Mueller report and Trump-Russia investigation must push Congress to protect future special counsels

Those who fail to study history are doomed to repeat it.
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By Steve Vladeck, professor at the University of Texas School of Law

Whenever special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election finally comes to an end, most — if not all — of the focus will surely be on his specific findings and recommendations, and what they mean for President Donald Trump. That’s as it should be.

But while Mueller is not the only person investigating illicit conduct by those in the president’s orbit, his is the central inquiry into one major question that we’ve answered (did Russia interfere in the 2016 election?), and one that we haven’t (to what extent was the Trump campaign involved in said interference?).

Whatever one thinks of Mueller’s investigation, we should all be able to agree that it has revealed several potential weaknesses in our existing laws.

Whether directly or indirectly, it seems increasingly likely that Mueller’s work will also compel Congress to investigate the matter further. But the end of the Mueller investigation should also prompt a vital conversation about reforms Congress can and should make to federal law going forward. Whatever one thinks of Mueller’s investigation, we should all be able to agree that it has revealed several potential weaknesses in our existing laws.

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Some of these potential weaknesses include ambiguities surrounding current prohibitions on foreign involvement in elections. It might also be time to reevaluate the precise contours of the eighty-year-old law requiring public registration of those working as foreign agents. Ditto the Foreign Intelligence Surveillance Act (FISA), and whether concerns over how it was used in this context — including to authorize the covert surveillance of U.S. citizen Carter Page — warrant a revisiting of that statute as well.

One topic that such a reform conversation is likely to skip over, but shouldn’t, is the special counsel itself. Throughout the approximately 21 months of Mueller's appointment, an inordinate amount of attention has been devoted to the people and rules that control his investigation, rather than its substance. This has included countless takes on the validity of Mueller’s appointment and investigation; whether (and under what circumstances) Mueller could be fired; whether the investigation could be influenced by the White House or senior Justice Department officials even without removing Mueller; and the implications of various DOJ personnel changes.

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As it has become clear that the investigation is winding down, the same conversation has shifted to Mueller’s final report — and the extent to which Congress (and, later, the public) will have access to it. Indeed, one of the central points of contention at Attorney General William Barr’s confirmation hearing was what he plans to do with the special counsel’s final report. All of these are important debates, to be sure. But all of them can — and should — be clarified by statute.

First, Congress can and should make it clearer that a future special counsel can only be removed by the attorney general for “good cause.” That’s already the case under the existing Department of Justice regulation, but hard-wiring it into a statute would prevent a future attorney general from revoking that regulation, or from interpreting it to impose no meaningful constraint.

Second, to give real teeth to such a good cause requirement, Congress should provide a judicial mechanism for a special counsel to challenge his removal in cases in which he believes no such good cause exists. If it’s ultimately up to the federal courts, and not just the attorney general, we can expect a future attorney general to think twice before trying to remove a special counsel without a sufficiently compelling reason.

Third, to short-cut many of the concerns about political control of a future special counsel by temporary officeholders, Congress should clarify that, in cases in which the office of the attorney general is vacant or the attorney general is recused, the special counsel is to be supervised by the next-senior Senate-confirmed appointee within the Justice Department. Indeed, given the Matthew Whitaker saga, Congress may want more generally to revisit the order of succession within the Department of Justice — and whether the president really does have the power to depart from the Justice Department-specific statute to name an acting attorney general.

Finally, Congress should specify exactly which parts of the special counsel’s work should be reported to Congress — and, whenever possible, the public. The current regulation only requires the attorney general to make a bare-bones report to the chair and ranking members of the House and Senate Judiciary Committees. Requiring that a redacted version of the special counsel’s report itself be provided to those members of Congress — and perhaps the rest of the body — would provide yet another mechanism for ensuring that a special counsel’s findings don’t just get swept under a rug.

Strengthening a future special counsel before we know who he is or what he’s investigating would be an unusually forward-looking measure on Congress’s part.

Many of these reforms have already been proposed — and are included within the Special Counsel Independence and Integrity Act, a bill that was reported out of the Republican-controlled Senate Judiciary Committee in April 2018 on a bipartisan, 14-7 vote. Although some Senators objected to that bill on constitutional grounds, it was clear, in context, that the constitutional objections (which current Supreme Court precedent settles in favor of the bill) were little more than political cover for Republicans who did not want to so publicly defy Trump. If the legislation is pursued only with respect to future special counsel investigations, that political calculus would presumably change.

Clarifying the authority of future special counsels is perhaps not the most obvious reaction to whatever comes from the Mueller investigation. And it almost certainly won’t be the most significant reaction thereto. But as Georges Santayana famously wrote, those who fail to study history are doomed to repeat it. Strengthening a future special counsel before we know who he is or what he’s investigating would be an unusually forward-looking measure on Congress’s part. And that’s exactly why it’s such a good — and important — idea.