Norms and ‘Unwritten Rules’ Facing the Special Counsel in a Trump Presidency

Bob Bauer
Tuesday, July 24, 2018, 11:00 AM

When Special Counsel Robert Mueller indicted 12 Russian intelligence agents on the eve of the Helsinki summit, former attorney general Michael Mukasey smelled a rat. Writing in the Wall Street Journal, Mukasey contends that Mueller had in mind to embarrass President Trump or limit his room to maneuver in the one-on-one meeting with Russian President Vladimir Putin.

House Judiciary Hearing with then-FBI Director Mueller regarding Oversight of FBI (4/24/2008) (Source: Wikimedia/Office of Rep. Louie Gohmert)

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When Special Counsel Robert Mueller indicted 12 Russian intelligence agents on the eve of the Helsinki summit, former attorney general Michael Mukasey smelled a rat. Writing in the Wall Street Journal, Mukasey contends that Mueller had in mind to embarrass President Trump or limit his room to maneuver in the one-on-one meeting with Russian President Vladimir Putin. That was the "plain effect," Mukasey wrote, of these indictments—to “raise doubts the wisdom of the summit” and “perhaps shape its agenda.” And yet, Mukasey argues, this was most definitely not "the business of the special counsel."

The timing of Mueller's actions over the coming months will continue to raise questions like Mukasey’s, and Trump has tweeted his own suspicion that Mueller may illicitly extend the duration of what the president terms the “witch hunt” for maximum effect on the coming midterms. How precisely should the special counsel weigh the potential impact of investigative steps or the filing of formal charges on the political process? These would be fair questions about any high-profile investigation. They are just as fair but that much harder to answer when the president is a subject of the investigation, has attacked its legitimacy and its investigative findings, and may make use of what he knows about the inquiry to further his own ends.

Moreover, the president compelled fresh attention to the issue by inviting the Russian president to Washington, D.C. in the fall for yet another meeting. If past is prologue, the president may repeat denials that he finds politically and personally imperative, or otherwise seek to rework to his advantage the narrative of his administration’s relationship with Russia. He will certainly influence, or attempt to influence, the domestic political debate. If, before that meeting, the special counsel considers actions on the merits that would also add meaningfully to the information available to the public in evaluating the president’s claims, Mueller has difficult decisions to make.

The Standard on Timing

The Justice Department inspector general's report on the handling of the Clinton email matter sharply criticized James Comey’s notification to Congress of the October 2016 resumption of the Clinton email investigation. Yet it did little to clarify the standard governing these kinds of decisions. To the extent that the department has supplied guidance, it has been mostly, in the words of the inspector general report, “unwritten.”

What’s more, that guidance applies to decisions affecting the electoral process and does not address the impact they have have outside election seasons on matters of governance. Mukasey argues, not unreasonably, that “the general principle would seem to apply: Prosecutors are supposed to consider the impact of their actions on significant events outside the criminal-justice system, and to act with due diffidence.” While strongly disagreeing with Mukasey’s critique of Mueller’s timing of the recent indictments, Randall Eliason has written that the best course for prosecutors may be to "keep their heads down and bring cases when they are ready”—“not engage in calculations about the political consequences.”

The inspector general report reflects a range of opinions among senior department officials whom the inspector general interviewed about the considerations that should govern timing. Some refer to the imperative of avoiding any decisions made "for the purpose" of affecting the electoral process. Others seem to use an “impact” standard: No step should be taken, regardless of purpose, that would have an impact, or even the “significant chance” of a political impact. There seems also to be a general belief among these officials that the “purpose” or “impact” analysis might be shaped, if not entirely dictated, by a specific trigger on the election-year calendar—no action within 60 days before a federal election. Here senior officials expressed some uncertainty, as in this comment by the former chief of the Public Integrity Section. Raymond Hulser:

[There is] a sense… That there is a rule out there, that there is some specific place where it says 60 days or 90 days back from a primary or general [election], that you can't indict or do specific investigative steps."

But the “60 day rule" is not a rule: The inspector general defines it as a "general practice." Former U.S. attorney Preet Bharara, also interviewed by the IG, described the limitation as one that applies more generally "weeks,” not months, before an election. In the end, as the inspector general summarized the state of play, the Justice Department has elected against having a formally codified rule, instead relying on a "general admonition" that prosecutors evaluate carefully the political impact of investigative steps or indictments. The 60-day standard is a guideline, a rule of thumb; it is not binding.

The General “Admonition” on Timing and the Midterms

In the absence of a hard-and-fast rule on timing, and if the question in each particular case is controlled by a judgment of "impact," then the Mueller team may well anticipate serious challenges ahead. The midterm elections are very much underway. All measures of an active election campaign are in evidence: aggressive fundraising, candidates on the campaign trail, political advertising online andon the air, incessant polling and political coverage. Moreover, the Russia issue—and the president’s handling of it in particular—is among the questions put to the public as part of the ongoing survey research.

The president is not on the ballot this year; but if concerns over timing are rooted in the effect of the department’s actions on the fortunes of particular political parties, then the Justice Department’s admonition might be read as cautioning the special prosecutor against any steps that tilt the political scales as summer ends and Election Day approaches. However, the president as leader of his party will not be similarly restrained. For a year and a half, he has been steadily disputing allegations of Russian interference and of collusion—with a periodic, halfhearted retreat, usually followed by a fast move back to his original position. This will continue.

On an issue of this magnitude, in the middle of the crossfire, it is not clear that the normal “unwritten” rule should guide the prosecutors. Assume, for example, that an indictment is ready and that it implicates Americans for the first time in active collusion with Russians or expands still further on what is known about the Russian cyberattacks on the U.S. electoral process. Would Mueller justifiably withhold an indictment setting out this allegation if it were ready to go in the second week of September—that is, within 60 days of an election, but not in so short a time before Election Day that it could be characterized as an "October surprise”?

Mueller might reasonably conclude that he should do what he would normally do and have confidence that the voters will sort out the political significance for themselves. Even if it were not his express purpose to stimulate that debate, or to correct misrepresentations on the campaign trail about the existence of collusion, he might judge it as an overreading of the “60 day” unwritten rule to deny the public information that in the ordinary course would have been available. And it is precisely because Trump is not a candidate in the upcoming elections that Mueller might rightly feel freer to take this course.

Mueller would surely know that, if he did proceed within this 60-day period, he would face an uproar from the president’s party. His critics could count on persuading a fair share of the electorate—somewhere between 30 and 40 percent—that the special counsel had revealed his true partisan colors, ostensibly vindicating the claims made for months by the president and his defenders. But Mueller would presumably also appreciate that as certain as this backlash would be, it ought not dissuade from acting as his best professional judgment dictated. His work would speak for itself; it would have to be the best answer to any charge of “politics.”

The president’s invitation to Putin for a fall meeting in Washington adds a complicating factor. Before Trump’s meeting in Helsinki, Deputy Attorney General Rod Rosenstein took the unusual step of raising with the president a pending indictment, one directly affecting personal and political interests of the president, in view of its implications for “national security.” As Rosenstein put it, the president needed this information to "make very important decisions for the country" as he prepared for the summit. Ahead of a fall meeting, Rosenstein could yet again face a decision on whether to consult the president about the timing, this time in the middle of the political season.

If, as is likely, Rosenstein did brief the president in such a scenario, Trump might direct that any announced investigative steps or indictments be delayed until after the next meeting with Putin. It is even conceivable that the president would cite national security as the reason for an indefinite delay. Or the president might order action deferred until the “summit” ends and for several weeks afterward to allow “diplomacy to work”— with the effect of pushing any special counsel action deeper into the campaign, when the unwritten "60-day" rule has more bite. Of course, in this second case, it is the president himself who would have chosen to bring Putin to the capital in the weeks before the midterms and created tension with the unwritten rule.

How, then, would Mueller respond? He might feel obligated to respect a delay for as long as the Washington, D.C., summit lasts. But in the event that it became apparent, or highly plausible, that the president was seeking to manipulate the timing of the special counsel’s actions for purposes unrelated to national security, the independence of the investigation would be at risk. Rosenstein and Mueller would then have to insist on that independence—and Trump would have to decide whether to proceed with firing the special counsel, as he once reportedly attempted and, to all appearances, continues to long for.

The General “Admonition” on Timing and American Foreign and National Security Policy

In briefing the president before Helsinki in order to provide him with information relevant to his official duties, Rosenstein may have had the right intentions and concluded that he had no alternative. The ensuing course of events suggests that the consultation could have been unwise. To have given the president a choice in the matter rested on the assumption that he would make good-faith use of information for the benefit of the country. Instead, Trump used the occasion of his press conference to minimize the information’s significance. He sided with Putin's denials against U.S. intelligence agency findings. It is also unclear, because the White House will not disclose, what representations the president made about this to Putin in their two-and-a-half hour, one-on-one meeting.

There is, however, reason for concern about what transpired in those discussions. Trump seems to have seriously considered as “an interesting idea,” before the White House announced that he would reject, Putin's proposal that Russia should have the opportunity to interrogate senior officials for its own counterintelligence and law enforcement purposes. Has Trump entertained other such “interesting ideas” suggested by the Russian president? We don’t know. But the Russian government believes that the two heads of state reached so far unspecified and undisclosed "verbal agreements" about which Trump’s own national security team knows little.

Of course, had the president learned of the latest indictments after Helsinki, he still could have attacked them and discussed them at some point with Putin. But he would not have had the opportunity to do so in advance of a two-and-a-half hour, closed-door meeting with neither aides nor note-takers in attendance. And perhaps the president judged it in his interest to have the indictments made public before his meeting with Putin so that on a grand stage, he could announce that he did not believe them credible.

The Enforcement of Norms and Standards: The Trump Factor

Former FBI director Comey acknowledged to the inspector general that the "unwritten rule" on the timing of politically sensitive actions constitutes a "very important” norm. His former colleagues in the Justice Department all generally accept his view, even if they have different understandings of the precise contours of the norm or its source. For these norms to function successfully, however, other related norms must also be observed.

A president, in particular, has to take these connected norms seriously. When the Justice Department made an exception from standard practice and briefed the president on the pending indictment, as it did before Helsinki, it operated on the belief that he would make use of this knowledge in the public interest. Instead, Trump promptly described the investigation that produced it as a “disaster” for the country and disputed the special counsel’s account of Russian intelligence activities in the United States. Trump did this on international soil, alongside the very foreign leader whom he understood, from briefings he received over a year ago, had directed the very actions that he has denied took place.

These are the unfortunate and demanding conditions in which the Mueller team will have to determine how to apply the “unwritten rule” in the months ahead. Other officials, such as the director of national intelligence and the deputy attorney general himself, have spoken out on the Russia threat to directly counter the president’s campaign of misinformation. Whatever choices Robert Mueller makes, this situation is one of this president’s own making, a direct consequence of a demagogic leadership style defined by a relentless self-interest that even the national security interests of the nation apparently cannot overcome.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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