Cloud of Special Investigation Could Linger Over Trump’s Presidency


The legal underpinnings of the position — along with the name — have evolved over the years, but the basic framework has remained consistent: a highly skilled lawyer who could serve as a neutral party in conducting an inquiry so politically charged that the professionals in the Justice Department could not do it without at least a perception of bias from some quarters.

Many of the names are well known and part of Washington lore. Archibald Cox, fired by President Richard M. Nixon during Watergate. Lawrence E. Walsh, the Iran-contra investigator whose $37 million inquiry lasted seven years and got entangled with a congressional investigation. Kenneth W. Starr, the Clinton antagonist in the Whitewater investigation that evolved into the Lewinsky investigation and ended with President Bill Clinton’s impeachment. Less famed today are others such as John B. Henderson, appointed by President Ulysses S. Grant in 1875 to investigate the theft of whiskey taxes by federal officials but fired when he got too close to the president’s personal secretary.

Presidents from both parties have been caught up in the work of special prosecutors, ending up frustrated with outcomes they deemed unfair or well outside the original scope of the job.


John B. Henderson, who was appointed by President Ulysses S. Grant in 1875 to investigate the theft of whiskey taxes by federal officials.

via Library of Congress

In the current case, congressional Republicans were strongly opposed to naming a special counsel, saying none was warranted. But Deputy Attorney General Rod J. Rosenstein took that decision out of their hands on Wednesday with his appointment of Mr. Mueller, considered a rare model of Washington rectitude.

Mr. Rosenstein took pains in his announcement to emphasize that his appointment of a special counsel “is not a finding that crimes have been committed or that any prosecution is warranted.” But the mere existence of such a prominent inquiry is a cloud over the new administration — a fact that Mr. Trump alluded to when he told network news anchors on Thursday that he believed “it hurts our country terribly, because it shows we’re a divided, mixed-up, not-unified country.”

Justice Antonin Scalia made a similar point about political consequences in his famous 1988 dissent to the Supreme Court ruling upholding the now defunct independent counsel law. High-profile independent investigations have been “a source of constant political damage to two administrations,” he wrote.

“Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naïve, ineffective, but, in all probability, ‘crooks,’” he wrote.

Democrats clamored for a special counsel to take over the Russia inquiry, and they believe they helped influence Mr. Rosenstein’s decision by successfully pressing for his closed-door appearance before the full Senate on Thursday. His decision to name Mr. Mueller was made on the eve of the briefing, timing that some interpreted as a way to ease tension beforehand.

After the decision, Republicans also said they welcomed the special counsel, with Senator John Cornyn of Texas, the No. 2 party leader in the Senate, saying Mr. Mueller might be able to get to the truth. “We could use some conclusions based on facts here in Washington with the relentless torrent of rumor, gossip and suspicion,” he said.

At the same time, he warned against a “proliferation” of congressional inquiries into the Russian meddling. And the appointment of a special counsel raised the prospect that the House and Senate investigations could be pushed into the background.

Democrats say they are confident robust inquiries will continue on Capitol Hill. Whether that occurs remains to be seen.

But history is clear about one thing: Once a special investigation begins, it will take considerable time to grind to its conclusion. As a result, Mr. Trump will just be the latest White House occupant to find a special investigator as much a part of his time in office as “Hail to the Chief.”

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