With Sessions Out, What Happens to Mueller? – NYT op-ed by Wertheimer and Eisen

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Enclosed for your information is an op-ed entitled, “With Sessions Out, What Happens to Mueller?” by D21 President Fred Wertheimer and Chairman of Citizens for Responsibility and Ethics in Washington Norman Eisen. This piece was published in The New York Times on November 7, 2018. According to the op-ed:

As ethics experts, we believe Mr. Whitaker should recuse himself from the investigation. If we have ever seen an appearance of impropriety in our decades of experience, this is it: a criminal subject president appointing his own prosecutor — one who has evidently prejudged aspects of the investigation and mused about how it can be hampered.

No prosecutor — or indeed governmental official of any kind — should work on a matter under these circumstances. Mr. Whitaker must step aside. His conflicts are just as worrisome in their own way as Mr. Sessions’s conflict was, maybe more so.

Find the full piece here or below.

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With Sessions Out, What Happens to Mueller?

Congress and the public must now push for protections for the special counsel.

By Fred Wertheimer and Norman L. Eisen | November 7, 2018 | The New York Times

Despite the extraordinary success of the special counsel, Robert Mueller — or more likely because of it — he faces his most serious threat yet: the forced resignation of Attorney General Jeff Sessions.

Early last year, Mr. Sessions, as a former Trump campaign official, recused himself from the Russia investigation, handing over its oversight to Deputy Attorney General Rod Rosenstein. As acting attorney general in that capacity, Mr. Rosenstein has overseen and vigorously defended the investigation, led by Mr. Mueller.

After requesting and receiving Mr. Sessions’s resignation on Wednesday, President Trump wasted no time in naming Matthew Whitaker, Mr. Sessions’s chief of staff, as acting attorney general, and shifted the oversight role from Mr. Rosenstein back to the attorney general’s office and its new acting head.

As ethics experts, we believe Mr. Whitaker should recuse himself from the investigation. If we have ever seen an appearance of impropriety in our decades of experience, this is it: a criminal subject president appointing his own prosecutor — one who has evidently prejudged aspects of the investigation and mused about how it can be hampered.

No prosecutor — or indeed governmental official of any kind — should work on a matter under these circumstances. Mr. Whitaker must step aside. His conflicts are just as worrisome in their own way as Mr. Sessions’s conflict was, maybe more so.

Whether or not Mr. Whitaker steps aside, Mr. Trump’s audacity now demands additional safeguards. Congress must quickly put in place a plan to protect the Russia investigation before President Trump makes any further efforts to control the special counsel’s office.

Our proposed solution is based upon one devised by, of all people, Robert Bork when he was the acting attorney general during Watergate. Mr. Whitaker or whoever becomes the next acting attorney general must provide the same protections against interference that Mr. Bork provided to the special Watergate prosecutor, Leon Jaworski, in a 1973 Justice Department order. Mr. Jaworski received the protections as part of agreeing to replace the previous prosecutor, Archibald Cox, who was fired in the infamous Saturday Night Massacre.

The Bork order contained much stronger provisions to protect the independence of the special prosecutor investigation than is now found in the Department of Justice guidelines that govern the Mueller inquiry. These enhanced protections should be demanded from any new person given responsibility to oversee the Mueller investigation:

  • The attorney general, acting or permanent, will not remove the special counsel except for extraordinary improprieties.
  • The special counsel shall not be subject to the day-to-day supervision of any Justice Department official. The attorney general shall not countermand or interfere with the special counsel’s decisions or actions.
  • The attorney general will not limit the jurisdiction of the special counsel without first consulting with the Republican and Democratic leaders of the House and the Senate.
  • The investigation by the special counsel shall continue until he determines that it and all prosecutions and other proceedings within his jurisdiction have been completed or, in his discretion, have been reassigned in the Justice Department.
  • The special counsel may from time to time make public such statements or reports as he deems appropriate and shall upon completion of his assignment submit a final report to the appropriate people or entities of Congress and may make such a report public.

This is all common sense, but the problem is that it also runs counter to the president’s stated reasons for getting rid of Mr. Sessions — namely, that Mr. Sessions wouldn’t intervene in Mr. Mueller’s inquiry.

So why would anyone designated as acting attorney general by Mr. Trump, let alone the president himself, go along with such an order?

Congress has an important role to play in answering that question. Members of both chambers should demand, including in oversight or other hearings, a commitment, given under oath, from any new person overseeing the Mueller investigation to protect the investigation along the lines of the Bork protections.

Legislation also should be pursued to impose the Bork protections on the Mueller investigation. (Alternatively, existing bipartisan legislation to protect the investigation should be renewed.)

Senate Republicans might not follow through, but congressional Democrats, new to the majority come January, should make it clear now that any interference with the Mueller inquiry will be met with increasingly aggressive congressional investigations.

And the public has a role to play as well. Americans must make it clear that any attack on the special counsel’s office is an attack on the fundamental principles of the rule of law.

A number of Democratic and Republican members of Congress have spoken out about the importance of allowing Mr. Mueller to complete his work without interference, and the Bork solution is the logical means to that end. These members need to move into immediate action.

For example, in March, Senator Lindsey Graham made an unequivocal public commitment, stating, “I pledge to the American people, as a Republican, to make sure that Mr. Mueller can continue to do his job without any interference.” Senator Graham is in line to lead the Senate Judiciary Committee next year, and this puts him in a powerful position to carry out his pledge to the nation.

This is not about partisanship. The strong protections against interference in the Watergate investigation were given by an acting attorney general, a Republican, to protect the independence of a special prosecutor investigating a Republican president. Nearly 50 years later, the American people should ask no less.

Fred Wertheimer is the president of Democracy21, a nonpartisan, nonprofit organization that promotes government integrity, accountability and transparency. Norman Eisen, a senior fellow at the Brookings Institution, is the chairman of Citizens for Responsibility and Ethics in Washington and author of the forthcoming “The Last Palace: Europe’s Turbulent Century in Five Lives and One Legendary House.”