We should give serious thought to reforming the rules governing independent counsels.
Presidential Attacks on Special Counsels: Two Reforms
Recent news reports indicate that President Donald Trump and his administration are investigating the Special Counsel and planning attacks on him and the lawyers in his office. If these stories are true, it would be easy to consider them examples of the excesses of Donald Trump, who has chosen not to live by the ordinary rules that govern Washington politicians. If Trump has criticized so many others, then why not the Special Counsel as well?
But that understanding of these attacks is likely to be mistaken. Sure President Trump would be more prone to such attacks than other Presidents. But there are strong political incentives for a President to attack a counsel investigating him and his administration. President Clinton engaged in strong attacks of Ken Starr during his investigation, causing Judge Starr to become unpopular among the public. It does not make political sense for the President simply to treat the investigators/prosecutors with the dignity owed to impartial public servants.
While this might make sense from a political perspective, it is not desirable from a policy perspective. Such attacks on the counsel, whether justified or not, exacerbate political divisiveness. It harms the reputations of all of the officials involved and generates distrust of the government. It would be attractive if there were a way of reducing the likelihood of this occurring.
While there is no clear solution to this problem, two reforms would help. First, the two prosecutor model that I have recommended several times would improve matters. Under this model, one counsel investigates, and if the first counsel determines someone should be prosecuted for a specific crime, only then does a second counsel get to bring the prosecution. In this way, a single special counsel does not have an incentive to find crimes so that he can be in the limelight from prosecuting a big fish.
At present, the President has a significant incentive to attack the counsel, because there is such a strong likelihood that the special counsel, given the incentives, will bring some kind of prosecution. Under the two counsel reform, the President would have less incentive to attack at the first stage, because there might not be any indictment and his criticisms might alienate the first counsel. While the President might have an incentive to attack at the second stage, it would be harder to do so, because the decision to prosecute would have been made by someone else.
A second reform would address who the special counsel hires for his staff. Much has been said about the Democratic composition of Robert Mueller’s hires. Whether or not one finds these criticisms justified – and I tend to – this undermines the credibility of the special counsel. Whether with Lawrence Walsh or Ken Starr, lawyers often sign up to investigate and prosecute someone they don’t like. I can virtually guarantee there are no Trump loyalists working for Robert Mueller, although it seems very likely there are Obama and Clinton loyalists.
One way of addressing this problem is to require that the special counsel make bipartisan hires. Just as the Independent Agencies are generally required to include officials from both parties to make up for their political independence, so should the special counsel be required to do so. While Mueller was at least once a (certain kind of) Republican, that does not mean that his staff should be entirely Democrats. There should be a balance of some kind between the two parties. Not only would this lead to arguably more lawful decisions. It would also reduce the force of presidential criticisms.