Keeping but Reforming Special Counsel Rules: A Reply to Jack Goldsmith

In writing “After Trump,” our book about institutional reform of the presidency, Jack Goldsmith and I achieved extensive areas of agreement on the sources of major problems and the potential direction of reforms. There was one exception, which we reviewed in the book: how to manage the dangers presented by one administration’s investigation and prosecution of its predecessor’s alleged crimes. Goldsmith urged caution in light of the precedent these kinds of prosecutions might set and the dangers they might unleash; while recognizing the force of these concerns, I gave them less weight in any administration’s decision to bring cases otherwise strong on their legal merits.

Now another disagreement has surfaced, based on the different ways we read the experience with the appointment of special counsels, a topic to which we devoted a full chapter in the book.

The End of Special Counsels?

Goldsmith now argues that the regulations promulgated for the appointment of special counsels have proved unworkable, falling far short of the expressed goals set for them. So, he recommends doing away with them altogether: “It is time to kill the special counsel institution.” 

In our book, we identified a number of the problems that now rightly concern Goldsmith: the incentives for over-investigation, including the availability of virtually inexhaustible resources; and the demonstrated risk that the special counsel’s final and public report frequently exacerbates existing political divisions, with little agreement about the independence of the inquiry or fairness of the outcome. Adding to that second problem is a public reporting practice that often involves undue commentary on individuals not ultimately charged. Goldsmith notes that while the current regulations confer on the attorney general a degree of supervisory authority (ultimate authority, but not “day-to-day”), the special counsel holds “the real power,” and attorneys general are under enormous pressure to step back and apply light, if any, supervision. Attorneys general fear that “[c]hecking special counsels’ excesses or failing to publish their reports invariably seems like political meddling or cover-up.”

In Goldsmith’s view, all these incentives and disincentives operate to provide special counsels, like the independent counsels before them, with the freest of hands, and that freedom is all too often exercised to conduct inevitably controversial investigations. The result is the very politicization that the appointment of special counsels was intended to mitigate or avoid in the first place. For that reason, Goldsmith concludes, the experiment should end, and the attorney general should have full responsibility for investigations of high-level executive branch officials, including the president and vice president. The attorney general should simply have to “own” the responsibility for them. (Goldsmith applies these considerations to current circumstances, such as the Jan. 6 and classified document prosecutions being conducted by Special Counsel Jack Smith, about which I will not comment.) 

Without getting into tricky reflections, at least at this time, on my own experience with special counsels, I part ways with Goldsmith, less on the question of whether there are serious problems with special counsel investigations, and more on the conclusion about what to do about them. To my mind, there is a case for the reform of the existing regulations, which might help somewhat with the undeniable defects that Goldsmith identifies. That’s one advantage of experience: The rules when drawn have to be reconsidered and revised in light of how things have so far worked out. At some point, if the intended improvements have little effect, or worse, then the project may have to be abandoned. It is not clear, however, that we have reached that point, or that Goldsmith’s way forward—doing away with the special counsel altogether—offers a future better than the potential benefits of one more run at reformed rules. 

Reforms Proposed in “After Trump”

The reform proposal we offered in “After Trump” drives in somewhat the direction Goldsmith favors, by enhancing the special counsel’s authority in some respects, but significantly expanding the attorney general’s in others. In our book, we proposed that the trigger for the appointment of special counsel be tightened, so that an appointment would be warranted only on the basis of credible information or allegations. It would not be enough for the attorney general to declare broadly that a “conflict of interest or other extraordinary circumstances” established a “public interest” in such an appointment. 

Right now, the regulations deny the attorney general day-to-day supervision of the special counsel’s work, and while 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,” the attorney general must in judging the matter “give great weight to the views of the Special Counsel.” Our proposed reform would provide for regular supervision and would specifically authorize the attorney general to request periodic updates from the special counsel on the progress of his work. We also specifically called for the attorney general to have the right to require the special counsel to seek an Office of Legal Counsel opinion on a key issue of law—and for the attorney general to have the clearly specified final say on the resolution of that issue. As under the current rules, any attorney general’s intervention in the investigation at various points in the process would be subject to congressional notification, mostly at the conclusion of the inquiry, but the supervision the attorney general would exercise would be broadened and spelled out in clearer terms. 

Most important, we argued for clarity on two key points. The final decision on prosecution or declination would be the attorney general’s, and no question about it—regardless of the special counsel’s view. At the same time, the special counsel would be protected in his fact-finding function. We noted that “the ‘cover-up’ most feared in these cases involves the concealment of facts by those politically close to the president,” and that “[t]he special counsel has a unique role in protecting against those concerns.” We proposed that the special counsel be authorized to make the pertinent facts public, provided that he sticks to the facts: neither using the fact finding to challenge the attorney general’s legal conclusions nor circumventing department policy and rules aimed at preventing the derogation of uncharged parties. 

Taken together, the current rules’ prohibition of day-to-day supervision, the absence of a clear allocation of authority between the attorney general and the special counsel, and the congressional reporting requirements have naturally fed the impression that the attorney general should keep his hands completely off. Our proposed reforms, or similar ones, would align with the very point of the special counsel regulations to remove these kinds of appointments and supervisory authority from the courts and return the ultimate decision-making authority where it belongs: to the attorney general. He is the accountable government official, and the rules should recognize it.

The special counsel rules as now written have left the attorney general nominally but not, as a practical and political matter, in charge. They have created an expectation that the attorney general rubber stamp the special counsel’s choices or, as Goldsmith notes, stand accused of “political meddling.” Reversing this presumption, we proposed the coupling of this clear allocation of authority with accountability measures, in the form of additional reporting to Congress:

• If the attorney general is confronted with allegations of misconduct by a senior executive branch official but concludes that a criminal investigation is not warranted and a special counsel need not be appointed.
• If the attorney general rejects a request by the special counsel for additional jurisdiction, with reporting delayed as necessary to avoid compromising the inquiry.
• If the attorney general determines before the beginning of a fiscal year that an ongoing special counsel investigation should not continue.
• If the attorney general and the special counsel disagree on a question of law, including any such question that the attorney general directed the special counsel to refer to the Office of Legal Counsel, with the reporting due at the conclusion of the investigation.
  

But, unlike the current rules, the attorney general, not the special counsel, would hold the “real power.” 

Critiquing the Case Against Reform

Goldsmith has concluded that neither these, nor presumably any, reforms will significantly improve the institution of the special counsel—not enough to justify holding on to it. Politics will still triumph. Special counsels will still overreach, and even when they do their best, their choices will draw fire from partisans. Attorneys general will continue to keep their heads down. 

But throwing in the towel at this point seems premature if, as I believe to be the case, there is still value in these rules as an option for presidents and their attorneys general—and in public pressure on them to consider the choice of a special counsel appointment and to have to explain why they declined to pursue it. And this is not just for the basic reasons most often given for these rules—to prevent an administration from protecting its own. It is additional protection against a president’s designs to use federal law enforcement to hound political adversaries. 

Clarity About Roles

A fundamental problem with the special counsel regulations has been the failure for those ultimately responsible to stand behind the correct reading of their intent. The press plays no small part in the misunderstanding that the special counsel is somehow independent, and that the attorney general’s obligation is to get out of the way. For this reason, former Attorney General William Barr’s actions at the conclusion of the Mueller investigation prompted an uproar. He chose to decide one issue—obstruction—which Mueller had declined to resolve, and he jumped ahead of public release of the report with a memorandum to Congress and then a press conference plainly intended to put the spin on it that he hoped would stick in the public mind and color press coverage.

The Barr episode did indeed expose an attorney general engaged in dodgy actions that reflected his fundamental disagreement from the very beginning with the appointment of Mueller and the legal theories behind his investigation. But this is largely because Barr was half in and half out: feeling compelled to meet expectations about the independence of Mueller, including the public release of his final report with minimal redactions, while also looking for points of entry into the process to advance his own agenda. So Barr’s maneuvers did not resemble supervision but, instead, looked all the world like politics: not regular order under the rules but a way around them. 

A problem like the one caused by Barr would be mitigated to some degree if, as we proposed, the rules reallocated and clarified the authorities under the rules and attorneys general affirmed their commitment to them. It should be clear from the beginning where the responsibility for supervision and the final decision-making authority lies. The attorney general would have to “own” the outcome. While, as noted, the special counsel would have the authority to find the facts, the attorney general would have ultimate responsibility for the investigation, including the final decision on whether charges are brought.

Is it better if, as Goldsmith argues should be the case, the attorney general has no special counsel in the way and can do as she wishes? It is not clear why the absence of any checks is superior to a few that are reasonably well designed and might at least be tried. As Goldsmith and I wrote, no solution is perfect; trade-offs are inevitable. Special procedures for special cases—the investigation of high-ranking officials—seem appropriate. 

It is also not clear why one would conclude that further revision is pointless, the rules having somehow clearly run their course. It required two decades of intensive experience with independent counsels, spanning 20 such appointments, for the judgment to solidify across parties that that mechanism was flawed at the core. There have been only a handful of special counsel appointments since the regulations were promulgated. (For reasons not critical to the reform issues discussed here, the appointments of “special counsels” have been made pursuant to Sections 509, 510, 515, and 533 of Title 28 of the U.S. Code, which involve the attorney general’s authority to appoint a Justice Department officer, “or any attorney specially appointed,” to “conduct any kind of legal proceeding, civil or criminal” that U.S. attorneys are authorized to conduct. Those appointments have included language stating that the special counsel regulations are “applicable.”) So we have had few such appointments over time and not the clearest possible statements of the governing authority. There is ample room for revised rules, clearer in the critical respects and forthrightly applied. 

So, a strong case can therefore be made that there is still room, and time, for improvement. 

The Attorney General and Only the Attorney General

Goldsmith has concluded that we should live with an attorney general who will make the decisions and own up to them entirely. This perspective has the undeniable virtue of directness and simplicity. And, if we accept that other institutions will play some role in checking attorney general excess, then, perhaps, all should be in reasonably workable order. The attorney general makes decisions and is held accountable for them—by the press, Congress, and the public.

But there are evident weaknesses that put in question any hopes for these checks. In the context of a polarized political system, public accountability is an iffy business. Those inclined to support the administration in power will credit the attorney general with good faith; those on the other side, particularly in an investigation of one of their own, will believe the opposite. The press has become polarized along the same axis. And expectations of Congress are, prudently, modest.

A fair question, in Goldsmith’s favor, is whether attempting to bind the attorney general with reform rules would make any difference. And the answer to that is that the more complications put in the attorney general’s path—the more constraints she must consider in her decision-making—the better off we may be. In any case that appears to call for it, the question can and should be: If the threshold requirements for an appointment under the rules appear to have been satisfied, why would the attorney general not make it? The attorney general has to provide an explanation to the public and to Congress. If she does choose to appoint a special counsel, she has to explain the choice that she made and thereafter the way in which she sees to the appropriate implementation of the rules. All of this may make no difference. But it is hard to see that we would prefer a world in which the attorney general is relieved of the need to make these choices or these explanations—to escape pressure on either count.

An attorney general, and behind her the president, may gladly blow past all these choices and, acting in bad faith, wreck the appropriate application of the rules. There’s really no answer in the end to a bad-faith government. The most we can hope for is that the bad faith is clearly exposed, and the establishment and implementation of rules like these—and the responsibility of the attorney general to explain whether she will invoke them, and if so, how she is exercising supervisory authority—is geared toward enhancing that exposure. It may help; it may not. 

The alternative is unnerving. We will have opted for no special rules for special cases, and so less accountability for an attorney general who, relieved of the requirement of applying special rules, does precisely as she pleases. Because that’s all that she’s required to do.

Bad Faith 

In “After Trump,” we noted that a basic concern of the rules is to prevent a bad-faith president from wiring the law enforcement process to protect senior executive branch officials, including the president. That remains a core concern. However, we know from recent years that there’s an additional one that ought to enter into the debate: Presidents might wire that process for purposes of harassing and prosecuting their political adversaries.

The harm of extreme bad faith is one that no law or reform can answer in fool-proof fashion. But in those cases, the questions that we would want to raise about an attorney general’s refusal to invoke a special counsel process acquire special urgency. The choice to invoke—or not—helps shine a light on motive. And while we should be concerned with illicit motives in any direction, defensive or offensive—to thwart an investigation of an administration’s allies or launch one against its adversaries—the concern in the latter case has grown more pressing in recent years. An end to the special counsel rules means the removal of one source of pressure on an administration to explain why an inquiry directed against a political opponent was not brought within rules intended to reduce the risk of political direction or influence.

And the attorney general who refuses in this circumstance to invoke those rules would be acting against the unbroken practice of prior administrations, both Democratic and Republican. The Nixon administration felt compelled to appoint a special prosecutor in the Watergate scandal (and after Nixon directed the dismissal of one, the backlash forced the appointment of another). Trump railed endlessly against Mueller, who nonetheless survived all the vitriol and finished the job. 

Of course, we might well imagine a second-term Trump, or another president cut from the same cloth, who would spit this history in the eye. Or an attorney general could always appoint a special counsel to investigate political adversaries and still exercise authority under reformed rules to interfere with the investigation. What we should be seeking, however, is a baseline of responsible behavior against which the officials’ conduct can be measured. Without that baseline, the debate is murkier, less shaped by some normative standards to which appeal can be made. 

Only so much time is usefully devoted to counterfactuals, but it is fair to ask whether the incoming Biden administration would have done better to have dispensed with a special counsel in investigating criminal activity relating to or on Jan. 6. Many might have been prepared to put their faith in the current attorney general, nominated and confirmed to this post from a position as a distinguished and well-regarded judge. Others would have assumed that he answered to the president, and if they trusted him, they would not to the same degree or at all trust his boss. And it would have been striking for the investigation to have unfolded in this fashion when over so many decades the appointment of a special or independent counsel in these circumstances was the choice that Democratic and Republican administrations have made.

***

The problems that the special counsel rules were formulated to address are hard. It is not surprising that they have not worked as hoped, and perhaps Goldsmith is right that they never could. But it is too early to reach that conclusion. Much of what we offered in “After Trump,” and no doubt other proposals for reform of the rules, could make a difference and are worth a try. 

But, of course, the reforms have to be explained in clear terms, and those responsible for their success have to be steadfast in their commitment to the faithful implementation of the rules, fending off political pressures and enforcing Department of Justice policies that, even in these exceptional circumstances, still apply.