How Merrick Garland Can Fix the DOJ’s Special Counsel Problem

Bill Barr messed with independent investigators—and so can a future AG. Here’s how Garland can reform the way administrations investigate themselves.

The Trump Administration has left the independence and integrity of the Justice Department in shambles. President Donald Trump demanded that the department prioritize his personal and political interests. Attorney General William Barr was a faithful lieutenant. Barr politicized criminal investigations—such as by appointing prosecutor John Dunham to probe the FBI’s investigation of Russian interference the 2016 campaign or by interfering with the ability of U.S. Attorneys in the Southern District of New York and the District of Columbia to investigate Trump’s political and business interests. Barr also proved his usefulness to Trump by meddling in criminal prosecutions (for example, the aborted prosecution of former National Security Adviser Michael Flynn), in criminal sentencing (as in the case of Trump confidant Roger Stone), and by politicizing civil enforcement actions (as in the AT&T-Time Warner merger).

It turns out there was a line William Barr would not cross—pursuing baseless election fraud remedies. However, his otherwise zealous crusade on Trump’s behalf inflicted lasting damage. After Trump and Barr, the public has good reason to believe that the department can be used as a political weapon—that it is no longer an institution committed to the impartial administration of justice. In other words, there are serious questions about whether the Department of Justice can act to ensure the rule of law.

Restoring the Department starts with personnel. The first and most important official is the president himself, who must be committed to the independence and integrity of the department. So far, President Biden has said the right things. In announcing the nomination of Merrick Garland to be attorney general, President Biden declared, “You are not the president or the vice president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution.” And just last week, before a CNN Town Hall audience, Biden reaffirmed that pledge: “I made a commitment, I will not ever tell my Justice Department, and it’s not mine, it’s the people’s Justice Department, who they should and should not prosecute. Their prosecutorial decisions will be left to the Justice Department, not me.”

And Merrick Garland is precisely the right person for the job of restoring integrity to the battered agency. His fair-mindedness and commitment to the rule of law is respected across the political spectrum. The Senate Judiciary Committee is taking up his nomination; they should move to ensure that the full Senate quickly confirms Judge Garland.

But personnel changes alone cannot fully repair the damage to the Justice Department. Even if President Biden lives up to his word and Attorney General Garland lives up to his reputation, there will be future administrations and future attorneys general. We will see the likes of William Barr again. It is crucial that steps be taken now to install structural reforms that will act as a bulwark against the politicization of the department in the future. And within weeks of his confirmation, the new attorney general will face agonizing decisions of how to proceed in the investigations of Trump, his family, and his business interests—including how to simultaneously ensure that there is no appearance of political payback, while not winking at high-level corruption.

There is no silver bullet that will guarantee integrity, transparency, and legitimacy at the DOJ; no single innovation will prevent the department straying from its commitment to the rule of law. Nonetheless, one measure cries out for immediate attention: the mechanism for investigating a president and a president’s close political, personal, and business relations.

The Trump Administration laid bare the deep flaws in the institutions that are supposed to fulfill our commitment to the rule of law. Fundamental to that commitment is the principle that no one, including the president, is above the law. The Constitution expresses this precept by imposing upon the president the duty to “take care that the laws be faithfully executed.” In other words, the president, unlike the King of England, does not have a dispensing power—the power to suspend or dispense with the application of the laws. Our president, unlike the king, must follow the law.

But if a president is truly not above the law, there must be a dependable mechanism for enforcing the law against the president. For investigations of the president and his close associates, however, the Justice Department has an obvious conflict of interest. How can an investigation by the department be credible when the attorney general is removable at will by the president and is also subject to his supervision and control?

In response to this problem, the Department devised the role of special counsel, through trial-and-error dating back at least to the Grant Administration and the investigation of the Whiskey Ring. When confronted with credible charges of wrongdoing by the president or that otherwise create a conflict of interest for the department, the attorney general would appoint an attorney—a special counsel—from outside the department to conduct the investigation and bring any appropriate prosecutions. The Justice Department utilized the special counsel model up to and including the Watergate investigation.

Then came the infamous Saturday Night Massacre—when, on October 20, 1973, Nixon ordered the attorney general and then the deputy attorney general to fire Special Counsel Archibald Cox. Though the investigation of Nixon continued under a new special counsel, Nixon’s ham-handed interference made clear that the president had levers of control over even a special counsel investigation.

In the reformist fervor that followed Watergate, Congress enacted a new model: the independent counsel. The independent counsel was insulated from the president’s control in both the manner of appointment and removal. First, when the attorney general was presented with credible evidence of wrongdoing by the president, vice president, cabinet officers, or high-ranking officials at the DOJ, the attorney general was required to ask a panel of federal judges to appoint an independent counsel to investigate and, if appropriate, prosecute the matter. The independent counsel was to follow the DOJ policy (for example, the Justice Manual, which provides guidelines on how to conduct a prosecution from evidence gathering through sentencing) to the extent practicable but could only be removed by the attorney general “for cause.” The “for cause” language echoes the statutes that confer independence on agencies such as the Federal Reserve and the Securities and Exchange Commission; it is understood to confer independence from the supervision and control of either the attorney general or the president.

The independent counsel statute raised a serious constitutional question: could Congress insulate law enforcement from the supervision and control of the president, in whom the Constitution vests “the executive power”? By a vote of 7-1, the Supreme Court said yes. Chief Justice William Rehnquist wrote that the president’s constitutional role did not require that he hold unlimited removal power over this narrow class of cases where the president and the Department of Justice had such an obvious conflict of interest. It is enough, ruled the Court, that the president (through the attorney general) may remove an independent counsel who gives the president cause.

The lone dissent in the case came from Justice Antonin Scalia. Scalia began with a formalistic argument—that a purely executive officer such as the independent counsel must be removable at will by the nation’s chief executive. But he then offered a powerful practical warning. The independent counsel, he foretold, could do serious damage to the constitutional structure. Scalia foresaw the possibility that an independent counsel might pursue a presidential investigation as a partisan vendetta. Moreover, he pointed out, an independent counsel who was accountable for only a single high-profile investigation would have every incentive to pursue that investigation obsessively. Ordinary DOJ prosecutors must always strike a balance based on trade-offs and priorities among a lengthy docket of cases. The independent counsel had only one target.

When Ken Starr was appointed to take over the Whitewater investigation of President Clinton, he appears to have taken Justice Scalia’s warning as a how-to manual. His scorched-earth approach to President Clinton thoroughly illustrated the practical defects that Justice Scalia had identified. The Whitewater debacle cemented a bipartisan consensus that the independent counsel mechanism was a failed experiment. When the statute came up for re-authorization in 1999, Congress allowed it to expire.

With the expiration of the independent counsel statute, the Justice Department issued new regulations that reverted to the special counsel model. But the team of Trump and Barr illustrated, in fact exploited, the shortcomings of that approach in connection with the probe into Russian interference with the 2016 elections. Before Barr’s arrival, Deputy Attorney General Rod Rosenstein had named former FBI Director Robert Mueller special counsel to investigate the matter. Mueller’s investigation revealed damning evidence of the campaign’s contacts with Russian sources and of Trump’s efforts as president to obstruct the investigation. But when the report arrived, Barr withheld it. Instead, he released only a highly misleading summary and publicized this sanitized version at a press conference. That press conference launched an administration mantra—“no collusion, no obstruction.” Only after the mantra took hold with the public did Barr release the Mueller report itself. Ignoring the report’s actual contents, Barr held to the “no collusion, no obstruction” line. In fact, he saw to it that the department would not pursue the (literally) voluminous evidence of the president’s wrongdoing. Rather, he announced that the Department of Justice had concluded that the president did not commit obstruction of justice.

But Barr was not content to simply declare the matter closed. In what seemed like an act of political revenge, he testified to Congress that the FBI’s counterintelligence operation to prevent Russian interference in the 2016 election amounted to “spying” on the Trump campaign. He followed up this assertion by designating United States Attorney John Durham to investigate the conduct of the FBI and DOJ in investigating Russian interference.

This move was outrageous on many levels. First, it minimized the department’s established channels for ensuring ethical conduct by its personnel—its inspector general and Office of Professional Responsibility. It did so in favor of an irregular investigator still under the attorney general’s supervision and control. Second, it provided fodder for the president’s false and fantastic claims that he was the victim of election interference. Third, and most importantly from the standpoint of lasting damage to the department, it led to the ultimate perversion of the special counsel model.

After it became clear that Donald Trump had lost the 2020 election, Barr bestowed on Durham the status of special counsel. This ensured that Durham could pursue his investigation even after the Biden Administration took office—and do so free from meaningful oversight by the new attorney general. Never before had the office of special counsel been employed in this way. Instead of being a mechanism for an administration to conduct an independent investigation of its own conduct, William Barr twisted it into an instrument for an outgoing administration to embed its own handpicked and independent investigators to harass its successor administration.

Barr’s stunt has shown that the special counsel mechanism is able to be thoroughly manipulated—that it can be controlled when investigating the attorney general’s own administration and unleashed upon successor administrations. To address this flaw, it is not enough for the next attorney general to pledge, as I am sure he will, to refrain from political manipulation of this vital function. Recall, though, that Barr himself made reassuring commitments at his confirmation hearing regarding the work of Special Counsel Mueller. Now the Barr precedent has been set and can be followed by future attorneys general.

The new attorney general should make it a priority to devise and promote a replacement for the special counsel mechanism. The object should be to identify a structure that incorporates the advantages of the independent counsel model (principally its independence from political interference) but avoids its fatal flaw (its tendency to facilitate witch hunts, particularly in the hands of a fierce partisan such as Ken Starr). The independent counsel experiment failed because of the way the position was structured. In particular, the independent counsel was an independent contractor, hired to pursue a single matter, unconnected to the work of the Justice Department generally or to the work of any other independent counsel specifically. Is it any wonder that such a figure would pursue the object of their inquiry relentlessly?

No other prosecutor in the federal government has such a single-minded focus. In addition to this narrow targeting, the independent counsel has no other official priorities. That’s important because, generally, prosecutor’s zeal can be tempered by limited resources. Ordinary departmental prosecutions must decide whether to spend funds on one prosecution that will then be unavailable for other probes. They have to decide whether to spend time pursuing a given prosecution and, consequently, whether to divert time from others. Moreover, they have to consider whether pursuing a specific legal argument that might be helpful in securing a conviction in this case will undermine the interests of prosecutors in other cases. Or whether relentlessly pursuing a particular prosecution will make the department look overzealous and so harm the image of the department and its prosecutors in other cases. None of these institutional influences was brought to bear to temper the zeal of independent counsels, which almost inevitably led to Ken Starr’s turn as Captain Ahab.

The path to reform, then, seems clear. The department should institutionalize the independent counsel approach. Instead of unleashing an unaccountable independent contractor (whether called an independent counsel or a special counsel), the department should establish a new section within the Criminal Division called the Rule of Law Section. The attorney general should appoint to head the section someone of unimpeachable integrity, respected by figures across the political aisle, with a lengthy record as a career prosecutor. The head of this new section would be independent from the attorney general’s immediate supervision and control in the manner of the independent counsel (with this independence confirmed by a provision establishing that the section head could be removed only for cause). The section would have a permanent staff of career (that is, civil service) investigators and prosecutors. The section would be funded within the overall Department of Justice budget and its operations would be subject to DOJ regulations and the guidelines found in the U.S. Attorneys’ Manual.

While the entirety of President Trump’s term demonstrated the need for such an institution, the final days really clinch the case. A bipartisan supermajority of the Senate concluded, in the words of Senate Minority Leader Mitch McConnell, that President Trump was “morally and practically responsible for” provoking the Capitol insurrection on January 6. Indeed, McConnell was at pains to emphasize that Trump has not gotten away with anything “yet” because, as a private citizen, he remains subject to criminal prosecution. But this puts the Justice Department in an exceedingly difficult spot: How can the Biden Administration credibly investigate and, if appropriate, prosecute the former president?

To embark on such an investigation is to establish an uncomfortable precedent. No administration has ever conducted a criminal investigation of its predecessor. Once such a precedent is established, it opens a road that is frequently traveled in dysfunctional republics and autocracies. A Rule of Law Section, structured as I have outlined, provides the best resolution to this problem. The best way to maintain public confidence in an investigation of a predecessor administration is to vest the authority to initiate and conduct the matter in a section of the Justice Department that has independence and integrity built into its very structure.

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Neil Kinkopf

Neil Kinkopf is a law professor at Georgia State University College of Law. At the Justice Department, he has worked in the Office of the Attorney General, the Office of Legal Counsel, and the Office of Legal Policy.