Mueller appointed special counsel in Russia probe: What does it mean?
The decision by Deputy Attorney General Rod Rosenstein's to appoint former FBI Director Robert Mueller to be the special counsel in charge of the Russia investigation has already begun to quell the anxieties of many Americans who expressed concerns over the independence of that investigation.
The very history of special counsels in major political investigations has been to do just that, to guarantee public confidence in an important investigation of persons and circumstances that are deeply entangled in politics.
Robert Mueller is stepping into the position after months of troubling developments around the Department of Justice's Russia probe and dozens of lawmakers requesting an independent counsel. Already, the independence of Attorney General Jeff Sessions was questioned after he misled members of the Senate about his contact with Russian officials during the presidential campaign. That recusal put Rod Rosenstein in charge at the Department of Justice.
Rosenstein's independence soon became an issue after he and Sessions drafted recommendations that were initially used to justify President Trump's decision last week to fire FBI Director James Comey, who was leading the FBI probe. With the shadow of impropriety cast over his own role investigating possible ties between the Russian government and the Trump campaign, Rosenstein bowed out and handed the reins to Mueller, who has a long history of service at the Justice Department and conducting complicated investigations.
After Rosenstein's announcement, Democrats and Republicans both praised the deputy attorney general's decision.
Leading Trump critic and Senate Minority Leader Chuck Schumer tweeted his approval of the appointment saying it gives him "significantly greater confidence that the investigation will follow the facts wherever they lead."
Senate Judiciary Committee member Cory Booker (D-N.J.) responded, saying, "I think you heard a collective sigh of relief from a lot of folks knowing that there is somebody who is going to bring an independent and thorough investigation a collective sigh of relief from a lot of folks knowing that there is somebody who is going to bring an independent thorough investigation to this process."
What matters in Mueller's case is how he was appointed. Special prosecutors and special counsels have been a staple of American history, but the role has evolved over the past 40 years to try to further separate politics and the rule of law.
The way Robert Ahdieh, Vice Dean at Emory Law, described the appointment of a special counsel as a way to move a legally complex or politically thorny case "at least one degree away from the day to day political back and forth."
That degree of independence has not always been a staple of such an appointment. One of the most famous special prosecutors Archibald Cox, was appointed by President Richard Nixon and then fired by him in the course of investigating the Watergate break-in and subsequent cover-up. At the end of the investigation, 40 government officials were jailed or indicted. Nixon was impeached, but resigned before he was tried by the Senate.
In the wake of Watergate and Nixon's impeachment, Congress enacted the 1978 Ethics in Government Act, taking the power to appoint independent counsel out of the hands of the president and giving it to a three-judge panel.
"The statute was controversial and lapsed," explained William Treanor, Dean of Georgetown Law. Treanor served as the associate counsel to Lawrence Welsh, the independent counsel in charge of the Iran-Contra investigation. "In 1999 new regulations were adopted by the Department of Justice for a different kind of lawyer called the special counsel."
Under the new regulations, the special counsel is appointed by the Attorney General, like Special Counselor John Durham was appointed by Attorney General Eric Holder to investigate allegations of CIA torture during the early years of the War on Terror.
What the special counselor can do, who he can interview and what he can pursue all depends on the statement provided by the Department of Justice. In Mueller's case, the statement drafted by Rosenstein instructs him to continue straight down the investigative path laid out publicly by former FBI Director Comey in public testimony in March.
Specifically, that means looking into any links or coordination between the Russian government and individuals associated with Donald Trump's campaign, as well as "any matters that arose or may arise directly from [that] investigation."
"So its both the underlying coordination between the Russian government and officials in the Trump campaign and any perjury or obstruction of justice or destruction of evidence or intimidation of witnesses that may be linked in with that underlying investigation," Treanor elaborated.
According to reports, President Trump was not made aware of the decision to put Mueller in charge of the Russia probe until after 5:30 p.m. on Wednesday, or about one hour before the public became aware of the development. He was initially upset, but later released a calm statement saying he is confident the investigation will not show any collusion between his campaign and Russia and looks forward to the matter "concluding quickly."
By Thursday morning, Trump took to Twitter expressing frustration over the situation surrounding his White House. He said he is the target of "the single greatest witch hunt of a politician in American history!" and later he questioned why his predecessor, President Obama, or his Democratic rival in 2016 Hillary Clinton were never investigated by a special counsel.
Trump's defensive reaction to the special counsel is not an attempt to "play the refs," Ahdieh noted, but is "par for the course" in terms of political behavior.
"The broad statement that 'this is a witch hunt, there's nothing there,' we hear a lot of that from political actors whenever there is something like this," he added.
Trump and members of his White House have often repeated the desire to have the investigation wrapped up as quickly as possible. It is not clear how long the investigation will take, but the appointment of Robert Mueller may provide some assurance that the Trump probe will not follow the same path as Independent Counsel Kenneth Starr's investigation of the Whitewater scandal during the Clinton administration.
Starr was appointed in 1994 to investigate Bill and Hillary Clinton's shady real estate investments. The probe continued for four years, following courses that critics saw as irrelevant to the initial inquiry, and culminated in the president's sexual indiscretions with White House intern Monica Lewinsky.
Aside from Clinton's impeachment and unsuccessful conviction for obstruction of justice, 15 people associated with the president were convicted of crimes in the course of the Whitewater probe.
Ahdieh explained that the prolonged investigation conducted by Kenneth Starr is one of the disadvantages of appointing a special counsel. The concern is that the position could become "lifetime employment," he said, "because there is no durational limit on the scope of [the special counselor's] duties."
For Robert Mueller, that is not likely to be the case.
"He is not going to use it as a witch hunt," Ahdieh said of Mueller. "He will be fairly clearly focused on concerns about collusion between Russia and the Trump campaign."
Since former FBI Director Comey confirmed the existence of the counterintelligence investigation into the Trump campaign and the Russians, the public and the media have come to expect a degree of transparency about the facts of the case.
Some lawmakers and commentators have argued that the flow of information on the investigation will come to a screeching halt with the appointment of a special counselor, until and unless there is an indictment.
Sen. Richard Blumenthal (D-Conn.), an outspoken critic of Rod Rosenstein, told reporters on Thursday that "Bob Mueller will never issue a report" describing the findings of his investigation. "I would be absolutely astonished is he commented outside the framework of an indictment or criminal charge."
But that is not necessarily the case.
Under the actual regulations governing the special counsel, Dean Treanor explained that what is disclosed depends on the public interest as well as the discretion of the attorney general — or in this case Deputy Attorney General Rosenstein.
At the end of the investigation, Mueller will present a final report to Rosenstein in addition to making recommendations as to whether or not there should be any indictments. It's up to Rosenstein to determine whether the release of the special counsel's reports "would be in the public interest" and to what extent the counsel can give public comment.
So while transparency is not guaranteed, it is also not off the table. Combined with the Senate and House Intelligence and Judiciary investigations into Russia and the 2016 election, there will be pressure for public testimony, public releases and other disclosures.
As in previous politically charged cases that have required a special counsel, the main hope is that justice will be dispensed with dispassionately and apart from politics.
"As a political matter, Mueller was a very smart choice in terms of the political discourse and taking down the temperature," Ahdieh said. "In essence he has completely wiped the slate clean."