The most daunting assignment in Robert Mueller’s career in law-enforcement and public service might seem to have arrived on Wednesday night, with his appointment as the special prosecutor in the investigation of Russian meddling in the 2016 president campaign, including possible collusion between Moscow and the Trump campaign.
But it’s hard to imagine that this new job is any more intimidating than the one Mueller confronted on the morning of Sept. 11, 2001, when the newly arrived FBI director was forced to deal with the aftermath of terrorist attacks that left more than 3,000 people dead in New York and Washington and put the FBI’s very survival in doubt because of what would be shown to be its well-documented bungling before the attacks. On 9/11, Mueller had been on the job at the FBI for exactly one week.
The fact that the FBI survived in one piece after multiple government investigations of 9/11, and that Mueller went on to serve another dozen years at the bureau and left with his reputation for independence and honesty largely unscathed, suggests to his friends and admirers that the blue-blooded 72-year-old former Marine is the right man for his new job – and that President Trump and his campaign advisers have much to fear from his investigation.
Under terms of his appointment by Deputy Attorney General Rod Rosenstein, Mueller will have wide powers to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and—beyond that—“any matters” that arise from the investigation, including perjury and obstruction of justice.
The wide scope suggests an inquiry that is almost certain to last for years, given the history of these sorts of investigations, and will have an unpredictable impact on near year’s congressional midterm elections and the early jockeying in the 2020 presidential campaign. There are likely to be strains between Mueller’s inquiry and those being conducted on Capitol Hill, especially if congressional investigators want to give immunity to targets of Mueller’s investigation in exchange for their testimony, which would complicate the former FBI director hopes of ever obtaining criminal convictions.
Mueller’s selection was widely welcomed. “By reputation alone, I think he’s an excellent choice,” said Carol Elder Bruce, a Washington lawyer and former federal prosecutor. She said that Mueller, given his broad management experience at the FBI and from his previous career as a Justice Department prosecutor, would know where to turn to build a staff and organize an investigation in a hurry. “It won’t take him long to get organized,” she said. And indeed, Mueller is already bringing several staffers with him from WilmerHale, the law firm where he was working before resigning to take the special counsel job.
A senior FBI official, speaking on condition of anonymity because he said he feared retribution from the Trump White House, said the reaction within the bureau to Mueller’s appointment as the special counsel was “jubilation” given the turmoil that followed last week’s decision by Trump to fire FBI Director James Comey. “People are really torn up about what happened to Director Comey—a good man who has treated very badly by the president,” the official said. “The fact that the investigation is now going to be led by Mueller, who is so like Comey in so many ways and who also loves the bureau, is sweet justice.”
Mueller and Comey already share a place in the modern history of the Justice Department and in the annals of civil liberties law. In March 2004, then-FBI Director Mueller and then-Deputy Attorney General Comey threatened to resign if the Bush White House reauthorized the Bush administration’s so-called warrantless wiretapping program, which department lawyers had found to be unconstitutional. The threat, made in a dramatic and now-famous scene at the bedside of ailing-Attorney General John Ashcroft, ended with President George W. Bush effectively siding with Mueller and Comey.
In naming Mueller, Rosenstein said his goal was to restore the public’s “full confidence” in the Justice Department’s investigation, which had been called into question after the New York Times reported this week that Trump had asked Comey to abandon the Russia investigation as it related to former national security adviser Michael Flynn.
A special counsel cuts both ways for Trump, who might want to welcome the invitation given his repeated insistence that there was no collusion between his campaign and Russia – “fake news,” as the president keeps tweeting. Given the esteem with which Mueller is held on both sides of the aisle—Republicans universally praised the choice on Wednesday evening—the former FBI director may be one of the few men in America who could convincingly clear the president’s name. (House Oversight Committee Jason Chaffetz, for one, said he had “impeccable credentials.”)
But in most respects, the appointment is a nightmare for the White House. From Watergate to Iran-Contra, special prosecutors have tended to conduct investigations that last for years, leading to an endless stream of damaging news stories about documents, subpoenas, and sometimes criminal indictments and even convictions. It would be no surprise, then, if Mueller’s investigation lasted beyond Trump’s presidency. All the while, White House staffers will inevitably be distracted and fearful about being dragged into the maelstrom. Meanwhile, the House and Senate inquiries will be chugging along, with leaky committees providing regular (and often slanted) headlines for eager reporters.
Mueller’s inquiry will have its limits, too. Democrats immediately began calling for an independent commission that would have a broader mandate—to look not only at whether crimes were committed by any of Trump’s associates, but also to understand what exactly happened during the 2016 election and make recommendations for preventing future foreign meddling.
And the investigation could be short-circuited by Rosenstein, who has final say on decisions made by Mueller, including whether individual suspects should be prosecuted. The attorney general would normally have that authority, but Attorney General Jeff Sessions has recused himself from any investigation tied to the 2016 campaign. Under the Justice Department rules for his new job, Mueller is required to prepare a confidential report to Rosenstein about his findings at the end of his investigation; the decision about whether to release the report publicly is left to the department.
The selection of Mueller as special counsel in the Russia investigation was not universally praised. His performance in the aftermath of the 9/11 attacks made him the subject of harsh criticism by many of the families of the victims in New York and Washington, as well as by members of Congress who investigated the terrorist attacks. The lawmakers alleged that Mueller tried to hide evidence of the bureau’s failure before 9/11 to act on information in its own files that should have prevented the attacks.
Former Senator Bob Graham of Florida, the Democrat who ran the joint Senate-House Congressional investigation of pre-9/11 intelligence failures, said in an interview Wednesday that while he was pleased by the appointment of a special prosecutor to investigate Russian meddling in 2016 election, he questioned the choice of Mueller. “I did not have a good relationship with Mueller during the 9/11 investigation,” he said. “I have some concerns that he will in fact be fully independent, based on what I observed 15 years ago.” Graham has long been critical of what he says are Mueller’s repeated attempts to protect the bureau from embarrassment over its pre-9/11 failures as well as the former FBI director’s failure to hold the government of Saudi Arabia accountable for its possible ties to the hijackers.
But Graham is a lonely voice, and most in Washington had nothing but praise for Rosenstein’s selection. Mueller now faces the challenge of setting up what amounts to a small independent federal agency; he will need to secure office space in or near Washington, organize a team of lawyers and clerical staff, and gather and store all of the highly classified paperwork and evidence that now exists elsewhere in the Justice Department about the Russia investigation. He will also need to move quickly to secure or compel the cooperation of the White House, which has made little secret of its impatience with questions about the Russia probe.
Bruce, who led or helped lead independent investigations into Cabinet officials during the 1980s and ‘90s, said Mueller had an important head start in organizing the Russia inquiry, given his experience in dealing with the workings of the Justice Department and the rest of the federal government. Still, she said, she would advise him to move quickly to find seasoned prosecutors who have hands-on experience in the sort of complex criminal and counterintelligence issues that the investigation is likely to confront.
Whatever the challenge, Mueller is up to it, she said. For this job, “he’s right out of central casting.”