The huge news from last night is that Robert Mueller has been appointed as special prosecutor in the Trump/Russia probe. Given that announcement, there are some facts that are important to fill out the story.
First of all, to reacquaint yourself with Robert Mueller, I recommend the cover story from Time by Barton Gellman back in 2011 as the most comprehensive look at the man who will lead this investigation. Here’s a taste:
As he nears the end of a 10-year term, Mueller, 66, is easily the longest-serving of his peers atop the national-security establishment. His anonymity in the role is almost a parlor trick. He remade the bureau in his image, pushed out the old guard and hired more than half its present cohort. Behind the scenes, he fought historic battles with the White House, twice compelling George W. Bush to change course under threat that Mueller would resign. Yet he is so careful to dodge the spotlight, so rigorously bland when caught onstage, that he could drink unrecognized at any bar in America.
Secondly, Ian Millhiser has a good run-down on the structural reasons why Trump won’t be able to push him around.
Mueller’s authority under Rosenstein’s appointment is broad. Mueller is empowered to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as “any matters that arose or may arise directly from the investigation.” He may also prosecute federal crimes uncovered in this investigation…
…Mueller has broad discretion to decide when to inform DOJ’s leadership of his findings. With some exceptions, federal regulations provide that “the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.”…
Even more significantly, Mueller is insulated — albeit not completely — from Trump’s penchant for firing people who get under his skin. “The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General,” which in this case means Acting Attorney General Rosenstein. Mueller, moreover, may only be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”
So if you had questions about whether or not Mueller’s investigation could include obstruction of justice by the president, the answer is “yes.” And if you wondered whether or not Trump could simply fire Mueller the way he fired Comey, the answer is “no.”
The White House tried to spin the idea that Trump’s reaction to the news about this appointment was “extremely measured.” That didn’t last long. Once again, the president undermined the narrative with his tweets this morning.
With all of the illegal acts that took place in the Clinton campaign & Obama Administration, there was never a special counsel appointed!
— Donald J. Trump (@realDonaldTrump) May 18, 2017
This is the single greatest witch hunt of a politician in American history!
— Donald J. Trump (@realDonaldTrump) May 18, 2017
Finally, a lot of people are assuming that Deputy Attorney General Rod Rosenstein made this appointment in reaction to how Trump fired Comey. We’re not likely to ever learn what was in his head as he made this decision, but the timing doesn’t support that assumption.
Rosenstein became the Deputy Attorney General on April 26th. That was a mere three weeks ago. Trump fired Comey on May 9th. If Rosenstein made the decision to appoint a special prosecutor after the Comey firing, that would have given him a mere eight days to decide on a candidate, get them to accept the position, and complete the process of developing the DOJ order laying out the appointment and charge. Between the second and third step, Mueller would have had to make arrangements related to his current employment at the law firm WilmerHale. Perhaps all of that could have conceivably been completed in a mere eight days, but it is highly improbable.
What is much more likely is that Rosenstein came into the job three weeks ago with the kind of commitment Senate Minority Leader Schumer referred to.
In a floor speech earlier this week, Senate Minority Leader Chuck Schumer (D-N.Y.) stressed that Rosenstein had made that commitment to him personally.
“He had developed a reputation for integrity,” Schumer said. “He has promised to give this issue careful consideration. I believe if he studies the department regulations, he will come to the same conclusion many of us have: that a special counsel is merited.”
That doesn’t absolve Rosenstein of the kind of criticism he’s been facing over the last week. But just because our media is addicted to the kind of instant gratification of a 24-hour news cycle and would love to connect the Comey firing to the appointment of Mueller, we shouldn’t assume that developments like this can happen with a mere snap of the fingers.