Criminal Justice & the Rule of Law

‘What Mueller Knows’: Ensuring a Special Counsel Report in the Worst-Case Scenario

Bob Bauer
Thursday, March 29, 2018, 7:00 AM

Even as President Trump has escalated his attacks on Special Counsel Robert Mueller, the congressional leadership has spurned movement on proposed legislation to protect the investigation. Republicans have sponsored certain of these bills, but their commitment to this project has cooled. They argue that no bill is really needed because the president, they are sure, will not fire Mueller.

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Even as President Trump has escalated his attacks on Special Counsel Robert Mueller, the congressional leadership has spurned movement on proposed legislation to protect the investigation. Republicans have sponsored certain of these bills, but their commitment to this project has cooled. They argue that no bill is really needed because the president, they are sure, will not fire Mueller.

Others are not so sure. Steve Vladeck has recently urged the enactment of proposals to provide judicial review of any dismissals for “good cause.” He rightly argues that the measure would hold up under constitutional review because Morrison v. Olson is still good law; he also notes that this move simply enforces the removal-for-cause provision of special counsel regulations that poach far less on executive authority than did the independent counsel law as a whole. It is, he writes, a “no-brainer,” an “easy way” to meet the threat to the Mueller investigation even for those who do not wish for a return to the independent counsel nightmares of yore.

I would argue instead for a still easier way to safeguard Mueller’s role. Rather than enact a measure to enforce the special counsel rules, Congress might address one of their serious weaknesses: the absence of any requirement that the special counsel report to Congress. Legislators could require that, if fired, the special counsel provide such a report on the status of the investigation through the date of his dismissal, focusing on whether the inquiry had uncovered credible evidence of potential crimes by the president, his family or close associates. He would give Congress the information it needed to seek judicial assistance in obtaining any and all material relevant to his report that would otherwise be protected under grand-jury secrecy rules.

One advantage of this measure is that it allocates to each branch the role it is most appropriately equipped to play under the Constitution without unduly encroaching on the authority of any. The president may be entitled to fire Mueller, presumably for a variety of “good” reasons, but not to protect himself. Few would defend the notion of executive authority exercised for this corrupt purpose, carried out to bury the incriminating evidence. The next question, then, is which of the two remaining branches of government—Congress or the judiciary—should ferret out improper motive.

Congress has the power to impeach, and the firing of Mueller in an investigation directly involving the president is squarely within Congress’s legitimate constitutional concern. The president may claim the authority to dismiss Mueller; but the Congress need not accept that he may do so for the purpose of limiting or frustrating the capacity of the House of Representatives to determine the grounds for an impeachment inquiry. While Congress is not dependent on the special counsel in launching such an inquiry, its actions will be informed, as in Watergate, by an independent criminal investigation (and vice versa). Mueller has investigative tools that congressional investigating committees lack. But, apart from these benefits of an unimpeded special counsel inquiry, the House of Representatives would have every interest in understanding whether the president shut down an investigation in his personal interest, motivated by the wish to evade legal liability and congressional scrutiny.

By contrast, if the courts are asked to be the primary actors in the review of a dismissal, they are forced into an awkward position. They would be asked to rule in a context unlike any other requiring them to review executive branch dismissal under a “for cause” standard. The question is not whether they may, but rather whether they should, be put in this position in these highly charged political circumstances. Once in the middle of the most incendiary of controversies, they stand to be singed, or worse. A case in point are the attacks during the investigation of President Bill Clinton on the Special Division of the United States Court of Appeals for the District of Columbia, accused of partisan mischief replacing of Robert Fiske with Ken Starr.

Vladeck is confident that the prospect for judicial review generates disincentives for the political actors to invite the courts’ intervention. He states that this “judicial procedure” for reviewing a dismissal “would almost certainly never have to be utilized.” The president would not move against Mueller “for blatantly inappropriate reasons” if he “knew there was even the specter of judicial review.” Mueller would not challenge a dismissal if it were “undisputedly for good cause.”

But who is to say that a beleaguered and threatened president would not take his chances even with a weak case, or that he would not have reasons—or at least believe he had reasons—that ranked higher than “blatantly inappropriate” ones? How readily would a special counsel accept that his cause for dismissal was “undisputedly good,” when declining to appeal means giving up his job, absorbing the harm to his reputation—and sacrificing possibly years of investigative work?

In either case, once invoked, judicial review precipitates an extended course of litigation. As Vladeck notes, it is not clear what would become of the investigation as the parties clash in court, and the litigation could “become a referendum on Morrison, rather than the desired inquiry into the propriety of Mueller’s sacking.” Vladeck doubts that any of these uncertainties or problems will come to pass, but only because he doubts the occurrence of litigation.

Requiring that the special counsel report to Congress in the event he is fired would remedy a clear defect in the current regulations. But the remedy is not extraordinary. In fact, Congress required just such a report of the independent counsel under the old statute, which called for the counsel to advise Congress of any “substantial and credible” grounds for impeachment.

The president could, of course, make life difficult for the special counsel by putting him out the door from one day to the next and denying him official facilities for the production of the report. This action would speak for itself: it would not be costless for the president to assert good cause for the dismissal and then act to impede the counsel from providing this accounting.

But Congress can legislate all the necessary support and protection for the support of the special counsel that the executive branch would not provide. Moreover, once the special counsel has reported credible evidence of presidential misconduct, Congress can subpoena records to which the special counsel no longer has access and seek judicial assistance in overcoming grand jury secrecy protections under rule 6(e) of the Federal Rules of Criminal Procedure. It can specify by law appropriate procedures for the transmission under seal of sensitive information to the House and Senate Judiciary Committees.

This report-upon-firing should not trouble a president who has nothing to fear—one who has “undisputedly good cause” for the firing. But if he should have cause for worry—because his dismissal of the special counsel is a bid to save himself—he should be aware and have to consider that there is only so much he can get away with. The president can still fire the special counsel—but not as he pleases. He cannot take without consequence an action that sabotages Congress’s discharge of its constitutional responsibilities.

The special counsel’s report would not convey any view of possible grounds for impeachment. One of the flaws of the independent counsel statute was its requirement that the counsel act as an agent of the Congress in performing such an assessment, which is not properly a prosecutor’s to make. In the proposal at hand, however, the special counsel would state whether the investigation had led to credible evidence of criminal misconduct, with a “roadmap” like the one that Special Prosecutor Leon Jaworski supplied to the Congress in the Watergate matter. Faced with questions about whether a president could be indicted while in office, Jaworski proceeded by the book as much as possible, and Congress could provide this same pathway for Mr. Mueller.

This measure could supplement Richard Pildes’ proposal that Congress codify the Justice Department’s special counsel regulations. Pildes correctly notes, as does Vladeck, that these rules present no constitutional issues. They address policy objections to the scope of the old law: They do not go nearly as far as the old independent counsel statute in constraining the president’s conduct of his executive function. By adopting the Justice Department current rules as its own, Congress could resist reviving the independent counsel model while still ensuring, in Pildes’ words, the “integrity and impartiality of investigations…when the Justice Department faces a conflict of interest.” A codification could add this contingent reporting to the existing rules, under which Mueller currently has no authority, and the supervising acting attorney general has only highly restricted rights, to report to Congress on his investigation.

There is no reason to doubt that Republicans in the Congress will oppose this measure—just as, at the moment, they oppose all other measures to protect Mueller. But their objections to the legislation currently on the table—that is, that it is unnecessary to defend against a firing they believe will not occur—would no longer stand.

Similarly useless would be a claim that the clock is being turned back to the days of the old and discredited independent counsel statute. Unlike the independent counsel, Mueller would not need to opine on the existence of the grounds for impeachment. He would report to the Congress only on matters clearly within his prosecutorial mission and would do so only when the president took action—the firing—that bore directly on the Congress’s exercise of its constitutional responsibilities. The courts would not be involved in adjudicating the legality of a dismissal but would rule on Congress’s demands for access to grand jury material.

Finally, the question might be raised whether this amendment to the law is necessary. Congress does not need fresh statutory authorization to call Mueller to testify about the investigation if he is fired, and it can subpoena records from the executive branch to support its inquiry into the circumstances of the dismissal and the possible grounds for impeachment. But mapping out these steps by statute assures that, when Congress acts, it will do so by a previously established set of procedures—which should temper, to some degree, concerns that legislators will react in the heat of the political moment and perhaps under partisan pressures. Moreover, by tying these procedures to a dismissal, Congress would put the president clearly on notice about its opposition to a firing and its determination to hear from Mueller what the president may be seeking to cover up.

Whether Trump is sincere in his stated objections to the Mueller inquiry, or whether those objections arise out of anxiety over his (or his family’s and associates’) legal exposure, every day presents once more the question of whether he might fire Mueller. If he finally does, the question of his motive will be inescapably presented—and Congress has the constitutional obligation to answer that question. It should ensure that it will receive the full story from the special counsel about what he found, through his last day in office, about the president’s conduct.

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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