For Mueller, a Feared Weakness Becomes a Strength

WASHINGTON — Robert Mueller, the special counsel investigating Russia’s interference in the 2016 election, transformed this week what has appeared to be a weakness — his relative lack of independence — into a strength.

Since he was appointed in May by Rod J. Rosenstein, the deputy attorney general, the scope of Mueller’s power has been intensely debated. President Donald Trump’s allies have portrayed the special counsel as running amok as his focus expanded to the business dealings of Trump’s associates. The president’s critics have worried that Mueller is too vulnerable to potential Trump administration interference.

The tension is familiar when the president comes under scrutiny by law enforcement, as the vast powers of the executive branch are at stake. Similar tensions cropped up during the Watergate, Iran-Contra, Whitewater and Valerie Plame leak investigations. Now they have spurred the first significant legal fight arising from Mueller’s work, as Paul Manafort, Trump’s onetime campaign chairman, battles charges related to payments he received from a pro-Russia government in Ukraine.

“Manafort’s fight over Mueller’s authority goes to a central question in our republic, going all the way back to Plato’s question, ‘Who guards the guardians?'” said Neal Katyal, a former Justice Department official who drafted its special counsel regulations in 1999. “The central debate is how much independence do you want, versus how much accountability for the prosecution. There needs to be a balance between these two competing goals.”

Last month, Manafort asked Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia to dismiss his indictment. Portraying Mueller as out of control, Manafort’s defense lawyers contended that criminal allegations arising from their client’s Ukraine dealings either exceeded the limits of the special counsel’s assigned jurisdiction or that Rosenstein had improperly given Mueller a “blank check” to prosecute anything. Manafort has also filed a civil lawsuit making similar arguments.

Mueller’s original assignment from Rosenstein was to look into Russian meddling in the 2016 election and any links to Trump campaign officials, with the ambiguous addition of “any matters that arose or may arise directly from the investigation.”

In a response this week, Mueller’s team insisted that Manafort’s Ukraine dealings, in light of his campaign role, were relevant to investigating links between Russia and the Trump campaign. The team also argued that Manafort had no right to challenge Mueller’s jurisdiction. (It did not, however, invoke the widespread belief that Mueller is using the Ukraine charges to pressure Manafort to divulge what he knows about 2016 events as part of a plea bargain.)

But members of Mueller’s team also backed up those arguments with a striking move: They emphatically pointed to their subordination to Rosenstein — the acting attorney general for the Russia investigation because Attorney General Jeff Sessions is recused from it.

While Rosenstein has testified that he knows about and approves of what Mueller is doing, the filing went into significant new detail, including disclosing that Rosenstein wrote a memo on Aug. 2 blessing the idea that Mueller’s jurisdiction extends to Manafort’s Ukraine-linked dealings.

“The acting attorney general appointed the special counsel, defined his jurisdiction, understands the scope of his investigation and has specifically confirmed that the allegations that form the basis” of Manafort’s prosecution are within Mueller’s purview, the filing said. “In these circumstances, no serious question of political accountability can be raised.”

Mueller’s assertive use of a Trump appointee’s control over his investigation as a shield against Manafort’s attack was a remarkable moment in the history of recurring tensions over the independence of investigations touching on high-level executive branch officials.

After the Watergate scandal, in which President Richard Nixon forced the Justice Department to fire the prosecutor investigating him, Congress enacted a law permitting the appointment of an “independent” counsel who would report to a panel of judges rather than to a presidential appointee.

Although the Supreme Court upheld Congress’ constitutional power to make that arrangement in a 1988 case, both political parties came to see it as a bad idea. In 1999, when the independent counsel statute expired, lawmakers did not renew it.

As a replacement, the Justice Department created a regulation to permit the appointment, from outside the government, of a special counsel who would exercise day-to-day independence but remain subject to control by the attorney general, who could veto decisions like whether to file charges or expand jurisdiction. At the same time, it limited the attorney general’s power to fire a special counsel to cases of misconduct. But that regulation has rarely been used. The most high-profile case arising during George W. Bush’s administration — the appointment in 2003 of Patrick J. Fitzgerald to investigate who leaked the identity of Valerie Plame Wilson, a CIA official — bypassed its envisioned arrangement.

Fitzgerald, then a U.S. attorney in Chicago, was appointed as a special counsel by James B. Comey, then the deputy attorney general, after Attorney General John Ashcroft recused himself from the investigation. Comey also delegated his supervisory powers as the acting attorney general to Fitzgerald, permitting the prosecutor to take major investigative steps “independent of the supervision or control of any officer of the department.”

By contrast, after Trump fired Comey in May from his subsequent job as FBI director and Rosenstein appointed Mueller as special counsel, Rosenstein invoked the regulation — meaning he retained supervisory control.

At the time, some Democrats greeted that arrangement with suspicion. They worried that Rosenstein — a Trump appointee who had helped with Trump’s firing of Comey by writing a memo criticizing Comey’s handling of the Hillary Clinton email investigation — would keep Mueller on a short leash.

During a June hearing, for example, Sen. Kamala Harris, D-Calif., pressed Rosenstein to instead create a more independent special counsel who could oversee himself, like Fitzgerald.

“Are you willing to do as has been done before?” she demanded.

Rosenstein demurred. While noting that Bush could have fired Fitzgerald for any reason — so working under the regulation gave Mueller greater protection — he also said there were other complicated legal issues that led him to his decision. (One of the complexities may have been that Mueller was not a current Justice Department employee at the time of his appointment, unlike Fitzgerald in 2003, so Mueller most likely could not have been delegated attorney general supervisory powers, Katyal said.)

The anxieties of that period make it all the more striking that, 10 months later, Mueller’s team is stressing his subordination to Rosenstein to repel Manafort’s attack.

Still, several specialists cautioned that Mueller’s subordination could revert to a weakness if Trump were to fire Sessions or Rosenstein, putting someone else in charge of the special counsel.

Against that backdrop, Julie O’Sullivan, a Georgetown University law professor and a former federal prosecutor, worried about the lengths the filing went to in detailing Rosenstein’s approval for Mueller’s actions.

“Mueller’s lack of independence was viewed as a real problem, but now it’s a response to any attack on the indictment,” she said. “I do wonder, though, if he hasn’t put Rosenstein in additional jeopardy.”