The Lawfare Podcast: What Should We Do About Special Counsels?

[Audio Excerpt]

Chuck Rosenberg

Everyone seems to have wanted Rob to pull punches. And I think that's the wrong thing to ask Rob to do. He must make a prosecutive judgment. He must give his rationale. You may like his characterization of Mr. Biden. You may dislike his characterization of Mr. Biden. But what we like and dislike don't matter. This is what prosecutors do all the time. And if you want to blame anyone for releasing the report, blame Merrick Garland. By the way, I'm completely biased because Rob is a friend of mine, and I admire him and like him and I trust him, his judgement, and I respect him, and I think he's a man of integrity. It doesn't mean he got everything right, but I don't think he's a partisan hack and I don't think he had an axe to grind, and I don't think he was hunting for Mr. Biden's political scalp. I think he was in an impossible situation, and this is the result of a flawed set of regulations.

[Main Podcast]

Matt Gluck

I'm Matt Gluck, Research Fellow at Lawfare, and this is the Lawfare Podcast, March 26, 2024. In February, Special Counsel Robert Hur released a report declining to prosecute President Biden for his handling of classified material. Earlier this month, Hur testified before the House Judiciary Committee answering questions from irritated members on both sides of the aisle who were critical of Hur's work. Hur's report and its fallout have reignited long simmering questions about the usefulness of the Special Counsel as an institution. I sat down with an all-star crew of Lawfare regulars, Lawfare Editor-in-Chief Benjamin Wittes, Lawfare Co-Founder and Harvard Law School Professor Jack Goldsmith, Lawfare Senior Editor Quinta Jurecic, and Lawfare Contributing Editor and former career federal prosecutor Chuck Rosenberg to break it all down We discussed the history of the special counsel institution and its predecessors, its current flaws, and how it should change.

It's the Lawfare Podcast, March 26^th: What Should We Do About Special Counsels?

Quinta, not that there's ever a bad time to discuss the institution of the special counsel, but why is this an especially good moment to do so? Who is Robert Hur, and what did he do last week?

Quinta Jurecic

So, Special Counsel Robert Hur was appointed by Attorney General Merrick Garland in January of 2023 to investigate classified material that was found and identified by President Biden's staff at the president's private residence and at the Penn Biden Center on the grounds that it is difficult for the attorney general to credibly investigate a person who is after all his own boss. Hur has been conducting this investigation, came out with a report in February that essentially said his office had decided that a prosecution was not merited of President Biden. But nevertheless, I think it's fair to say the report was pretty critical of the president's handling of classified material during the period after he was President Obama's vice president and before he came into office again as the president.

The report caused a bit of a fear nonetheless, thanks to some, harsh might be too strong, but pointed, let's say, language about President Biden's memory, suggesting, and I don't have the language right in front of me, but essentially that one of the reasons Hur’s team reached a declination decision was because they felt that Biden would be successful in presenting himself to a jury as an elderly man with a poor memory. That's, I believe, a quote. This came to a head again in recent days. Hur testified before the House Judiciary Committee last week over his report. And along with that testimony came the release of a transcript of the interview that the special counsel's office conducted with President Biden. And so for the first time where we'd had this quite extensive report, you can also read the transcript of the interview of President Biden and gauge whether or not you felt that Hur was presenting what took place accurately in that conversation.

Matt Gluck

And we'll get back to Robert Hur later, but our focus in this conversation will be broader on the special counsel. So Chuck, what is a special counsel and what was its previous iteration?

Chuck Rosenberg

Well, the earlier incarnation was an independent council. You might think of Ken Starr as one example. That statute expired in 1999. There was a bipartisan notion that you needed something to take its place. It is always difficult for the Department of Justice to investigate high ranking officials, particularly if they're looking at the attorney general or the vice president or the president of the United States. All those things have happened, by the way. People who've held all three of those jobs have been investigated. And so the idea was that if you can't have an independent counsel, you need some other mechanism. And the department promulgated regulations in 1999, creating a special counsel, less independent than the independent counsel, but nevertheless, according to the regulations, independent in the following way. His or her day-to-day operations were beyond the purview of the attorney general. And he or she had to write a report as, Rob Hur did, making a prosecutive judgment, a confidential report, which would go to the attorney general. The attorney general did have the final prosecutorial judgment and could release or not release the report as they saw fit. But just as the independent counsel statute didn't seem to work, the special counsel regulations don't seem to be working either.

Matt Gluck

Okay, and we'll get into whether the institution of the special counsel is still useful or not. Ben, as far as I know, you're the only one here who has written a book devoted to this institution and one independent counsel in particular, Ken Starr. So could you describe your thesis in that book and how your vision of the role of the independent counsel differed from Ken Starr's?

Benjamin Wittes

Yeah, so before I talk about Ken and my book, I think it's actually worth mentioning that there was an iteration of this institution that predated the independent counsel law. And that was the institution of the special prosecutor, which was typified by Archibald Cox and Leon Jaworski, who investigated together, or, sequentially investigated, the Watergate matter. And the independent counsel law that Chuck refers to was an attempt to enshrine the work of the Watergate special counsel force--independent special prosecutor force--in statute, and it itself went through three different iterations as the statute expired and would get renewed. And the institution changed over the years in response to public dissatisfaction with the way it was performing.

And so I think it's worth starting with the premise that everybody, the political system loved the special prosecutor regime in one case, which is Watergate, under which two highly, highly--very specific situation, in which these two remarkable people, Archibald Cox and, and Leon Jaworski, performed this public service that they did. And the political system has been trying and failing to recreate it ever since, to have a special prosecutor regime that works like Watergate, which is to say, there's an investigation, it operates independently of a then-corrupt Justice Department, and it produces a factually rigorous set of prosecutions that holds the president ultimately through the impeachment process accountable. And it is notable that under three separate incarnations of the independent counsel law, and under the subsequent special counsel regulations, we have never managed to reproduce the public confidence that that original ad hoc arrangement produced.

So my engagement with this subject started when I, for my sins in life, had to write the Washington Post editorials about the Ken Starr investigation. And I got to know very well a lot of the people who worked for Ken, including some who have become Lawfare regulars like Paul Rosenzweig, as well as people like Brett Kavanaugh and John Bates and this group of people that was actually quite talented. And one of the things that I learned as I watched this group was that they were only in an initial, formal sense, trying to do standard criminal prosecutions of the type that prosecutors who would work for a U.S. attorney like Chuck would do. A huge amount of what they were doing was investigating in order to write a report, which is not a standard activity of a federal prosecutor. And after the investigation, I sat down for many, many hours with Ken Starr and got him to talk about the statute. And he admitted very readily that the purpose of the statute, in his point of view, was what I came to call the truth commission vision of the statute, that is, it’s more like the South African Truth and Reconciliation Commission than it is like a federal prosecutor in the normal sense.

And I came to the view that that was wrong and that we should get rid of the final report as an idea because it completely warps the way federal prosecutors actually behave when they know they're writing for a public document. Ironically, the regs sort of do that. They get rid of the public report and replace it with a report that is to the attorney general and is just supposed to be a pros memo. Except that because everybody now knows that these reports will become public, people in fact behave like the report is a public report. And so we have solved some of the problems with the old independent counsel law. But we still have this regime in which we create a special investigation largely for the purposes of writing a document, and that is not what federal prosecutors should be doing. So we've recreated some of the problems of the Starr investigation.

Matt Gluck

Jack, please correct me if I mischaracterize your argument, but I believe you argued in your “After Trump” book with Bob Bauer that special counsel should be empowered to play this role of truth teller that Ben criticizes. And we'll put aside for a second whether the special counsel institution should live at all. But could you describe that argument that you made in your book, and if I have it right, why you think it's important that special counsels can play this role of truth teller, in addition to making a prosecution or declination decision?

Jack Goldsmith

So let me say up front that as I recently wrote in the New York Times, I've somewhat changed my view about what Bob and I argued in, “After Trump.” There we argued that the special counsel regulations did not go far enough in giving the attorney general more responsibility and accountability. But, we said, there was still a role in these high-profile investigations for special counsels to, in effect, find out what the facts are, that that is, in effect, what these investigations are about, that there's been a charge of malfeasance at very high levels. And that one important job is, I think we called it the accountability function, of the special counsel was to basically collect the facts and report the facts. And we argue that the special counsel should not do so with judgment, with tendentiousness, et cetera, but merely collect the facts, sort of, Ben, correct me if I'm wrong, sort of on the model of Leon Jaworski and the document that he sent up to the House of Representatives back in the Watergate era, in which he basically, as I recall, just told--he didn't recommend impeachment. He didn't argue the facts. He just sent up a set of factual findings or factual points that he had uncovered. And it just laid out the factual record really quite remarkably neutrally to the Congress. That's kind of what we envision the minimalistic role of the special counsel would be in fact finding.

But, just to jump ahead, I no longer think that that, and Chuck has convinced me on this in part, I no longer think that that is a role that a special counsel could perform for part of the dynamics that Ben describes. Every special counsel knows this report is going to be public. Every special counsel is given this--these are all reasons that go back to the reasons why we dropped the count, the statute in the ‘90s. They just get replicated under the regulations. Special counsels know the report's going to be published. They have a special need to justify all of this work that they've done. They have unlimited resources and a focused target.

And for whatever reason, there's something about this structure that has led one special counsel of integrity after another, going back to Ken Starr and Walsh, and in my view, up through Mueller and Smith and Hur, and we can disagree on the facts, but there's this remarkable sense in which lots of special counsels end up doing things because of these strange incentives that they have that are on the edges of DOJ propriety. So the remarks that Hur put into his report and commenting on uncharged crimes and stating as he did, I believe, in his testimony that he wasn't vindicating, was that the word, or exonerating the president. Something similar to what Mueller, in my judgment, also inappropriately said in the Mueller report. There's something about the incentives created by this so-called independent regime that departs from the normal Justice Department rules that leads prosecutors of integrity to do things that tend to violate DOJ norms.

Matt Gluck

And Jack, we'll get back to some of those broader questions about the special counsel and how you changed your mind about its value generally, but before we do so, Quinta, you wrote a piece in Lawfare last week in which you argued, among other things, that while Mueller strained himself to frame his conclusions that they would appear neutral to the public, Hur seemingly didn't consider the public consequences enough when he wrote his report. So what can we learn from these two examples about the value of special counsels framing their report for public consumption, rather than just describing prosecutorial decisions?

Quinta Jurecic

When Ben describes the truth commission aspect of the Starr investigation, I think it's interesting to view that historically, because at the time, and as you argued, Ben, that seemed quite unappealing in many quarters and was arguably not the best interpretation of the statute in question. When Mueller came in under the special counsel regulations, there was a lot of hope over the course of the investigation that he would basically do exactly that. Would take this portion of the regulations, which in fact, as we've said, provides for a confidential report to the attorney general and would use that to tell the story of what happened with Trump and Russia, and then Trump's obstruction into that investigation.

And as you say, that ended up having all kinds of weird consequences. Politically speaking, because it was a report that was not mandated to be released, you ended up with this strange situation where, if listeners recall, Mueller provided the report to Attorney General Bill Barr. Barr then released a letter that he insisted was not a summary, but was, I think it's fair to say, essentially a summary that then proved to be extremely misleading and soft-peddled a lot of Mueller's more negative conclusions about Trump's conduct. And then the report itself was released later. And as we've said, there are a lot of strangenesses. And some of this also has to do with the internal, the Justice Department OLC memo prohibiting prosecution of a sitting president, which I think is a whole other part of the problem, which we should shelve for the moment and maybe come back to later.

But because Mueller has basically said, I can't prosecute this guy. He's the president. He doesn't say that straight up, but he dances around it. He ends up with language that is straining to be neutral, while also communicating his conclusion that, I would argue, crimes were arguably committed. And that's odd. And it's odd in particular, and this was argued at the time, that normally if you make a decision to prosecute someone, they will, so the theory goes, have their day in court, they'll be able to respond to your allegations. It's not one-sided. But in this case, because no prosecution was being brought, you just have this strange situation where Mueller is out there saying, hey, look at all this incredibly damning evidence, but we're not bringing a prosecution. Now, you can quibble with that framework as I've set it out and say, well, maybe the president is differently situated, he has the bully pulpit, et cetera, et cetera. But that's the situation.

Then in the Hur case, it's flipped on its head. So we have a situation where Hur writes this report, submits it. There has been absolutely no indication that Attorney General Garland's office did anything to futs with the release or the wording or anything like that, despite some suggestions that I've seen on the left that perhaps he should have, which is another can of worms. And then Hur is extremely blunt. He doesn't have to get into the same gymnastics as Muller because he reaches a declination decision, but he is pretty forthright about his apparent view of the president's memory. And I'm drawing here on something on Chuck that you wrote for Lawfare, making the argument that this might be appropriate if it were a completely internal to the Justice Department, what we've been referring to as a “pros memo,” so that's a prosecution memo that you'd prepare in making the case, whether or not to bring a case. But of course everyone knew that this document was going to be released publicly. And so you can argue one way to play that is the Muller way to say, I'm going to try to be as neutral as humanly possible because I know this is going to be released publicly.

Or you could look at it another way. One way to read what Hur did here is to say, just treat it as if it's an internal document, be as harsh as you would internally, and that's another way to play it. But then you end up in this strange situation where, again, this document is released, you're declining a prosecution, so there's not going to be that back and forth, and yet you now have this very negative conclusion out there about Hur's evaluation of how the president might be able to present his memory to a jury, which thanks to some flattening by the press, has turned into Hur’s characterization of the president's memory itself.

Matt Gluck

Chuck, you argued before Merrick Garland appointed Jack Smith that he would be better off keeping the investigation and potential prosecution in house for several reasons. And then after the Hur report surfaced recently, you said Hur did a solid job and that the problematic parts of the report, like the comments on Biden's age and memory, were primarily the result of the special counsel regulations themselves and not Robert Hur, although maybe a bit on Robert Hur. So why, in your view, is the special counsel as an institution so flawed?

Chuck Rosenberg

Well, it's flawed for a bunch of reasons. But the article you refer to, Matt, my thesis was that the entire structure is corrosive to the Department of Justice, meaning that there are apparently, and I don't subscribe to this, some cases that are so hard, so sensitive, so complex with such overt political overtones that you can't trust the institution, the Department, the career men and women there to do the work. And I may be the only person left on the face of the planet who thinks that's utter nonsense. The Department of Justice does big, hard, complex, sensitive cases all the time. And so why, every now and then, do we turn a case like that over to a special counsel? So I think it corrodes the Department of Justice. I think it ignores the deep institutional knowledge and history and experience that the folks there have.

I will tell you this. I think Rob Hur and others before him, and I hope none after him, but that seems unlikely, are put in an impossible situation. He has to make a prosecutive judgment. And he has to write a confidential report. Alright, I was a prosecutor for a long time. We make the types of judgments that Rob wrote about all the time, right? We decide that a particular witness has a bad memory or is lying or keeps changing their story or wouldn't do well on cross. I mean, we make those prosecutive judgments all the time. And we talk about it and we argue about it and we tell our bosses about it. And when I was a line AUSA, I told the U.S. attorney what I thought. And when I was a U.S. attorney, the line AUSA was in my office told me what they thought. And together we made prosecutive judgments.

That's exactly what Rob Hurr did. He made a prosecutive judgment and he explained his rationale as he had to in a confidential report that he is required to write to the attorney general of the United States. And it's inconceivable to me that you would decline prosecution and not tell the attorney general precisely why.  And so we can get all wound around the axle about a sentence in his report in which he characterized Mr. Biden as an elderly man with a poor memory. By the way, those things might be exactly true. And by the way, even if they're wrong, it was Rob's judgment.

And I guess I would add one other thing to this. Yes, we know the reports are going to become public. But that's not Rob Hur's decision under the regulation. That's Merrick Garland's decision under the regulations. And so everyone seems to have wanted Rob to pull punches. And I think that's the wrong thing to ask Rob to do. He must make a prosecutive judgment. He must give his rationale. You may like his characterization of Mr. Biden, you may dislike his characterization of Mr. Biden. But what we like and dislike don't matter. This is what prosecutors do all the time, and if you want to blame anyone for releasing the report, blame Merrick Garland.

By the way, I'm completely biased because Rob is a friend of mine, and I admire him and like him, and I trust his judgment, and I respect him and I think he's a man of integrity. It doesn't mean he got everything right. But I don't think he's a partisan hack and I don't think he had an axe to grind and I don't think he was hunting for Mr. Biden's political scalp. I think he was in an impossible situation and this is the result of a flawed set of regulations.

Quinta Jurecic

It's also worth noting that in the case of the Mueller report, so the language that Mueller uses is that “the office determined not to make a traditional prosecutorial judgment.” He was pretty harshly criticized at the time for that decision, I think from both right and left, on the grounds that making a prosecutorial judgment is exactly what he had been appointed to do. And so I think that's another example, just following up on Chuck's point of how these regulations put the special counsel in an impossible position because Hur is now being criticized for doing the thing that Mueller was criticized for not doing.

Matt Gluck

And Ben, so in a conversation after Merrick Garland appointed Jack Smith, you were asked on an emergency episode of the Lawfare Podcast, what the point of special counsels is. And you responded with the question of whether the Mueller report would have been written at all under Bill Barr or Jeff Sessions’ Justice Department, implying that it wouldn't have been. So could you lay out the argument that maybe that is reason enough to maintain the special counsel position despite its flaws that Chuck and Jack have laid out?

Benjamin Wittes

So first of all, I don't agree that it is a good enough reason. I actually think there is a very good case for getting rid of these regs. But, look, the argument goes like this. Sometimes the overwhelming public interest is for an accounting, and yes, Robert Mueller did some important prosecutions. Paul Manafort, Mike Flynn, all matters by the way that Trump undid, but there were a bunch of important prosecutions. That said, the fundamental thing that Bob Mueller did was not making prosecutorial judgments. It was the two volumes of the Mueller report laying out, in the first one, the evidence of Trump's engagement with the Russians and of Russian interference in the 2016 election, and in the second volume, the evidence that Trump had sought to obstruct justice. And that this accounting is actually the fundamental contribution of the Mueller investigation.

Now, there's a bunch of problems with that first. And the first one is it is exactly the opposite function that Chuck just described with respect to Robert Hur. That is, one, you're basically hiring somebody to make a prosecutive judgment, and the report is simply an ancillary function to that. In this case, in a very Ken Starr-like way, the public said the fundamental project we need done is the report. It is the documentation. To the point that everybody knew that Donald Trump was unindictable because he was the sitting president and we wanted this done anyway, and it wasn't because we wanted it done so that he could be charged if and when he lost the election. People wanted answers.

And so one of the roles that--and one of the fundamental problems with the special counsel reg is it's not just putting people in the impossible position that Chuck and Quinta just described with respect to Hur, it's doing something even more basic than that, which is appointing somebody in the guise of a prosecutor who we all know is there as a truth commissioner. And my fundamental belief is that that is the core of the problem. And as Jack describes, it was recreated from the final report requirement of the independent counsel rules.

And so different people have described this dilemma differently. Jim Comey famously said in the car to one of his agents about the Hillary Clinton investigation, “No one gets out alive,” meaning there's no way to proceed in this in which we're not going to get crushed. Kierkegaard put it differently a hundred plus years ago. He said, “Marry and you'll regret it. Don't marry and you'll regret it. Laugh at the world's foolishness, you'll regret it. Weep over it and you'll regret that, too. Hang yourself and you will regret it. Do not hang yourself and you will regret that, too. This, gentlemen, is the essence of all philosophy.” And I think at some point, you basically have to choose between the truth commission function and the prosecutorial function, and we're allergic to doing that, and you're going to regret it either way. Because if you say this is all about the prosecutive function and you don't trust Bill Barr, well, and I don't trust Bill Barr, you're going to get some bad outcomes there, so you'll regret it. But if you do it this way, we're regretting that too.

Quinta Jurecic

We haven't mentioned Jack Smith's name in the context of this truth commission conversation and I would submit that the reason is that Smith actually, in this sense, though not in any other sense, has an easier job because the January 6th committee in Congress already wrote it for him, which is arguably a much better division of resources on the part of everybody involved.

Chuck Rosenberg

Well, also one other thing on that point, Quinta. Jack has indicted a couple of cases and several defendants, I think three in Mar-a-Lago and one in Washington. He hasn't written a report yet. His office is still up and running, right? So we may feel differently after Jack Smith writes a report and shuts down his operation. But right now, all you're seeing from Jack Smith is what you typically see from federal prosecutors. They file a document in court. And they speak in court, and beyond that they say absolutely nothing, which is much more in line with the traditional operations of the Department of Justice.

Jack Goldsmith

I just want to add something about the truth commission role of the special counsel. As Chuck has emphasized, that is not the job of a prosecutor. And we have other institutions that are supposed to perform that role. They're called Congress, and they're called the press. And that is their job. And the January 6th commission is an exception to this. But it tends to be the case that Congress sits back and lets the executive branch do all the dirty work, finding this stuff, and then waits for this usually controversial and overheated report to come out. And then it operates. And so we have to choose between least bad options. I agree that there's no perfect solution to this problem, but it's important to remember that if the special counsel is not performing the truth commission role, there are other institutions who are constitutionally empowered and have the responsibility to perform that role.

Benjamin Wittes

So just to flesh that out, there are two very dramatic examples of Jack's point, and he mentioned one, but it's worth mentioning the other two. So the first, as he says, is the January 6th committee, which forms, in part, because the House is not satisfied with the pace of the federal law enforcement investigation, rightly or wrongly, when Congress perceives that the Justice Department isn't investigating something. It actually has pretty impressive investigative resources of its own when it chooses to use them, and it did a very impressive investigation for truth commission-y purposes.

The second example, which nobody talks about but is even more dramatic, is the Ukraine investigation that led to the first impeachment, and that was triggered, in part, by Bill Barr's refusal to investigate the matter. Barr concluded that this was not plausibly a crime, and Congress kicks off in response these very dramatic impeachment hearings which produced, in a very short period of time, importantly, it protected the whistleblower and produced the Vindman and Fiona Hill and George Kent and all of these famous testimonies and this incredible record that led to the first impeachment. So these are investigations that happen when Congress is not satisfied with what the Justice Department is doing, again, either rightly or wrongly. They're very capable of investigating, but the structure of these investigations, where everyone is expecting them to produce a report for us, really, really inhibits Congress from performing that function.

Matt Gluck

Jack, in your article in the Times arguing that it's time to get rid of special counsels, you explain that the current special counsel regulations were supposed to make the attorney general more accountable and the special counsel more accountable. But the regulations haven't achieved this. So what’s the nature of the accountability deficit that has emerged since the adoption of the new special counsel regulations?

Jack Goldsmith

So one point of bipartisan consensus in allowing the special counsel, sorry, the independent counsel statute to expire in the 1990s was that the supposed independence of the independent counsel was exaggerated because it didn't do anything to stop the political attacks, and in some sense, heightened their effectiveness since this person was thought to be too independent.

Another point of consensus was that the important decisions needed to be centered in the attorney general, that it had been a mistake to think that independence from the attorney general and diminishing the accountability of the attorney general was good for the department's credibility and for the fairness and perceived fairness of the investigation. Janet Reno famously said when she testified in 1999, I believe it was, that, and I'm going to quote from her partly here, centralizing accountability in the attorney general for high profile decisions, she said, quote, “goes to the very heart of our constitutional scheme,” unquote, and is vital so that the blame for prosecutorial decisions can be assigned to someone who can be punished, namely the attorney general.

Now, a few months later, she promulgated regulations that she thought did this, but they didn't in fact achieve that, as I alluded to earlier. One point was, this gets to something Chuck said earlier, I think he's quite right that Hur is not responsible for the republication of the report. The regulations leave that decision to the attorney general, but no attorney general in one of these high-profile investigations can, as a practical matter, refuse to publish the report or frankly, even to tamper with it. And so that point of accountability really didn't have much force.

Another point was that the attorney general could supervise the special counsel decisions to see if it complied with justice department regulations and if not, to change his decisions. But again, I'm not aware, maybe I'm forgetting something of any attorney general that has done that despite many special counsel controversial decisions. Because again, it just seems like meddling and it's what in the Department's lore, the Department is not supposed to do it. It's supposed to be hands-off or otherwise it's political.

One of the points that Janet Reno was making is that we're thinking about independence and accountability the wrong way, that there's actually something to be said in these high-profile investigations for having someone who was appointed by the president, who was confirmed by the Senate, and who is responsible for the Department's difficult decisions to actually make all of the important decisions. And as it's come to be, the special counsel under the regulations, like the independent counsel under the statute, has the effective power in the relationship. And so the attorney general really isn't accountable. And I've even come to think that attorneys general tend to hide behind special counsels a little bit. They can appoint special counsels and encourage them to do things that the attorney general thinks maybe he or she couldn't do or couldn't do as effectively. But I think that shows, that really just underscores that the attorney general shouldn't be giving away that power, authority, and responsibility.

Matt Gluck

And Ben, you had a conversation in 2018 with Ken Starr during which Ken said, that this accountability problem had largely been solved, or at least greatly improved, by the new special counsel regulations. And I'm quoting, he said that, “People can be confident that Mueller wouldn't go wildly astray because we know that he's checked under these regulations by Rod Rosenstein.” So what about that was off? I think many people held that view at the time before the Mueller report came out. But what has changed in the last five years that has mostly proven that wrong, or at least undermined it to an extent?

Benjamin Wittes

Well, so one of course was the outcome of the Mueller investigation, which proved Jack correct and Ken wrong. Of course, Jack has the advantage of hindsight, which Ken did not have. But look, if you're a defender of Donald Trump, Bob Mueller wrote this huge report that contained all kinds of, it's facts, but it's a huge amount of insinuation about criminal conduct. And then right at the point at which he's supposed to do a particular job, which is make a prosecutorial decision, he says, I'm not going to make a prosecutorial decision. And so that is a very untraditional behavior, whether you think it's defensible or not defensible. So, from staying within normal bounds, that, it didn't work for that.

But then, the other side didn't work either, which is that if you're somebody who doesn't trust Bill Barr, Bill Barr in fact meddled with the outcome of the Mueller investigation, and he did it both in a substantive sense, which is Muller made a decision to leave this question open, presumably for the next administration, and Barr resolved the question, which is of course exactly what Jack argues should happen, but it's not what's supposed to happen really under these regs. It's what Jack thinks, and I agree, should happen in general.

And so whatever point of view you look at the Mueller investigation from, Ken Starr is wrong. It didn't provide for accountability, and it didn't provide for staying within Justice Department norms. And I think the point that Jack makes, that these are flip sides of the same coin, is exactly right.

Matt Gluck

Chuck, in 2022, when you were discussing Jack Smith's appointment as special counsel, you discussed this alternate model that Merrick Garland could have used to appoint Smith. Could you describe that model and whether it would solve some of the problems that we've discussed today or not?

Chuck Rosenberg

Sure. Now, first let me say, I think the way to solve this problem, to the extent anyone can solve this problem, again, is to let the Department of Justice handle complex cases in the normal course, right? Trust the career men and women to do investigations and make prosecutive judgments, and don't dump reports into the public domain when you decline to prosecute. But I do think there was a hybrid model. Jim Comey was the acting attorney general for an investigation that involved the disclosure of a CIA intelligence officer's identity. Her name was Valerie Plame and Hur identity was leaked, apparently in political retribution. And the way Jim Comey approached it, I thought, was both interesting and better than either the independent counsel statute or the special counsel regulations.

What Comey did was appoint one of the best federal prosecutors in the country, Pat Fitzgerald at the time, the U.S. attorney in Chicago, as the acting attorney general in charge of that investigation. As the acting attorney general, Pat had all the resources and all the authority of the Department of Justice at his disposal, but there was no requirement that he write a report if he declined to prosecute. As it turned out, he did prosecute. He filed documents in open court. He made his arguments in open court. He obtained a conviction in open court in the traditions of the Department of Justice, but his role didn't come with any of the special counsel regulation baggage.

To my knowledge, and I'm on a podcast with a lot of people who are a hell of a lot smarter than me, this is the only time that has happened, that somebody has been appointed as the acting attorney general with all of the authority of the department at his disposal, but also therefore cabined by the traditional prosecutive norms, policies, and practices of the Department. I think it also helped that it was Pat Fitzgerald. Like I said, I don't know of a better federal prosecutor. If we're going to have a hybrid approach, that's probably it. But again, I'd rather have the Department handling difficult cases in the normal course.

Matt Gluck

I want to wrap up by discussing how the media has covered these reports. Quinta, you wrote a piece in Lawfare recently criticizing the press’s coverage of Hur’s report. Could you lay out your arguments there and how you would suggest the media approach future special counsel reports if people on this call don't get their wish and we are stuck with the special counsel moving forward?

Quinta Jurecic

To start off, I mean, I should say criticizing how the press handles 500-page document that's dropped into their lap is like shooting fish in a barrel. But I do think it's relevant because it gets to some of the same difficulties we've been discussing here across the Mueller and the Hur investigation. So during the Mueller investigation, we have this situation where Barr was able to really spin what the findings of the report, and Ben and I argued at the time that the press had allowed itself to become misled by buying Barr’s framing before they saw the actual report. And I should be clear here that I'm referring to mainstream journalistic institutions, the legacy press, the networks, the right-wing media ecosystem is a very different conversation.

In the case of the Hur report, I think there was a similar dynamic, insofar as what happened was that there was a surge of coverage when the report first dropped of these apparent findings about the president's memory, which became the topic du jour for a few days. There's an incredible CNN chyron that someone documented that says, and in all caps, “Is Biden's age now a bigger problem than Trump's indictments?” Which I think gives you a sense of the unseriousness of what's being discussed here. There was not extensive discussion of what this means about classification authorities, how we think about the handling of classified information, etc, etc. And then when Hur testified on the Hill and when this transcript was released, which I would argue undercuts Hur's presentation to a certain extent, then there were a bunch of headlines saying, oh my God, Hur was misleading in his presentation. But again, that's a press framing having read this very brief overview in the report itself, but not having read the transcript.

There are a lot of things that you can take away from this, depending on where you sit. I think my bottom line is ultimately that this special counsel produces an enormous document that drops on everyone's doorstep like a ton of bricks is not a situation to which the modern media ecosystem is well-suited. In the case of the Hur document, I think taking it seriously really can mean thinking about okay, what does this mean in terms of how former presidents and vice presidents handle classified information? How can we make this system better? What does this mean for the special counsel as an institution? But that was not looked into in any particular depth in favor of big splashy headlines about something that ultimately, I think, didn't hold a huge amount of weight. And there's a similarity there to the way that the press was eager to seize on Barr's framing of the report without having read the document.

So I don't know if there's a big takeaway here other than reporters should read the underlying document. Kudos to those who do. I know that saying this is always going to be a losing battle, but please, please, God. And I do think this goes to our point about the impossibility of the special counsel's task and that you're trying to produce something that justifies your existence and documents your work while also knowing, presumably on some level, that it's going to be dropped into this media ecosystem that is not really well-suited to digest the complexities.

Matt Gluck

Ben, as the legal reporter who has perhaps spent more time analyzing special counsel investigations than anyone else, I'll give you the last word here. What else should reporters keep in mind as they digest and describe for the public special counsel's work?

Benjamin Wittes

The fundamental lesson of the Hur experience is actually different from most others. It's don't go to page 307 and find in paragraph 4 three sentences that fit your preexisting political narrative and pretend that the rest of the report doesn't exist. And I do think the press has a lot to answer for in this. If you read the entire Hur report, the picture that you get of this incident is complex and rich, and I'm not saying the account is without its flaws. It has some flaws, I think. But it's a complex and rich account, and what we got out of the press coverage here was press write to scream about Biden's memory a lot. And that is not actually what the report says. It's not, the report was the fulminations of a lot of Democrats aside, not written to aid Donald Trump's electoral chances. And it is actually worth reading on its own terms for what it says about Joe Biden's handling of classified information.

Matt Gluck

We will leave it there. Thank you all very much.

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