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Recent reports indicate that President Trump has considered attempting to fire Special Counsel Robert Mueller—or, given applicable legal constraints, to instruct Rod Rosenstein, the acting attorney general overseeing Mueller, to do so. It goes without saying that firing Mueller would cross a red line and should trigger dramatic consequences from Congress.
But Congress and the press should be on the lookout for other efforts the president and his political allies might take to impede the investigation, short of attempting to fire Mueller. The following are examples of actions that Congress should treat as active measures by the Trump Administration to undermine an effective and thorough investigation into the Russia matter. Actions along these lines would warrant an aggressive congressional response. Just as Congress would deem the firing of Mueller to constitute a brazen abuse of power, it should consider less obvious forms of interference as unacceptable overreach.
- Placing constraints on the scope of Mueller’s jurisdiction
Rosenstein granted Mueller extremely broad jurisdiction to investigate links between Trump campaign and Russian election interference as well as matters arising directly from that investigation, including obstruction. Any efforts to limit Mueller from pursuing the facts and the law wherever they lead are an impermissible abrogation of that broad jurisdictional compass.
More specifically, Rosenstein assigned Mueller to take over Comey’s investigation, which Comey described to Congress as encompassing “the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts.” Rosenstein’s order appointing Mueller specifically referenced “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.” The order appointing Mueller also invokes 28 C.F.R. 600.4, which provides that “[t]he jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the special counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
The special counsel regulations empower the attorney general to set the parameters of an investigation at the front end precisely so that it is not truncated while underway in a manner that would undermine its independence. This mandate makes clear that any efforts by Justice Department officials to cut off investigatory paths within the broad purview of Rosenstein's appointment order should be reported to Congress immediately. Congress, in turn, should act decisively if confronted with evidence of interference with the investigation’s proper scope.
- Limiting resources available to Mueller
Experienced prosecutors know that substantial resources are required to effectively investigate broad cases of this kind. To date, there has been no indication that Mueller has been limited in his ability to hire a strong team and bring together the investigative resources that he believes are necessary. But there were previously reports that Comey had sought additional resources shortly before he was fired (though the Justice Department has denied this), and the president and his supporters appear to be engaged in a campaign to discredit Mueller and the investigation. For these reasons, Congress should be wary of any complaints about the cost of the investigation and attempts to seek to restrict the resources available.
As a starting point, Congress should treat with skepticism any claim that the Russia investigation is competing with the Justice Department’s core law enforcement mission, since it is funded through a “permanent and indefinite appropriation” at the Treasury Department, not core DOJ funds. In addition, Congress should be wary of multiple ways that Mueller’s investigative resources could be limited, such as through interference with the placement of current DOJ lawyers already detailed (or temporarily assigned) to the special counsel investigation and interference with the hiring of new attorneys for the investigation. Efforts to starve the special counsel team of necessary resources should be regarded as direct attacks on the independence of a law enforcement investigation.
- Altering the special counsel regulations to limit Mueller’s independence
The president cannot fire the special counsel under applicable DOJ regulations. But Congress should watch out for any efforts to amend the existing special counsel regulations to limit the tools and authorities available to Mueller or broaden the grounds for firing the special counsel. (It would also be alarming if the president obtained some sort of advisory opinion from OLC or the attorney general that he could disregard the regulations and choose to fire Mueller at his discretion.) The president’s authority to modify or circumvent those regulations is far from certain (see here and here), and in any event, any effort to modify those regulations should be viewed as the first step in firing Mueller. Congress should respond accordingly.
- Aggressively interpreting provisions of the special counsel regulation to undercut Mueller’s independence
The regulations create a structure to ensure independence. They invest the special prosecutor with “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney,” and generally guarantee that the special prosecutor “shall determine whether and to what extent to inform or consult with the [Deputy] Attorney General or others within the Department about the conduct of his or her duties and responsibilities.” They further provide that the special counsel “shall not be subject to the day-to-day supervision of any official of the Department.”
Yet the special counsel’s independence is not absolute. Section 600.7(b) states that “the Attorney General may request that the Special Counsel 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.” Important safeguards are built into that provision: for example, Congress must be notified if the attorney general countermands the special counsel’s desired course of action. The regulations, in other words, set out a narrow safety valve for reining in clearly improper conduct, not a license for micromanagement. It is crucial that this narrow provision not be repurposed in a way that would have the effect of ensnaring the investigation in a process of serial demands for “explanations,” or worse, transmitting confidential investigative information to individuals outside the special prosecutor’s team. Congress should require notifications under Section 600.7(b) to be made promptly, and if such notifications occur, it should take swift action to ensure that Justice Department officials are not exploiting the provision to impede the investigation.
- Relying on OLC’s no-indictment opinion to limit the investigation
The Justice Department’s Office of Legal Counsel (OLC) has twice opined that the sitting president cannot be indicted and that impeachment is the proper remedy for crimes committed by the president. That view remains contested, including for the reason that Bob Bauer laid out here on Lawfare, but at a minimum it should not serve as a basis for limiting the scope of Mueller’s work. Mueller must be permitted to pursue alternatives to formal indictment if he concludes the president committed a criminal offense. These could include filing a report and recommendation with Congress to initiate impeachment proceedings or seeking indictments of Trump’s associates with Trump as an unindicted co-conspirator. It is, of course, also possible that Mueller, or another federal prosecutor acting on the basis of Mueller’s investigation, would elect to bring charges against Trump after he leaves office.
In any event, the question of whether the president can be formally indicted should pose no barrier to a complete investigation.
- Invoking executive privilege to prevent Mueller from getting testimony or documents
Trump’s appointees have already sought to rely on strained theories of privilege to avoid providing information in congressional testimony. But the executive privilege does not require officials to withhold information from the special counsel who is conducting a criminal investigation and is situated within the executive branch. As our organization, United to Protect Democracy, pointed out in this memo, the Supreme Court held in United States v. Nixon that a grand jury had a compelling need for the purportedly privileged tapes that defeated the claim of privilege. The Nixon Court explained, “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.” The safeguards available to Mueller for handling such sensitive information are at least as robust as those enjoyed by federal courts, which means that any claim to executive privilege is correspondingly weaker in this context.
And it is especially critical that witnesses not seek to invoke the type of “non-privilege” claimed in recent congressional hearings by Attorney General Sessions and other Administration witnesses. Mueller, of course, has at his disposal the array of tools available to all federal prosecutors to compel the testimony of recalcitrant witnesses. To the extent that Congress learns of refusals by executive branch officials to cooperate, it should demand to know the purported basis for those refusals. There is a long-established set of inter-branch protocols when invocations of executive privilege are contemplated, and those traditions should not be short-circuited in this high-stakes investigation. As Sessions noted during his testimony before the Senate Intelligence Committee, only the president can choose to invoke executive privilege. The president must therefore bear the political costs of doing so on tenuous grounds.
- Granting pardons to limit the investigation
The president’s pardon power is expansive, but it should not be used to impede Mueller’s investigation. If the president were to attempt to pardon individuals who are subjects of the investigation, it would raise grave questions and should be met with the same dramatic consequences from Congress as other attempts by the president to place himself and his associates above the law.
Even if such an attempt is made, Mueller must retain the ability to conduct a full and comprehensive investigation—including into those individuals. Whether Trump seeks to pardon his associates or not, the investigation must go on.
- Prohibiting release of a final report to Congress and the public
DOJ’s special counsel regulations include procedures for preparing reports by the special counsel and the (acting) attorney general in various circumstances, including the conclusion of a special counsel investigation. Under the regulations, “The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” In this case, there should be a strong presumption that any final report of the special counsel must be shared with Congress and the public. This is no ordinary investigation—it goes to the heart of our democracy and how we can protect it in the future. In all events, Mueller should be allowed (indeed, required) to present a final report on his findings of fact and legal assessments to the Congress and the American people.
Let’s recall that this investigation is about a foreign government’s interference in our election and the potential role of the president’s campaign associates in that interference. The Intelligence Community and former FBI Director Comey have warned that this threat is not going away. Congress must ensure that the Justice Department conducts a full investigation of these matters and pursues appropriate responses to the fullest extent of the law.
This in turn means ensuring that Special Counsel Mueller’s ability to conduct an effective investigation does not suffer a death by a thousand cuts. Members of Congress should not sit back and hope that Mueller’s investigation will proceed free from interference, especially given statements by the president and his supporters indicating an interest in derailing Mueller. The potential modes of interference outlined above should be deemed unacceptable, and members of Congress should ask the attorney general, deputy attorney general, and any future Senate-confirmed Justice Department officials, to confirm their commitment to preventing them. Congress should also insist that Special Counsel Mueller report immediately to the full Judiciary Committees if any of these attempts at interference occur. The prospect of the president firing Mueller has increasingly been recognized as a line that may not be crossed. Lesser forms of interference should be seen the same way.
(Full disclosure: Protect Democracy represents Lawfare in FOIA matters unrelated to the topic of this post.)