It has been clear many times over the past four years that a fault line was cleaving wide open in the United States, between law and lawlessness, between fact and fiction. On Wednesday, Donald Trump would not commit to a peaceful transfer of power this November, raising the possibility that this gap might become more than strong difference of opinion in a matter of months.
I remember the day I understood how this division was affecting the Department of Justice, where I had worked for over 20 years; it was the day Attorney General William Barr released his alleged summary of the Special Counsel report that followed our nearly two-year-long probe under the helm of Robert S. Mueller. I was a top deputy to Mueller during the investigation, and in early 2019, as we prepared to release the report, I hoped that for most citizens, facts and law would still matter.
But the limitations of our report were underscored on the night of March 24, 2019, as I stood in the doorway of my apartment in Washington, DC, reading Barr’s four-page letter on my iPad. Just two days after Mueller had handed in our final report—the product of 22 months of intensive work by 59 prosecutors, agents and analysts—Barr issued a letter purporting to summarize our report.
Barr’s letter was a shot across the bow, signaling that the checking function Mueller provided on the actions of the president had come to an abrupt end. As a private citizen, Barr had written a memo that indicated to the president that he saw no need for a special counsel. And now, he had delivered on that pronouncement: The report should be ignored as far as it applied to Trump, he was essentially writing, and even its most serious and ostensibly non-partisan findings that we had been attacked by Russia—and would be again in upcoming elections. Barr’s gambit—enabled by Deputy Attorney General Rod Rosenstein—gave the president a green light to resume conducting himself beyond legal confines. His actions would not be constrained or held to account by Mueller or any other law enforcement officer or even Congress.
Barr’s conduct after we submitted our report proves why a special counsel was necessary in the first place—how crucial it is for our government to have a mechanism for independently investigating allegations of criminality by the president. But it also exposes why the current mechanism is not nearly strong enough.
Barr’s disregard for the facts and attempted erasure of our findings and criminal cases makes plain the need for stronger special counsel rules, and better safeguards to keep a special counsel’s work from being undermined by those in power. The Trump presidency has exposed numerous ways in which our system of checks and balances is flawed; how it is norms, and not necessarily laws, that stand between democracy and autocracy. There must be impregnable guardrails to keep executive branch conduct within the rule of law. Especially as the president ramps up talk of voter fraud and appears committed to undermining trust in election results, we should give close thought to improving this important tool we already have to check the president: the special counsel system.
This system was set up to help answer the thorny question of who should investigate criminality in the White House. The Department of Justice, which is overseen by the president, has an inherent conflict. Its leader, the attorney general, as well as many of its officials, are appointed by the president, and thus the public cannot be confident that an investigation by the department would be independent and untainted. This limitation was revealed during Watergate, when we relied on a special prosecutor system. It proved to be too vulnerable to the abuse of presidential power when, during the Saturday Night Massacre, President Richard Nixon directed the firing of the special prosecutor, and the leaders of the Department of Justice nobly resigned rather than carry out the order, until a hatchet man did the president’s bidding.
As a consequence, Congress established the independent counsel system, which granted an investigation true independence by placing it outside of the strict confines of the Department of Justice. But this solution had its own imperfections, as the Ken Starr investigation of President Clinton proved. The independent counsel law showed it could be an overcorrection: The instinct to keep an investigation unfettered by DOJ oversight left insufficient checks on an independent counsel who ran amok, investigating for years and straying far beyond his initial mandate
The creation of the current Special Counsel rules was a reaction to that deficiency—a further refinement of the system. But our special counsel experience reveals that these current rules are flawed. A special counsel’s work can be overpowered by the same actors it is designed to hold to account, whether those actors dangle pardons, threaten to end the investigation or seek to limit the scope of the investigation.
If another special counsel were appointed tomorrow, he or she would be subject to the same difficulties and vulnerabilities—and likely challenged far more aggressively, now that Trump’s playbook has been shown to work. The lessons from the special counsel investigation behoove us to adopt rules and structures that increase the odds for an independent investigation and successful fact-finding.
The existing special counsel rules do not help with the goals of transparency to the public or independence of the investigation. It is fair for the public to wonder why, for instance, the special counsel did not go to the press to articulate his report, or to respond to Barr’s misleading “summary,” a public course taken by Archibald Cox during Watergate to explain why he was seeking the White House tapes. Indeed, part of the reason the president and his enablers were able to spin our report was that we had left the playing field open for them to do so, and they took advantage of it.
But part of the answer to that question is that the current special counsel rules did not permit Mueller to make any unilateral public statements about our investigative findings. Under the regulations, the special counsel is an internal DOJ employee, subject to DOJ restrictions on public statements, and his report is an internal document to be submitted to the attorney general. Mueller could not take to the airwaves or even release the report of his findings—that could only be done by or with permission of the Attorney General.
This points to a key problem with the system now in place, where there is a disconnect between the mission authorized by the special counsel rules and the public’s understanding of the role of the special counsel. The rules imagine that an investigation is conducted in secret and results only in an internal Department of Justice report in which the special counsel makes confidential recommendations to the attorney general about its criminal charging determinations: who it recommends charging with a crime, who it is not, and why. These regulations do not contemplate a public report assessing the facts the special counsel has gathered and making proscriptions for the future. However, the public understandably believed that we would operate as an independent fact-finding commission, akin to the bipartisan 9/11 commission that issued a thoughtful, detailed and well-written report, explaining how the 9/11 terrorist attacks had been allowed to happen and drawing specific recommendations to prevent future attacks.
When I read our report now, I see a document caught in the tension between our stated and de facto missions. A report that was authorized to be addressed to the public, as an independent commission report, would have been structured and written in a more straight-forward manner. It would have drawn conclusions more clearly and explicitly, rather than risk clouding those conclusions with long, narrower disquisitions about the interpretation and application of the law. Such a report would have been more transparent about what we did not investigate, such as the president’s finances, and why. And it would have proposed remedial steps to deal with problems like Russian interference, just as the 9/11 Commission Report addressed the threat of future terrorist attacks.
A special counsel report that was to be exclusively an internal document, meanwhile, would have summed up the facts and included our assessment of those facts, including a definitive assertion about the proof establishing that the president had, in fact, obstructed justice—just as any other internal prosecution memoranda would do. But, as is noted in the report, it was the expectation that our report would become public that weighed on Mueller, and kept him from allowing the report to voice an explicit conclusion about criminal guilt, since he determined that it would be unfair to level such a criminal accusation publicly if the president would not have the opportunity to promptly defend himself in court (DOJ rules, which we were bound to follow, prohibit indicting a sitting president). That is, knowing that the American people likely would be reading our report ironically weighed against answering one of their most pressing questions.
This flaw must be corrected. The regulations should state clearly what is expected from a special counsel’s report, and who its actual audience is, so as not to confront another special counsel with such a dilemma. I would revise them to make clear that the report will be made public, and that it must include an assessment of the facts and propose remedial measures. New regulations should resolve the tension that Mueller confronted by requiring the special counsel to make a public finding—to say whether the facts show that the president has committed a crime, even if he may not be able to be indicted until he is out of office (a legal proposition that is by no means settled, even though DOJ policy does not permit such an indictment).
Our country is now faced with the problem of a White House, enabled by an attorney general, which addresses itself to every new dilemma or check on its power with a belief that following the rules is optional and that breaking them comes at minimal, if not zero, cost. It is debatable whether a stronger set of special counsel rules will be sufficient to deal with such an executive branch. Still, if we don’t try, the battle will already have been lost for future generations.