Published by The Lawfare Institute
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The release of the “road map” provided by the Watergate grand jury to the House Judiciary Committee has precipitated a discussion over the suitability of a similar option for Robert Mueller. Jack Goldsmith and Benjamin Wittes have rightly observed that the road map was a restrained presentation, limited to key statements and a guide to the supporting material in the evidentiary record. It constitutes, they argue, a “less is more” option that could be compatible with Mueller’s overall approach. Sounding a more skeptical note, Stephen Bates argues that material differences between the Nixon and Trump cases leave some doubt about whether the course pursued by Watergate Special Prosecutor Leon Jaworski in 1974 will work as well for Mueller. For one thing, Bates writes, Richard Nixon did not object to the transmission of the road map to the House and resort to litigation to block it—and there is no guarantee that Donald Trump would be as obliging.
Yet these arguments over a "road map" do not fully clarify Mueller's proper role and that of other institutional actors. There is another course of action, straightforward if not free of hazards: All those with responsibilities in this matter should simply do the job assigned to them by the Constitution and the law. Bob Mueller prosecutes; the House acts to secure grand jury material to support its investigative function; and if the special prosecutor's mission requires protection from executive obstruction, Congress must take necessary action.
This “do your job” allocation of responsibility does not obligate Mueller to engage in any complicated schemes to pick up the slack for other institutional actors. And it is wrong to assume that others actors will be delinquent.
During Watergate, the road map was the responsible course among the other available options for assuring the House’s receipt of grand jury material evidence. But its purported scrupulousness or neutrality can be oversold. According to a detailed account by former members of the Watergate Task Force, the prosecutors devised the road map from start to finish as a “do-it-yourself kit” that would “spur” the House Judiciary Committee to accelerate its impeachment inquiry. Task Force members Richard Ben-Veniste and George Frampton have related how the prosecutors closely followed the messiness of the unfolding, halting impeachment process—"quarrels about staffing, about procedures and about scheduling"—which raised for them the concern that "members of Congress…were going to have to have the significance of the evidence spelled out for them in neon letters." These prosecutors saw the Task Force as stepping in to save the House from itself.
Under extraordinary pressure, facing difficult choices, Jaworski acted responsibly in choosing among the alternatives. But the intent behind the "grand jury report" was clear. The special prosecutor took it upon himself to intervene directly in the impeachment process in the belief that the House was unable to act appropriately or with due expedition. He did so after originally announcing in January 1974 that he did not envision making grand jury materials available to the impeachment process. Only after pressure from House Judiciary Committee Chairman Peter Rodino and (according to Ben-Veniste and Frampton) from members of the special prosecutor's own task force did Jaworski relent and authorize the development of the road map.
Why did the House not act directly by motion to the court to acquire the grand jury material? Apparently, the House leadership concluded that it should not enlist the aid of the judiciary in the discharge of its constitutional responsibility to consider impeachment. It is not self-evident why, as a constitutional matter, the representatives felt it was better to call on assistance from an office of prosecutors within the executive branch. As the impeachment inquiry progressed, the House did actively and independently pursue evidence. But in early 1974, it was still looking to the special prosecutor to kick-start the investigative process.
Much is at stake in the choice Mueller makes about which course to follow. Under ceaseless and feckless attack from the president, the special counsel has displayed exceptional professionalism and restraint. He has acted like a prosecutor, and only like a prosecutor. His office does not leak. He does not make public comments. He investigates and, as the evidence requires, brings or does not bring prosecutions.
In short, Mueller is doing his job. Still, he has drawn criticism even among commentators who stand squarely behind the need for this investigation. Former Watergate prosecutor Phillip Lacovara recently argued that, by proceeding with excessive caution and especially in holding off on any report before the midterms, Mueller made a fatal mistake and “doomed” the Russia inquiry. With the midterm elections over, the president has proceeded to fire Jeff Sessions as attorney general and replaced him with a critic of the Mueller investigation. Meanwhile, a somewhat bolstered Republican majority in the Senate has strengthened Trump’s defense against legislation to protect the special prosecutor. Lacovara foresees a president newly “emboldened to strangle the Mueller investigation” and able to do so “with no fear of paying a serious political price.”
If the worst of the consequences envisioned by Lacovara actually materialized, this would not be Mueller's failure: It would be the consequence of broad institutional breakdown. But it is entirely avoidable. Democrats will control the House come January, and even acting alone the new House majority can make the president pay heavily for any attempts to intervene in the special prosecutor's investigation. It can initiate a full-blown impeachment inquiry. It can move directly at any time to secure the grand jury evidence developed to date.
There are additional ways that the House can perform its constitutional responsibilities in signaling its intolerance for presidential obstruction. Already, Democratic House leaders have announced plans to begin immediately in January to press Acting Attorney General Matt Whitaker to recuse himself from supervision of the Mueller investigation. They have also indicated that if Whitaker refuses to commit to recusal, they will monitor his actions closely and act to hold him accountable if it appears that he has attempted to intervene in the special counsel inquiry.
Moreover, Republicans hang onto the Senate by a slim majority, and Mitch McConnell’s caucus includes Republicans nervously looking ahead to difficult 2020 reelection campaigns. McConnell cannot depend on all members of his caucus to line up behind every presidential challenge to the rule of law. But he can be sure that Democrats will maintain pressure on the majority on this issue. Democratic Leader Chuck Schumer has stated that if Whitaker declines to recuse, Senate Democrats will push for legislation to protect the special counsel inquiry.
For these checks to have any chance of working, Mueller does well to remain clear of any reasonable suggestion that he is roaming outside of his mandate into impeachment or other politics. Any controversial step or misstep on his part would only delight a president who has consistently and without basis accused the special prosecutor of disabling conflicts and the conduct of a disreputable "witch hunt."
Immediately after the election, Trump also began to bait the House, knowing that Democrats are reluctant to present themselves as a new majority obsessed with unleashing a barrage of investigations to cripple, perhaps even oust, the president. His brand of presidential politics thrives on trying to bring others to his level: He longs to put himself forward as the victim of what Trump and his supporters regularly term “deep state” irregularities and the corrupt Washington “swamp.” By endeavoring to establish himself as the target of a ruthless opposition, he justifies his own disregard of norms, ethical standards and constitutional limits. If the game is “rigged,” he intimates, why should he abide by its rules?
So Mueller has done well not to play into Trump's hands. But in at least two respects, the special prosecutor should not tie his own.
First, should Mueller conclude that the president has committed a crime, it is fully consistent with his role and responsibilities to name Trump as an unindicted co-conspirator in the Russia matter. The Office of Legal Counsel (OLC) opinions mistakenly contending that the president is immune from prosecution while in office do not preclude this option. The 2000 opinion, of course, was written well after Watergate; the authors were aware of the precedent of Nixon’s having been listed as an unindicted co-conspirator and did not challenge it. Since then, the Department of Justice has published guidance cautioning against this step but with ample allowance for it to be taken in a case like this.
Second, Mueller should also consider himself to have the authority to indict the president under seal, if the evidence so warrants, with prosecution deferred until Trump leaves office. OLC’s 2000 opinion takes objection to this course in a footnote, in which it asserts without elaboration that "[p]ermitting a prosecutor and grand jury to issue even a sealed indictment would allow them to take an unacceptable gamble with constitutional values." This is not an argument: What does it mean to dismiss this prosecutorial option as a “gamble with constitutional values”? In what way is it “unacceptable,” and to whom? This is gibberish, and it is not entitled to any weight.
Should the evidence take Mueller in these directions, the new Justice Department leadership could stand in his way: It could attempt to stop him or fire him. But this could not be accomplished in secret. The story would rapidly emerge, most likely with other resignations in protest from department officials—as with the Saturday Night Massacre. Mueller would have the chance to tell his story to the House, and the House, in turn, can and would obtain access to his evidence. The lines will have been clearly drawn, with Mueller situated on the right side—where his prosecutorial authority is found and has been responsibly exercised.
At a time when a president shows contempt for rule-of-law norms and institutional limits, Bob Mueller’s performance is a sterling counterexample. The more he honors the professional standards he has set for himself and for his investigation, the more narrow the president’s options for attack and evasion. This is also how Mueller best supports the capacity of other institutions to play their parts—to do their jobs, as he is clearly doing his.