It’s Time to Reform the Special-Counsel Rules—Again

Robert Mueller and James Comey went about their job in fundamentally different ways. Neither fared well.

In the past three years, we have had two special-counsel investigations of alleged misconduct in the executive branch, and neither came to a widely accepted and lauded outcome. Robert Mueller was a formally appointed special counsel in the Russia matter; Jim Comey assumed the functional equivalent of the role in investigating and making a prosecutorial judgment in the case of Hillary Clinton’s email. Both came to their tasks highly celebrated for their independence and professional integrity. They were each believed to be especially well equipped by background and temperament to manage and resolve the most politically sensitive of assignments. By the time they had concluded their work, both came in for heavy criticism. Enchantment gave way to disillusionment.

And yet, while the results in each case left a bitter taste, Comey and Mueller went about their job in strikingly and fundamentally different ways. This suggests that, whatever may have been their missteps, blame may fall as much—or more—on the role of special counsel as it is currently structured. Despite trying multiple models, we have not gotten it quite right, dooming us to disappointment.

Consider first the differences between the Mueller and Comey cases.

Mueller was admired for being the consummate law-enforcement professional who played it by the book. Comey subscribed to a very personal moral code that required him to bend the rules, or disregard them, when required to do the right thing. In an open, swashbuckling manner alien to Mueller, Comey directly, unabashedly bypassed officials higher in the reporting chain in order to do what he thought necessary to protect public confidence in the Department of Justice. Comey also chose to make specific commitments to Congress to testify about his conclusions and to keep it apprised of case developments if any occurred. Mueller made it clear that he would prefer not to testify at all about his Russia report. If he did, he stated quite clearly, he would not depart from the text of the written, publicly released version.

Of course, Mueller was operating within specific rules for the conduct of special-counsel investigations. But Comey was hardly free of legal obligations, ethical injunctions, or the pressure of well-recognized and established norms. His choice to give the attorney general only short notice, without details, of his plan to make a public announcement of his conclusions in July 2016 did not comport with his responsibilities as director of the FBI to observe the Department of Justice’s chain of command. The department’s inspector general later found that Comey’s action was “extraordinary and insubordinate.” Comey sees his actions differently: In his book, A Higher Loyalty, he defends his “crazy idea of personally offering the American people unusual transparency, and doing it without the leadership of the Department of Justice.” The contrast with Mueller could not be starker: Mueller does not do “crazy ideas.”

Nor, in his role as de facto prosecutor, did Comey’s comments about Clinton’s carelessness in managing the security of her email systems satisfy ethical or department-policy prohibitions on commenting on the conduct of a subject or target who is not charged with a crime. The IG dismissed Comey’s justification as neither “reasonable” nor “persuasive,” but instead found that he had violated “long-standing Department and protocol.” The decision to notify Congress of the additional emails found on the Anthony Weiner laptop days before the election—a decision made in the face of the express objections of the attorney general—presented the same issues of a prosecutor marching to the beat of his own internal moral drummer.

Comey has written an entire book to justify his adherence to a higher moral calling. He explained that, because he did not “trust that the system would work,” he would have to bear special, personal, ethical responsibility to do what was right. No one would expect that sort of claim from Mueller, who has long been seen to represent what was best about the “system.”

Mueller, for his part, has been criticized for the passages in his final report that decline to “exonerate” the president, which his critics have seen as little different from Comey’s commentary about Clinton’s conduct. But there is a clear difference between the two cases. Mueller’s comments on the limits of his charge arose from a legal source that introduced, as far as he was concerned, serious complications into his legal assessment of the president’s conduct.

Mueller read Office of Legal Counsel opinions on presidential immunities to disallow a prosecutorial judgment as well as a prosecution, and after laying out the evidence of Trump’s obstructive actions, he decided to stress that nothing in his failure to reach a conclusion constituted an exoneration. It may have been an awkward move, but it remained within the realm of legal presentation—a fair distance from any Comey-like statement such as, “While I cannot find that the president committed a crime, his actions were reckless, inconsistent with the norms governing the relationship between his office and the Department of Justice and reflected poorly on his judgment.”

Mueller was averse to leaks, or to any public comment whatsoever, and when he did speak publicly about his report, it was largely with the aim of emphasizing that he would speak no more. Mueller seems likely to remain silent. Comey has gone on speaking tours, has tweeted his views about the administration, and has written a book and periodic opinion pieces for editorial pages. (And, of course, he had more to discuss by the time he left office: His conflict with President Donald Trump. Even there, Comey chose to take matters into his own hands, and, once gone from the administration, he leaked memos he’d prepared as FBI director to induce the appointment of a special counsel.)

But despite these very different approaches, by the time Comey wrapped up the Clinton investigation and Mueller signed off on his report on Russian electoral interference and presidential obstruction, they ended up at much the same place: targets of immense frustration. Comey was maligned by Democrats for inflicting political injury on Clinton, then by Republicans for what they saw as his pursuit of a lawless, underhanded vendetta against Trump; in both cases, the criticism was largely that, for reasons of misguided ethical zeal or unbounded vanity, he had ignored legal limits and crashed through norms.

Mueller’s sin was often described in very much the opposite way: as the pulling of his punches, reflected in the confusing, half-in and half-out analysis of possible obstruction of justice. The New York Times editors who had praised him as “one of the few people with the experience, stature and reputation to see the job through” when he was appointed suggested this week that “as the foremost expert on the president’s questionable doings, with expertise earned on the taxpayer’s dime,” he had proved too fearful that he would “endanger [his] own image by expressing a forthright view of those doings, even if the future of the Republic might be at stake.”

Neither the moral crusader nor the straight arrow has fared well, then, in the most recent tests of our processes for investigating high-level executive-branch wrongdoing. Of course, much of the criticism of process and performance follows closely, if it doesn’t conform exactly, to the critics’ preferred outcomes. We see this now in Democrats’ attempt to read into Mueller’s public statement a “code” for what he meant to convey to the public (Trump committed crimes) and to Congress (initiate impeachment proceedings). Republicans reject decoding and go with a crude misrepresentation of the written report: “no obstruction.” The Democrats who cheered Comey’s “crazy idea” in July 2016 thought that in October of that year, he went simply crazy, and by this no compliment was intended. Republicans embraced him on reading his first letter to Congress in October 2016, and returned to reviling him, only days later, on reading his second.

So what is to be made of our unhappy experience with these kinds of investigations?

Since Watergate, three modes of independent or special inquiry into presidential or senior-executive misconduct have produced frustration: an independent counsel, such as Ken Starr, who operates in part outside the regular system, answering in key respects to the judiciary and not to the attorney general; a senior official, such as Comey, who takes on a heroic responsibility for the failings of a flawed system; and a special counsel, such as Mueller, who works within regulations that restrict his independence of action, bind him to departmental policies and rules, and make no provision for direct communications with the public or Congress.

It is time to turn again to the question of how to structure this role to improve the prospects that it can be successfully discharged. It is not easy, especially given the inevitable politics that drive perceptions of success or failure.

But there are large questions to which we have yet to find satisfactory answers. How should a counsel be chosen, her mandate defined, and her work supervised? How should investigative independence best be balanced against mechanisms of accountability? How can the rule of law be vindicated while the public is also provided answers to legitimate issues of fitness that lie at the boundaries between legal rules and vital norms? How can Congress be fully informed of issues within its constitutional prerogative to further investigate and, as necessary, bring to a judgment on impeachment? How are individual legal and privacy rights respected without materially undermining the transparency to which the general public is entitled?

Back to the drawing board.