January 1, 2018


The President Can't Kill the Mueller Investigation (Jack Goldsmith, January 1, 2018, LawFare)

One of most remarkable stories of 2017 was the extent to which President Donald Trump was prevented from executing his many pledges--both on the campaign trail and in office--to violate the law. As predicted, courts, the press, the bureaucracy, civil society, and even Congress were aggressive and successful in stopping or deterring Trump from acting unlawfully.* [...]

 I believe that what we learned in 2017 should give us confidence in 2018 that Trump will not be able to terminate the Mueller investigation.

Begin with how well the system has worked thus far. Attorney General Jeff Sessions infuriated Trump when he followed DOJ rules and recused himself from the investigation. Deputy Attorney General Rod Rosenstein infuriated Trump when he followed DOJ rules and appointed Robert Mueller as special counsel after Trump fired FBI Director James Comey. These men took the proper steps despite the allegiance that political appointees typically feel toward the president who appointed them. They did so because they are embedded in and charged with running an institution with rules and norms that they feel personal and professional responsibility to abide by and uphold. This is a key point, to which I will return.

The Sessions recusal, which set the Mueller investigation in motion, was especially remarkable in light of the attorney general's decades in politics and special fealty (at least at the time) to the president. Ever since the Mueller investigation began in May, Trump has, in a truly unprecedented and vicious fashion, bashed Sessions, Rosenstein, Mueller, the department for which they work, and Mueller's "witch hunt." And yet, despite clear opposition from the man ostensibly in charge of the executive branch, the Mueller investigation has proceeded aggressively and without interruption. It has proceeded, moreover, through the transition atop the FBI from the man Trump fired (Comey) to the man Trump chose to replace him (Chris Wray). Wray shows every indication thus far of working closely with and fully supporting Mueller.

In short, the political appointees in the Justice Department who are connected to the Mueller investigation have shown that they follow the rules and norms of the department despite the president's wishes otherwise. This is all an amazing (though widely unappreciated) testament to DOJ's independence and the rule of law. I think the mechanisms that worked so well in 2017 will keep working to see the investigation through, no matter what steps Trump takes to stop it.

If Trump wished to stop the Mueller investigation, he couldn't just tweet a declaration that it is over. The investigation is guided by a set of Justice Department regulations that Rosenstein deemed "applicable to the Special Counsel" in his appointment Order. (The regulations give control over the Mueller investigation to the attorney general--who, because Sessions is recused, is Rosenstein, the acting attorney general for this purpose.) Rosenstein in theory could, under 28 CFR 600.7(b), order Mueller not to pursue "any investigative or prosecutorial step," but only if Rosenstein concluded, after giving Mueller's views "great weight," that Mueller's proposed step was "inappropriate or unwarranted under established Departmental practices." Rosenstein could also in theory remove Mueller from office under 28 CFR 600.7(d), but only for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies." If Rosenstein took either course, he would need to justify his actions in writing to Congress.

...is their delusion that Mueller or any of his staff matter.

Posted by at January 1, 2018 12:23 PM