//  1/16/19  //  In-Depth Analysis

Take Care is 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).

Barbara Babcock, Crown Professor of Law, Emerita, Stanford Law School

I’m delighted to join the conversation because I think this book is great and important, and because Andy Coan was my student at Stanford. It is thrilling for an old professor to bear public witness to such success.

Rather than comment on the very readable text itself, I will take up an issue not likely to be fully explored until the current drama reaches its dénouement, and perhaps not even then: the character of the special prosecutor and the part that he will play.

What kind of lawyer would want to be a special prosecutor investigating the President—likely facing a constant storm of criticism, as well as the danger of a damaged reputation? On the other hand, there are few legal jobs that so surely promise an important and visible place in history. Whatever the results of the investigation, the person chosen will have his or her role recognized and analyzed for years to come. He or she will, in short, always be “special.” And what nobler use of a stellar reputation, than to risk it for truth seeking?

Robert Swan Mueller, the current special prosecutor, is surely the most interesting and perhaps the most deeply qualified of the handful of lawyers who have ever held the title. One of Andy Coan’s literary devices in this law book is to reveal the personalities involved through subtle physical descriptions. I’ll try to do the same with Mueller. 

Mueller has the look of an old hound dog with sad eyes and drooping jowls. Some of the breed is also “known to demonstrate a phenomenal gift of stamina as they relentlessly run down quarry.”  He is not a publicity hound, however, and does not give press interviews. He keeps his private life and family out of the news. Amusingly enough, one of the few times the ever-alert DC press has seen him out and about was with his wife at the Apple Genius Bar getting advice on his laptop.

Tall and unsmiling, Mueller also looks brave and honest, character traits supported by his record as a much-decorated war hero and impressively well-credentialed prosecutor. Though Coan makes the case that the President may fire Mueller, practically at will, it currently appears almost impossible for the President to take that step without causing considerable, perhaps fatal damage to himself and his presidency. Maybe the new Attorney General will do it—he too has the raw power—but Mueller may well have his report out before the nominee can be confirmed.  Whatever the procedure for its release, and however powerful the efforts to suppress it, we can be sure that sooner rather than later, but only when the special prosecutor is ready, what he has found will become known to the people.

Despite Mueller’s exemplary leak-blocking, enough is already known to indicate that the findings are likely to be the most serious ever made concerning a president and his administration. One of the gifts of Andy Coan’s book is to detail the handful of previous investigations of presidents; only Nixon, who sent burglars to uncover the plans and secrets of his opponents, comes anywhere near the possible accusations here. And Watergate started as just a two-bit burglary.

The other virtual certainty is that Robert Mueller will come under frightening and vicious reputational assault. Andy Coan would say that he will survive it because of the strength of our democracy. I agree.


Legitimacy and the Supreme Court

6/19/19  //  Commentary

It is illegitimate to consider legitimacy. So say many conservatives who seem terrified that Chief Justice John G. Roberts Jr. might care about public perception of the U.S. Supreme Court. But they are wrong.

Stephen Vladeck

University of Texas

Leah Litman

U.C. Irvine School of Law

Joshua Matz

Publisher

Why a Loss for the House in Court Last Week Wasn’t All Bad News

6/14/19  //  Commentary

Although Judge McFadden made clear that he did not need to decide whether the House has standing to enforce subpoenas, what he said nonetheless strongly suggests that he would conclude that they do

Brianne J. Gorod

Constitutional Accountability Center

Why the Spotlight On Chief Justice Roberts May Soon Be Brighter—and Why That Matters

6/13/19  //  Commentary

Chief Justice Roberts would preside over any impeachment trial of President Trump. Here's why that matters.

Brianne J. Gorod

Constitutional Accountability Center