Neal Katyal, who drafted the spe­cial coun­sel reg­u­la­tions, says they can’t stop po­lit­i­cal in­ter­fer­ence

The Washington Post Sunday - - OUTLOOK - Twit­ter: @neal_katyal Neal Katyal, a former act­ing so­lic­i­tor gen­eral of the United States, is a part­ner at Hogan Lovells and the Saun­ders pro­fes­sor of na­tional se­cu­rity law at Ge­orge­town Univer­sity.

Ap­point­ing spe­cial coun­sel Robert Mueller to probe Rus­sian med­dling in the 2016 elec­tion (and any pos­si­ble ties to Pres­i­dent Trump’s cam­paign) was the only choice the Jus­tice De­part­ment had. This is the best way 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.

But it’s also a highly im­per­fect so­lu­tion, be­cause it doesn’t fore­close 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.

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. But there are still at least three ways in which Trump, Congress or high-rank­ing Jus­tice De­part­ment of­fi­cials could in­ter­fere with Mueller’s in­ves­ti­ga­tion.

First, most sim­ply, Trump could or­der Mueller fired. Our Con­sti­tu­tion gives the pres­i­dent the full pros­e­cu­tion power in Ar­ti­cle II; ac­cord­ingly, any fed­eral pros­e­cu­tor works ul­ti­mately for the pres­i­dent. That con­sti­tu­tional re­al­ity is not some­thing we could write around with a reg­u­la­tion. In­stead, we opted to try to fo­cus ac­count­abil­ity for any such ac­tiv­ity. The reg­u­la­tions pro­vide that Mueller can “be dis­ci­plined or removed from of­fice only by the per­sonal ac­tion of the At­tor­ney Gen­eral” (again, Rosen­stein here, be­cause Ses­sions is re­cused) and only for “good cause.” The pres­i­dent, there­fore, would have to di­rect Rosen­stein to fire Mueller — or, some­what more ex­trav­a­gantly, Trump could or­der the spe­cial coun­sel reg­u­la­tions re­pealed and then fire Mueller him­self. Ei­ther of those ac­tions was un­think­able to us back in 1999, for we un­der­stood that Pres­i­dent Richard Nixon’s at­tempt in this re­gard ul­ti­mately led to his down­fall. At the same time, af­ter Trump’s fir­ing of FBI Di­rec­tor James B. Comey this month, many things once thought be­yond the realm of pos­si­bil­ity look less so now.

Sec­ond, Congress could muck up Mueller’s in­ves­ti­ga­tion. Sev­eral con­gres­sional com­mit­tees are look­ing into Rus­sia, and any one of them could de­cide to give im­mu­nity to a par­tic­u­lar wit­ness. You’ve seen the drill be­fore: Some high-rank­ing cor­po­rate ex­ec­u­tive comes be­fore Congress and re­fuses to an­swer a ques­tion be­cause it might in­crim­i­nate her. The way Congress deals with that prob­lem is to say that her tes­ti­mony can’t be used against her. That’s part of Congress’s truth-seek­ing func­tion. For­mally, such im­mu­nity is con­fined to her con­gres­sional tes­ti­mony and doesn’t pre­vent crim­i­nal charges al­to­gether, again be­cause the Con­sti­tu­tion gives the pres­i­dent the pros­e­cu­tion power. But in the real world, if one of the com­mit­tees gives im­mu­nity to, say, former na­tional se­cu­rity ad­viser Michael Flynn, that could make Flynn’s pros­e­cu­tion im­pos­si­ble. Oliver North, for in­stance, was crim­i­nally con­victed by an in­de­pen­dent coun­sel dur­ing Irancon­tra. But the U.S. Court of Ap­peals for the District of Columbia Cir­cuit threw out his con­vic­tion be­cause Congress ear­lier gave him im­mu­nity for his tes­ti­mony. Even though that im­mu­nity didn’t di­rectly cover ac­tion by the in­de­pen­dent coun­sel, the court found that the spe­cial pros­e­cu­tor could have ben­e­fited from the fruits of that con­gres­sional tes­ti­mony. There is a pos­si­ble sil­ver lin­ing in this sce­nario, though: If Flynn was given im­mu­nity, he would have to tes­tify, in­clud­ing against higher-ups, as he would no longer have any rights to refuse to tes­tify to pro­tect him­self against self-in­crim­i­na­tion. So even if Mueller can’t get Flynn, he might be able to con­vict some­one else, in­clud­ing, po­ten­tially, a big­ger fish.

Third, the reg­u­la­tions per­mit Rosen­stein to de­fine the scope and pow­ers of the in­ves­ti­ga­tion. At the out­set, the sweep looks fairly broad, en­com­pass­ing “any links and/or co­or­di­na­tion be­tween the Rus­sian gov­ern­ment and in­di­vid­u­als as­so­ci­ated with the cam­paign of Pres­i­dent Don­ald Trump” and “any mat­ters that arose or may arise di­rectly from the in­ves­ti­ga­tion.” But that is not as broad as the authorities that were given in an­other re­cent in­de­pen­dent in­ves­ti­ga­tion: In 2003, when Pa­trick Fitzger­ald was ap­pointed to in­ves­ti­gate leaks that iden­ti­fied former CIA of­fi­cer Va­lerie Plame, his ap­point­ment let­ters made clear that he was granted “all the author­ity of the At­tor­ney Gen­eral,” which was “ple­nary.” (You might have heard of the guy who signed the ap­point­ment let­ters giv­ing Fitzger­ald that ple­nary power. His name was James Comey.) Those sweep­ing pow­ers could be given only to some­one who was in the gov­ern­ment and con­firmed by the Se­nate — as Fitzger­ald, then a sit­ting U.S. at­tor­ney, had been — so they are un­avail­able to Mueller. But they stand as a re­minder that Mueller op­er­ates as a sub­or­di­nate to the Jus­tice De­part­ment, not as Rosen­stein’s equal.

These vul­ner­a­bil­i­ties mean that Mueller’s probe is not en­tirely free of the po­lit­i­cal process — it is not sacro­sanct. But it is still the best mech­a­nism we have to find out what the pub­lic is clam­or­ing to know.


The spe­cial coun­sel reg­u­la­tions, writ­ten 20 years ago, an­tic­i­pate many as­pects of Robert Mueller’s in­ves­ti­ga­tion.

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