Deputy Attorney General Rod Rosenstein, the senior Justice Department official overseeing the investigation into the Trump campaign’s ties to Russia, announced on Wednesday that he was appointing former FBI Director Robert Mueller as special counsel to oversee the investigation.
Mueller’s authority under Rosenstein’s appointment is broad. Mueller is empowered to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as “any matters that arose or may arise directly from the investigation.” He may also prosecute federal crimes uncovered in this investigation.
The biggest question arising from Mueller’s appointment is simple: what took Rosenstein so long? Federal regulations instruct the attorney general (or the acting attorney general, in this case) to appoint a special counsel “when he or she determines that criminal investigation of a person or matter is warranted,” and leaving the matter to an ordinary Justice Department attorney “would present a conflict of interest for the Department or other extraordinary circumstances.”
Considering the fact that Attorney General Jeff Sessions recused himself after he potentially became a target of the Russia investigation, it’s hard to imagine a case where ordinary Justice Department officials have a more obvious conflict of interest. Trump’s decision to fire FBI Director James Comey after Comey continued to pursue the Russia investigation only adds to that conflict.
Though not entirely isolated from Trump, Mueller enjoys a degree of independence in his new role. That, combined with the broad scope of his authority, is likely to make it much harder for Trump to muscle him around.
For one thing, Mueller has broad discretion to decide when to inform DOJ’s leadership of his findings. With some exceptions, federal regulations provide that “the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.” Rosenstein can also overrule Mueller under certain circumstances, but he must notify Congress if he does so.
Even more significantly, Mueller is insulated — albeit not completely — from Trump’s penchant for firing people who get under his skin. “The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General,” which in this case means Acting Attorney General Rosenstein. Mueller, moreover, may only be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”
Trump, of course, retains the power to fire Rosenstein. Should Trump either pressure Rosenstein to fire Mueller or try to replace Rosenstein with someone who will, however, that would add even more reason to suggest Trump is deathly afraid of what Mueller’s investigation will uncover.
And even if Trump does find someone willing to fire Mueller, that firing could trigger both a new investigation and litigation to decide whether Mueller was fired for “good cause.”
Beyond Mueller’s partial shielding from Trump’s wrath, he also enjoys an important power that should give pause to anyone in the Trump administration that attempts to thwart his investigation. Federal regulations give Mueller “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.”
Trump administration officials who illegally hinder Mueller’s investigation, in other words, could find themselves in prison.
In a statement released shortly after the appointment, House Minority Leader Nancy Pelosi noted that Mueller “will still be in the chain of command under the Trump-appointed leadership of the Justice Department,” and said that Mueller “cannot take the place of a truly independent, outside commission that is completely free from the Trump Administration’s meddling.”
Such a commission, however, would require cooperation from Republicans.