林中斌 部落格 / Blog Chong-Pin Lin

How a Special Counsel Alters the Russia Investigation

CHARLIE SAVAGE, The New York Times, MAY 17, 2017

https://www.nytimes.com/2017/05/17/us/politics/special-counsel-in-russia-investigation-raises-stakes-for-trump.html accessed May 24, 2017

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林中斌 2017.5.24

● Is Mr.Mueller fully independent? No.

● The Justice Department will control Mr. Mueller's budget.

● Can Mr. Rosenstein overrule Mr. Mueller's decisions? Apparently.

Chong-Pin Lin May 24, 2017

WASHINGTON — The decision by Deputy Attorney General Rod J. Rosenstein to appoint the former F.B.I. director Robert S. Mueller III as special counsel for the Russia investigation has transformed the inquiry and increased the potential risk it poses to the Trump administration.

Mr. Rosenstein, who is overseeing the investigation because Attorney General Jeff Sessions recused himself, had resisted pressure to take that step. But recent events — including President Trump’s firing of James B. Comey as F.B.I. director, in which Mr. Rosenstein played a role — made that resistance increasingly untenable.

Here is what the appointment means — and doesn’t.

What is within Mr. Mueller’s jurisdiction?

Mr. Rosenstein’s letter gave Mr. Mueller the authority to look into not only Russia’s interference in the 2016 election and any coordination with Trump campaign officials, but also “any matters that arose or may arise directly from the investigation.”

And it included a reference to a Justice Department regulation that permits special counsels to investigate attempts to impede their inquiry.

That mandate would seemingly give Mr. Mueller a writ to investigate whether Mr. Trump’s interactions with Mr. Comey amounted to obstruction of justice.

Given the circumstances, “he is required to look” at whether there was obstruction of justice, said Julie O’Sullivan, a former federal prosecutor who teaches criminal law at Georgetown University. “He can’t ignore this.”

What is a special counsel?

Normally, United States attorneys oversee criminal investigations. But their decisions are subject to the oversight and control of the attorney general.

In cases that raise questions about high-ranking executive branch officials, the attorney general can appoint a special counsel to run an investigation with greater autonomy from the president’s political appointees.

Is Mr. Mueller fully independent?

No. The central attribute that makes an official completely independent of the White House — protection from being fired at the president’s direction — is no longer legally possible for a prosecutor.

After the Watergate scandal, when President Richard M. Nixon ordered the firing of the Watergate prosecutor in the so-called Saturday Night Massacre, Congress created a law that permitted the appointment of an investigator who would be shielded from political interference.

Initially called a special prosecutor and later called an independent counsel, this investigator was supervised by a panel of judges and could not be fired by the president. The Justice Department did not control the investigation’s budget, duration or expansion.

While the Supreme Court upheld this arrangement, critics said it allowed the prosecutor to run amok.

Republicans learned to hate the arrangement during the Iran-contra investigation into the Reagan administration, and Democrats did, as well, during the Whitewater and Monica Lewinsky investigations into President Bill Clinton.

When the independent counsel law expired in 1999, Congress did not renew it. Instead, the Justice Department during the Clinton administration issued internal regulations enabling the attorney general to appoint a special counsel.

But there appears to be room for potential conflict over how to interpret those regulations.

Sarah Isgur Flores, a Justice Department spokeswoman, noted that there was scant precedent to scrutinize when interpreting the 1999 regulations because only one previous special counsel was appointed under them.

That case involved misconduct by law enforcement officials, not a national security matter.

What are the limits of a special counsel’s autonomy?

Although Mr. Rosenstein’s letter says Mr. Mueller is authorized “to prosecute federal crimes arising from the investigation of these matters,” it also says he is subject to the special counsel regulations.

They give such a prosecutor a longer leash than a regular one, but the counsel’s discretionary powers still have limits.

The Justice Department will control Mr. Mueller’s budget. He must obey its “rules, regulations, procedures, practices and policies.” And Mr. Rosenstein can supervise his major decisions.

How might the requirement to obey department practices matter?

Here are two examples of issues that could arise.

First, people disagree about whether a sitting president can be indicted, and no court has ever addressed that topic.

But the Justice Department’s Office of Legal Counsel has opined, in a 2000 memo, that the Constitution implicitly grants sitting presidents immunity from criminal prosecution.

The office’s opinions bind department practices, meaning Mr. Mueller seemingly would be barred from charging Mr. Trump with obstruction of justice — while he remains in office — no matter what the evidence shows.

Second, the regulations give special counsels the powers and functions of United States attorneys, who are normally required to consult, and in some cases get prior permission from, the Justice Department’s National Security Division before taking investigative steps in “national security matters.”

A requirement that foreign agents register, for example, is believed to be part of the Russia investigation.

Ambiguously, the regulations say special counsels may decide “whether and to what extent” to consult others in the department about the conduct of their duties.

But the rules also require the counsels to consult about matters touching on “security regulations and procedures.”

It is not clear how much Mr. Rosenstein expects Mr. Mueller to coordinate with the National Security Division.

Can Mr. Rosenstein overrule Mr. Mueller’s decisions?

Apparently. The regulations state: “The special counsel shall not be subject to the day-to-day supervision of any official of the department. However, the attorney general may request that the special counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established departmental practices that it should not be pursued.” If that happens, it adds, Congress must be notified.

Although this does not explicitly say the special counsel must obey, the Congressional Research Service has interpreted it as meaning the attorney general may countermand proposed actions. Neal Katyal, who led the 1999 working group that drafted the regulations, said they intended to empower attorneys general to overrule special counsels — while making sure the public would find out.

What about firing him?

The regulations authorize Mr. Rosenstein to remove Mr. Mueller “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.” That means if Mr. Mueller and Mr. Rosenstein disagree about how to interpret department practices, and Mr. Mueller goes forward with a step Mr. Rosenstein deemed inappropriate, Mr. Mueller could be fired.

Moreover, the Government Accountability Office has concluded that the special counsel regulations “do not have the force and effect of law and may be waived by the department.” Therefore, Mr. Trump could direct Mr. Rosenstein to waive — or revoke — the regulations and fire Mr. Mueller without citing any reason.