Former FBI Director Robert Mueller’s appointment by the Department of Justice as special counsel on Wednesday puts him in charge of investigating ties between Russia and the Donald Trump campaign. But if history is any guide, that won’t be the most important part of his inquiry. The letter appointing Mueller also authorizes him to examine and prosecute “any matters that arose or may arise directly from the investigation.”
The key words are “any” and “arise” -- remember them. Together they confer exceedingly broad authority, more than enough to let Mueller follow his investigation wherever it leads. Don’t forget Ken Starr’s investigation of President Bill Clinton, which began with the dud lead of the Whitewater scandal and ended with Monica Lewinsky and impeachment.
The lesson of modern inquiries into presidential wrongdoing is that the underlying suspicions that trigger the investigation aren’t usually what brings the president to the brink of impeachment or beyond.
The document naming Archibald Cox special prosecutor wasn’t limited to the Watergate break-in. It gave him authority to investigate “all offenses arising out of the 1972 election, and all allegations involving the president, the White House staff or presidential appointments.” Cox had negotiated it with Attorney General-designate Elliot Richardson.
Ultimately, it wasn’t the break-in or other illegalities in the 1972 election campaign that doomed Nixon. It was the coverup, which itself was substantiated by the White House tapes that the counsel subpoenaed and the U.S. Supreme Court ordered Nixon to hand over.
Ken Starr’s Whitewater investigation had even broader range. Under the independent counsel law that was passed after Watergate and Nixon’s firing of Cox, a specially constituted body of three federal judges had the authority to name the counsel and specify his or her jurisdiction. The original investigation focused on Clinton’s financial dealings.
In 1998, Starr’s office learned that Lewinsky was trying to influence testimony in the otherwise unconnected Paula Jones lawsuit against Clinton. Starr went to Attorney General Janet Reno, who in turn sent him to the three judges.
They authorized Starr “to investigate to the maximum extent authorized [by the independent counsel law] whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law … in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton.”
Thus, the Lewinsky investigation grew out of the fact that Starr was investigating Clinton. That it was nothing to do with Whitewater didn’t matter.
Arguably, Deputy Attorney General Rod Rosenstein’s letter to Mueller attempts to limit the scope of the investigation by saying that further matters to be investigated must arise “directly” from the original order. It’s plausible to say that the Lewinsky matter didn’t arise “directly” from the Whitewater investigation, although it certainly arose from it.
In practice, however, how “directly” one part of an investigation grows from another is in the eye of the beholder. And the beholder here will be Mueller.
Rosenstein could in theory order Mueller to hold off on a line of inquiry that was too indirect. But that would most likely lead Mueller to resign, which would in turn trigger Saturday Night Massacre comparisons.
As for Mueller himself, he’s a long-time prosecutor, former head of the criminal division of the Department of Justice and former director of the Federal Bureau of Investigation. That means he thinks like a prosecutor. And all prosecutors know that an investigation needs to be pursued broadly in order to maximize the chances of getting leverage and proving guilt.
In the most extreme cases, prosecutors are usually comfortable with convicting a target for a more minor crime if that is all that can be proved. The archetypal instance is Al Capone, convicted of tax fraud instead of the gangland murders that couldn’t be proved beyond a reasonable doubt.
Mueller, with his reputation for fairness, won’t go on any fishing expeditions. But he will certainly have to look into the firing of FBI Director James Comey and the president’s reported request to Comey to drop the investigation of former National Security Adviser Michael Flynn. After all, the Flynn investigation is connected to Russia, which is the core of Mueller’s charge.
And Mueller should also be able to look into Flynn’s paid work on behalf of Turkey -- because it’s connected to the Trump request from Comey.
Mueller will, of course, look into Trump’s campaign staff and associates and their connections to Russia. That will extend to current White House staff who interacted with Russia during the campaign, the transition and the Trump presidency so far.
The point is that an investigation inevitably takes on a life of its own. Mueller isn’t out to get Trump. And he has the object lesson of Starr’s overreach in view. But he will follow this investigation where it leads -- which might not be back to Russia.
Ultimately, then, even if Mueller finds that the Trump campaign didn’t knowingly collude or coordinate with the Russian attempt to influence the presidential election, that may not be the end of the matter for Trump and his team. There can be coverup wrongdoing without an underlying crime. And if there is, Mueller will find it.