functions” of the attorney general with respect to all aspects of the probe. Starr did not have to report to the attorney general or anyone else at the Justice Department, and the attorney general didn’t have veto power over Starr’s investigative and prosecutorial decisions. The attorney general could remove Starr for “good cause,” disability, or any condition that “substantially” impaired the performance of his duties, but apart from that, Starr was his own man.

The statute authorizing the appointment of independent counsels was set to expire at midnight on June 30, 1999, and there was little appetite for extending it. (Starr himself agreed it should be allowed to lapse.) But Attorney General Reno knew that it was important to have procedures in place for investigations of high-ranking administration officials. And so she issued a new set of rules creating the “special counsel” position — rules that govern the position today.

Under the Reno rules, the decision to appoint a special counsel is made by the attorney general (or by the deputy attorney general when the attorney general is recused from the matter, as in the Trump situation). The special counsel must be a lawyer with relevant prosecutorial experience who has “a reputation for integrity and impartial decision-making.” Unlike the independent counsel, the scope of the special counsel’s authority is defined by the attorney general (or the deputy in the event of a recusal) rather than by a court. And whereas the independent counsel had all the investigative and prosecutorial powers of the attorney general, the special counsel has the more limited powers of a US attorney.

That last distinction turns out to be a big one. There are 93 US attorneys, all of whom report to Justice Department higher-ups. Under the Reno rules, the special counsel likewise reports to the attorney general (or whomever is filling a recused attorney general’s shoes). The special counsel must abide by most of the Justice Department guidelines that apply to US attorneys. And if the special counsel violates those guidelines, he may be fired.

The Reno rules go on to state that the special counsel must follow specific Justice Department requirements known as the “Urgent Reports” procedures. Under those procedures, a US attorney — or here, the special counsel — must notify top Justice Department officials at least three days in advance of any “major development” in a case. “Major developments” include not only arrests and criminal charges but also any execution of a search warrant or interview with a significant witness that is “likely to receive national media coverage or Congressional attention.” The attorney general then has the opportunity to block the US attorney or special counsel from moving forward with the proposed action.

In ordinary investigations, these procedures help maintain an orderly chain of command and surprises for managers. In a potentially explosive investigation of White House officials, they could play a more pernicious role. They mean that top political appointees will get a heads-up at every step of the inquiry — and an opportunity to meddle with the special counsel’s work.

The Reno rules also state that before the start of each federal fiscal year (October 1), the special counsel must request reauthorization from the attorney general (or in the event of a recusal, the deputy). The attorney general then decides whether the investigation should continue for another year and, if so, how much money the special counsel should have. The attorney general thus can bring the special counsel’s inquiry to a halt, or bleed it dry.

At the end of an investigation under the Reno rules, the special counsel submits a confidential report to the attorney general, who in turn must report to the chair and ranking member of the House and Senate Judiciary Committees. The attorney general must tell those lawmakers whether he blocked the special counsel from pursuing any investigative or prosecutorial step. But note that the lawmakers learn this only at the end of the special counsel’s tenure. The attorney general also decides what parts, if any, of the final confidential report should be made public.

James Comey came up with a better alternative to Janet Reno’s system

Before last week, the Reno rules had been invoked only once before — in September 1999, when Reno named former Republican Sen. John Danforth to lead an inquiry into the deadly 1993 fire at the Branch Davidian compound in Waco, Texas. Danforth’s investigation ended in November 2000 with a report, which Reno released to the public, in which Danforth cleared federal officials of responsibility for the fire.

Pressure to appoint a second special counsel mounted in 2003, when two senior Bush administration officials anonymously leaked the name of a CIA operative to a Washington Post columnist. The attorney general at the time, John Ashcroft, recused himself from the investigation, because he was viewed as being too close to the White House; that left his deputy, James Comey, in charge.

Rather than following the Reno rules, Comey devised a new set of principles to govern the CIA leak investigation. He recognized that under the relevant statute, he could confer much broader authority on the special counsel than the Reno rules provided: No law prevented him from vesting the special counsel with additional independence. And so upon naming Fitzgerald, then the US attorney for the Northern District of Illinois, to pursue the probe, Comey delegated to Fitzgerald “all the authority of the Attorney General” with respect to the investigation. Comey explained at the time that unlike a special counsel under the Reno rules, Fitzgerald would have “the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals.”

Fitzgerald’s inquiry ultimately led to the conviction of I. Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney, on charges of perjury, obstruction of justice, and making false statements to FBI investigators. Libby was sentenced to 30 months in prison, though President Bush later commuted Libby’s prison term. All in all, Fitzgerald’s probe lasted 45 months and cost taxpayers a relatively modest $2.58 million.

I. Lewis “Scooter” Libbey, former chief of staff to Vice President Dick Cheney. He was convicted after an especially independent investigation by a special counsel.
I. Lewis “Scooter” Libbey, former chief of staff to Vice President Dick Cheney. He was convicted after an especially independent investigation by a special counsel.
Mark Wilson / Getty

Fitzgerald’s investigation did not lack for controversy. From the left, David Corn argued in the Nation that was not truly independent because he remained the US attorney for the Northern District of Illinois; Corn thought Comey should have named a lawyer from outside the Justice Department, just as Rosenstein has done in the current case.

Libby himself argued, conversely, that Fitzgerald was too independent. According to Libby, Fitzgerald’s broad powers made him a “principal officer” for purposes of the Constitution’s Appointments Clause — he was effectively serving as a proxy for the attorney general. If that were true, Fitzgerald would have to be appointed by the president rather than by Comey. But a federal district court rejected that argument, relying on a 1988 Supreme Court case holding that independent counsels did not have to be presidentially appointed.

Deputy Attorney General Rod Rosenstein’s role remains a cause for grave concern

Fast forward to May 2017. President Trump has removed Comey from the FBI directorship after asking Comey to end the bureau’s investigation of former aide Michael Flynn’s dealings with Russia. Attorney General Jeff Sessions has recused himself from the investigation into the Trump campaign’s Russia connections after misleading the Senate about his own meetings with the Russian ambassador. Deputy Attorney General Rosenstein has appointed Robert Mueller, the highly regarded former FBI chief, to serve as special counsel and to carry out the Russia inquiry that Comey started.

Rosenstein’s appointment of Mueller is a welcome development. Everything we know about Mueller makes us think that he won’t be a rubber stamp for the Trump administration. But Rosenstein’s decision to follow the Reno rules rather than the more robust protections created by Comey in the CIA leak case remains a cause for concern.

This is so for two reasons. First, Rosenstein has done little so far to demonstrate his independence from the president — indeed, his remarkably flimsy memo justifying the Comey firing suggests just the opposite. And recall that under the Reno rules, Mueller must tip off Rosenstein at least 72 hours before taking virtually any step of significance. That means Rosenstein can stop Mueller in his tracks at every step of the way — or, less confrontationally, alert the White House to impending developments in the case. It’s hard to conduct a solid investigation when someone so close to your target knows your every move well in advance.

Defenders of Rosenstein will respond that the deputy attorney general, who was a well-respected career prosecutor before his Trump administration stint, would never do anything to intentionally impede Mueller’s inquiry. That’s likely right, but it still shouldn’t assuage our concern about his role. There is a second, more significant, reason why Rosenstein’s oversight over the special counsel’s investigation remains problematic: Rosenstein himself is now a dramatis persona in the Russia affair.

Rosenstein’s letter appointing Mueller instructs the new special counsel to continue the FBI’s investigation into ties between the Trump campaign and Russia, but also to investigate “any matters that arose or may arise directly” from the FBI’s inquiry. One of these matters is whether President Trump’s firing of Comey was an attempt to interfere with an FBI investigation — and thus constituted obstruction of justice.

And Rosenstein played an important role in President Trump’s firing of Comey. He is certainly a material witness in Mueller’s incipient inquiry. Though likely not a target of the probe, he is at the very least a subject — a fact he essentially acknowledged when briefing the House of Representative last week. For him to have veto power over Mueller’s every step puts the special counsel’s investigation under a cloud.

How to free Robert Mueller

Ideally, Rosenstein would recuse himself from matters related to the Mueller inquiry, leaving the Justice Department’s No. 3 official, Rachel Brand, in charge of the probe. Department rules require recusal when an attorney is too close to individuals or organizations “substantially involved in the conduct that is the subject of the investigation.” That description fits Rosenstein.

But while the case for Rosenstein’s recusal is, I think, overwhelming, there are still other steps that Rosenstein (or Brand, if Rosenstein steps out of the way) can take to insulate the special counsel. And in doing so, Rosenstein can draw several lessons from Comey’s handling of the CIA leak inquiry.

First, Rosenstein (or Brand) should waive the Justice Department’s “Urgent Reports” requirement for Mueller. Mueller should have discretion as to whether and when he informs the deputy attorney general in advance of major investigative and prosecutorial steps. If Mueller thinks that giving advance notice might compromise his inquiry, he should have the power to hold his plans close to the vest.

Second, Rosenstein should promise that he will inform the chair and ranking member of the House and Senate Judiciary Committees immediately if and when he blocks Mueller from taking any investigative or prosecutorial step, rather than waiting until the end of Mueller’s tenure to do so. It does little good for Congress to learn years after the fact that the deputy attorney general interfered in the probe.

Third, Rosenstein should make clear — as Comey did in the CIA case — that the special counsel, not the deputy attorney general, will decide when the investigation will be over. Fitzgerald did not need Comey’s reauthorization every October 1 to press forward with his probe. Mueller, too, should have the authority to pursue his inquiry to its logical conclusion.

In the end, what matters most is that Robert Mueller can conduct his inquiry without political actors at the Justice Department casting a shadow on the process. James Comey recognized more than a decade ago that an unfettered investigation into the CIA leak required more insulation than the Reno rules provided. Mueller’s inquiry is, if anything, even more politically sensitive and more significant to the nation than the CIA leak probe. Let’s hope Rosenstein will realize that, once again, we deserve an investigation that’s truly independent.

Daniel Hemel is an assistant professor at the University of Chicago Law School. Twitter: @DanielJHemel

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