1. How independent is an independent counsel?
In his news conference before the report was released, Attorney General William P. Barr defended his decision to share the report with President Trump’s lawyers before its release with a reference to a law passed in 1978 in direct response to Watergate. “That request was consistent with the practice followed under the Ethics in Government Act,” Barr said, “which permitted individuals named in a report prepared by an Independent Counsel the opportunity to read the report before publication.”
It’s worth noting, perhaps, that in September 1998 independent counsel Kenneth Starr flat-out refused to let President Bill Clinton’s lawyers see his report before it was delivered to Congress, arguing that the structure of the statute governing his office did not allow it. But in any case, the independent counsel provisions in the ethics act were allowed to expire 20 years ago, in 1999. That means special counsels such as Robert S. Mueller III work under Justice Department regulations, not statute. And that, in turn, means that they are bound by other DOJ doctrines.
One of those is that a sitting president cannot be charged with a crime. At the start of Volume II, the Mueller report notes that “The Office of Legal Counsel (OLC) has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’" That is not a view universally shared among legal scholars. But, as Mueller goes on, “given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction.”
Therefore Mueller did not have the autonomy the Independent Counsel Act gave prosecutors like Starr or 1980s Iran-contra investigator Lawrence Walsh. Indeed, when it came to obstruction of justice, the Mueller team “determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” Barr said in his news conference that this was not Mueller’s only reason for declining to recommend prosecution. But it certainly seems to have been an important factor.
2. How much power does the president have over the Justice Department?
Even so, Mueller was unwilling to exonerate the president, writing:
If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.
Barr himself quickly did just that. One key question is whether actions taken by the president pursuant to his constitutional powers can themselves be illegal. That is, if the president fires the director of the FBI to deter an ongoing investigation, can that constitute a criminal case of obstruction of justice?
In a long letter to Justice Department officials before being named attorney general, Barr argued:
The Constitution vests all Federal law enforcement power, and hence prosecutorial discretion, in the President. The President’s discretion in these areas has long been considered ‘absolute,’ and his decisions exercising this discretion are presumed to be regular and are generally deemed non-reviewable.
Trump put this argument more succinctly in December 2017 when he claimed “an absolute right to do what I want to with the Justice Department.”
As I noted last June, under this reading of the Constitution, the president is prosecutor in chief; therefore, he controls what is prosecuted — and what is not. Taken to an extreme, this would have meant that Richard Nixon was within his rights to seek to prevent the FBI investigation into the Watergate break-in.
A variant of this was one of the arguments in U.S. v. Nixon in 1974. We remember that case over the fate of the White House tapes as a landmark in executive privilege — but a key subplot was whether Nixon had the power to micromanage the prosecutorial process. Leon Jaworski, in the Mueller role, said the president’s taped conversations were key evidence needed to ensure a fair trial for the Nixon aides then being prosecuted. Nixon argued — like Trump — that prosecution was an executive branch decision and that “the courts are … powerless to determine what material within the executive branch must be used in the case.” Only the president, Nixon said, could make that determination, and he happened to think the tapes were not required evidence.
In that case, Jaworski got the tapes. But in this case, Barr, not the courts, gets to make the call.
3. Ignoring the president’s orders
John F. Kennedy once remarked, “I now understand that for a president to get something done … he’s got to say it three times.”
In 1971, after the Pentagon Papers were leaked to the media, Nixon did give a particular order three times — in fact, at least four. He believed the Brookings Institution had files on Lyndon Johnson’s decision to halt bombing North Vietnam in 1968 that might embarrass LBJ. And as Stanley Kutler’s book “Abuse of Power” documents, he wanted to see them. As he told his aides on June 17, “Goddamnit, get in and get those files. Blow the safe and get it.”
They didn’t. On June 30, Nixon returned to the point: “I want Brookings, I want them just to break in and take it out…. You’re to break into the place, rifle the file, and bring them in…. I mean, clean it up.”
On July 1: “Did they get the Brookings Institute raided last night? No. Get it done. I want it done. I want the Brooking Institute’s safe cleaned out and have it cleaned out in a way that makes somebody else responsible. ... And I want it done today and I’d like a report.”
And on July 2: “I really meant it when – I want to go in and crack that safe. Walk in and get it. I want Brookings cut. … Brookings is the real enemy here.”
Here Nixon’s aides thought better of his directive, and in so doing saved him from an additional impeachable offense.
Likewise, the Mueller report makes clear that many of Trump’s orders during the Russia investigation went unheeded. Again, this was often to his benefit, since those orders were illegal or at best unwise — as White House counsel Donald McGahn put it, “crazy shit.” As Mueller summarizes: “The president’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the president declined to carry out orders or accede to his requests.”
4. The Saturday Night Massacre that wasn’t
One of the Trump orders not followed was an effort to fire Mueller. The president called McGahn at home over the weekend — twice the same day — and, according to Mueller, “directed him to call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed.”
McGahn did not do so, however. He later told Mueller’s team that he “would resign rather than trigger what he regarded as a potential Saturday Night Massacre.” That “massacre,” of course, was another product of Watergate. When special prosecutor Archibald Cox resisted Nixon’s efforts to retain control of the White House tapes, Nixon demanded that Attorney General Elliot Richardson fire him. Instead, Richardson resigned, as did his deputy William Ruckelshaus; third-in-command Robert Bork eventually carried out the order. McGahn said, having “grown up in the Reagan era,” he wanted to be more like Judge Bork and not "Saturday Night Massacre Bork.”
By the way, the president called McGahn on June 17, 2017. That was not only a Saturday — it was also the 45th anniversary of the original Watergate break-in.