President Trump shouldn’t fire Robert Mueller, but Mueller should be the last special counsel.
The Mueller probe just took a Ken Starr turn with its lurch, via the Southern District of New York, into the Stormy Daniels affair. After the Starr investigation in the 1990s, there was a consensus that we weren’t doing that again, certainly not through the independent-counsel statute, which was allowed to lapse.
The law put investigations on a hair trigger and carved out independent counsels, executive branch officials, from control of the chief executive in a constitutionally impermissible way. What resulted were endless politically fraught investigations that often exhibited a zeal disproportionate to the alleged crime.
It’s too early to render a verdict on Mueller’s work, not knowing the underlying facts, but he certainly appears to have become a kind of free-floating legal ombudsman.
We should be thinking of whether this really is the best way to hold presidents accountable in the future. As a practical matter, it’s hard to imagine any administration ever permitting such an investigation to get unloosed again.
Even if Trump is fully vindicated, the probe has exacted a significant price in time, money and political capital.
Much of the left considers the Mueller probe a resistance march with subpoena power. In his famous dissent in the Supreme Court case of Morrison v. Olson upholding the independent-counsel law in 1988, Antonin Scalia wrote, “Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.”
Scalia relied heavily on a speech from FDR’s attorney general, Robert Jackson. The future Supreme Court justice warned against prosecutors picking a person, not a crime, to investigate.
It’s still worth quoting Jackson at length: “In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm” — the ability to pick and choose targets — “that the greatest danger of abuse of prosecuting power lies.”
Obviously, Deputy Attorney General Rod Rosenstein, a Trump appointee, didn’t appoint Mueller out of malice (although his initial guidance to the special prosecutor was inexcusably broad). And Trump brought all this on himself with his ham-fisted firing of James Comey and sundry other acts of, at the very least, spectacularly poor judgment.
But the trajectory would be maddening for any president. He’s gone from James Comey telling him he wasn’t suspected of wrongdoing to his personal lawyer being raided in the blink of an eye. He’s gone from his deputy attorney general blessing a counter-intelligence investigation into Russian meddling to blessing FBI agents seizing material related to hush payments to a porn star.
Now it very well may be that every step on that path by Robert Mueller was completely justified legally, the same as Ken Starr’s trajectory from Whitewater to Monica Lewinsky. But the natural gravitational pull of such investigations is toward expansion.
This always delights one side and aggrieves the other, which intensifies its political attacks on the investigator. By the end, the Starr investigation was a pure partisan fight for power. The same will be true of the Mueller probe, if it isn’t already. This puts the lie to the idea that such investigations can ever be truly above and beyond politics.
It’s possible to imagine a different scenario having played out over the past year. Congress could have created an independent commission to investigate Russian interference. Career prosecutors could have handled the Manafort investigation. The Southern District could have, on its own, taken up the Cohen matter. And if Congress didn’t act or the Trump Justice Department quashed legitimate investigations, Democrats could have used it to build their case for the midterm elections — and for wielding the subpoena and impeachment power.
All this is water under the bridge now, but both sides should eventually consider whether they want another Robert Mueller.