Robert Mueller—the special counsel appointed by U.S. Deputy Attorney General Rod Rosenstein to oversee the investigation into the alleged Trump-Russia collusion—has mostly gotten applause across the political spectrum for his uprightness since the announcement Wednesday. He certainly has the experience needed for the task he’s been given, with 12 years at the helm of the FBI. But while his integrity and skills are not at issue, critics are not so sanguine about the investigation he will head up.
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First, a bit of clarity. While advocates of an investigation, including Daily Kos, have sought a “special prosecutor” to handle the probe, “special counsel,” and “independent counsel” have the same function. But the ways they are chosen are not the same.
After Watergate, Congress decided to set up an Office of the Independent Counsel in 1978. To avoid conflicts-of-interests, the independent counsel was appointed by a panel of judges from the U.S. Court of Appeals for the District of Columbia. That’s how the crimes of the Iran-contra affair were handled, as was the Whitewater investigation into the Clintons, with Ken Starr running it. By bipartisan agreement, the OIC was allowed to expire in 1999. So we no longer have an independent counsel.
Instead, special counsels are now appointed by the Department of Justice, which would normally mean the attorney general making the selection. But A.G. Jeff Sessions III recused himself from any of the Trump-Russia investigation, and his deputy made the appointment. Usually special counsels come from inside Justice, but picking an outsider like Mueller is done when conflicts-of-interest may be at issue.
The problem with this as opposed to having independent counsel is that the special counsel is not really independent.
As my colleague Laura Clawson wrote Wednesday, Mueller can be reined in or deprived of resources, something that worries some Democrats.
Erwin Chemerinsky, dean and professor at University of California Irvine School of Law, and Eric M. Freedman, a professor of law at Hofstra Law School explained in an Op-Ed why a special counsel just isn’t good enough:
[There is no mechanism in place to ensure a truly independent inquiry of this or other possibly illegal actions by high-level Trump officials. [...]
Congress should therefore renew the independent counsel statute providing for the appointment of a special prosecutor, one who cannot be fired by the president or the attorney general. [...]
Without the protection of the independent counsel law, however, Trump can order Rosenstein to fire Mueller, and fire Rosenstein if he refuses.
Nor is an investigation by Congress or an independent commission enough. Criminal charges, if warranted, cannot be brought unless there is a prosecutor.
Marcy Wheeler, who blogs at the highly respected emptywheel, believes that the scope of the order appointing Mueller isn’t broad enough.
As I read this, it covers just the investigation into ties between the Russian government and people associated with Trump’s campaign. Presumably, that includes Mike Flynn, Paul Manafort, and Carter Page, among others.
But there are other aspects of the great swamp that is the Trump and Russia orbit that might not be included here. For example, would Manafort’s corrupt deals with Ukrainian oligarchs be included? Would Flynn’s discussions with Turkish officials, or Rudy Giuliani’s attempt to excuse Turkey’s violation of Iran sanctions? Would the garden variety money laundering on behalf of non-governmental Russian mobbed up businessmen be included, something that might affect Manafort, Jared Kushner, or Trump himself? [...]
[A]s far as I understand the scope of this, Mueller will only oversee the central question, leaving those disparate ends susceptible to Trump’s tampering.
Perhaps Mueller will interpret the order as broadly as is necessary to do what ought to be the mission of all special counsels—uncovering the truth no matter who is caught up in any wrongdoing. That’s obviously what’s needed. But truth-seeking in this matter (or apparently any matter) is not found anywhere in Donald Trump’s personal mission statement. If only he could ask Mueller to go easy on the investigation or stand down altogether. But that didn’t work out so well with James Comey, the guy who replaced Mueller at the FBI.