//  1/24/19  //  In-Depth Analysis

Take Care has been pleased to present a symposium on Andrew Cohen's important new book, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford University Press).

For an enlightening discussion of Coan's book, check out this video.

My overwhelming reaction to last week’s symposium contributions is gratitude. Every one was a delight to read and made me think more deeply about the issues discussed in Prosecuting the President. I am honored that such a distinguished group of scholars has read my book and doubly honored that they have accorded it such probing attention in this important forum. In this post, I will respond briefly, with apologies that I cannot give any of the contributions the attention they deserve in this limited space.

Several of the commenters express concern over the state of American democratic norms and grave doubts whether special prosecutors or the American people are capable of holding a lawless president accountable under contemporary conditions. Aziz Huq, for instance, suggests that it is insufficient for “legal elites … to make appeals for popular commitment and recommitment to the rule of law.” Instead, or in addition, we must grapple with the complex challenges facing American democracy today. I fully agree. I address some of these issues in the book’s epilogue—in particular ongoing changes in the media ecosystem and the hyperpolarization of American politics in the early twentieth century. But Huq is correct that there is much more to be said and much more work to be done on these questions. I therefore share his hope that my book will constitute “an opening bid, rather than the final word” in this discussion.

David Marcus underscores the weakness of special prosecutors, questioning whether they qualify as an “institution” in any meaningful sense. This could be a merely semantic question, but Marcus is onto something much deeper. The legal foundations and social norms protecting special prosecutors, he correctly points out, are much weaker than those protecting—and, in a real sense, constituting—more established institutions like the President. Marcus also points to the special prosecutor’s lack of endurance over time in any consistent form as a source of vulnerability.

These are all fair points and almost certainly render special prosecutors weaker than some imaginable alternatives. On the other hand, the tradition of special prosecutors stretches back 140 years, and this tradition clearly played a role in catalyzing political pressure for the appointment of Robert Mueller and the Watergate special prosecutors. It also played a role in the drafting of the 2000 special counsel regulations, which filled the void left by the final expiration of the Independent Counsel statute in 1999. Perhaps most important, Robert Mueller still has a job, despite President Trump’s obvious desire to be rid of him as far back as June of 2017. We don’t yet know how this episode will end or to what extent Trump may have already succeeded in undermining Mueller behind the scenes. But the cautionary tale of the Saturday night massacre and the norms that grew up around it – thanks in part to the long, bipartisan history of special prosecutor investigations – have proven surprisingly resilient to date.

Deborah Pearlstein points to the weakening of democratic norms and the weakness of political accountability mechanisms like impeachment to argue for the permissibility of indicting a sitting president. I agree that there is real reason for concern. I also agree that there is something attractive about holding the president to the same standards as any other person accused of a crime. But I worry that the symptoms of democratic decline Pearlstein points to make indictment, as well as impeachment, more problematic and potentially fraught. A world in which Americans cannot agree across partisan lines on standards of presidential conduct is also a world in which the president’s supporters are unlikely to accept the results of a criminal proceeding without protest—and perhaps violence. My own view is that the risks of indictment outweigh the benefits, despite the weakness and inadequacy of political alternatives. But I recognize this as a deep and difficult question and do not feel any great confidence in my answer.

Daniel Hemel canvasses the challenges facing special prosecutors and asks the helpful and provocative question: Might ordinary prosecutors working inside the Justice Department do a better job? I have been thinking a lot about this question in light of the apparently exemplary investigation of campaign finance charges arising out of the Stormy Daniels affair conducted by the U.S. Attorney’s office for the Southern District of New York. A sentencing memorandum filed by that office in the Michael Cohen case quite clearly placed the president of the United States at the heart of a criminal conspiracy—a first in U.S. history. Might the U.S. Attorney’s office have conducted a more effective investigation of the president than Robert Mueller? Hemel persuasively demonstrates that this is not a frivolous question. For now, my sense is still that the advantages of an outside prosecutor outweigh the disadvantages in most cases directly implicating the president, largely because the risks of presidential interference—especially secret presidential interference—with an inside investigation are too great. Such interference took place at the outset of the Watergate investigation, while it was still being handled by the D.C. U.S. Attorney’s office. Press reports also indicate that President Trump may have tried to pressure Acting Attorney General Whitaker to interfere with the ongoing campaign finance investigation in New York. Still, Hemel’s question merits significantly greater discussion and thought.

The remaining commenters seem to me more optimistic about the state of American democracy, while making a number of trenchant observations about how special prosecutors might more effectively assist the American people in holding presidents accountable. Victoria Nourse succinctly and persuasively explains how democratic politics have sustained Robert Mueller’s investigation in the face of deep hostility and relentless attacks from the White House. She also urges Mueller to speak to the American people, in both his report and his indictments, in language that they can understand. I agree that this sort of communication is vital to the special prosecutor’s ability to serve as a catalyst for democracy. And one weakness of the current regulations is their failure to provide any clear mechanism for the special counsel to speak directly to the public. This weakness is hardly fatal, however, and the President and Attorney General can be held accountable if they seek to suppress the special counsel’s findings. The commitments to transparency that William Barr felt compelled to make at his recent confirmation hearing are some preliminary evidence that this process is working as intended, though those commitments were far from airtight.

Lisa Manheim incisively catalogs the challenges facing ordinary citizens  seeking to follow Mueller’s investigation—and contemporary politics more generally—and prescribes civic education as a partial cure. I hope she is right or I would not have written this book, though Manheim’s own analysis underscores the serious systemic headwinds facing American democracy today. Civic education alone seems insufficient to meet the challenge. On the other hand, as I have tried to highlight throughout this post, democratic politics has already played an important—and surprisingly effective—role in protecting the Mueller investigation. This is no cause for complacency and the situation may yet become substantially worse. But despair also seems unwarranted. Writing for a general audience is one small and concrete way in which legal academics like me can do our part.

Zachary Price makes two deeply interesting points, one about the tendency of prosecutorial discretion to exacerbate political polarization and one about the constitutional structure of federal office-holding. Both are important, correct, and defy easy summary. Rather than make the attempt here, I simply note my agreement and refer the reader to Price’s excellent post.

Last but by no means least, Barbara Babcock offers an elegant portrait of Special Counsel Robert Mueller and an insightful analysis of the predicament inherent in his office. Serious biographies will one day be written about Mueller, but in 500 words, it would be difficult to sketch him more vividly—or with greater psychological interest—than Babcock has done.

In closing, I would like to say one more thank-you to the Take Care editors and symposium contributors for making this wonderful discussion possible. It was enormously gratifying to me personally, but far more important, it has significantly enriched the public discourse on special prosecutors. If my book accomplished nothing more than to provide an occasion for this gathering of voices, I would consider the effort worthwhile on that basis alone. 

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On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

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