Almost from the day of Robert Mueller’s appointment as special counsel, the media and the public have expected that his investigation will end with a report to either the Congress or the public or both.
I’m a law school professor who teaches a course on the independent counsel, the predecessor of the special counsel.
For eight years, I was the general counsel for the U.S. House of Representatives, the chief legal officer responsible for representing the House, its members, officers and employees in connection with legal procedures and challenges to the conduct of their official activities.
I believe that the public’s expectation that they will see a report from the Mueller investigation is unrealistic. That expectation appears to be based on a misunderstanding of the legal principles involved in making any such report available to anyone outside of the Department of Justice.
Regulation reflects history
The previous law creating special counsels – which has now lapsed – directed the special counsel to report to the House of Representatives “substantial and credible information” of impeachable conduct.
The current regulation, adopted during the Clinton administration, provides no such direction.
It says only that “[a]t the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report” explaining the decision to either prosecute or not.
The goal of those drafting the regulation was to restore more control to the department over the special counsel after what was seen as the excesses of previous independent counsels in the Iran Contra and Clinton cases.
Those excesses included overly broad and lengthy investigations such as the HUD Independent Counsel, which took eight years to complete; expensive investigations, including US$52 million estimated in one case; and oppressive prosecutorial tactics, like subpoenaing Monica Lewinsky’s mother to the grand jury.
Former Department of Justice official Neal Katyal, who drafted the regulations, has explained that returning a degree of control over the process to the Department of Justice would result in a restoration of the separation of powers balance between the executive branch and Congress in these cases.
“The special counsel regulations were drafted at a unique historical moment,” wrote Katyal in the Washington Post.
“Presidents of both parties had suffered through scandals and prosecutions under the Independent Counsel Act…There was a chance to rethink things without either party fearing that it would give its political adversaries an advantage.”