Editor’s Note: Michael Zeldin, a CNN legal analyst, has served as a federal prosecutor in the Criminal Division of the US Department of Justice and was a special counsel to then-Assistant Attorney General Robert Mueller. The opinions expressed in this commentary are his own. View more opinion at CNN.
As we wait for Attorney General William Barr to release a redacted version of Special Counsel Robert Mueller’s confidential report on his investigation into Russian interference in the 2016 Presidential election, it’s worth asking: how did we arrive at this moment? Why, unlike the reports of previous independent counsels, is Mueller’s unredacted report not being provided to Congress or the American people?
And, now that we are facing the inevitable fight that will ensue between Congress and the Department of Justice for full access to Mueller’s report, how can we avoid a similar situation in the future?
My answer: It is time to bring back the Independent Counsel statute.
How we got here
In 1978, as part of the post-Watergate reform package known as the Ethics in Government Act, Congress passed the Independent Counsel Act. The statute was intended to remove the inherent conflict of interest that could arise when the Justice Department was investigating the President and other top Executive Branch officials.
In June 1999, Congress, in response to Independent Counsel Ken Starr’s detailed, and what some considered unnecessarily salacious, report to the House Judiciary Committee of his investigation into President Clinton’s relationship with Monica Lewinsky, allowed the law to expire. In its place, the Justice Department drafted Special Counsel regulations. These are the rules that govern Special Counsel Robert Mueller.
The regulations were intended to provide a sensible solution to the perceived problems of the Independent Counsel’s obligation to file a final public report. Specifically, there was a concern that public reporting both could provide an incentive for the Independent Counsel to over-investigate matters and could potentially harm the privacy interests of individuals who were not charged with criminal wrongdoing.
While this approach may have seemed sensible at the time, it has created the current predicament relating to the report’s release. This is because there is nothing in the Special Counsel regulations that requires Mueller’s unredacted report to be submitted to Congress or released to the American public.
Attorney General Barr confirmed this when asked during Tuesday’s House Appropriations Committee hearing whether he would release the entire, unredacted Mueller report to Congress. He replied that he lacked the legal authority to do so, saying, “You will recognize that I’m operating under a regulation that was put together during the Clinton administration and does not provide for the publication of the report.”
Where do we need to go?
With no regulatory mechanism that authorizes the release of the full report and with a separation of powers fight brewing, the time is right to bring back the Independent Counsel statute. This law addressed many problems revealed by the current Special Counsel regulations, including:
1. The Independent Counsel law provided a mechanism to release the Independent Counsel’s report.
Under the Independent Counsel law, the final report was provided to the Court. The Court had the power to release the full report or any portions of the report to the public.
By contrast, the Special Counsel regulations provide a very limited reporting mechanism, and leave the decision whether to release any portion of the final report within the sole discretion of the Attorney General.
2. The Independent Counsel statute created a role for Congressional oversight.
Under the Independent Counsel law, Congress was granted oversight jurisdiction of the Independent Counsel.
The Special Counsel regulations do not provide any Congressional oversight of the Independent Counsel investigating the President for potential criminal wrongdoing or for abuse of office considerations.
3. The law established a mechanism to transmit evidence worthy of an impeachment inquiry.
Under the Independent Counsel law, the Independent Counsel was required to advise the House of Representatives of any substantial and credible evidence that may constitute grounds for an impeachment.
The Special Counsel regulations do not have a specific provision under which the Special Counsel transmits to the House of Representatives any evidence that might provide a sufficient basis for initiating an impeachment inquiry.
4. The statute provided a way for people named in the final report to respond.
Under the Independent Counsel law, the court could permit individuals named in the final report to see portions of the report so that they could submit comments or clarify factual information. The comments could be included in an appendix to the report, at the court’s discretion. This provided a way for individuals to address any concerns about harm to one’s reputation in a meaningful way.
The Special Counsel regulations do not provide a way for individuals mentioned in the Special Counsel’s final report to respond to the Special Counsel’s findings or conclusions.
5. The Independent Counsel law provided a means for subjects of the investigation who are not charged with a crime to be reimbursed for reasonable attorney’s fees.
Under the Independent Counsel law, uncharged subjects of the investigation could request that the court award reasonable attorney’s fees.
Under the Special Counsel regulations, uncharged subjects of the Special Counsel’s investigation bear the financial burden of their own defense.
6. The Independent Counsel statute ensured that only the Attorney General could remove an independent counsel and only for good cause.
Under the Independent Counsel law, only the Attorney General could fire an Independent Counsel and, then, only for cause shown. Because the law was enacted by Congress, the President could not change the law unilaterally.
Under the Special Counsel regulations, only the Attorney General can remove a Special Counsel for good cause shown. But, because the Special Counsel regulations are executive branch regulations, the President can rescind or modify them unilaterally, thereby allowing him to fire the Independent Counsel at will.
7. The Independent Counsel statute allowed a fired independent counsel to obtain judicial review.
Under the Independent Counsel law, an Independent Counsel who was removed from office could obtain judicial review by the court to determine if his/her removal was improper.
The regulations do not provide a mechanism for a fired Special Counsel to contest his/her dismissal.
8. The statute assured that the Independent Counsel had full power and independent authority.
The Independent Counsel law vested the Independent Counsel with much greater authority and discretion. Under the statute, the Independent Counsel was provided with full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice.
At the same time, the law encouraged the Independent Counsel to confer with and adhere to Justice Department practices, whenever possible.
The Special Counsel regulations provide the Justice Department with significant oversight of the Special Counsel. Under the regulations, the Attorney General can ask the Special Counsel to provide an explanation for any investigative or prosecutorial step and, after review, the Attorney General can conclude that an action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued by the Special Counsel.
While the Independent Counsel law was imperfectly applied in some cases (and the current Special Counsel regulations were a good faith attempt to address those imperfections), the Independent Counsel statute seems a whole lot better than what we have today.
Using the old Independent Counsel law as a guide, Congress should remedy this problem by passing a new Independent Counsel statute.