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Sun May 21, 2017, 09:29 AM

Trump or Congress can still block Robert Mueller. I know. I wrote the rules.

How politics could trip up the new special counsel

By Neal Katyal May 19
Neal Katyal  is the former acting solicitor general of the United States and presently serves as 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).


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Reply Trump or Congress can still block Robert Mueller. I know. I wrote the rules. (Original post)
DonViejo May 2017 OP
avebury May 2017 #1
elleng May 2017 #2

Response to DonViejo (Original post)

Sun May 21, 2017, 10:26 AM

1. Even if he (they) block Robert Mueller they would only

elevate the comparisons of Trump and his minions and Watergate. That would not bode well but might help in a election slaughter in 2018 with more and more Republicans being tossed out and replaced by Democrats.

It will all amount to how far the Democrats will go to fight for this country and the people.

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Response to DonViejo (Original post)

Sun May 21, 2017, 12:20 PM

2. 'Though our regulations were written nearly 20 years ago, they eerily anticipate the Russia investig

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” . . .

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. . . 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.” . .

hese 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.'

Complex, but useful to know. Thanks for posting, DonViejo.

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