By Noah Feldman
There’s been plenty of finger-pointing over the past week, after Robert Mueller’s testimony before two House committees failed to animate his report on Russian interference in the 2016 election in the way the president’s critics had hoped. But the problem didn’t start with Mueller’s performance, or the lack of attention paid to the report itself, or the efforts made by the attorney general to mischaracterize it.
It’s become clear to me that the problems go back even further: The regulations governing the appointment of a special counsel doomed Mueller’s investigation from the start.
The appointment of a prosecutor who could in principle be fired by the president turned into an obstruction trap for Donald Trump. Worse, the policy barring the Department of Justice from prosecuting a sitting president created an untenable situation — Mueller felt he could only exonerate Trump, not say he was guilty of a crime. As a result, we got the worst of all possible worlds: Trump committed an impeachable act he might not otherwise have committed, and he got away with it.
The trouble with facing the failure of the special counsel regulations is that they replaced a prior system that also failed: the independent prosecutor statute that gave us Kenneth Starr’s Whitewater investigation run amok. We’ve now tried two different systems to get around the fact that unlike essentially every other civilized country, the U.S. doesn’t have a politically independent national prosecution service. Actually we’ve tried three systems, if you count the ad hoc special prosecutors appointed to investigate President Richard Nixon, a system that had its own trouble.
Fixing the process
It’s time to start thinking about something new.
The first step — and one we should undertake now, while our memories are fresh — is to evaluate where the current special counsel system went awry.
Recall that the main objection to the independent counsel statute after the ill-fated impeachment of President Bill Clinton was that Starr had too much power. Appointed by a special committee of federal judges, and essentially impossible to fire, Starr took the widest possible view of what he should investigate.
Intent on taking down the president, Starr focused on Clinton’s various sexual shenanigans including his affair with a White House intern, Monica Lewinsky. The obstruction crime that got Clinton impeached — lying under oath about his relationship to Lewinsky — fell very far indeed from where Starr had begun his investigation into Clinton’s financial dealings while governor of Arkansas.
In response to Starr’s unchecked authority, Congress let the independent counsel statute lapse. The Department of Justice proposed in 1999 the special counsel regulations under which Mueller was appointed as a kind of substitute.
Almost every key element of those regulations failed when it came to Trump and Mueller.
First off, the regulations gave tremendous power to the attorney general, who was given oversight authority over the special counsel’s key decisions, including not only prosecution but also reporting to the public.
Pressure for recusal
As the recusal of then Attorney General Jeff Sessions proved, it was always a terrible idea to put the president’s senior criminal justice appointee in charge of an investigation that could include the president. Many attorneys general play roles in presidential campaigns, as Sessions did. Many attorneys general have close relationships with the presidents they serve. Almost anyone in the job would come under pressure to recuse himself or herself. And almost anyone in the job could be brought under direct presidential pressure to refuse to step aside.
So Sessions’ recusal predicament was entirely predictable. That left the country in the strange position of wondering for two years whether Sessions’ stand-in — the previously unknown Deputy Attorney General Rod Rosenstein — would stand up to Trump.
Rosenstein did — at first. But when William Barr became attorney general, and Rosenstein was no longer fully in control of Mueller’s investigation, he allowed himself to be co-opted into Barr’s clever distortion of the Mueller report, when he gave Congress his misleading “summary.” Lest it be forgotten, Rosenstein never broke ranks with Barr.
The attorney general’s power to provide a summary of Mueller’s findings was also a disaster, as we now know. It, too, was a central element of the regulations.
Arguably even worse was the fact that the special counsel regulations imagined a president who might not like being investigated, but would understand he couldn’t do anything about it. In reality, we got Trump.
If the content of the Mueller report is to be believed, Trump obstructed justice — specifically by ordering White House counsel Don McGahn to fire Mueller. In a certain sense, it’s fair to say that the regulations held out to Trump the tantalizing possibility that he could do so, and do so lawfully, because the special counsel was part of the executive branch.
It’s worth remembering that some reasonable lawyers, including Barr, think that the president could not constitutionally obstruct justice by firing his own subordinate. While I don’t agree, the legal view has to be taken seriously.
In retrospect, the regulations essentially invited a president to threaten a special counsel who reported to a chain of command ending in the Oval Office. Yet the regulations said nothing whatever about whether such a firing or threat of firing was even appropriate — much less whether it could constitute a crime if done with corrupt intent.
This problem should have been anticipated when the regulations were drafted. After all, if the point of the regulations was to put the special counsel under greater supervisory authority than was Starr, it followed that the supervision via the attorney general would very possibly involve the president.
It’s not like the scenario was unimaginable. This was the very “Saturday night massacre” scenario that led to the independent counsel statute after Nixon fired Watergate special prosecutor Archibald Cox.
Finally, there’s the prosecutorial contradiction that in the special counsel regulations. The special counsel was supposed to report on decisions to prosecute or decline to prosecute. But Department of Justice policy says the president can’t be prosecuted. So how was the special counsel supposed to deal with an investigation of the presidency? We know Mueller bungled this issue — but it is hard to see exactly how he could have solved it.
The next step will be to figure out how to fix these problems, without going back to the independent counsel statute in an unchanged form. We should avoid fighting the last war again the next time. But it would be crazy not to start by trashing the current regulations and starting from scratch.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.