Published by The Lawfare Institute
in Cooperation With
What does the world look like today if you’re Robert Mueller?
You’ve got a huge, sprawling, immeasurably complicated job, and the President of the United States has just put you on notice of what you already have long suspected: You may not have much time.
A pair of stories published last night by the New York Times and Washington Post announced that the White House is looking to “undercut” Mueller’s investigation and is “scouring” for information on potential conflicts of interest on the part of Mueller’s team. The stories describe a systematic effort to comb through the backgrounds of Mueller and his office in the hope of finding material damaging enough to merit firing Mueller, requesting the recusal of members of his team, or at the very least discrediting the independent investigation in the eyes of the public.
The White House is also examining the possible scope of the president’s pardon power and pushing the argument that the special counsel investigation should be sharply limited to exclude Trump’s finances. The attacks on Mueller and his office have been going on for a while now, but this new wave of hostility from the White House appears to have been instigated by concerns that Mueller’s probe will widen to include Trump’s business transactions—or that it already has.
These reports follow Trump’s own sharp criticism of Mueller in his extensive interview with the Times on Wednesday, along with his attacks on Attorney General Jeff Sessions for recusing himself from the Russia investigation and Deputy Attorney General Rod Rosenstein for appointing Mueller following Sessions’ recusal. After expressing his belief that “a special counsel should never have been appointed in this case,” Trump suggests that Mueller’s having met with the White House to discuss coming on as FBI Director following Comey’s dismissal constitutes a conflict of interest. He also hints darkly at other, unnamed improprieties on Mueller’s part: “There were many other conflicts that I haven’t said, but I will at some point.” And he seems to call into question the integrity of Mueller’s staff as well, presumably in reference to the fact that some of them have donated to Democrats: “[T]here are so many conflicts that everybody has.” The White House has also tried to discredit Mueller as a close friend of Comey, which Trump himself described as “very bothersome.”
Beyond attacking the integrity of the investigators, Trump’s aides are also seeking to cramp the scope of the investigation itself. While the new head of Trump’s personal legal team, John Dowd, has denied any discussion of the pardon power within the White House, the Post writes that both the president and his lawyers have inquired about Trump’s ability to pardon aides, family members, and himself.
Likewise, the White House is doing its best to telegraph its intent to police the boundaries of the special counsel’s activities. When asked by the Times how he would react to Mueller’s investigating the Trump family finances “unrelated to Russia,” the president declared that such a step would be “a violation.” And Sarah Huckabee Sanders said the next day that, “The president’s making clear that the special counsel should not move outside the scope of the investigation.” In an interview with the Post, Trump’s private counsel Jay Sekulow declared, “The scope is going to have to stay within [Mueller’s] mandate. If there’s drifting, we’re going to object.” Sekulow pointed to the president’s past real estate dealings as an example of material off limits to the special counsel.
It all adds up to a systematic push-back on the independence and integrity of the special counsel investigation. As one “Republican in touch with the administration” quoted in the Post suggests, the White House may well be “laying the groundwork to fire” Mueller.
So now put yourself in Mueller’s shoes. You are both a highly-experienced investigator (you’ve run the FBI for 12 years) and a highly-experienced prosecutor (you’ve headed the Justice Department’s Criminal Division, served as a U.S. Attorney, and prosecuted murder cases as perhaps the most overqualified assistant U.S. attorney in American history). You have staffed your investigation with a group of lawyers of remarkable depth and range of experience. You have on your staff Russian language capability. You have truly remarkable appellate capacity. And you have first class expertise in money laundering, campaign finance, organized crime, and other relevant areas.
But it all may not matter, because the President may decide either to issue a bunch of preemptive pardons or to try to either fire you or rein in your jurisdiction. And the talent you have collected is under attack.
How do you play it? Here are six broad areas to which Mueller may be giving some thought as he considers how to do his job under these highly unusual conditions. To be clear, the following is not based not on any communication with Mueller or his staff but on our own assessment of the law, the problems Mueller faces, and the incentives the White House’s activities create for someone in his position. We assume in everything that follows that there are serious matters under investigation. If, by contrast, L’Affaire Russe is all nonsense, the situation is far easier: Mueller can wrap up the investigation and go back to his law firm.
Investigative Design: Mueller’s mandate is broad. Under the terms of his appointment letter from Acting Attorney General Rod Rosenstein, he has jurisdiction not merely over “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” but also over “any matters that arose or may arise directly from the investigation.” He also has jurisdiction over any crimes that may arise as a result of interactions with the investigation itself: perjury, obstruction of justice, and the like.
It is only if wholly new matters arise that require “additional jurisdiction beyond that specified in [this] original jurisdiction” that, according to the regulations that govern his service, Mueller must “consult with the [acting] Attorney General, who will determine whether to include the additional matters within [his] jurisdiction or assign them elsewhere.” The regulations elsewhere specify that the special counsel is not “subject to the day-to-day supervision of any official of the [Justice] Department,” and while Rosenstein can “request that [Mueller] provide an explanation of any investigative or prosecutorial step” and rescind it if it is patently “inappropriate or unwarranted” under department policy, he must affirmatively seek that explanation; Mueller does not have to go to him for permission. Moreover, Rosenstein is obliged to give “great weight” to Mueller’s views—and notify Congress should he decide to countermand Mueller’s proposed course of action.
In other words, as long as Mueller can reasonably conclude that the new matters in question either arose or are arising out of his original investigation, he doesn’t need anyone’s okay to look into them. And at least under the current rules, the burden is entirely on Rosenstein to come to him, ask for an explanation, and then object to the expansion. By contrast, if Mueller wants to look at something that cannot be said to have arisen out of the existing investigation, the burden is on him to seek out the authority. Given Rosenstein’s own precarious posture with respect to Trump, and his less than honorable behavior towards James Comey, making sure all expansions fall into that first category will likely be the attractive alternative for Mueller.
This observation has two implications: The first is that we should expect Mueller to be cautious about new investigative opportunities that walk in with no relationship to the earlier mandate. Don’t anticipate Mueller latching onto Monica Lewinsky-type matters that may find their way to his door. Rather, look for him to be disciplined and take on such matters only if Rosenstein refers them to him.
The second implication is that Mueller will likely interpret broadly the phrase in Rosenstein’s appointment letter “any matters that arose or may arise directly from the investigation.” Trump seems to be furious that Mueller might look at his business transactions. But of course Mueller will. If you’re trying to understand “any links and/or coordination between the Russian government and individuals associated with” Trump’s campaign, looking at the business ties between those individuals and Russian interests is a no-brainer; it would be malpractice not to do so. If along the way, Mueller finds evidence of criminal activity unrelated to that those links or coordination, he will surely interpret that evidence as constituting a “matter that arose . . . directly from the investigation” and thus will not feel the need to consult with Rosenstein before taking on such a matter. Mueller may well consult with the acting attorney general anyway in the general course of keeping Rosenstein informed and assured that the investigation is proceeding appropriately, but given his mandate and the language of the regulations, he’s very likely to regard that consultation as a courtesy, not as an obligation.
Inverting the Pyramid: In a normal complex criminal investigation, the prosecutor starts at the bottom of the organizational pyramid and works his or her way up. The prosecutor indicts the drug runners, flips them, goes for the middle managers, flips them, and continues to use each layer to go after the one above—eventually targeting the people at the very top.
A prosecutor investigating the President of the United States, who’s threatening in two ways to nuke the investigation, might not feel the luxury of working up from the bottom of the pyramid. Such an approach takes time, after all. The bottom of the pyramid involves a lot of people whom the president, unlike a crime boss, can pardon. Notwithstanding the fact that pardoned individuals can be compelled to testify, a broad pardon eliminates much of the prosecutor’s leverage in obtaining the truth—leverage that relies on the criminal jeopardy of the underlings. And quite uniquely among criminal investigative subjects in the federal system, the President can also fire his own prosecutor, meaning that time may not be an available commodity. In an environment in which Trump is openly toying with both of these steps, the prosecutor may be tempted to invert the pyramid and focus on presidential conduct first.
To be clear, Mueller might well not do this. He might decide that his job requires him to act exactly as he normally would and leave the consequences of his removal or any pardons to the political process.
But there is another approach, too: a focus first on the conduct of Trump himself, particularly with respect to obstruction of justice. That is, Mueller could—for now, anyway—deemphasize or relegate to the background the components of the investigation that rely most on underlings whom Trump might pardon. Or he could conclude relatively quick (and that means generous) plea deals with those underlings, securing their cooperation along the way. This could insulate the investigation, to some degree anyway, against the possibility of pardons.
Speed: An investigation of this type is enormously complicated and takes a lot of time. Under normal circumstances, the order of the day would be a very long, methodical slog. In an environment, however, in which Mueller doesn’t know if he’s going to be there tomorrow or if he might lose leverage over his potential witnesses, look for him to act as quickly as possible. That means focusing on the portions of the investigation that are less complicated. It also might militate towards relatively generous plea deals. The goal would be to lock in now what he can before the President steps in to wreck things.
Note that this point is also a choice. Again, Mueller might well decide that his job is to carry out the investigation exactly as he would under all other circumstances, accepting that the investigation may never be completed. But he also might decide to bifurcate things, creating a fast track and a longer-term track. In other words, a reasonable prosecutor would run this investigation very differently if he knew he only had three months than he would if he knew he had three years. Mueller might well choose to operate on both assumptions simultaneously.
The Impeachment Referral: If Mueller is contemplating acting quickly, inverting the pyramid and focusing early on presidential conduct, a major problem will quickly confront him: it’s at least a serious question whether the President can be indicted while in office, and present Justice Department policy is that he cannot. This puts a huge premium on a question to which Mueller has probably, as a consequence, given some thought: What authority does he have to refer potential evidence for impeachment to Congress?
The Justice Department regulations governing Mueller’s appointment and investigation do not specifically detail what should be done regarding information related to possible impeachment. This is clearly by design. It marks an obvious departure from the previous Independent Counsel statute, which Congress allowed to expire in 1999. That statute, widely reviled by the time of its demise for permitting runaway investigations—even Kenneth Starr, the prosecutor who headed the Clinton investigation, testified in favor of its expiration—included a provision, 28 U.S.C. § 595(c), that explicitly granted independent counsel the authority to directly advise the House of "any substantial and credible information . . . that may constitute grounds for an impeachment."
Starr's expansive understanding of the type of report that this provision authorized him to provide to Congress was the subject of great contention in the run-up to Clinton’s impeachment. His interpretation prompted a battle between Starr's office and the White House, which expressed the view that any report filed by independent counsel under § 595(c) should stick to the facts and stay away from recommendations, and that it would be inappropriate and at odds with “fundamental fairness” for the document to "purport to summarize or analyze evidence.” Starr firmly disagreed with this "narrow formulation," arguing in a letter to President Clinton’s attorney that the language of the statute did not limit him to providing Congress with factual evidence alone.
Starr made good on his defense of an elaborate and argumentative impeachment report. The baroque document he eventually produced was entirely unlike the report prepared by Watergate Special Prosecutor Leon Jaworski, which has never been made public but is known to have been highly restrained—containing “no accusatory conclusions[,] . . . no recommendations, advice or statements that infringe on the prerogatives of other branches of government . . .[and] no moral or social judgments.”
The fact that the current special counsel regulations make no mention of impeachment referral authority in part reflects the historical consensus that Starr went too far. The existing regulation reporting requirements are written in such a way as to confine the special counsel to his or her mandate. Specifically, the regulations require the special counsel to report to the attorney general for purposes of determining budgeting needs and in the case of “Urgent Reports,” and to provide the attorney general at the conclusion of the investigation “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” (As a matter of normal Justice Department practice, "Urgent Reports" are brief updates that must be submitted to the attorney general and deputy attorney general to notify them of "(1) major developments developments in significant investigations and litigation, (2) law enforcement emergencies, and (3) events affecting the Department that are likely to generate national media or Congressional attention.”) It is then the Attorney General’s obligation to notify both the chairman and ranking member of the House and Senate Judiciary Committees of the investigation’s close and to provide an explanation of any instances where he has concluded that the special counsel’s proposed action should not be pursued. In short, to the extent any information about the president’s conduct with bearing on impeachment arises out of the special counsel’s investigation, identifying it as such lies with Congress.
But for Mueller, the absence of any reporting provision for impeachment material creates a strange lacuna that now requires a strategic judgment. What if he amasses evidence that Congress needs to know about pursuant to its impeachment authorities yet the President pardons the people through whose prosecutions that information would normally emerge? What if there’s no basis for anyone’s prosecution but there is damning evidence of an abuse of power? What happens if he develops evidence that would support an impeachment but his office is suddenly shut down?
One possibility is for Mueller to take the view that the absence of authorization for such a referral does not preclude it. That is, he can do exactly what Jaworski did: dump information in Congress’s lap without telling Congress how to analyze it.
But Mueller may also take the view that he can’t do that, or that he has to go through Rosenstein to make any kind of referral to Congress. In any event, the sword of Damocles Trump dangling over his head—both in the form of potential pardons and in the form of removal threats—could make Mueller think hard about how he wants to handle a possible impeachment referral, and to do that thinking much earlier than he would otherwise. After all, if something’s got to be done and one doesn’t know whether one will be there tomorrow to do it, the temptation is to do it today.
Defending His Staff: The White House’s attacks on Mueller and his staff are disgusting, but they are also par for the course. Bill Clinton’s White House did the same thing with Starr and his staff. Attacking the prosecutor is as American as apple pie in criminal defense. And as long as the attacks are no more than criticisms of campaign contributions by a number of Mueller’s staffers, the best approach may be to ignore it. With Starr, however, the attacks turned into something much more than griping: ethics complaints, litigations, leak charges (at least one of which had merit), and other matters that actually took a lot of time and energy to respond to. It’s reasonable to anticipate that the allegations against Mueller and his staff will end up going that direction as well. For Mueller, that means both running an investigation that is utterly beyond reproach and being prepared to respond to whatever comes. This may well involve having a wing of the investigation that is itself devoted to defending the investigation.
Resisting Removal: The regulations provide the special counsel some measure of protection against removal by specifying three conditions for it. The special counsel may be removed only by the (acting) attorney general for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” and "the specific reason" for his termination must be laid out in writing. As Jack Goldsmith has highlighted, although the regulations purport to give the attorney general alone removal power, it remains an open question whether as a constitutional matter Trump may nonetheless fire Mueller himself—for example, if Rosenstein refuses to do it (as he has vowed to in the absence of good cause). Both Jack and Marty Lederman have explained that there is case law to support the principle that regulations are binding so long as they are in force and the president has not sought to revoke them, along with good arguments that only the agency head who appoints the officer, not the president, can remove that officer.
That said, Trump might revoke the regulation itself and in so doing obliterate Mueller’s whole office. So one way or another, a president who really wants to get rid of Mueller could probably do so.
In any event, Mueller has to operate on the assumption that Trump could get it done. And that means he’s probably given some thought to how he would handle a removal. What does that consist of? There’s actually not that much Mueller can do about it. The protection against removal is ultimately a political one, not a regulatory or legal one, and that means Mueller can’t do much more than to try to condition the politics so as to make the constraints on the president as binding as possible. That means having the sort of relationships with the relevant committees in Congress such that any firing would be considered politically unacceptable. Here Mueller’s reputation is key, but liaison with Congress—without, of course, discussing the substance of the investigation—is probably going to be important as well. It’s crucial not merely that Congress be unwilling to tolerate a disruption of the investigation, but that Trump knows that it is unwilling to do so.
Finally, being prepared for a removal probably requires contingency planning for what happens if Trump pulls the trigger. One would assume, for example, that Mueller and his staff have documented everything they’ve done, that they are creating work product that Congress could demand in the event the office ceased to exist, and that there is some mechanism—if only the calling of Mueller to testify—by which Congress could learn what it needs to know.
If you’re Robert Mueller today, you’re probably thinking about how to make sure that even if you are fired, critical information finds its way to where it needs to go.