What If Mueller Hadn’t Been Appointed?

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Adjunct professor Joel Cohen wrote an op-ed for Law.com about why it was important to appoint an outside special counsel to conduct the investigation on Russian interference inside the Justice Department.

A more articulate, forceful and willing testimony by Mueller could have changed all that, and maybe allowed or even forced the Trumpers (or the mostly Trumpers) to see more light—but it is what it is. We probably won’t know for a while precisely “what happened with Mueller.” And maybe because something obviously did, the individual citizen’s going-in partisanship will largely determine how he or she judges the president’s conduct as presented by the report—“exonerated” or not. The needle simply will not have been moved one centimeter.

But what if Mueller hadn’t been appointed? What if, after Attorney General Sessions had recused himself, Deputy Attorney General Rosenstein decided to keep the investigation of Russian interference inside the Justice Department? Suppose he had chosen a ramrod straight, Mueller-like, career prosecutor within the Justice Department—let’s call him, James Straight—to command the investigation with a team of career and dedicated Justice Department attorneys who had held their positions long before Trump and were only dedicated to defending the “presidency”, not this president? Same number of witnesses, search warrants, indictments. Suppose Acting Attorney General Rosenstein retained ultimate decision-making authority, but didn’t interfere one iota in Straight’s investigation as, incidentally, was clearly the case with Mueller.

But, here’s the thing. There would have been no detailed report, however the public might choose to read it. Justice Department prosecutors who decline to indict someone don’t write reports. Yes, they may explain to their superiors within the Department, sometimes in extraordinary detail, why they declined prosecution. And, in some limited circumstances, when they are responsible for the investigation having been made public, they write a letter to the target saying something like “there was insufficient credible evidence to sustain an indictment against you.” But no report—either up or down. And nothing like FBI Director James Comey did with Hillary Clinton—there would have been no public statement that there was no indictable offense, notwithstanding a very public excoriation of her conduct. In short, the facts, and as described in the report the facts are largely undisputed by the White House, would never have seen the cool light of day except occasionally through anonymous source reportage. Would that have been preferable for anyone?

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