Make Mueller the last special counsel
The conclusion of the two-yearlong Mueller investigation should mark the end of the institution of the special counsel. Just as the failure of Starr investigation against President Clinton signaled the demise of the special prosecutor law, so, too, should the Mueller fiasco generate legislation to end the institution that replaced it.
The recent statement made by Robert Mueller underlines the reasons why a special counsel is inconsistent with constitutional and legal norms. Mueller was appointed to investigate alleged collusion between President Trump and his campaign and Russian operatives. But as he acknowledged, the rules of the Justice Department would have precluded an indictment of a sitting president even if the evidence showed criminal conduct.
If that is the case, then why was a prosecutor appointed? If the object was to obtain the facts and present the report to the public, then the proper institution to perform that task would have been a non-partisan, independent, investigatory commission, of the kind appointed to investigate the terrorist attacks of 9/11 and to recommend
steps to avoid repetition.
From Day One, I proposed the appointment of such a commission instead of a prosecutor. A special commission operates in public and hears all sides of the relevant issues. A prosecutor, on the other hand, operates behind closed doors, in the secrecy of grand jury rooms, and is not supposed to say anything beyond disclosing the decision whether to indict or not indict.
Moreover, prosecutors are not tasked to determine guilt or innocence. That is the province of juries and judges, after hearing both sides of a case and subjecting the government’s evidence to the rigors of cross-examination and the adversary process. A prosecutor’s job is simply to decide whether there is sufficient evidence to warrant a prosecution. The standard is probable cause rather than proof beyond a reasonable doubt.
Mueller should never have announced that: “If we had had confidence that the president clearly did not commit a crime, we would have said so,” because it was intended to suggest that the president might well be guilty of obstruction of justice. That, despite the decision announced by Attorney General Barr that he would not be charged with this crime.
Mueller then made the same mistake that his friend, Jim Comey, made in 2016 when Comey announced: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
The end result of two years of investigation, costing millions of dollars, was that the only people indicted for trying to influence the American election were a group of Russians who will never face trial in the United States. They are presumed innocent, yet Mueller described the indictment as if it were a conviction based on a full, adversarial trial.
It is almost certainly true that Russia not only tried to influence the 2016 election, but will continue to try to influence future elections. An independent investigatory body would have found Russian influence and would have proposed ways of dealing with the threat to our democracy. The Mueller investigation simply issued a report, knowing full well that it would never result in a prosecution of these Russians.
Most of the other indictments were for acts unrelated to any alleged collusion with Russia, or for obstructive crimes growing out of the investigation itself. These are serious crimes and if those accused of them are guilty, they deserve to be punished. But they are not a mark of success for the Mueller investigation.
So Congress should hold hearings and, if they agree with my analysis, pass legislation prohibiting the Justice Department from appointing special counsels in future cases. Ordinary prosecutors should be charged with investigating all crimes. We should trust career civil servants to do objective justice, without concocting an artificial structure — special counsel — that causes more problems than it solves.