The Flaws in the Special Counsel Rules

While William Barr has certainly been a complete disappointment as US Attorney General, his behavior has exposed flaws in the Special Counsel statute.

Neal Katyal drafted the current special counsel rules in 1998-99 in Janet Reno’s Justice Department under Bill Clinton. He has appeared on numerous talk shows and is now a paid MSNBC legal analyst. He has been very critical of William Barr’s actions and portrays him as a partisan Trump apologist.

While that is true, Katyal’s Special Counsel Rules have to take some of the blame as well.

You have to take into account that these rules were written in the aftermath of the Clinton impeachment. Ken Starr was the independent special counsel during that very partisan and dividing time in our history.

I would emphasize the word “independent” counsel when describing Ken Starr, because the special counsel rules at the time gave an established independent special counsel virtual carte blanche authority with little oversight from anyone. And Ken Starr took those rules to the maximum by expanding his investigation mandate well beyond the original intent. In fact, the entire Clinton affair with Monica Lewinsky would probably not have seen the light of day without those broad powers.

So when Neal Katyal wrote the new special counsel regulations, he took all of that into account and tried to rein in the scope of a special counsel’s mandate.

Herein lies the flaw. While the Special Counsel (in this case Robert Mueller) has reasonably broad authority, he now is under the supervision of the Justice Department and reports directly to the Attorney General. The Special Counsel needs to get his new investigations approved by the AG and his findings are subject to the discretion of the AG.

In a normal world where you can trust public officials to stick to proper procedures and have that standard moral compass, this framework would work just fine. But by putting so much authority in the hands of an administration appointee, the Attorney General, Katyal’s rules can be usurped by a corrupt and partisan AG bent on protecting the President.

Attorney General Barr has basically followed the special counsel rules. He has interpreted them somewhat differently for his own purposes, but in the technical sense, he has followed them.

The serious flaw in these rules is a contradiction of the idea of having a special counsel’s mandate to find the independent truth. Too much of the statute is tied up in the bottleneck of the Attorney General’s authority. One person can control the flow of information. The basics of an independent investigation can be thwarted by one political appointee.

Neal Katyal won’t admit to these flaws. He is obviously disappointed with William Barr, but these rules should have been drawn up anticipating such a circumstance. In the partisan Congress, the need for checks and balances at all levels is critical. And these special counsel regulations did not have enough of them.

When we change regulations, we always seem to assume that the last battle is the one we have to address. But, in reality, that is not the wisest course of action. Correcting the mistakes of the past only seems to produce different mistakes in the future.

William Barr was given the opportunity to corrupt this process. It may still play itself out correctly in the end, but I think it is safe to say that this has been messy and controversial.

We have to be forward thinking in governance. Too often in our eagerness to correct the problems of the past, we are doomed to a failure of imagination.

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