The Trump-Russia saga has entered its special-counsel phase.
This is strange, given that a special prosecutor is typically reserved for when a crime has been alleged, and not only has no serious penal-law violation been credibly alleged against Donald Trump or any of his associates, but, as we have repeatedly noted, the FBI was engaged in a counterintelligence, not a criminal, investigation as it relates to Russia. A more suitable approach would have been an independent commission, like the one established to investigate the September 11 attacks.
But Trump’s ham-handed firing of FBI director James Comey, the White House’s misleading account of how and why Comey was ousted, and news that Trump personally asked Comey to drop the Flynn probe created enough of a cloud around the FBI investigation that deputy attorney general Rod Rosenstein felt compelled to act. If Trump had intended to create the conditions for the appointment of a special counsel, he wouldn’t have acted any differently.
The appointment of Mueller may create, for now, greater public confidence in the investigation, but there are significant downsides. Special prosecutors have a tendency to begin in one place and end up somewhere wildly different — Whitewater turned into the Lewinsky scandal — and they also have a tendency, lo and behold, to want to prosecute. This was most recently demonstrated by Patrick Fitzgerald, who in the mid 2000s used his role as special prosecutor in the Valerie Plame affair to go hammer and tongs after Bush confidant Karl Rove and, failing that, to railroad Lewis “Scooter” Libby into prison.
Whether the new investigation spirals out of control will depend entirely on the discipline and rectitude of the special counsel. To his credit, Rosenstein has appointed Robert Mueller, James Comey’s predecessor at the FBI. The second-longest-serving FBI director (behind J. Edgar Hoover), Mueller garnered respect from Republicans and Democrats during his tenure leading the Bureau; his ten-year term, which began in 2001 under George W. Bush, was renewed by President Obama in 2011. Mueller, who retired in 2013, is known for sober leadership and for a distaste for partisan games, and several Democrats have praised Rosenstein’s choice.
It’s important to note that Mueller is not an independent counsel of yore. Since 1999, when both parties allowed the Ethics in Government Act to expire — after the Clinton years, Democrats were less enamored of the special-prosecutor concept — special prosecutors have been subordinates of the executive branch, as they should be.
It’s anyone’s guess where this goes from here. Mueller has a wide investigative brief, and we will no doubt be hearing more about Messrs. Flynn, Manafort, and Page, the Trump associates with known ties to the Kremlin, and Roger Stone, the outlandish gadfly who worked with Trump for years. So far, despite the Democratic hysteria, we haven’t seen anything that suggests anything worse than that these figures are shady operators who never should have been close to a presidential nominee or a president. But we want to see where the facts lead.
Ideally, Mueller will be able to conclude his investigation expeditiously, but it’s possible this could drag out: The special counsel appointed to investigate Whitewater in 1994 outlasted the Clinton administration. For this reason, among others, no administration ever wants a special counsel. Trump has no one to blame but himself that he now has one.