Mikhaila Fogel and Benjamin Wittes: The much-heralded end of the Mueller investigation

The AEI/Brookings Project on the Independent Counsel Statute assembled a distinguished bipartisan group to join Dole and Mitchell. Its members included Department of Justice officials (former Attorney General Richard Thornburgh, former Solicitor General Drew Days, former Assistant Attorney General Carla Hills, and former Principal Deputy Solicitor General and current Chief Justice John G. Roberts Jr.); former House members (Bill Paxon and David Skaggs); a former associate White House counsel and Office of Legal Counsel attorney (Zoe Baird; John Roberts had also been an associate White House counsel); and a former deputy independent counsel (Mark Tuohey).

On June 11, 1999, Dole and Mitchell, accompanied by Days and Roberts, presented the project’s unanimous report at a House Judiciary Committee hearing.

After careful study of the Department of Justice’s long experience in addressing potential conflicts between the interests of justice and the political interests of an administration, our bipartisan team opted to rely on the integrity and sense of responsibility of attorneys general. The lesson that we drew from history was that attorneys general have done well in identifying circumstances in which investigation by specially appointed counsel might contribute to public confidence in the administration of justice.

So the bipartisan group agreed that the attorney general, not a special counsel, should determine whether to release to Congress or the public all or parts of a final report. We were mindful that the statute, 28 USC 503, that provides for the advise-and-consent appointment of an attorney general, describes that officer as “Attorney General of the United States.” In other words, while the attorney general is nominated by the president and serves in the executive branch, the duties of the office are to the whole of the U.S. government, and to the Constitution. The attorney general has the same duty to enable the legislative branch to carry out its responsibilities, including—but not limited to—possible impeachment, that the attorney general has to all branches of government.

Accordingly, the report added important caveats.

First, underscoring the significance of congressional oversight, the report stated: “Congressional oversight is, of course, a central element of accountability. The Attorney General’s duty, on behalf of the Executive Branch, to be responsive to Congress on matters within the latter’s responsibility should be sufficient assurance that information will be appropriately shared.”

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Second, our report sought to “specifically make clear” that the attorney general’s regulation should expressly state that “nothing in it prevents Congress from obtaining information during an impeachment proceeding.”