By C. Boyden Gray
Aug. 7, 2017 6:20 p.m. ET
Will Special Counsel Robert Mueller’s investigation morph into an open-ended inquisition? Independent and special counsel investigations of the executive branch since Watergate often have. Mr. Mueller’s recently reported impaneling of a grand jury in Washington does not guarantee that it will happen again, or even that anyone will be indicted. But it seems that the investigation is moving beyond questions of campaign collusion with Russia.
There has been a Russia investigation under way for more than a year, with no indication yet of a collusion crime, notwithstanding the leakiest period in presidential history. This is not to deny that the Russians have meddled in U.S. elections. Nor is it to say that persons associated with the Trump campaign might not possibly have committed offenses unrelated to collusion that merit prosecution. Such investigations may be beyond Mr. Mueller’s core jurisdiction, but the wording of his assignment lets him roam far beyond collusion issues.
As a practical matter, there is no firm, clear limit to the resources or time that can be devoted to special-counsel investigations. Nor is there an obvious limit on their scope. As Attorney General (later Justice) Robert Jackson observed in 1940, the prosecutor’s “most dangerous power” is “that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” Willie Stark —seeking dirt on a political opponent—explained this truth succinctly in Robert Penn Warren’s “All the King’s Men”: “Man is conceived in sin and born in corruption. . . . There is always something.”
The Iran-Contra independent counsel investigation (1986-93), authorized under a now-expired post-Watergate statute, illustrates the point. Despite nearly seven years of distracting inquiries sustained by unlimited budgets—and unfair political effects and leaks—no one was convicted or even indicted for any action pertaining to Iran or the Contras. The law barring certain funding for the Contras in Nicaragua, the Boland Amendment, was an appropriations provision, containing no civil or criminal penalties.
That didn’t matter. The independent counsel obtained a series of peripheral convictions, mostly for obstructing Congress’s Iran-Contra investigation in various ways. The investigation didn’t end until after President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger —a vigorous opponent of the Iran-Contra transactions—for alleged offenses relating to diary and meeting notes that he had not produced to investigators.
The independent counsel statute plagued presidents of both parties and expired unceremoniously in 1999, a few months after Bill Clinton’s impeachment trial. But Justice Department regulations still provide for the authorization of special counsels like Mr. Mueller.
Will history repeat itself? Deputy Attorney General Rod Rosenstein, who appointed Mr. Mueller, told “Fox News Sunday” this past weekend that “ Bob Mueller understands and I understand the specific scope of the investigation and so, it’s not a fishing expedition.” But Mr. Rosenstein’s order appointing Mr. Mueller is somewhat mixed. It authorizes Mr. Mueller to investigate not only “any links and/or coordination” between Trump campaign associates and the Russian government, but also “any matters that arose or may arise directly from the investigation.”
President Trump has understandable grounds for concern that the probe will drag on. But the best solution is not to dismiss Mr. Mueller. It is for all responsible parties to get the facts out speedily. That includes the congressional committees investigating the matter, which are under no obligation to lag the Mueller inquiry. Any valid prosecutions should also proceed quickly.
So far the publicly available evidence does not paint a picture of a conspiracy to collude with Russia. That includes the infamous June 2016 meeting between campaign principals and various Russian nationals at Trump Tower. The meeting—and an ill-considered email chain preceding it, involving the Donald Trump Jr. and others—was unwise. But there does not seem to have been any follow-up.
It bears repeating that not every interaction between campaign personnel and foreign nationals or governments is unlawful or even inappropriate. U.S. law is more complicated. Various forms of foreign involvement in American elections are prohibited. Most prominently, U.S. law forbids campaign donations in U.S. elections by foreign governments and nonresident aliens. And the Foreign Agents Registration Act, among other statutes, imposes criminally enforceable disclosure requirements on agents of foreign governments who attempt to influence public opinion, policy and law.
Yet the Foreign Agents Registration Act is not the Foreign Agents Prohibition Act. U.S. law allows foreign agents significant freedom to advocate and even to lobby. Saudi Arabia and Qatar are prime examples. More prosaically, foreign nationals and governments often participate in agency rule makings, which can have campaign impact.
To prevent a never-ending replay of Iran-Contra, it will be essential to flush out the Russia facts, in a disciplined way, as soon as possible. No statements should be made or actions taken that could be construed as undermining the investigations. Equally important, the investigators must proceed promptly and evenhandedly. Within their proper mandates, investigators ought to review questions about potentially troubling behavior by Democrats during the 2016 campaign, too.
Mr. Gray served as counsel to the vice president (1981-89) and White House counsel (1989-93).