Mueller is Mostly Independent: He Cannot Lawfully Be Easily Constrained or Fired

Contrary to popular belief and statements in the media, Special Counsel Robert Mueller has legal independence and most of his actions are generally not subject to Department of Justice oversight.

The reason for appointing a Special Counsel, in the first instance, is due to an appearance of conflict of interest. DOJ employees would be investigating their boss (the president) and would be likely viewed as biased in his favor. For that reason, when the Independent Counsel law expired and Congress did not renew it, DOJ needed a set of regulations in place to govern the appointment of a Special Counsel.

The regulations give the Special Counsel (Mueller) powers to act as though he is a US Attorney, with full powers to indict and prosecute crimes discovered. Contrary to popular belief, Mueller need not check in with DOJ (currently, Whitaker) as to most of his conduct.

Section 600.6 of the Regulations states:

§ 600.6 Powers and authority.

Subject to the limitations in the following paragraphs, the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney. Except as provided in this part, 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.

Therefore, Mueller is free to investigate, indict and prosecute anyone within the scope of his appointment.  His scope includes Russia / Trump campaign coordination re: the election, other crimes that are discovered during the investigation, and any Obstruction of Justice, Perjury or crimes committed during the investigation.

In the DOJ “Justice Manual” there are, however, some actions that would require a typical US Attorney to obtain authority and/or consultation with the Mother Ship / DOJ. Since Mueller, as the Regulation requires, must follow DOJ rules, practices, and procedures, he must obtain approval and/or consult on certain matters. Notable absent from the Manual, however, is any necessary prior approval to indict any governmental official as to almost all crimes. This means that Mueller can seek to have a grand jury indict Trump without prior approval of the DOJ, depending upon the crimes involved. If the crimes involve espionage or national security, for example, permission to indict would be required. But it is not at all clear as to whether crimes potentially committed by the president fall into those categories.

A review of the Justice Manual appears to indicate that Mueller has already likely obtained DOJ approvals for many of his recent actions (or did not need approvals) in situations that could implicate the president in criminal activity. For example, Michael Cohen was charged with the crime of lying to Congress. In that plea arrangement, it is documented that the prosecutors apparently have proof that the president may have: (1) violated the Foreign Corrupt Practices Act, (2) lied to the FBI and Muller’s team about the Trump Tower Moscow project, (3) engaged in witness tampering, (4) engaged in conspiracy to commit perjury, and (5) obstructed justice.  These are all federal crimes carrying significant potential jail terms, and prosecutors are clearly pursuing these aspects of their investigations — that directly involve the president. This is also true regarding the Michael Cohen related investigations in the Southern District of New York, where the president is notably implicated in crimes already, with corroborating documents and witnesses (not just Michael Cohen’s sworn statements).

The conventional media speak, such as “Mueller is supervised by DOJ” or that he can be “stopped” from taking certain actions is mostly wrong — as matter of law.

Mueller’s accountability is governed by §600.7 of the regulations. If DOJ (now Acting AG Whitaker) determines that any action by Mueller is “so inappropriate or unwarranted under established DOJ practices…” he can only report that to Congress. The Regulation does not say that the AG / DOJ can “stop” the conduct of the Special Counsel, but rather that DOJ can only tell Congress about it.  And Congress can only make it public and can do little else and cannot stop the conduct either. Therefore, the media is repeatedly and critically misinformed about the law. 

It is also notable the Mueller has been able to determine — in his sole discretion — what information has been and should be conveyed to DOJ about the investigation. Therefore, Whitaker, upon reading the file, may know very little about the details of the facts uncovered thus far. This makes perfect sense: if DOJ cannot supervise “day-to-day” activities and cannot stop various investigative and prosecutorial actions (short of dismissing the Special Counsel) it is consistent with the independence needed under the circumstances. Once again, there is a Special Counsel for a reason: there is an appearance of impropriety and bias if DOJ is in control of investigating its own boss. 

Section 600.7 states:

§ 600.7 Conduct and accountability.

(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.

(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).

(c) The Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice. Inquiries into such matters shall be handled through the appropriate office of the Department upon the approval of the Attorney General.

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

In the law, the word “should” has a very specific connotation: it is not a command. The word “shall” is a command. Thus, it is very notable that if the AG believes Mueller “should not” pursue something, it does not reasonably confer upon him the authority to stop it. Rather, the remedy is explicit: notify Congress if you think he’s exceeding his authority.

These provisions make clear that Mueller has not been stopped from doing anything so far. If he had been stopped or countermanded, Congress would have been notified by Acting AG Rosenstein, under Section 600.7(b), quoted above, and we would all know about it. And if Rosenstein had stopped Mueller from proceeding as to anything, and refused to report to Congress, Mueller would have gone public as to that refusal. 

As to Mueller being “fired”, the regulations states that such a step can be taken “only by the personal action of the Attorney General” (therefore the president cannot do it). And he can only be removed (“fired”) for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies”.

Therefore, Mueller is very likely here to stay, free to act appropriately, within his authority, and will continue to indict, arrest, charge or enlist the cooperation of anyone, as necessary, to find the truth and conclude his critically important work.