In 2016, when San Francisco federal judge Charles Breyer needed to appoint someone with impeccable credentials to orchestrate a three-way settlement between Volkswagen, the U.S. and state governments and VW “clean diesel” car owners suing the company for cheating them, he tapped former FBI director Robert Mueller. “There are few, if any, people with more integrity, good judgment, and relevant experience,” wrote Breyer, who has known the former FBI director for more than 40 years, since Mueller was a young federal prosecutor in San Francisco.
Mueller met the judge’s high expectations in the VW case. His was the unseen hand that guided negotiations between Volkswagen, regulators and car owners, hosting conferences deep into the night at the Washington, D.C. offices of his law firm, WilmerHale. With Mueller pushing and prodding, Volkswagen reached a global $14 billion settlement in a matter of months, and even managed to retain the good will of the rest of the players.
Mueller will need all of his skills, as an investigator, prosecutor and negotiator, to navigate his new assignment as special counsel overseeing the probe of possible ties between Russian officials and the campaign of President Donald Trump. These special investigations - whether by independent counsel appointed by a three-judge panel under a post-Watergate statute or by special counsel named by the Justice Department - are by definition politically fraught.
Even highly respected lawyers such as Lawrence Walsh, who oversaw the seven-year Iran Contra probe, and Kenneth Starr, who spent years on a sprawling investigation of President Bill Clinton, were criticized for devoting too much time and taxpayer money to the pursuit of their targets.
Mueller, a much-decorated former Marine, already has considerable experience running complex investigations. He was director of the FBI for 12 years, serving under Republican George W. Bush and Democrat Barack Obama. He also headed the Justice Department’s Criminal Division in the 1990s and was the U.S. Attorney in San Francisco from 1998 to 2001.
Mueller famously stood up to President Bush in 2004, when he and then Deputy Attorney General James Comey rushed to the hospital bedside of Attorney General John Ashcroft to stop White House counsel from persuading Ashcroft to reauthorize a surveillance program the Justice Department had deemed illegal. Comey described the incident in riveting Senate testimony in 2007.
It’s important to understand that Mueller doesn’t need to make a name for himself in this case. His record of accomplishment is long and deep. Mueller’s work as special counsel will cap an already illustrious career, not jumpstart it.
Independent counsel like Walsh and Starr operated entirely outside of the Justice Department. They were accountable only to a panel of federal judges from the District of Columbia U.S. Court of Appeals. That structure was designed to insulate investigators from White House interference, a direct response to President Richard Nixon’s “Saturday Night Massacre,” in which the president instructed his attorney general and deputy attorney general to fire special prosecutor Archibald Cox. Instead, the AG and deputy AG resigned and it fell to the Justice Department’s third-ranking official, Robert Bork, to fire Cox.
The independent counsel statute was deemed constitutional by the U.S. Supreme Court in 1988, but Congress declined to renew the law in 1999.
Unlike independent counsel, Mueller will operate under the loose supervision of the Justice Department. The special counsel provision of the U.S. criminal code says the attorney general (or, in this case, the Deputy AG because Attorney General Jeff Sessions is recused) can ask for an explanation of prosecutorial decisions and has a right to reverse them if he or she concludes the outside lawyer has run afoul of Justice Department practices.
Such reviews, however, are supposed to give considerable weight to the views of special counsel. If Deputy AG Rod Rosenstein overrules Mueller, for instance, he is required to notify Congress. Only Rosenstein has the power to remove Mueller as special counsel. The special counsel provision, on its face, would not stop a president from repeating President Nixon’s tactic of firing Justice Department officials who refuse to axe a specially-appointed investigator, but the political costs would be astronomical.
There are all kinds of unforeseeable pitfalls lurking for anyone who takes on an investigation of the highest reaches of government. But if Mueller’s resume is a reliable indicator, the Trump administration, the Justice Department, Congress and the public can expect a timely and even-handed resolution of the Russia investigation. That’s a lot to hope for, but Mueller just might be the man to make it happen.