Ken Starr; Archibald Cox; Robert Mueller; Leon Jaworski (AP/Getty/Salon)

Trump, Mueller and the lessons of history: Special prosecutors "are incapable of saving us"

Legal scholar Andrew Coan says Mueller's survival is a tribute to democracy — but don't look to him as a savior


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Andrew O'Hehir
January 20, 2019 5:00PM (UTC)

Will special counsel Robert Mueller indict President Trump for any of the numerous crimes the latter has plausibly committed? Almost certainly not. Will Mueller file a report with the Justice Department -- likely meaning Trump's incoming attorney general, William Barr -- that forms the basis for impeachment? Of course we don’t know that yet, but I wouldn’t bet the ranch on that outcome. In fact, I’d be reluctant to bet five bucks that anything in Mueller’s report will change the political calculus around Trump’s presidency, or hasten his departure from office in any way.

Almost everything University of Arizona law professor Andrew Coan had to say in our Salon Talks conversation was worth hearing. Coan is the author of “Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law,” a fascinating study of the role played by special prosecutors in America’s legal and political history that could not possibly be better timed.

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But I think Coan’s most important observation about Robert Mueller’s investigation came in the form of a warning, right at the end of our discussion. Here’s the spoiler:

I think it's become really an article of faith among liberals that if Mueller's allowed to complete his investigation he's going to produce a really damaging report. I think conservatives secretly share this belief, which is why we see them attacking Robert Mueller so relentlessly. I mean, you don't typically attempt to destroy the person that you think is about to exonerate you. But I don't think we know enough to be confident that this report will in fact be as damaging as either side assumes.

Maybe that sounds like a buzzkill to many members of the anti-Trump “resistance,” but the message of Coan’s book is remarkably clear, even in his detailed study of special prosecutors past. In the most famous example, Coan provides a detailed and highly compelling account of how Leon Jaworski, the cautious and conservative Watergate special prosecutor, brought down Richard Nixon by naming the president as an “unindicted co-conspirator” in the Watergate cover-up and laying out a “road map” that would likely have led to Nixon’s impeachment in the House and conviction in the Senate.

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In a less savory example, Coan describes how Ken Starr’s investigation of a failed real estate deal in Arkansas escaped containment and turned into the Monica Lewinsky scandal, ending with Bill Clinton’s impeachment over lies he told to cover up an extramarital affair. He also explores the instructive failure of Iran-Contra independent counsel Lawrence Walsh, who spent years untangling the complex history of the Reagan administration’s clandestine deals with Iran and the Nicaraguan rebels but was ultimately unable to bring any of the major figures involved to justice. (That’s not all! Earlier special prosecutors took on scandals within the administrations of Harry Truman, Teddy Roosevelt, Warren G. Harding, James Garfield and Ulysses S. Grant. It's a treasure trove for history mavens.)

Across all these examples, circumstances, laws and political climates varied immensely, but in exactly none of them did the appointed outside prosecutor ride in on a white charger, clean everything up and dispense justice to all parties. It’s always politics, meaning public scrutiny and public vigilance, that decides whether special prosecutors are allowed to do their jobs and determines what sort of justice (if any) will be dealt to high officials accused of criminal conduct or corruption. That’s certainly what will determine the outcome of the Mueller investigation as well.

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There is a strong upside visible here amid the confusion, Coan believes. The fact that special prosecutor investigations continue to happen and are allowed to proceed -- including this one -- is itself a testament to the enduring strength of our visibly damaged democracy. There is no doubt, in legal or constitutional terms, that Trump has the authority to fire Robert Mueller -- or that every previous president afflicted by a special prosecutor could have dismissed that person, limited his powers or crippled his investigation.

Nixon famously fired Archibald Cox, the special prosecutor who preceded Jaworski, a decision that did not end well for the president. Trump has clearly been itching to fire Mueller since virtually the instant the latter was appointed. Trump has rid himself of numerous other officials he believed were disloyal, including the FBI director and the attorney general -- but even the most rule-breaky, norm-scorning president in our history has been convinced by aides and underlings that the political cost of cashiering a special prosecutor is simply too high.

As Coan puts it, that illustrates the fact that “the American people are still capable of doing their job.” If we ever see a Mueller report, at the end of all this, and if it ever leads to something resembling justice for a manifestly corrupt president, that will be because we insist on it.

My conversation with Andrew Coan has been lightly edited for length and clarity. You can watch the full interview embedded above.

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Andrew, we may need to investigate you for possible collusion with the Senate Judiciary Committee or the office of special counsel Robert Mueller. Given that these issues are in the news, especially with William Barr up for confirmation as the next attorney general, you could not possibly have timed this better.

It was just sheer luck. I assure you.

This book is, among many other things, a fascinating history of the role of special prosecutors in American history. I assume you began writing this after Mueller had been appointed to investigate Donald Trump’s 2016 campaign, right?

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I did. I started writing this book last February, so I was very well aware of the special counsel's current investigation. That was a big part of my motivation.

But the past history is definitely relevant, especially the history of the Watergate investigation and special prosecutor Leon Jaworski and the history of the Bill Clinton investigation, the Lewinsky matter, and Ken Starr -- whatever he was, a special prosecutor or an independent counsel. The terminology keeps shifting, which is something you talk about in the book.

That's right. "Special prosecutor" is a generic term that refers to any kind of outside prosecutor appointed to investigate the president or his administration. "Independent counsel" is a specific term that refers to a kind of special and especially powerful special prosecutor that existed for only 20 years, between 1978 and 1998, as the result of a post-Watergate law which was then allowed to lapse after Bill Clinton's impeachment.

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Largely because of the Ken Starr investigation.

Because of the Ken Starr investigation, although also because of Republican concerns about Lawrence Walsh's investigation of the Iran-Contra affair. Each side had a reason. They could demonstrate exhibit A for why the special counsel, or the independent counsel as it was then called, had grown too powerful.

Could you possibly have imagined the current situation when you started to write this book? You've obviously studied this stuff; you understood what Mueller's brief was and what he was supposed to investigate. Could you have anticipated that he was going to investigate the president of the United States as a possible Russian agent?

Well, I think that has been on the table from the very beginning of this investigation. I think it's important to emphasize that we don't know yet what he has found in that investigation or even whether that aspect of his investigation remains ongoing.

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The New York Times, of course, confirmed [earlier this month] that senior officials in the FBI opened what they call a subfile, a special investigatory file, to investigate whether the president was acting either wittingly or unwittingly -- there's another important distinction -- on behalf of Russian interests when he fired FBI director James Comey. When Rod Rosenstein shortly thereafter appointed Robert Mueller as a special counsel, then Mueller inherited that investigation. We don't know, since Mueller's operation has been basically leak-proof, whether that investigation remains ongoing or exactly what it has turned up.

I think it is fair to say that it is shocking and unprecedented to think that the senior leadership of the FBI concluded that there was sufficient factual basis to at least begin an investigation on this front. That's a pretty big deal.

I don't want to come off as overly partisan here, and I know neither do you. But doesn’t that make this the most explosive of all of the special prosecutor investigations? I mean, Richard Nixon was clearly going to be impeached and probably convicted in the Senate. But look: He covered up a burglary. No one ever accused Nixon of being the agent of a foreign government, wittingly or unwittingly.

This is potentially the most explosive special prosecutor investigation in U.S. history, but we're really not going to know the answer to that question until Robert Mueller files his report with the attorney general. It seems like that that attorney general will be William Barr by the time the report is complete. Of course, then there will be a question about what Barr does with that report.

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As many senators pushed him on [at last week’s confirmation hearings], under the current special counsel regulations, which date all the way back to 2000 and the post-Clinton impeachment era, the special counsel is required to file a confidential report with the attorney general at the conclusion of his investigation.

That was in part a response to the perceived excesses of Ken Starr during the Clinton investigation. Ken Starr published a thick and salacious report on the Monica Lewinsky affair. He forwarded it to the House of Representatives and did not himself make it public. But Newt Gingrich and the House Republicans at that time immediately did choose to make it public, and there were a lot of people who thought that really didn't serve the public interest. There was a lot in that report which was simply of prurient interest, rather than legitimate investigative interest.

So in response to those concerns, the current special counsel regulations, drafted by Bill Clinton's Justice Department staff, require the special counsel to submit a confidential report. Then it's up to the attorney general, who is of course accountable to the president and will face significant political pressure to release this report, to make a decision.

How do you read what Barr told the Senate committee about his intentions with regard to the Mueller report?

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It's a little bit hard to parse the testimony of William Barr on this point. He definitely made some strong opening commitments to transparency. He strongly suggested that he believe that the American people need to see a credible resolution to the issues that Robert Mueller is investigating. But he also would not commit to releasing the full report and offered various caveats about what he might disclose or not disclose, both to the public and to Congress.

I read Barr as being extremely careful. He's a former attorney general, way back in the first Bush administration. He obviously knows the law. He is also suspected of having a strong partisan interest and identifies as a conservative Republican. He has seemed to endorse possible investigations of Hillary Clinton, based on right-wing fringe conspiracy theories. It struck me that he was trying to walk a very fine line between “I'm going to be an attorney general for this embattled Republican president who has a very strong constituency on the right,” and “I'm going to follow the letter of the law, and I'm a guy who knows about that.” 

I think that's basically a fair characterization. He's certainly an extremely careful lawyer. He served as attorney general under President George H.W. Bush and as a senior official in the Justice Department for many years before that. He is, in many ways, one of the most qualified and experienced nominees to the position of attorney general.

On the one hand, I think it would be unwise to overlook the wiggle room that he has left himself, and it will be important for the public to be vigilant, if he is eventually confirmed, to make sure that he adheres to both the spirit and the letter -- and maybe the spirit and not just the letter -- of his testimony before Congress. Because he could adhere to the literal meaning of what he said to the Senate and withhold substantial portions of the Mueller report and, in fact, exercise his supervisory powers over the investigation in various ways that would substantially hamper Robert Mueller's work. I think the hope has to be -- and public pressure will play a large role in determining whether this hope is realized -- that Barr really means what he says and that he lives up to the spirit of his remarks and not just the letter.

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I've always believed that regardless of what the Constitution says or doesn't say it was extremely unlikely, bordering on impossible, that Mueller was going to indict President Trump for anything. You generally subscribe to that view as well.

That's right. There's a current Justice Department policy, first established during the Nixon administration and reaffirmed during the Clinton administration, that a sitting president may not be charged with or indicted for a crime. It's also quite clear that a president who has left office, because his term's expired or as the result of impeachment and removal by the Senate, can be charged with a crime. But as long as Trump is the sitting president, I think it is virtually inconceivable to imagine Robert Mueller indicting him for a crime.

To clarify that a bit, possible crimes committed while holding the office of the president would not be immunized once you are no longer president. Is that fair?

Well, it depends on exactly what the crime in question is. One of the things that got William Barr in hot water in the months leading up to his confirmation hearing was a controversial memo that he wrote in June of last year as a private citizen and sent to the Department of Justice, as well as the president's own personal legal team, arguing that a president cannot commit the crime of obstruction of justice when -- these are the exact words of the memo, I think -- he is "exercising the discretion vested in him in the Constitution." This would include things like firing the FBI director or ordering the FBI director to drop an investigation into national security adviser Michael Flynn for his role in possible collusion with the Russian government during the 2016 campaign.

On the views expressed in Barr's memos, the Constitution protects the president's ability to make those decisions for any reason whatever. So the president could argue that he was acting under his constitutional authority in taking those actions, if he were to be charged with obstruction of justice.

But just as a blanket matter, there is no immunity. There is no prohibition on the indictment of a sitting president for his conduct while in office, although it's never happened in American history.

One of the famous details of the Watergate scandal that always fascinated me was when Richard Nixon was named by the grand jury as an “unindicted co-conspirator” in the Watergate cover-up, which was the intellectual and legal compromise that Leon Jaworski and his team came up with. So the president was not directly charged with a crime, but was effectively accused of one. Now, as I learned from your book, current Justice Department regulations discourage that device and that language.

But here’s my question: Haven't we already come pretty close to that in the Michael Cohen case? Cohen has testified that when he made an illegal payment to Stormy Daniels, he was doing so at the bidding of the president of the United States. So while Donald Trump was not directly named, it strikes me that the unindicted co-conspirator in that case is perfectly obvious to all of us.

Well, the identity of the person that Michael Cohen says directed him to make the payments, referred to as “Individual 1” in the court documents, is perfectly clear. Everybody knows that is Donald Trump. But I don't think we've quite crossed the line of Trump being named as an unindicted co-conspirator. In some of the media commentary in the immediate aftermath of the sentencing memos that the Manhattan prosecutors filed, some eminent legal scholars said, yes, this is in fact amounts to the president being named an unindicted co-conspirator.

I think they overlooked one crucial fact. It's really close, and it's really damning for the president. But the sentencing memo does not address Donald Trump's state of mind, and that's a crucial element of these campaign finance offenses. It seems likely, based on the sentencing memo and on the statement that Cohen made when he pled guilty in this case, that prosecutors probably have sufficient evidence to establish that the president had a guilty state of mind and therefore did violate criminal federal campaign finance laws. But because this isn't a charging document aimed at the president, it does not directly address that question, which is likely to be the crucial one if these charges ever were to come before a court.

I note that Congressman Jerry Nadler, who's now the chair of the House Judiciary Committee, has said he believes that is probably an impeachable offense, while adding that doesn’t mean Congress should impeach the president for it. There's a couple of ways to read that. One possibility is that Nadler is saying, well, let's wait and see what else there is before we go down that track, maybe something that's even more clearly impeachable is still to come. Or maybe he's just being cautious and factual: Yes, a campaign finance violation is clearly against the law, but it might not rise to the threshold of being worth trying to kick the guy out of office.

I think that's basically right. I interpret him as saying, look, this offense meets the legal threshold under the Constitution for impeaching the president. We would be acting within our constitutional authority if we impeached the president for committing this offense, if we concluded that there was a factual basis to believe that he committed it.

But the Constitution doesn't obligate the House of Representatives to impeach a president who has committed crimes and misdemeanors, or for the Senate to remove that president. It gives them the discretion. It imposes or creates a judgment call for both houses of Congress, and it's a very serious decision, one with enormous consequences for the country. I think it's probably wise for someone in Nadler's position to approach this matter cautiously, because, either way, however it comes out and whatever side you're on politically, impeachment is a wrenching process for the nation.

It's worth noting that no president has ever actually been removed from office through that mechanism. I suppose we all assume that would have happened to Nixon, but we can’t know that.

It seemed like a virtual certainty in Nixon's case. The writing really was on the wall. In the summer of 1974, when the U.S. Supreme Court issued its decision in United States v. Nixon and ordered Nixon to turn over those famous White House tapes, including the smoking gun tape which featured him ordering the CIA, through his chief of staff, to shut down the FBI's Watergate investigation, the House Judiciary Committee had already voted articles of impeachment out to the full House.

When they voted, 13 Republican members of that committee voted against impeachment. Several Republicans actually voted in favor of impeachment, which seems kind of remarkable today, but 13 voted against it, which was a majority of the Republican members of that committee. But after those tapes came out, which clearly showed Nixon trying to squash the FBI's Watergate investigation based on a bogus national security rationale, all 13 of those Republicans issued a public statement saying that they had changed their minds, that in light of this new evidence even they would have voted to impeach the president. That made it pretty clear to Nixon that he could not survive any longer, and he resigned very shortly thereafter.

It's difficult to imagine anything like that ever occurring with President Trump, isn't it? 

There are some key differences between the American political landscape in 1974 and today. I think the most important is what political scientists call the hyper-polarization of American politics. This means that the American people and their elected representatives in Congress tend to see almost every issue through a partisan lens, and they see politics as a zero-sum game between the two parties. This makes it very hard both for individual voters who are trying to think about these questions and for members of Congress who have to worry about their constituents and a primary challenge in the next election, to really examine their conscience and examine the evidence and try to look at these things through a nonpartisan lens.

The other key structural change to American politics since 1974 is this populist moment that we're living through, in which the president has a direct and visceral personal relationship with a large subset of Republican voters, his base, his core constituency. This has allowed President Trump to transgress political norms that no other president could ever have gotten away with. Any Republican thinking about abandoning the president and voting for impeachment or voting to remove him from office is going to have to think about those voters.

On the other hand, what Watergate illustrates, I think, is that the American people are capable of changing their mind. When Richard Nixon was inaugurated for his second term in January of 1973, he had just won re-election by what was then the largest popular vote margin in American history. His public approval rating was 67 percent at the time of his inauguration. By the summer of 1974 when he resigned the presidency, his approval rating had fallen to 24 percent, which means, of course, that tens of millions of Republican voters had changed their mind about the president in light of the evidence unearthed by the special prosecutor.

Our political environment is very different today than it was in 1974, but I don't think we should rule out the possibility that something in Robert Mueller's report might be capable of changing the public's mind and changing Congress' mind.

How much or how carefully do you think Robert Mueller has studied the history of previous special prosecutors and the outcomes of their investigations? What lessons would you suspect he has taken from those?

I have no idea how closely Robert Mueller has studied the history of those investigations. If he's interested, I've got a great book that I could recommend to him. [Laughter.]

Have you sent him a copy?

I have not sent him a copy. That seemed a little presumptuous to me, but I think he can find one if he’s looking for it. I think the principal lesson of this history is really not so much a lesson for Robert Mueller, although it has implications for him, but a lesson for the country, which is that special prosecutors like Robert Mueller are incapable of saving us from ourselves.

At the end of the day, whether the president is above the law is ultimately a question for the American people. I think we're having a moment like that right now -- really at this very moment, during these Barr hearings -- where public scrutiny has forced the president to nominate a basically credible attorney general candidate, and has forced that candidate to make some significant commitments on the record to allow the special counsel to complete his investigation.

As I mentioned earlier, there are certainly some reasons for concern about Barr as a nominee. Based on his testimony, he's left himself some wiggle room, as you would expect a careful lawyer to do. But I think the big takeaway from these hearings is that Barr has committed to allow Mueller to complete his work.

He has said, in response to a direct question, that he would not fire Robert Mueller without good cause, even if the president ordered him to -- that he would resign before he would take that action. That is a big deal, and I think we have gotten to this place, improbably, because the American people have been paying attention. Not all of them, of course, have been analyzing these issues through a nonpartisan lens. But enough of the American people have been paying attention that it has placed substantial pressure, even on this unorthodox, norm-smashing president, to allow these investigation to go on despite his own obvious desire to fire Robert Mueller, as far back as June of 2017.

It's really quite remarkable, when you think about it, that all this time President Trump has had the power to get rid of Robert Mueller, to squash his investigation. He is the most powerful man in the most powerful country on Earth, and yet Robert Mueller has managed to survive. The reason he's managed to survive is because even Trump knows that the political consequences of firing Robert Mueller or significantly interfering with his investigation would pose a grave threat to his presidency. That, I think, is an example, an illustration that the American people are still capable of doing their job, although there have been some really close calls and we're not out of the woods yet.

What do you think will come out of the Mueller investigation? What do you hope will come out of it?

I’m going to punt on that. It would be irresponsible to speculate on that question. But I will say that the reason we have these investigations is to find out what happened. I think that both liberals and conservatives have tended to think about this in the wrong way. I think it's become an article of faith among liberals that if Mueller's allowed to complete his investigation he's going to produce a really damaging report. I think conservatives secretly share this belief, which is why we see them attacking Robert Mueller so relentlessly. I mean, you don't typically attempt to destroy the person that you think is about to exonerate you.

But I don't think we know enough to be confident that this report will in fact be as damaging as either side assumes. There are a lot of key questions that we don't yet know the answers to. There's a huge amount of smoke here, and there seems almost certain to be some kind of fire. But exactly how big that fire is, who's involved and who started it, we really don't know yet.

 


Andrew O'Hehir

Andrew O'Hehir is executive editor of Salon.

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