The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Bauer: "[T]here's little point left to [the Special Counsel] regulations, at least insofar as they purport to authorize investigations of presidents."
Good riddance to special counsel investigations of the President.
Earlier this week, I revisited the Mueller investigation in light of Trump v. United States. My conclusion: the entire basis of the investigation would have been void in light of the Court's decision. Virtually everything that triggered Mueller's appointment was a "core" presidential power. Moreover, nearly the entirety of the investigation probed Trump to determine whether he had "corrupt" motives--an inquiry that Chief Justice Roberts's decision foreclosed. In hindsight, this investigation should have never happened. I think we would have been all better off without that colossal waste of time.
Going forward, do the special counsel regulations have any vestigial role with regard to investigations of the President? I think the answer has to be no. And agreeing with me is Bob Bauer.
At Lawfare, Bauer explains that his thinking on this issue has changed since Trump v. United States--a decision he vigorously disagrees with on many levels:
Jack Goldsmith, my co-author of "After Trump: Reconstructing the Presidency," and I have written about and proposed reforms to the special counsel regulations pursuant to which the department may conduct criminal investigations of the president. Goldsmith has since argued that the regulations have proved to be a failure, attempts at reform will fail, and the rules ought to be withdrawn. He made his case by appeal to experience. I did not agree. I have had second thoughts and now conclude that, after the Supreme Court immunity decision, there's little point left to these regulations, at least insofar as they purport to authorize investigations of presidents. Perhaps they could remain in place for cases involving other senior administration officials, but it is not obvious why, once on the chopping block, any piece of them survives.
The Archibald Coxes, the Leon Jaworskis, the Robert Muellers, the Jack Smiths: We may never see the likes of them again.
Bauer is nostalgic for Mueller and Smith. I say good riddance. The concept that prosecution can be divorced from politics was always a fantasy. Justice Scalia's dissent in Morrison has gone unanswered for nearly three decades. He was right.
It is true that the special counsel regulations remain on the books for lower-ranking officials. And I agree with Zach Price that it will be very hard for the President to do much mischief without the help of subordinates who lack immunity. But we should not pretend that some "independent" prosecutor can perform any meaningful function.
