For two years, America scrutinized Robert Mueller almost as closely as Mueller scrutinized Donald Trump. But where Mueller’s investigation produced a clear-eyed view of the 2016 election, America seems to have settled on a deeply confused view of Mueller’s office, the Justice Department’s special counsel. And the misapprehensions surrounding Mueller’s office are not limited to President Trump’s own attacks. Rather, the special counsel’s investigation is profoundly misunderstood not just by Mueller’s enemies but also by his own supporters, especially his supporters in Congress. And, most worrisome of all, our confusion about the special counsel is but a symptom of still deeper confusion about Congress itself—a confusion about Congress’s role as the “first branch” of our constitutional government.
Members of Congress were among the special counsel’s most ardent defenders, from the moment that Mueller was appointed to his office in May 2017 by Acting Attorney General Rod Rosenstein. Two years later, it is almost hard to imagine the bipartisan praise—relief, even—among congressmen and senators applauding Mueller’s appointment. In the House, for example, Mueller’s eventual antagonists among the president’s supporters originally applauded his appointment. Republican Representative Mark Meadows initially celebrated the choice as “a good move on behalf of the administration to do this, and it means that they’re taking things seriously.” (At the end of the special counsel investigation, as Mueller prepared to appear before House committees, Meadows boasted to Fox News’s Laura Ingraham that “Bob Mueller better be prepared . . . he will be cross-examined for the first time and the American people will start to see the flaws in his performance.”)
In the GOP leadership, Senate Majority Leader Mitch McConnell and then–Speaker of the House Paul Ryan both issued statements in favor of Mueller’s appointment, while also emphasizing that Congress’s own investigations into the 2016 election would proceed. “I welcome his role at the Department of Justice,” Ryan stated, adding that “the important ongoing investigation in the House will also continue.” McConnell similarly announced that Mueller’s appointment “confirms that the investigation into Russian intervention into our election will continue,” but “the Senate Select Committee on Intelligence will also continue its investigation into this matter.”
Yet the ability of Congress and the special counsel to operate on parallel tracks was fraught with complications and cross-purposes. For example: If the House or Senate were to grant immunity to witnesses in exchange for their testimony before congressional committees, that immunity would undermine the special counsel’s own ability to compel the witness’s cooperation. Similarly, any deals that the special counsel would strike with witnesses or targets might include immunity that could undermine Congress’ ability to compel people to testify in committee hearings. Recognizing this, the Senate Intelligence Committee’s chairman and ranking member, Senators Richard Burr and Mark Warner, issued a bipartisan statement upon Mueller’s appointment, vowing that the committee would “continue its own investigation” but, “to the extent any deconfliction is required, we will engage with Director Mueller and our expectation is that he will engage with the Committee as well.”
As Mueller’s investigation proceeded, congressional Democrats spoke out often in defense against what they perceived as threats to Mueller’s own investigation. In December 2017, 171 congressional Democrats sent a letter to the Justice Department, criticizing President Trump’s and various Republican legislators’ attacks on Mueller and demanding that the special counsel “be allowed to continue his investigation—unfettered by political influence or threats to his authority—to its natural and appropriate conclusion.”
The sense of urgency among Democrats increased significantly a year later, when they recaptured control of the House and immediately became, in the apt words of the New Yorker’s Susan Glasser, “Bob Mueller’s wingman.” The day after the midterm elections, Democratic leaders immediately sent stern letters to the acting attorney general, the White House counsel, the CIA director, the FBI director, the IRS commissioner, and others, demanding that they “preserv[e] all materials related to any investigations by the Special Counsel’s office” or by other parts of the Justice Department. “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office,” they added, “and preservation of records is critical to ensure that we are able to do our work without interference or delay.”
Amid those stern warnings, it was easy to overlook perhaps the most consequential word on that letter: “our.” In those post-election letters, and increasingly over the course of Mueller’s investigation, House Democrats came to equate the special counsel’s work with their own. Or, more precisely, House Democrats came to see the special counsel’s investigation as a necessary prerequisite to their own investigations of the 2016 election and the Trump administration.
This view of the special counsel’s work was made flesh in April 2019, after Mueller completed his investigation with a report to Attorney General William Barr. The attorney general released it with limited redactions on April 18, whereupon congressional Democrats immediately called on him to give Congress the special counsel’s full unredacted report and even the underlying records and evidence Mueller had gathered. In an April 19 letter to Barr, House and Senate Democratic leaders asserted that the Justice Department “has a duty to submit the full report and underlying evidence to Congress so that it can fulfill its constitutional responsibilities” as “a coequal and coordinate branch of government.” They reiterated these demands in a panoply of statements in the weeks leading to Special Counsel Mueller’s appearance before congressional committees on July 24.
And in subpoenas, too. When the House Intelligence Committee subpoenaed the unredacted Mueller report and underlying materials on May 8, its chairman, Adam Schiff, asserted that the committee’s investigation depended on full access to Mueller’s files: “We therefore need these materials in order to do our job.” Similarly, in support of the House Judiciary Committee’s own subpoena for Mueller’s unredacted report and underlying materials, the House Judiciary Committee asserted that it simply could not proceed with its own investigations without “the unredacted Mueller report and the underlying materials without further delay.”
These arguments were bolstered by advocates outside of Congress—especially Neal Katyal, who had served as the Obama Justice Department’s deputy solicitor general. In a March 22 Washington Post op-ed, urging Barr to release as much of the Mueller report as possible, Katyal warned that “there is no way impeachment can work efficiently if Congress is not given all of the facts the special counsel has uncovered” (emphasis added). Katyal’s advocacy attracted particular attention, because—as Katyal himself often points out—he was one of the Justice Department lawyers who created the Office of the Special Counsel in a 1999 rulemaking proceeding.
The Special Counsel’s Office exists not because Congress created it, but because the Justice Department did. Indeed, the DOJ created it to fill the space that had been occupied by the old independent counsel’s Office once Congress had allowed the Independent Counsel statute to expire in the immediate aftermath of Ken Starr’s investigation into President Clinton. On July 9, 1999, the Justice Department published a notice in the Federal Register, setting forth the framework for the new Special Counsel’s Office and briefly explaining its major provisions.
But in that notice, the Justice Department described an office designed for purposes very different from the one perceived today by House Democrats. It was not to undertake investigations for the sake of the legislative branch’s responsibilities, but rather for the sake of the executive branch’s responsibilities. And rather than directing the special counsel to turn over all of his materials to Congress for Congress’s own sake, the Justice Department emphasized that the special counsel would report to the attorney general, who in turn would provide only limited information to Congress.
In point of fact, protecting the privacy of a special counsel’s investigation from the transparency of Congress was a major point of the entire framework, in the aftermath of the Starr report on President Clinton. “The principal source of the problems with [the old independent counsel statute’s broader disclosure requirements] is the fact that the report “typically has been made public,” the Clinton Justice Department contended, “unlike the closing documentation of any other criminal investigation.” Accordingly, “these regulations impose a limited reporting requirement on all special counsels, in the form of a summary final report to the Attorney General. This report will be handled as a confidential document, as are internal documents relating to any federal criminal investigation.” Instead of providing for full congressional access to the special counsel’s report and materials, the DOJ regulations provide only for the attorney general to make brief reports of his own to congressional leadership, summarizing aspects of the investigation process.
Today Katyal and others contend that the Justice Department’s framework for special counsels was intended to “set a floor, not a ceiling, on the amount of transparency” (as Katyal put it in his March 22 op-ed). “They require transparency and an ‘explanation of each action’ at the end of the special counsel investigation, but they don’t forbid more transparency on top of that.”
It is true that the DOJ regulations do not expressly forbid the attorney general from releasing a special counsel’s full report and underlying materials to Congress. The regulations say nothing about releasing the special counsel’s report, but they do provide that the attorney general “may” choose to “public[ly] release” the summary reports that he himself made to congressional leadership, regarding the special counsel’s own work—summary reports that, as the Clinton Justice Department emphasized in its 1999 explanation of the rules, “will be brief notifications, with an outline of the [attorney general’s] actions and the reasons for them” (emphasis added). And while Katyal and others now argue that Congress can and should subpoena the Mueller report and underlying materials, the Justice Department framework he helped create emphasized that the special counsel’s investigation, and the release of its materials, was subject to the attorney general’s control, not Congress’s. As the Clinton Justice Department emphasized at the outset of its 1999 notice, “it is intended that ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney General.”
To his credit, Mueller appears to have understood fully that his office existed to carry out the executive branch’s responsibilities, not the legislative branch’s. Upon completing his report to the attorney general, he resisted the notion of testifying before Congress. In a May 29 statement, he observed that “there has been discussion about an appearance before Congress,” but he emphasized that “any testimony from this office would not go beyond our report. It contains our findings and analysis, and the reasons for the decisions we made. We chose those words carefully, and the work speaks for itself. The report is my testimony.” When he finally did appear before House committees two months later, his delivery was uneven but his commitment to self-restraint was not; he repeatedly declined lawmakers’ efforts to bring him beyond the four corners of his report.
Rather, when he appeared before Congress, he emphasized how unusual and inappropriate it would be for the special counsel to say anything more. “It is unusual for a prosecutor to testify about a criminal prosecution,” he said, “and given my role as a prosecutor, there are reasons why my testimony will necessarily be limited.” In addition to honoring the Justice Department’s assertion of “privileges concerning investigative information and decisions, ongoing matters within the Justice Department, and deliberations within our office,” Mueller added that a prosecutor must take care to “protect the fairness” of other ongoing proceedings.
His caution goes to the heart of a government’s power to prosecute—and to the difference between the executive’s power to prosecute and the legislature’s fundamentally different powers.
As Mueller noted during his congressional hearings, his reticence exemplified the Justice Department’s policy and traditions. These themes resonate in the Department’s Justice Manual. “Much of DOJ’s work involves non-public, sensitive matters,” the manual explains in a subsection on the General Need for Confidentiality. “Disseminating non-public, sensitive information about DOJ matters could violate federal laws, employee non-disclosure agreements, and individual privacy rights; put a witness or law enforcement officer in danger; jeopardize an investigation or case; prejudice the rights of a defendant; or unfairly damage the reputation of a person.”
This and other fundamental ethics of prosecutorial self-restraint are indispensable, because without them, powers of prosecutors would be virtually intolerable in a government of limited powers and the rule of law. Prosecutors wield awesome powers, as Attorney General (later Supreme Court Justice) Robert Jackson emphasized in his famous 1940 remarks to an assembly of U.S. attorneys:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.
As Jackson recognized, we entrust prosecutors with immense powers to search, to seize, to compel testimony, and even to restrain people against their will. Judicial proceedings surround these powers, but even within the limits imposed by the judicial process, the prosecutor retains enormous power and discretion. That power to affect the lives of people not ultimately charged (let along convicted) of crimes is politically legitimate and practically tolerable only because prosecutors are both greatly restrained and also greatly self-restrained so that the fruits of their investigations are not used freely toward ends outside of the narrow scope of the prosecutorial and judicial process.
The legislative process, by contrast, is precisely the opposite. Where we prioritize privacy in prosecution, we prioritize transparency in the legislative process—indeed, our Constitution goes so far as to immunize members of Congress from being punished for “any Speech or Debate in either House” of Congress. Such immunity, the Supreme Court observed in 1972, was “not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.”
In short, our constitutional system necessarily relies on prosecutorial self-restraint in service of privacy; it also necessarily relies on legislative freedom in service of transparency. The public interest requires both secrecy and candor—a notion that avoids paradox only when we see the difference between the work of the legislative branch and the work of the executive branch.
Unfortunately, we seem less and less willing to honor such distinctions in government today. Rather, we want our legislators to act like prosecutors, while at the same time wanting prosecutors—or at least some prosecutors, the special counsels—to act as part of the legislative process. This is an example of a broader trend of collapsing distinctions between the work of the legislature and the work of the executive, which has real ramifications throughout the work of government today—not just the work of the affected prosecutors but also the work of the legislature that has come to depend on the special counsel to carry out its own investigation.
We see this first and foremost in congressional oversight of the executive branch, which increasingly resembles prosecutorial inquisitions more than broader debates of policy—legislative hearings that seem ever more like litigation depositions or cross-examinations, and legislative “requests for information” that seem ever more like litigation interrogatories.
We also see this in the increasingly legalistic terms of our legislative debates. This is particularly exemplified by the legislative and political debates surrounding the Trump administration, which are constantly drawn back to debates about “obstruction of justice” as defined technically by federal criminal laws as an offense involving “corrupt intent.” Our political debates are now replete with discussions of what qualifies as “obstruction of justice” or “corrupt intent,” as though congressmen (and the rest of us) are either prosecutors trying to convict the president of a crime or defense attorneys trying to get him acquitted, rather than legislators (or citizens) debating whether the president’s words and deeds are worthy of his office and in furtherance of the public interest.
Finally, and relatedly, we also see the effect of changes in the “facts” at issue in Congress’s debates. When members of Congress assert that they cannot accomplish their own constitutional responsibilities without obtaining the factual evidence collected by the special counsel’s prosecutorial investigation into the president, they implicitly concede that the facts already in public view are somehow insufficient for congressmen to draw conclusions about whether the president’s actions are in the public interest, or impeachable, or somewhere in between.
In the debates surrounding the Trump administration, we might call this the “Muellerization” of Congress. As President Trump’s congressional critics become more and more dependent on the special counsel to take the lead in investigating the president, Congress’s own work is shaped to resemble the terms of nature of a prosecutor’s office: a rhetoric of legalisms beholden to the hard-and-fast factual standards of criminal prosecutions, rather than a rhetoric of the public interest that draws on the more general discussion of matters in public view.
The great irony of this is that Congress claims to be a coequal and independent branch of our government, while the same time acting as though it is dependent on the executive branch to do its work for it. This irony may have reached its zenith in the Democratic congressional leaders’ April 19 letter to Attorney General Barr. They asserted that the Constitution makes Congress “a coequal and coordinate branch of government,” while also asserting that Congress could not actually carry out its constitutional duties without being given the materials gathered by the Justice Department’s special counsel. Then again, the irony may reach its true zenith when congressional leaders turn to the federal judicial branch, pleading for a judge to force the Justice Department to help Congress.
Of course, this trend of Congress proclaiming itself to be the Constitution’s first branch, while relying so heavily on the executive and judicial branches to actually do its work for it, is not limited the Mueller investigation or even to the current presidential administration. We long ago grew accustomed to members of Congress relying on the executive branch for expertise in writing legislation, and relying on the judicial branch to check the executive branch.
The present controversy casts this trend in particularly stark relief. Congressional Democrats effectively outsourced their oversight responsibilities to a Justice Department lawyer, Robert Mueller. They want to leverage the vast power that we entrust to executive-branch prosecutors, yet they eschew the duties and limits that render prosecutorial power legitimate in the first place; they want to leverage the transparency inherent in the legislative process, while eschewing the inherent limits of a legislature in obtaining the facts that will be made public in that process.
Our constitutional system requires both a legislative branch and an executive branch, and it requires both branches to understand the difference.
