Tuesday, November 21, 2017
Opinion

Kenneth Starr: Firing Mueller would be an insult to the Founding Fathers

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In the natural rhythm of government, June is ordinarily the Supreme Court's month to take center stage as it frenetically issues opinions before adjourning for the summer. This year is starkly different — at least so far. Even with the arrival of the newest justice, the court has been largely eclipsed by the drama unfolding one block away in the Senate and a few miles away at the White House.

Last week, James Comey took center stage, followed this week by Attorney General Jeff Sessions. The furor over Russian interference in presidential politics shifted to inside-the-Beltway relationships, especially those of the president with the former FBI director and the attorney general.

The good news is that the American people are being well served by structural arrangements put in place at the founding of the nation and augmented through the experience of succeeding generations. The process, untidy and rancorous as ever, is actually working well. We now need to step back and let the machinery of government do its work in an orderly way.

Structural evolution has resulted in the Justice Department's creation of a unique office, the special counsel. Wisely rejecting the 21-year experiment with a congressionally mandated independent counsel, Congress has allowed the executive branch to carry on the basic function of criminal investigation and prosecution unimpeded. After Iran-Contra and Whitewater-Lewinsky, the American people had had enough of largely unaccountable outside special prosecutors. (I know — I was one.)

Yet the need on occasion for "outside" investigation remained. When the eye of suspicion falls, rightly or wrongly, on the president and other high-ranking officials, both the reality and appearance of a conflict of interest point to the value of going outside the usual channels to get the job done in a way that assures the public that politics played no role in prosecutorial decisionmaking.

What to do? Almost 20 years ago, then-Attorney General Janet Reno came up with the right answer — a special counsel located within the executive branch, but assured of practical independence through binding regulations. Now, three weeks into that role, former FBI director Robert Mueller is charged with the executive branch responsibility of investigating and deciding how to proceed. Subject to the possibility of being fired for "good cause," Mueller should be allowed to do his work unhindered and unimpeded. Absent the most extreme circumstances, the president would be singularly ill-advised to threaten, much less order, Mueller's firing.

Under legally binding regulations, the special counsel's fate rests exclusively with Deputy Attorney General Rod Rosenstein. He alone is empowered to make that fateful decision. As a matter of honor, and in light of his sworn testimony before Congress, Rosenstein would inevitably resign if confronted with a White House directive to dismiss the special counsel. Wisdom counsels strongly against unleashing a 21st-century version of the Saturday Night Massacre of Watergate-era infamy.

Certainly, if Mueller wanders outside the bounds of professionalism and basic integrity, he can and should be fired. Concerns are already being raised — including about Mueller's friendship with Comey and his staff-packing with anti-Trump partisans. He will be closely watched.

In the meantime, Congress is busily carrying on its constitutionally ordained function of oversight. What we've seen over the past week has not been pretty, but it is effective and important. The Senate Intelligence Committee's public hearings have helped educate the American people and uncovered illuminating information from both Comey and Sessions.

Among other things, the Senate secured a public and unequivocal denial by the attorney general of campaign collusion. While the Democrats expressed frustration with the attorney general's refusal to discuss his conversations with the president, Sessions was on entirely solid ground in safeguarding the president's right to invoke executive privilege, a constitutionally based protection unanimously recognized by the Supreme Court as integral to our system of separation of powers.

Notwithstanding reports that the special counsel has launched an inquiry into whether the president obstructed justice, the early returns also suggest the absence of any Oval Office criminality, even with the unsettling use of Trump Tower business methods where they don't belong. To "hope" that the director would abandon a line of inquiry is most naturally read as pleading and cajoling, but not as an order. In any event, at the time Comey didn't treat the president's words as a directive.

Still, the official processes now under way should continue unimpeded. Let the legislative and executive branches fulfill their respective roles, ordained at the founding and matured by the wisdom of sobering experience gained over the course of seven generations.

Kenneth W. Starr, a former U.S. solicitor general and federal judge, served as independent counsel in the Whitewater and Monica Lewinsky investigations during the Clinton administration. © 2017 Washington Post

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