Prosecutors are tasked with enforcing the rule of law on behalf of the government in a criminal case. Depending on jurisdiction and seniority, a prosecutor can initiate an investigation on his own or at the direction of a government official or agency. United States Attorneys are federal prosecutors who work as part of the Executive Branch for the Department of Justice (DOJ) under the direction of the Attorney General.Federal prosecutors bring criminal charges on behalf of the United States Government and represent the United States when it is a party to a civil action. At times, violations of federal law are so sensitive or controversial that an independent prosecutor becomes necessary. In these situations, the Justice Department has the option to appoint a special counsel or special prosecutor to ensure the necessary objectivity of the investigation and prosecution, if and when it comes to that. Special counsel is a term for an independent lawyer conducting investigations with prosecutorial power. Whether to call the lawyer a “special prosecutor” or a “special counsel” is a distinction of terminology.
The position of special prosecutor was legislated as a response to the Watergate investigation in 1978, allowing the appointment of an “independent counsel” by a three-judge panel from the D.C. Court of Appeals upon the request of the attorney general. Congress approved the use of independent counsel in 1978, and the Supreme Court of the United States followed suit in Morrison v. Olson in 1988. The Supreme Court held that the Ethics in Government Act of 1978 was constitutional and not a violation of the Appointments Clause, Article III, or separation of powers principles. Congress’ investment of appointment power in the judiciary and removal authority in the Attorney General was within its constitutional authority. The appointment of independent counsels by the judiciary, as was proscribed in the Act, was held to be a constitutional inter-branch appointment and complied with separation of powers.
On May 17, 2017, the Justice Department appointed Robert Mueller as Special Counsel to investigate possible meddling by Russia in the 2016 presidential election. The appointment of Robert Mueller as special counsel was necessary because the situation called for someone “who exercises a degree of independence from the normal chain of command,” as then-Acting Attorney General Rod Rosenstein stated. Normally, the Attorney General (AG) appoints the Special Counsel unless the AG has a conflict of interest. In the case of Special Counsel Robert Mueller, Deputy Attorney General Rod Rosenstein appointed Mueller after Attorney General Jeff Sessions recused himself from the investigation. In this case, Jeff Sessions had a conflict and eventually stepped down because of his closeness with the activities giving rise to the investigation as Sessions was an adviser to Donald Trump’s campaign.
Special Counsel Robert Mueller has a background rich in federal law enforcement. Beginning in 1976, Mueller was an Assistant U.S. Attorney (AUSA) in three different offices. From 1990 to 1993, Mueller was assistant attorney general of the Criminal Division at the DOJ, overseeing hundreds of federal prosecutors and attorneys. Even after he left for private practice, Mueller returned to the Justice Department where he served as a senior AUSA in the homicide section. Mueller was eventually appointed U.S. Attorney for the Northern District of California. In 2001, George W. Bush nominated Mueller to be the Director of the FBI, where he served until 2013.
Investigative authority given to Special Counsel Robert Mueller is broad. The order that appointed Robert Mueller as Special Counsel gave him authority to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” As further detailed in the order, Mueller may also probe other matters that arise from the current investigation. The applicable law to the special counsel is the Code of Federal Regulations Title 28, Section 600.4 through 600.10.
Mueller hit the ground running and he began investigating numerous Trump campaign advisors and insiders. In October 2017, Mueller charged Paul Manafort, President Trump’s former campaign chairman, and Rick Gates, former deputy chairman of the Trump campaign, with conspiracy to launder money, conspiracy against the United States, and making false and misleading statements. A new 32-count indictment came down on both Gates and Manafort in February 2018. The indictment detailed a multi-year scheme revolving around Manafort and Gates’ employment by a Ukrainian political party, their use of that money to pay for property while evading taxes, their use of fraud in obtaining loans, their failure to report foreign ties, and others. On February 16, 2018, the DOJ indicted thirteen Russians and three Russian companies for conspiring to infiltrate the 2016 presidential election in efforts to help Trump’s campaign. Detailed in the indictment is the conspiracy by these individuals and companies to steal American identities and use those identities to create and deploy social media accounts in an effort to create controversy and divide among Americans. Mueller also began investigating Trump’s efforts to remove Jeff Sessions from his position as Attorney General.
The evidence known to Mueller thus far seems to clearly indicate that President Trump’s removal of FBI Director James Comey in May 2017 in conjunction with his efforts to remove AG Sessions are part of an overall effort to derail any investigation into allegations of collaboration between Trump’s campaign and Russia. Most recently, Mueller has uncovered evidence of a secret meeting organized by a Lebanese American businessman associated with Trump’s team to establish backchannel communications between Moscow and the incoming administration. This meeting took place about a week before Trump’s inauguration. Mueller is also looking into several interactions involving President Trump’s longtime lawyer Michael Cohen. These matters include Cohen’s negotiation on behalf of the Trump Organization with Moscow as well as communications with Ukrainian lawmakers about a possible peace negotiation.
Building on the collective evidence, both direct and circumstantial, Special Counsel Mueller could be forming a case against Trump himself for obstruction of justice. After investigations into possible Russian interference in the 2016 election, the Trump administration and the president himself have taken active steps to interfere. The firing of Former FBI Director Comey is an example of intentional interference aimed at preventing further investigation. Whether a sitting president can be charged with obstruction of justice is currently a topic of hot debate.
Mueller has authority to investigate and potentially charge matters arising from the investigation into Russian collusion. As more evidence is uncovered we are likely to see new developments and charges brought against other individuals and possibly organizations. Robert Mueller remains just as enthusiastic and steadfast as when he started – there is no sign of his slowing down. As he stated when he stepped into the position of Special Counsel, “I accept this responsibility and will discharge it to the best of my ability.” From a man with Mueller’s reputation and dedication to justice, rather than politics, the American public can rest assured his will be a job well done.