David Sklansky on Robert Mueller Appointment as DOJ Russia Investigation Special Counsel

It was announced this week that Robert S. Mueller III, the former F.B.I. director, will oversee the Justice Department’s investigation into alleged Russian interference in the 2016 election. In this Q&A, Professor David Sklansky discusses the role of the special counsel, Mueller’s qualifications, how the various investigations might converge, and more.

David Alan Sklansky
Professor David Alan Sklansky

Can you describe some of the responsibilities Robert Mueller might have in his new role as a special counsel overseeing the Justice Department’s investigation into allegations of Russian interference in the 2016 Presidential election?

He’ll organize and supervise—and probably also recruit—the prosecutors and the agents working on the investigation. He’ll decide how the investigation should proceed, what tactics it will pursue, and what leads it follows, whether and when to call witnesses before a grand jury, and whether and when to seek criminal charges. If criminal charges wind up being filed, he will also supervise the prosecution of those cases. The order appointing Mueller authorizes him to conduct the investigation into any links or cooperation between the Russian government and individuals associated with the Trump campaign. He also has jurisdiction to investigate any matters arising from that investigation—including any evidence that efforts are being made to obstruct the investigation.

How independent is a DOJ special counsel?

The idea of appointing a special counsel is to provide for an investigation that is insulated from political pressure, but the special counsel is not fully independent. He works for the Department of Justice. Deputy Attorney General Rod Rosenstein, who appointed him, can fire him. (Rosenstein is acting in lieu of the Attorney General, who, at least formally, has recused himself from this matter.) Department of Justice regulations provide that a special counsel “shall not be subject to the day-to-day supervision of any official of the Department,” but Rosenstein can ask him to explain any action that Mueller takes, and Rosenstein can reverse any actions by Mueller that he thinks are “inappropriate or unwarranted.”

What qualifies Mueller for this role?

A lot. He was the Acting United States Attorney for the District of Massachusetts under President Reagan, the United States Attorney for the Northern District of California under the first President Bush and then under President Clinton, the Deputy Attorney General under the second President Bush, and the Director of the FBI under the second President Bush and President Obama. He is well regarded by federal law enforcement officials and by political leaders across the political spectrum. He has a reputation for intelligence, effectiveness, and integrity.

How does this differ from an independent investigation? And might this lead to one?

Mueller’s investigation is supervised by the Department of Justice, and it is focused on criminal violations. (He can initiate civil or administrative actions if he winds up thinking they are appropriate—but only if Rosenstein authorizes those steps.) An independent investigation would be an investigation run by an independent commission, like the 9/11 Commission, and would not limit its focus to potential criminal activity; it could investigate all facets of Russian involvement in the election. And it would be truly independent. So an independent commission could complement the work done by the special counsel. The two investigations could operate in parallel, much as the congressional investigations of Watergate proceeded in parallel to the criminal investigations conducted by the special prosecutors appointed by the Department of Justice, Archibald Cox and then—after the “Saturday Night massacre” —Leon Jaworski. And we may well wind up with something like that, because calls for an independent investigation have continued even after Mueller’s appointment.

How will Mueller’s work—or an independent investigation—relate to the investigations currently underway in the House and the Senate? And might some or all of these investigations converge?

It’s possible that an independent investigation might wind up collaborating with or absorbing some of the work currently being undertaken by the House and Senate investigators, because those investigations, too, are purely exercises in fact finding, not efforts to prepare for and assess the appropriateness of possible criminal prosecutions. But Mueller’s investigation will likely remain separate, precisely because of its focus on possible criminal violations, and because Mueller can bring criminal charges—unlike the congressional investigators or any independent commission that winds up being created.

David Alan Sklansky is Stanley Morrison Professor of Law at Stanford Law School and a former federal prosecutor.