President Trump and his legal team are reportedly preparing an extensive pushback campaign against Special Counsel Robert Mueller and his investigative team. The White House claims that Mueller, a longtime Republican and former director of the FBI, has assembled a partisan group of investigators; that his appointment may be inappropriate due to what they say are conflicts of interest; and that he appears to be straying beyond his mandate. In an interview this week with the New York Times, the president fumed about Mueller’s investigation and warned that delving into his finances would constitute a “red line.”
We’ve asked top former prosecutors, government lawyers and legal scholars to help make sense of the situation. Does Trump have a point?
Trump’s case against Mueller is garbage
Retired ambassador Norman Eisen, a senior fellow at the Brookings Institution, is chair and co-founder of the watchdog group CREW. He was White House ethics czar under President Barack Obama from 2009-11 and before that defended white-collar and congressional investigations for two decades as a partner at Zuckerman Spaeder LLP.
Trump’s campaign against Mueller is likely to fail. Indeed, it might leave the president in even worse trouble than he already is.
The president is suggesting that the special counsel, a man of towering integrity, has too many conflicts of interest to be trusted to lead the investigation. This and other claims about Mueller’s team are nonsense: Friendships, past campaign contributions and the like do not constitute legal conflicts under the circumstances at hand. My frequent writing partner, the Republican ethics professor Richard Painter, and I have explained this in detail. To anyone who actually knows conflicts law–and Painter and I have between us spent over half a century on the subject–the Trump team’s allegations are garbage.
Nor will the pushback on the scope of Mueller’s investigation be successful. The terms of his appointment are sweeping, including not only investigating any links and coordination between Russia and the Trump campaign, and obstruction of that investigation, but also "any matters that arose or may arise directly from the investigation." That, of course includes any Russia-related or other financial misconduct that Mueller may discover about Trump, his family members, or his businesses. Notwithstanding Trump’s recent fulminations to the New York Times, this is all perfectly legal. Indeed, such broad delegations of authority to a special counsel have been repeatedly upheld by the courts. (See, for example, United States v. Libby.)
Moreover, Trump pardoning others, much less himself, or firing Mueller, would set off a political firestorm the likes of which would exceed Watergate. To clear up one legal question Trump is said to be exploring: A president does not have self-pardon powers. Liberal and conservative scholars alike, such as professors Larry Tribe and Brian Kalt, agree.
Most perilous of all to Trump, his threat to investigate the investigators can quickly become obstruction of justice, as former Los Angeles County Sheriff Lee Baca recently discovered when he was successfully prosecuted for doing just that. In that case, the court ruled that an officer who had the authority to investigate potential violations of law by federal agents can’t actually use this authority to engage in what ordinarily might be normal law enforcement practices for the purpose of obstructing justice.
So Trump had better beware. That said, he has put together a good team that can help him do that — if he takes their advice. Ty Cobb as special counsel on the inside, and John Dodd as outside counsel bring to the job deep experience on criminal and congressional investigations. The problem is that even these two outstanding members of our D.C. white-collar bar will have a very difficult time controlling their client. Like Cobb, I was special counsel to the president, so I know how hard it is to say no to the most powerful man in the world and those around him. Unlike Cobb, however, I had clients who scrupulously listened.
Finally, as for Marc Kasowitz, who is reducing his role in the investigation, he’s a great lawyer who was pressed by his client into a D.C. role he didn’t want. Kasowitz served his client well by lining up counsel with the right experience, and he’s stepping back now because that is what his client’s needs dictate. He’s a much different person then the caricature of him that emerges from recent press accounts. Given the president’s dangerous predilections, Kasowitz and his firm are better off at some remove from him.
Trump is digging his hole deeper
Bob Bauer is professor of practice at New York University School of Law and former White House counsel to President Barack Obama.
The all-out assault on the Mueller investigation may reflect two judgments in the Trump legal world. Both are questionable and offer more peril than promise for the president’s legal prospects.
First, it is possible that the Trump legal team believes it can adopt the combative strategy made famous by President Clinton’s lawyers in the Starr investigation. This may be the familiar mistake of fighting the next war on the assumption that it will be just like the last one. But Robert Mueller is not Kenneth Starr; the special counsel is not an independent counsel. The entire legal structure providing the appointment of an independent counsel was controversial. So, too, was the history and record of IC investigations. Starr, moreover, had none of the experience and background necessary for the conduct of a complex investigation of a senior executive branch official, much less a president, and the charges–an extramarital relationship and actions to keep it secret–were hardly usual for such an inquiry. Mueller has experience second to none in white-collar criminal prosecutions and senior law enforcement. While the Russia matter is by its nature extraordinary, it centers on clear questions of potential public corruption.
These differences are profound and their implications for the president’s confrontational strategy are serious. Rather than building his attacks around credible claims that he is somehow the target of a political vendetta lacking in any legal justification, Trump seems mainly concerned with saving himself. For example, he has chosen to step up this offensive only days after the revelations of his son’s June 6 meeting with Russians connected to the Kremlin who claimed their government’s blessing in offering support for his campaign. And his reaction has included lashing out at his own attorney general and deputy attorney general, who now join his former FBI director James Comey and Mueller in these rounds of condemnations. The result: President Trump is only filling in for the prosecution team a damaging picture of himself that, on relevant issues, will cost him the benefit of the doubt in the exercise of prosecutorial discretion. This high cost to his credibility cannot help him as the investigation proceeds and his lawyers attempt to successfully present his "side of the story." And it will not serve him well if the conflict spills out into the courts.
Second, apart from latching onto the Clinton-Starr model, Trump may be directing a defense as he would have mounted one in his prior business career. He imagines that the best defense is a full-scale, crushing offense that will overwhelm his adversaries, winning outright or bullying them into settlement. He may believe that as president he has even more weaponry at is disposal. Facing him, however, are highly experienced professionals in law enforcement and in the courts who have highly honed senses of their missions and a keen commitment to the integrity of their institutions. The president may think it savvy to raise the constitutional and rule-of-law stakes, but this will make it even less likely that he will find any receptivity to a "settlement."
For Trump, it’s all personal
Samuel Buell is a law professor at Duke University and a former federal prosecutor who led the Justice Department’s prosecution of Enron Corporation.
Lawyers and judges are allowed to vote and make contributions just like everybody else. No individual involved in the legal system is entitled to insist on officials who share his political leanings. That would be absurd.
The arguments from the Trump camp are either cynical or further evidence for the fact that the president apparently has no ability to conceive of the difference between the professional and the personal. With him, it seems, it’s all personal and doing one’s job well doesn’t mean being professional, it means being “loyal” to whomever is in charge. That concept is practically the opposite of how law conceives of professionalism. Bob Mueller, by the way, exemplifies legal professionalism as much as anyone in the United States, making these efforts even more implausible and distasteful. One dearly hopes that this media effort is not some political strafing run, designed to soften the ground before trying to take out the entire investigation.
What matters is what Congress thinks
Brian Kalt is law professor at Michigan State University and author of "Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies."
I don’t know enough about the facts to say one way or another what the Trump team is up to or what validity there might be to what they are saying. But I can say that it’s only natural for criminal defendants to be aggressive in defending themselves, including attacking their adversaries if they think they have good arguments to make. President Bill Clinton’s team certainly did not avoid criticizing independent counsel Ken Starr. But there is a limit to how far this can go, and it’s particularly awkward constitutionally, given that the president is the head of the executive branch that is investigating him.
Ultimately, though, these questions are more about politics than law. The most important issue in all of this is what Congress–particularly the Republican majority in Congress–thinks. The president is only safe if he can keep the GOP on board, and if he goes too far in attacking Mueller, whose reputation is sterling, that could present a problem at a certain point.
(In the interest of avoiding conflicts of interest, I should note that I was a law school classmate of Jeannie Rhee, a member of Mueller’s team.)
There’s no sign that Mueller is going beyond his mandate
William Jeffress is a white-collar defense attorney at Baker Botts. He represented I. Lewis “Scooter” Libby in the Valerie Plame affair.
The Trump team had a choice: whether to maintain that nothing improper occurred and welcome a speedy conclusion to Mueller’s investigation, or to go on the offense against the special counsel with the goal of impeaching the credibility of whatever he concludes. Both are common strategies, and the Trump team has clearly chosen the latter. One cost of that strategy is to make people wonder whether the claims that nothing improper occurred are sincere.
That Mueller is a friend of James Comey and has hired assistants who contributed to Hillary Clinton’s campaign provides ammunition for an attack by the Trump team on his impartiality, but it is not a conflict in the legal sense, any more than it would be a conflict to hire an assistant who contributed to the Trump campaign. It is certainly ironic that the president can in one breath assert that Mueller has a conflict, and in the next breath say that Attorney General Jeff Sessions – one of the earliest and strongest supporters of the Trump campaign – had no conflict warranting his recusal from the investigation. Regarding the suggestion that Mueller is straying beyond his mandate, I have simply not seen any evidence of it. His responsibility is to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” which obviously could include financial links.
Trump doesn’t understand how government works
Asha Rangappa is an associate dean at Yale Law School and a former special agent in the Counterintelligence Division of the FBI.
The bottom line here is that Trump simply does not understand how a government bureaucracy works. He apparently did not learn from firing James Comey that cutting off the head of an agency doesn’t make the investigations within it go away, and getting rid of Bob Mueller will similarly not end the Russia investigation or unrelated cases that arise from it.
First, even if Mueller unearths evidence of crimes that are beyond the scope of his appointment — that is, unrelated to Russia’s attempts to influence the election or to collusion between Russia and the Trump campaign — he cannot simply shrug his shoulders and ignore it. Under the Attorney General Guidelines, which are separate from the special counsel regulations, Mueller would be obligated to pass on any such findings to the FBI, where agents on white-collar, cyber, or other appropriate squads would open cases.
And even the Russia investigation cannot be closed midstream if Mueller is fired. The agents working on any leads would continue to pursue them out of the relevant FBI field offices or FBI headquarters until the counterintelligence and criminal questions are resolved.
Of course, Trump can try to pressure new FBI director Christopher Wray to back off the investigations, as he did with Comey, but that could add to his own legal troubles with obstruction of justice charges. He could also try to prevent the cases from being charged and prosecuted, either by firing Deputy Attorney General Rod Rosenstein, who is overseeing Mueller’s probe, or by pressuring Attorney General Jeff Sessions to intervene despite his recusal. But the career men and women of DOJ and the FBI are hardwired to seek and serve justice, and any appointed officials who stand in the way of that will have to risk having their legal and professional reputations forever tarnished with allegations of corruption. In the end, what is uncovered in these cases will see the light of day one way or another, and there is very little the president can do to stop that.
Trump doesn’t respect the Justice Department’s independence
Carrie Cordero is an attorney in private practice, adjunct professor at Georgetown Law and former counsel to the assistant attorney general for national security.
The president and his surrogates’ campaign to discredit former FBI director Bob Mueller and the staff of exceptional attorneys he has assembled for the special counsel investigation will go down as one of the more sordid episodes of an administration that has more than its fair share of sordid episodes. And yet, the president’s statements to the New York Times were anything if not honest: I believe the president when he says he would not have nominated Attorney General Jeff Sessions had he known he would recuse from the Russia election interference investigation; his statements are consistent with his lack of respect for an independent Justice Department.
Since the very first days of this administration and since, there has been disregard for the existing policies and norms governing behavior and interaction between the Justice Department and the White House. Examples include but are not limited to contact that occurred between a White House official and a U.S. Attorneys’ office regarding the travel ban; the disparaging statements the president has made about the former FBI director, the attorney general and the deputy attorney general; and the blatant lie told by a White House official regarding FBI rank and file’s views of former director Comey. Under Bush administration Attorney General Michael Mukasey, a memorandum and procedures were in place limiting contacts between the White House and Justice Department. Those policies continued in amended form throughout the Obama administration. The policies, generally, established restrictions on communications between White House and Justice Department officials (including the FBI) regarding ongoing investigations. The purpose of such rules, of course, is to prevent political influence or pressure on investigations. The apolitical administration of considerable executive branch law enforcement powers is a fundamental principle of the fair administration of justice.
The president, apparently, not only does not seem to understand this principle; he openly is contradicting it. Let’s be honest: There is no group of prosecutors or special counsel staff that would be acceptable to the president, except for loyalists to his own campaign or administration who he thinks would fix the outcome in his favor. He has expressed this approach at every turn: in public statements, tweets and, according to Comey’s public testimony, private meetings–all expressing his desire for the Russian inquiry to go away. The president’s statements and actions are likely facts along a continuum that can be used to develop a case for obstruction of justice, whether through legal or political channels. And Trump’s latest effort to investigate the investigators can, and should, be viewed as yet another effort to obstruct the investigation itself.
Congressional investigators should take note.
Bob Mueller is nobody’s idea of a political hack
Orin Kerr is a law professor at George Washington University and the director of the Cybersecurity Law Initiative.
It’s easy to see why Trump would try to discredit Mueller. Mueller’s investigation is a threat to Trump. But so far, the arguments against Mueller are remarkably weak. Trump’s own appointee, Deputy Attorney General Rod Rosenstein, hand-picked Mueller to serve as special counsel. And Mueller was a natural choice, as he is the most respected name in law enforcement. Mueller has a decades-long, sterling reputation as entirely apolitical. Perhaps Mueller’s reappointment to head the FBI is the best evidence. When Mueller finished up his 10-year term as FBI director, Congress enacted a new law just for Mueller so he could continue to serve for another two years. That law was passed by unanimous consent in the Senate and by voice vote in the House. Congress doesn’t do that for a political hack.
Mueller and his team deserve our trust, patience and respect
Renato Mariotti is a former federal prosecutor who handled many obstruction cases. He is now a partner at Thompson Coburn LLP.
The attacks on Robert Mueller’s credibility by the president and his legal team are a thinly veiled attempt to confuse the issues and improperly suggest that an independent investigation by a man of impeccable integrity and a stellar reputation is just another part of the hyper-partisan scene in Washington. It’s not. Mueller’s investigation is important and its independence should be preserved.
People who are targets or subjects of federal criminal investigations often attack the motives or integrity of the prosecutor. It’s not a new tactic, by any means. But in this case it could have a significant impact on the public’s trust in the rule of law. The public is divided along partisan lines, and Congress is controlled by the president’s party. Mueller, who has been appointed by presidents of both parties and was considered for a position by President Trump, is someone who both sides can trust as a straight shooter. Efforts by the president and his team to undermine Mueller undercut the only independent person tasked with sorting through the facts and enforcing the law.
The substance of the president’s criticism of Mueller is without merit. Mueller’s friendly relationship with James Comey is not itself a cause for recusal. Individuals involved in law enforcement often have friendly relationships with each other—I was friendly with most of the FBI agents I called to the witness stand as a federal prosecutor. Moreover, the fact that some of Mueller’s staff have made political donations is also not a cause for recusal under DOJ policy. Many Americans support political candidates, but that does not itself create a conflict of interest. And allegations that Mueller has strayed far beyond his mandate are bizarre, given that the mandate given to Mueller by Deputy Attorney General Rod Rosenstein was extremely broad.
Mueller and his team deserve our trust, patience and respect. If Mueller is removed before he completes his investigation, it would create a crisis and undermine public confidence in the rule of law. Everyone on both sides of the aisle should let Mueller and his team do their job and wait for the outcome.