Deputy Attorney General Rod Rosenstein’s appointment of Robert S. Mueller III as “special counsel” for purposes of the so-called Russia investigation underscores a point I have made through the years, whenever the subject of special prosecutors or independent counsels rears its head. Because there is no such thing as an independent counsel (i.e., a lawyer who wields prosecutorial power independent of the executive branch), the structure of a “special counsel” arrangement will never give anyone confidence. A special counsel is appointed by the attorney general (here, it’s the deputy attorney general because AG Jeff Sessions has recused himself). A special counsel also reports ultimately to the president — meaning that, like any other executive-branch official (other than the vice president), a special counsel serves at the pleasure of the president and may be dismissed at any time.
Therefore, the public perception that the special-counsel arrangement has integrity hinges exclusively on the lawyer who is appointed. It is the lawyer’s reputation for probity and professionalism, and that alone, that can convince people a real investigation, governed by law and evidence not politics, is being conducted.
In this instance, Rosenstein has chosen well.
Bob Mueller is a widely respected former prosecutor, U.S. attorney, high-ranking Justice Department official, and FBI director. He is highly regarded by both parties. This is perhaps best exhibited by the fact that when his ten-year term as the FBI director appointed by President George W. Bush expired in 2011, President Obama asked him to stay on for an additional two years, and Congress quickly agreed to extend his term. He is a straight shooter, by the book, and studiously devoid of flash.
He is also fondly remembered by Democrats as having joined then–deputy attorney general James Comey in the famous showdown, at then–attorney general John Ashcroft’s hospital bed, over President Bush’s warrantless surveillance program. It was at the insistence of Comey and Mueller that Bush made modifications to the program to bring it into the Justice Department’s revised understanding of lawfulness.
Mueller notwithstanding, there remain peculiar aspects of this special-counsel appointment. Foremost of these (as we’ve also repeatedly noted) is that the so-called Russia investigation is a counterintelligence investigation, not a criminal investigation. In the Justice Department, counterintelligence investigations are not assigned a prosecutor as criminal cases are because the point is to collect information about a foreign power (an investigative and analytical intelligence function), not to build a prosecutable case against a suspect for a violation of penal law.
Lawyers in the Justice Department’s National Security Division (NSD) oversee the government’s domestic national-security operations and assist the FBI in obtaining warrants from the Foreign Intelligence Surveillance Court — court orders that authorize the agents to collect information and monitor suspected foreign agents. Presumably, Mueller will supplant the NSD for purposes of the Russia investigation, which is described in Rosenstein’s order as an investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” That is to say, when it comes time to announce the conclusions of this counterintelligence probe, it will be Mueller making the findings.