[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In each essay, a leading expert will explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information and a complete list of the essays published so far, you can read the Introduction by the series’ editors.]
How do we investigate allegations of wrongdoing by a sitting president? That question has been answered in the United States and abroad in various ways. Surprisingly, though, after the conclusion of the Special Counsel investigation in March 2019, there has been a dearth of discussion in both the press and the academy of whether our current system for investigating possible wrongdoing within the White House works appropriately. The Special Counsel investigation and Attorney General William Barr’s manipulation of the findings in its voluminous report gives us important new data to reassess the current rules so they can better govern such investigations in the future.
I was a senior member of the Special Counsel investigation and had a front row seat as to how the current rules worked and their deficiencies. To be sure, Barr’s conduct after we submitted our report proves why a special counsel was necessary in the first place—how crucial it is for the government to have a mechanism for independently investigating allegations of criminality by the president. But that conduct also exposes why the current mechanisms are not nearly strong enough.
Barr’s disregard for the facts and attempted erasure of our findings and court cases makes plain the need for stronger special counsel rules, and better safeguards to keep a special counsel’s work from being inappropriately undermined by those in power. This is just one important illustration of how the Trump presidency has uncovered numerous ways in which the system of checks and balances is flawed; how it is norms, and not laws, that stand between democracy and autocracy.
A Short History
The question of who should investigate criminality in the White House is a thorny one and a brief history is useful, albeit at a 60,000-foot level. 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 overseen by them will not be tainted, consciously or unconsciously, by bias. At the time of Watergate, the government relied on a special prosecutor system, which operated within the Department of Justice. The country was fortunate to have Archibald Cox initially selected, but that was not part of a systemic design. Indeed, the system was revealed as too vulnerable to the abuse of presidential power when, during the Saturday Night Massacre, President Nixon directed the firing of the special prosecutor, and leaders of the Department of Justice nobly resigned rather than carry out the order.
As a result, Congress established the independent counsel system, which provided an investigation broader independence by placing the prosecutor outside of the direct oversight of the Department of Justice. Under the independent counsel system, the prosecutor was not subject to internal DOJ rules. For instance, such an investigation would not be bound by the Department’s internal policy that a sitting president cannot be indicted (the issue could then be decided by the courts). Nor would an independent counsel need to obtain internal DOJ sign off before bringing charges, as Special Counsel Mueller was required to do before bringing tax, FARA, and other national security charges.
But this solution had its own imperfections, as the Ken Starr investigation of President Bill Clinton reflected. The independent counsel law was seen as an overcorrection: The instinct to keep an investigation unfettered by executive branch oversight left insufficient checks on an independent counsel who ran amok, investigating for years and straying far beyond his initial mandate. The Starr investigation was seen as a lesson as to what could result if the DOJ lacked authority to impose appropriate limits. As a result, the congressional statutory approach as to how to address such investigations lapsed.
The Current System
The current internal DOJ special counsel rules were a reaction to the perceived overcorrection of the Ken Starr period—a further refinement of the system. But these new limitations have left the goal of independence fallible, once again. As the recent experience shows, the special counsel’s work can be overpowered by the actors it is designed to hold to account.
To begin, there is the question of how one uses the recent experience to assess the current rules. It is true that the current administration, including the Attorney General, is anything but typical. The president, for instance, has openly sought the indictment of his political opponents, and his attorney general has given favorable treatment to presidential allies and heightened scrutiny to his enemies. This is not a normal situation in America; its scope and boldness is unlike anything we’ve faced in modern times.
Should the special counsel rules take into account how they work in such an anomalous and extreme situation? I think so. The risk from such a situation, namely, that we would devolve into a banana republic, is so serious that our rules must take the magnitude of the potential consequences into account. And they must recognize that future special counsels may well be challenged even more aggressively, now that Trump’s playbook has proven effective. This may be particularly true when either chamber of Congress is controlled by the same party as the White House rendering the impeachment guardrail largely toothless.
It is quite debatable whether a stronger set of internal DOJ special counsel rules would be sufficient to deal with such a president, Attorney General, and Congress. Still, better rules can only help. If another special counsel were appointed tomorrow, he or she would be subject to the same difficulties and vulnerabilities that we faced. Individual special counsels might overcome such structural challenges while others may succumb, but there is no reason future generations should be required to overcome imperfect rules. The lessons from the recent special counsel’s investigation behoove us to adopt rules and structures that increase the odds for an independent investigation and successful fact-finding.
Proposals for Reform
The proposals for reform noted herein – as well as other ideas to deal with the challenges we faced due to the president’s power to fire the Special Counsel and to dangle pardons to thwart cooperation by witnesses — are an effort to start the conversation about the lessons learned, just as the current special counsel rules sought to improve upon those of the independent counsel.
The current special counsel rules do not well serve the goal of transparency and public education. Part of the reason the president and his enablers could spin the report was that the rules left the playing field open for them to do so, and they took advantage of it. The situation was made possible because the special counsel rules were put in place to thwart the excesses of the independent counsel law—the Starr investigation, which resulted in a four-year investigation that began as a political corruption investigation (for which it concluded there was no evidence) and ended in a salacious public report and testimony by the independent counsel about perjury concerning an extramarital liaison. The special counsel rules were intended to prevent that public airing of investigative findings. As an internal Justice Department employee, Mueller could not unilaterally decide to take to the airwaves or even release the report of his findings—that could be done only by or with the approval of the attorney general. The disadvantages of a Starr-type report, however, do not warrant the risks posed by the current restrictions.
A key problem with the system now in place centers on a disconnect between the mission described and authorized by the special counsel rules and the public’s understanding of the special counsel mandate. The special counsel rules imagine that a criminal investigation will be done in secret and result only in an internal Justice Department report in which the special counsel makes private recommendations to the attorney general about its charging determinations: who to charge with a crime, who not to charge, and why. These regulations do not contemplate a public report assessing the facts the special counsel has gathered and making prescriptions for the future. The rules do not even require a fulsome written report.
However, it was always clear in our particular case, given intense public interest in the questions we set out to answer, that the attorney general would need to make our report public (except for redactions for ongoing investigations, classified information, and the like). Indeed, that issue weighed heavily in Attorney General Barr’s confirmation hearings. And so the role of the special counsel diverged from what was contemplated by the rules. And the public understandably believed that we would operate as an independent fact-finding body, akin to the bipartisan 9/11 Commission, which issued a superb 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. In part, the report reads as a highly legalistic internal Justice Department document, akin to the scrupulously detailed prosecution memoranda prepared by prosecutors before bringing an indictment. At the same time, it is addressed to the American people—a public accounting of the facts we uncovered. Ultimately, the report does not serve either purpose adequately, reflecting a flaw in the way the system has been designed.
This must be corrected. The special counsel rules 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. The current rules provide solely for a private report to the attorney general, but they should be revised to make clear that the report will be made public, and that it must include an assessment of the facts and, where appropriate, propose remedial measures. (The bipartisan Senate Intelligence Committee report in August 2020 did just that; for instance, it recommended closing a deleterious loophole in the Foreign Agents Registration Act that foreign governments can use to skirt disclosure requirements). New regulations should resolve the tension that the Special Counsel confronted by requiring the report to make a public finding—to say whether the president has committed a crime even if she may not be indicted until she is out of office. That temporary immunity may not even exist under the law, after all, and the very purpose of appointing a special counsel should be to provide the public with an objective assessment of the facts.
Moreover, the department’s general policy of not publicly accusing someone of wrongdoing unless they have been formally charged is not fully applicable to wrongdoing by the president. If the court eventually considers the question and finds that a president in fact can be indicted while in office, the concern evaporates almost entirely; that is, a report can conclude that the president committed a crime and charges can be lodged immediately. Conversely, if the court finds that the president does have temporary immunity, her day in criminal court will simply be delayed until she is out of office (a comparable situation arises, for instance, when the department publicly indicts a defendant who is beyond the jurisdiction of the court). During that temporary immunity, the president could use her unique bully pulpit to defend herself publicly—a privilege that a normal defendant does not enjoy – or in an impeachment hearing.
Beyond that, there are other reforms that should be made in light of our experience. Currently, only the attorney general (or acting attorney general) can appoint a special counsel. This is an insufficient trigger. Imagine the situation where you have a lawbreaking president who has installed an attorney general who, rather than honor her role as a defender of justice for all the people, views herself as the president’s personal defender. The appointment power should be expanded to include two other institutions, provided that the same thresholds to warrant any appointment of a special counsel are met. First, if the matter to be investigated deals with national security, the director of national intelligence—the head of the Intelligence Community—should be able to appoint a special counsel. The current special counsel rules were established prior to 9/11; they were not written with the prospect of a national security investigation (whether a criminal or counterintelligence investigation) overseen by the DNI. But that is not the world we inhabit now. America may continue to face national security issues that require investigation of the executive branch, just as the question of Russian interference in the 2016 election did. Permitting the DNI to appoint a special counsel would provide another opportunity to obtain an independent investigation into such a matter.
Of course, the DNI could be under the thumb of the president as much as the attorney general. Congress should also be able to appoint a special counsel—with limitations. Congress can already hold hearings and conduct investigations (although with fewer tools than the Justice Department). The power to appoint a special counsel should not, therefore, measurably increase the power it currently has. Having this congressional safety valve would strengthen our checks and balances in instances when the executive branch is unwilling to take action. A congressionally-appointed special counsel should not have the power to bring indictments, which is an executive branch function (and it is doubtful whether the courts would permit Congress to have such power, in any event). But a congressionally-appointed special counsel should have the power to refer matters to federal or state criminal and civil enforcement authorities. The ability to charge those who lie to the investigators (so-called process crimes), as well as to bring other charges necessary to obtain cooperation with the investigation, is indispensable to successful fact-finding. By specifically granting the ability to refer matters to state authorities, the rules would help to shelter the investigative process from executive power—or abuse of power, including the president’s ability to pardon her way out of federal criminal trouble.
Other reforms should include providing a full, unredacted report simultaneously to the attorney general, to the oversight committees in Congress, and, if assessing a national security matter, to the director of national intelligence. The country cannot afford another Barr “summary” letter—or any other future attempts to pervert the findings of such a report before it reaches other hands. The underlying evidence obtained in a special counsel’s investigation should also be made available to each body, so that the executive branch cannot stonewall to keep it from Congress (grand jury secrecy rules already permit sharing of information with numerous parties, and could explicitly provide that sharing applies as well to special counsel material). A salutary effect of such disclosure is that each body would have the ability to assess for itself the work and judgments of the special counsel, thus holding the special counsel’s investigation to greater accountability and transparency.
There are many other problems to tackle – how the pardon power is wielded by the President, the legality of dangling pardons to thwart cooperation, the president’s speaking publicly about ongoing criminal cases in ways that would be prohibited by an individual DOJ attorney under local gag rules to assure a fair trial, the dismissal or undermining of cases after the conclusion of a special counsel investigation – to name just a few. But this short essay is intended to begin an important conversation on these issues.
How we uphold the rule of law so that wrongdoing by the president and senior executives can be rooted out is a central challenge posed by our recent history. If not taken seriously, it threatens to undermine our democracy from within. What we do next, or choose not to do, will either repair that damage or tacitly allow the continued corrosion of our ideals.