May 19, 2017
Déjà vu All Over Again?
Special Counsel Mueller Has Been Down This Path Before
The appointment of Robert Mueller III as Special Counsel to investigate alleged collusion between the Trump campaign and the Russian government is in many ways reminiscent of a scenario that occurred when Mueller was FBI Director. If the parallels hold true, the rule of law will survive intact as a hallmark of our democracy, regardless of whether any prosecutions result.
On Dec. 30, 2003, the recently-fired FBI Director, James Comey, then Deputy Attorney General who directly supervised Mueller and the FBI, appointed his friend and colleague, Patrick Fitzgerald, the United States Attorney in Chicago, as Special Counsel to investigate the unauthorized disclosure of a CIA employee’s identity. The appointment was one of Comey’s initial acts after ascending to the Justice Department’s No. 2 post from his stint as the U.S. Attorney in Manhattan. The burden fell to Comey as Acting Attorney General because then Attorney General John Ashcroft recused himself from the matter, just as Attorney General Jeff Sessions’ recusal placed the present matter in the hands of newly-minted Deputy Attorney General Rod Rosenstein.
Despite the obvious similarities, there are some nuanced legal differences between Comey’s appointment of Fitzgerald and Rosenstein’s appointment of Mueller, even though both fall under the same rubric of Justice Department-appointed Special Counsels in the aftermath of the expired Independent Counsel statute.
As Acting Attorney General, Comey effectively delegated to Fitzgerald all of the authority of the Attorney General and directed him to exercise that authority “independent of the supervision or control of any officer of the [Justice] Department.” In a subsequent delegation of his authority, Comey directed that Fitzgerald’s appointment as “Special Counsel” was not “defined and limited” by 28 CFR Part 600, the Justice Department regulations that govern the appointment and functions of a Special Counsel.
Using the same statutory authority, Rosenstein’s appointment of Mueller as Special Counsel, however, states explicitly that the Justice Department regulations “are applicable to the Special Counsel.” (As an aside, it’s worth noting that the regulations require a Special Counsel to be selected from outside the government. By rendering them inapplicable, Comey was able to tap Fitzgerald, who was and remained a sitting U.S. Attorney.)
Given his day job, Fitzgerald already possessed the requisite security clearance, enabling him to hit the ground running. His dual capacity saved money by using existing government offices and personnel to operate at no additional expense. Mueller, on the other hand, will be required to submit budgets, hire staff, and possibly rent office space, but the relative modest cost of such an undertaking should never compromise the conduct of a fair and thorough investigation.
The regulations to which Mueller is subject and from which Fitzgerald was exempted provide important distinctions in their conduct. While Mueller “shall not be subject to the day-to-day supervision of any official of the Department,” Rosenstein may request that he “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.” Notably, Rosenstein must afford “great weight” to Mueller’s views, and if he concludes that a proposed action should not be pursued, he must notify Congress upon conclusion of the investigation. Further, at the conclusion of his work, Mueller will be required to provide Rosenstein with a confidential report explaining the prosecution or declination decisions he reached.
The Special Counsel apparatus exists to ensure that probes involving the White House are insulated from political considerations and executive branch conflicts. There can be no doubt that placing the investigation of Russian collusion in the 2016 election in the hands of an investigator and former prosecutor as experienced and impartial as Mueller accomplishes that purpose. Just as it was important for Fitzgerald’s investigation of a “leak” to be free of leaks itself, we can expect that Mueller will proceed by the book and without fanfare.
Regardless of the findings and whether any criminal prosecutions result, we can be confident that the framework is being used as it should to conduct a fair and impartial inquiry that serves the interests of justice.
Randall Samborn, a senior vice president at LEVICK, served as an assistant U.S. attorney and public information officer for the U.S. Attorney’s Office in Chicago, and was the government spokesman for the Special Counsel investigation of the disclosure of a covert CIA agent’s identity and the prosecution of United States v. Libby.