Trump or Congress can still block Robert Mueller. I know. I wrote the rules.
How politics could trip up the new special counsel
By Neal Katyal May 19 at 6:00 AM
Neal Katyal is the former acting solicitor general of the United States and presently serves as a partner at Hogan Lovells and the Saunders professor of national security law at Georgetown University.
President Trump is calling it a "witch hunt," lawmakers are applauding it and the Justice Department says it's in the "public interest," but what can the newly appointed special prosecutor really do? Here are four things to know. (Jenny Starrs/The Washington Post)
Appointing special counsel Robert Mueller to probe Russian meddling in the 2016 election and any possible ties to President Trump’s campaign was not a perfect solution. It won’t end the possibility of political interference in the investigation. The rules provide only so much protection: Congress, Trump and the Justice Department still have the power to stymie (or even terminate) Mueller’s inquiry.
Still, this was the best possible option to deal with the conflicts and potential conflicts of interest these matters posed. In fact, the special-counsel regulations under which Mueller was appointed were written precisely to address a situation like this one.
I would know; I wrote them, in 1999.
The special-counsel regulations were drafted at a unique historical moment. We were approaching the end of President Bill Clinton’s second term, and no one knew who would be elected president the next year. Presidents of both parties had suffered through scandals and prosecutions under the Independent Counsel Act — Ronald Reagan with Iran-contra and Clinton with Monica Lewinsky. There was a chance to rethink things without either party fearing that it would give its political adversaries an advantage. Attorney General Janet Reno convened an internal working group to study the matter, and I ran that group for 18 months.
Our first decision was to let the Independent Counsel Act expire on June 30, 1999. Independence sounds good in theory, but in practice, it is mutually exclusive with accountability. The more independence you give a prosecutor, the less you make that prosecutor accountable to the public and regular checks and balances. And so we had seen the investigations and mandates of independent counsels mushroom, becoming a headless fourth branch of government. The consensus around this point was so great that sitting independent counsel Ken Starr testified against the act in 1999 and sought its expiration (his own investigation into Clinton, then still going on, was grandfathered).
At the same time, everyone understood the need for a prosecutor to take the reins when the Justice Department faced a conflict of interest or an appearance of impropriety. So we drafted the regulations with an eye toward that and convened many meetings with Hill staffers of both parties. Ultimately, Reno and then-Deputy Attorney General Eric Holder presented the regulations in congressional testimony. They received near-universal acclaim for striking a more proper balance.
Though our regulations were written nearly 20 years ago, they eerily anticipate the Russia investigation. Their very first lines refer to cases in which the attorney general is recused, as Jeff Sessions is now. They require the special counsel to be “a lawyer with a reputation for integrity and impartial decisionmaking,” which Mueller certainly is. They provide for the counsel to “not be subject to the day-to-day supervision of any official of the Department.” And they say that the acting attorney general (for the purposes of the Russia investigation, Deputy Attorney General Rod Rosenstein) can stop the special counsel “for any investigative or prosecutorial step” that is “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” If, however, Rosenstein invokes that authority, the regulations require him to notify the House and Senate Judiciary Committees. (In yet another foreshadowing of the present day, we assumed that the majority in Congress, if of the same party as the president, might be spineless and fail to investigate any interference by the Justice Department or the White House, and so we required the report to be given to the ranking minority member of each committee as well.)
This was the best we could do, given the United States’ constitutional structure. It’s not perfect. There are still at least three ways in which Trump, Congress or high-ranking Justice Department officials could interfere with Mueller’s investigation.
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