With Sessions Out, What Happens to Mueller?

Congress and the public must now push for protections for the special counsel.

As ethics experts, we believe Mr. Whitaker should recuse himself from the investigation. If we have ever seen an appearance of impropriety in our decades of experience, this is it: a criminal subject president appointing his own prosecutor — one who has evidently prejudged aspects of the investigation and mused about how it can be hampered.

.. Whether or not Mr. Whitaker steps aside, Mr. Trump’s audacity now demands additional safeguards. Congress must quickly put in place a plan to protect the Russia investigation before President Trump makes any further efforts to control the special counsel’s office.

.. Our proposed solution is based upon one devised by, of all people, Robert Bork when he was the acting attorney general during Watergate. Mr. Whitaker or whoever becomes the next acting attorney general must provide the same protections against interference that Mr. Bork provided to the special Watergate prosecutor, Leon Jaworski, in a 1973 Justice Department order. Mr. Jaworski received the protections as part of agreeing to replace the previous prosecutor, Archibald Cox, who was fired in the infamous Saturday Night Massacre.

The Bork order contained much stronger provisions to protect the independence of the special prosecutor investigation than is now found in the Department of Justice guidelines that govern the Mueller inquiry. These enhanced protections should be demanded from any new person given responsibility to oversee the Mueller investigation:

● The attorney general, acting or permanent, will not remove the special counsel except for extraordinary improprieties.

● The special counsel shall not be subject to the day-to-day supervision of any Justice Department official. The attorney general shall not countermand or interfere with the special counsel’s decisions or actions.

● The attorney general will not limit the jurisdiction of the special counsel without first consulting with the Republican and Democratic leaders of the House and the Senate.

● The investigation by the special counsel shall continue until he determines that it and all prosecutions and other proceedings within his jurisdiction have been completed or, in his discretion, have been reassigned in the Justice Department.

● The special counsel may from time to time make public such statements or reports as he deems appropriate and shall upon completion of his assignment submit a final report to the appropriate people or entities of Congress and may make such a report public.

This is all common sense, but the problem is that it also runs counter to the president’s stated reasons for getting rid of Mr. Sessions — namely, that Mr. Sessions wouldn’t intervene in Mr. Mueller’s inquiry.

.. Members of both chambers should demand, including in oversight or other hearings, a commitment, given under oath, from any new person overseeing the Mueller investigation to protect the investigation along the lines of the Bork protections.

Legislation also should be pursued to impose the Bork protections on the Mueller investigation. (Alternatively, existing bipartisan legislation to protect the investigation should be renewed.)

Senate Republicans might not follow through, but congressional Democrats, new to the majority come January, should make it clear now that any interference with the Mueller inquiry will be met with increasingly aggressive congressional investigations.

And the public has a role to play as well. Americans must make it clear that any attack on the special counsel’s office is an attack on the fundamental principles of the rule of law.

.. For example, in March, Senator Lindsey Graham made an unequivocal public commitment, stating, “I pledge to the American people, as a Republican, to make sure that Mr. Mueller can continue to do his job without any interference.” Senator Graham is in line to lead the Senate Judiciary Committee next year, and this puts him in a powerful position to carry out his pledge to the nation.