The panelists at a recent Harvard Law School discussion about the power of special prosecutors agreed on this: There’s no flawless system that uses the executive branch to investigate the executive branch.
Give an independent counsel too much power and too little oversight, and investigations—unmoored from their foundation—will drag on for years. The flipside: Too much supervision by top brass at the U.S. Justice Department could give the perception that an independent investigation isn’t independent at all.
Panelists at the Harvard event, part of the law school’s bicentennial program, offered varying perspectives of what works, what doesn’t and what might be done about it. These were lawyers and Harvard law alums—now working at private firms, or at law schools—who brought unique insight to the challenges facing Robert Mueller III, the special counsel leading the investigation of any collaboration between Donald Trump’s presidential campaign and Russia’s interference last year in the election.
Robert Luskin, a white-collar partner at Paul Hastings in Washington, said if he had his choice, he’d want a career prosecutor over a special counsel “100 times out of 100″ sitting on the other side of the table from him.
The assignment of a special counsel, Luskin said, reveals inherent mistrust in the institution of the Justice Department. Independent counsels—”some of whom are wonderful, some of whom are not so wonderful,” Luskin recalled—operate outside the “hierarchy and norms and experience” of the Justice Department. He said there’s a danger in using the criminal justice system essentially to infuse credibility into the political process of holding elected officials accountable.
“The question of whether or not Donald Trump is fit to be president is not going to be answered by Bob Mueller. The kinds of questions that he is asking are not the questions that we need to be asking,” said Luskin, who represented Karl Rove in the special investigation into the leak of Valerie Plame’s identity as a covert CIA official. “To outsource—which is what we’ve done, because of failure of confidence in our political institutions—to outsource that task to the criminal justice [system] is a huge mistake. I think we underestimate the price that is paid for doing that.”
Michael Bromwich, a former Justice Department inspector general, offered a solution to the group of speakers, one he said he pitched years ago but didn’t get any traction on. The DOJ inspector should be considered a “special counsel in waiting.” The role would be clearly conveyed at the time of confirmation: The inspector would know there’s a possibility that he or she would lead an independent investigation.
“When it does work, it works because we get lucky. I think we’re extraordinarily lucky that someone like Bob Mueller was appointed to do the current Russia-related investigation,” said Bromwich, founder and managing partner of Washington’s The Bromwich Group. He added later: “We got Pat Fitzgerald and we got Bob Mueller—but we were damn lucky to get those two. We could have easily have had a U.S. attorney or a former FBI director of far lesser stature and far diminished reputation and quality.”
Patrick Fitzgerald, a former U.S. attorney in Chicago and now partner at Skadden, Arps, Slate, Meagher & Flom, was sitting next to Bromwich on the Harvard panel. Fitzgerald led the George W. Bush-era Plame investigation. “There’s no perfect solution,” Fitzgerald said, speaking generally about special investigations.
His supervisor was the late David Margolis at the Justice Department. Margolis, Fitzgerald said, did not have the power to challenge a decision he didn’t like. But Margolis could fire Fitzgerald.
“If you can look at the system, you could put the play in the joints where there is closer supervision or less supervision. The closer the supervision you have less of a concern that something goes out of the norms but more of a risk that people perceive there to be political influence if it’s coming from DOJ. That’s sort of the issue. The person you put in charge of who has the knife to cut the cord to say ‘you’re fired’ is somebody you need to really trust. That was David Margolis to a T.”