Wednesday evening’s bombshell news was that former FBI Director Robert Mueller was appointed special counsel to investigate Russian interference with the 2016 election and the country’s connections to President Trump. While Trump himself derided the news, complaining that there was no need for a “special councel” for him if there was none for Obama, many others celebrated this development.
To understand why, it’s important to understand just what a special counsel is. And to understand that, it’s essential to think about control at work. Think of your own job, and how your boss controls what you do. There are various ways – mandates, budgets, salary, requests, pressure – but, ultimately, what your boss has hanging over your head is that she or he can fire you. With that threat, no matter how explicit or implicit, you can be controlled.
The same is true with federal law enforcement investigations and prosecutions. Law enforcement is within the purview of the executive branch of the federal government. Although there are different hierarchies for each agency involved in law enforcement, the ultimate boss at the top of each of those hierarchies is the president: the head of the executive branch. The president doesn’t have the power to fire a particular FBI agent or attorney within the Department of Justice, but he can influence those agents or attorneys because he has the ultimate power to fire their bosses. Just ask James Comey.
Or ask Archibald Cox – the special prosecutor (which is different than a special counsel or an independent prosecutor, as discussed below) appointed by President Nixon to investigate Watergate. Ultimately, Nixon was displeased with Cox’s investigation, as he was getting closer and closer to Nixon and wanted to subpoena Nixon’s secret tapes of White House conversations. Nixon asked his attorney general, Elliot Richardson, to fire Cox, because Richardson was Cox’s boss. Richardson refused, so Nixon fired Richardson. Nixon then asked the now-acting AG, William Ruckelshaus, to fire Cox, but he refused as well and was in turn also fired by Nixon. Finally, Nixon found his man: Solicitor General Robert Bork, at that point the head of the Justice Department after the two firings, fired Cox. This whole chain of events, referred to as the Saturday Night Massacre, tarnished Nixon even further than the original scandal had.
In many ways, this is all within the normal functioning of government, let alone any employer: The boss controls things. The problem occurs when law enforcement is investigating people in power within government, including the ultimate boss. To put a finer point on it, what happens if the president ultimately controls the investigation, but he’s the one being investigated?
That’s where special counsels and independent prosecutors come in. After the Nixon fiasco, Congress passed a law creating independent prosecutors – someone appointed by a special panel of judges who could only by fired by the attorney general, and only then for “good cause.” The appointment and removal processes gave this new position independence from normal politics in a way that was unprecedented. In 1988, the Supreme Court upheld this new position’s constitutionality.
However, in the 1990s, we saw the excesses of the office. Kenneth Starr had been appointed independent counsel in 1994, investigating Bill and Hillary Clinton’s land deals in Arkansas. The investigation morphed several times, ultimately leading to Starr investigating Bill Clinton’s sexual relationship with Monica Lewinsky. Critics of the independent counsel office said this was proof that the office was uncontrollable – because no one could stop him, Starr could did whatever he wanted, including investigate the president’s sex life.
The independent counsel law ended in 1999 when Congress failed to renew it. What we’re left with is the special counsel, a long-standing position that is somewhat of a compromise – between the unfettered power of the president, as Nixon showed with the Saturday Night Massacre, and the uncontrollable power of the independent counsel, as Starr demonstrated in the Monica Lewinsky investigation.
The special counsel is a prosecuting attorney working within the Department of Justice. He or she is appointed by the attorney general. Since Jeff Sessions has recused himself from all Russia considerations, Deputy AG Rod Rosenstein appointed Robert Mueller as special counsel in the Trump investigation. Now that Mueller has the position, he can operate like any other prosecutor within the DOJ, but with his own budget and without his day-to-day investigation being supervised by the agency. In other words, he gets to conduct the investigation in the way that he sees fit.
However, Mueller is not completely independent, as Starr was. Mueller can be fired by Sessions (or, because Sessions is technically recused, Rosenstein) for a specific list of reasons: “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” This list is not open-ended, but it’s also not narrow.
Thus, while special counsel Mueller can act on his own, he is not completely separate from control by President Trump. Nonetheless, at some point down the road, if Trump were to pull his own version of the Saturday Night Massacre and try to have Mueller fired by pressuring Sessions or Rosenstein, the political fallout would probably be massive. He would be doing exactly what the special counsel’s office is intended to prevent: open political interference with an investigation that goes to the top.
Watch Senate Republicans react to appointment of former FBI Director Robert Mueller as a special counsel.