Granting Independence to Mueller Also Means Granting Him the Ability to Abuse Power

COMMENTARY The Constitution

Granting Independence to Mueller Also Means Granting Him the Ability to Abuse Power

Jun 27, 2018 6 min read
COMMENTARY BY

Former Policy Analyst

John was a policy analyst at The Heritage Foundation.
Insulation from political pressure is not, in and of itself, sufficient assurance against bias. In fact, it may amplify the threat posed by a prejudiced special counsel. Ting Shen Xinhua News Agency/Newscom

Key Takeaways

By approving a bill that would make special counsel Robert Mueller nearly untouchable, they've struck a blow to our vitally important system of checks and balances.

As the investigation grinds on, seems to expand, and drills deeper, it has become an obvious distraction to the administration.

If the Special Counsel Independence and Integrity Act passes, neither Congress nor the President would have any check on a special counsel gone off the rails.

By approving a bill that would make special counsel Robert Mueller nearly untouchable, members of the Senate Judiciary Committee no doubt believe they’ve struck a blow against political pressure. Unfortunately, that blow will instead land on our vitally important system of checks and balances.

Under the Special Counsel Independence and Integrity Act, Mueller and subsequent special counsels could be removed only by the attorney general (or, in certain circumstances, the most senior Senate-confirmed DOJ official). Further, a special counsel could be removed only “for misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause,” a determination he or she could appeal in court. (The bill will likely be voted on by the full Senate next week.)

The effort to insulate Mueller and any future special counsel from political pressure is part of a growing and worrisome preference for supposedly apolitical appointees over elected officials. Politics has become a dirty word. It’s too partisan and too dominated by special interests. Wouldn’t the public be better served, many now wonder, by neutral civil servants or experts who stand above the fray?

If only it were so easy. Human nature doesn’t change, whether a person is elected or appointed. Ambition and avarice, ideology and institutional loyalty can cloud the judgement of independent counsels and elected officers alike. Freeing investigators from institutional checks only amplifies the danger of these all-too-human tendencies.

Robert Mueller’s team, tasked with investigating Russian interference in the 2016 election, may be insulated from political pressure. But this doesn’t mean they’re wholly free from bias.

Thirteen of the 16 lawyers known to be working with the special counsel are registered Democrats. Three are Independents. None are registered Republicans.

Eleven lawyers on Mueller’s team have made donations to Democratic candidates. One of the special counsel’s lawyers, Jeannie Rhee, not only gave the maximum contribution to Hillary Clinton’s campaign in both 2015 and 2016, she also represented the Clinton Foundation in 2015. 

It’s difficult to know exactly how the partisan composition of Mueller’s team will affect the special counsel’s final recommendations. Good lawyers can certainly leave their biases at the door as they conduct their business. Nonetheless, the perception that this investigation is being handled impartially is undermined by the Democratic leanings of Mueller’s team.

Some of Mueller’s recent actions have fed this suspicion. It appears that the special counsel has used the original pretext of the investigation to scour every corner of President Trump’s life. For instance, Mueller’s team recently subpoenaed Trump Organization financial records that bear little obvious relevance to the investigation. It has also aided the investigation into alleged hush money paid to former porn star Stormy Daniels.

Even if his team were not ideologically prejudiced against President Trump, Mueller’s fairly expansive interpretation of his mandate is predictable. As Alan Dershowitz warned, a special counsel “is supposed to find crimes, and if he comes up empty-handed, after spending lots of taxpayer money, then he is deemed a failure.” 

The original objective of Mueller’s investigation is important. However, as the investigation grinds on, seems to expand, and drills deeper, it has become an obvious distraction to the administration. The specter of imminent legal action must weigh not only on our president, it must linger in the minds of foreign leaders also. And intermittent gossip leaked to the public creates unrest at home by feeding the narrative that the 2016 election, and our current president, are illegitimate.

But none of this is Mueller’s concern. It’s not his job to balance his office’s objectives with these broader considerations. It’s his job to leave no stone unturned and no lead unpursued. We should not be surprised at Mueller’s indifference to the disrupting influence of his investigation.

Nor should we be surprised that Mueller did not assemble a perfectly unbiased team. In the pool of likely selectees — Washington D.C. lawyers with some government experience, willing to commit an indefinite amount of time to the investigation — it would be hard to find any Pro-Trump Republicans. Indeed, President Trump has had a difficult time finding any lawyers willing to represent him in the Russia investigation. Given the prestige and visibility of working for a president, this is an unheard of problem

Personal jealousies, private ambitions, and institutional tunnel vision are nothing new. Any body of experts will come to their job with ideological baggage and institutional incentives in tow. The very best independent investigators will be able to set these biases to one side. However, expecting every special counsel or independent investigation to do so is naïve.

The more realistic objective — the goal of America’s founders — is to prevent any single individual or small body to wield unchecked power. Our Founders did not rest their hopes for our republic on the benevolent motives of unchecked independent counsels, but understood that “ambition must be made to counteract ambition.

By shielding a special counsel — an inferior officer in the executive branch — from direct removal by the president, barring his removal except in the case of misconduct, and giving the courts the ability to review and overturn a removal, the bill being considered by the Senate would weaken that system.

Sen. Chuck Grassley (R-Kan.), the Senate Judiciary Committee Chairman, thinks otherwise. He argues the bill is a way to “make sure that [Congress] can avail itself of its traditional checks against the executive branch."

But Congress doesn’t need a special counsel whom neither they nor the president can fire to check the executive branch. They can investigate themselves and, if they find evidence of “treason, bribery or other high crimes and misdemeanors” impeach and remove a president from office.

While there are constitutional checks on presidential misconduct, if the Special Counsel Independence and Integrity Act passes, neither Congress nor the President would have any check on a special counsel gone off the rails.

Insulation from political pressure is not, in and of itself, sufficient assurance against bias. In fact, it may amplify the threat posed by a prejudiced special counsel. Thus, freedom from the checks and balances political branches operate under is unwarranted. 

This piece originally appeared in The Hill on April 27, 2018

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