Russian interference in the last election has captured our nation’s attention, and the Department of Justice has emerged as a pivotal institution in this saga.
My former colleague, Deputy Attorney General Rod Rosenstein, has taken the extraordinary step of appointing a special counsel — the superbly qualified and fiercely independent former FBI director Robert Mueller — to lead a criminal investigation of this matter.
How did we reach this unprecedented place in history?
This we know: The Russians maliciously interfered. Whether it changed the election’s result is the topic of heated but unproductive debate. The ultimate impact is unknowable; the election is over.
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There are, however, unanswered questions of vital importance, to all Americans, regardless of party. We must know what the Russians did, how to prevent its repetition and if Americans colluded in the attack.
We must answer these questions, not to settle political scores but to protect our nation. We need a full, fair, skilled investigation that is seen as impartial. Unless we have confidence in the integrity of our governing instruments, we deliver our foreign adversaries one of their goals: continued American discord and confusion.
Until recently, the investigation was led by former FBI Director James Comey and Deputy AG Rosenstein. Comey is not without critics. He, mistakenly, in the view of many, departed from DOJ guidelines in handling the Hillary Clinton email investigation. His integrity was unquestioned, however, and his independence assured. President Donald Trump removed him as FBI director, setting off a firestorm and likely undermining confidence in the next director’s independence.
Upon Attorney General Jeff Sessions’ recusal from the investigation because of his own contacts with the Russians, Rosenstein became the senior DOJ official in charge of this matter. For anyone who knows Rosenstein, this was comforting. I served with him for seven years. He is smart and driven to do the right thing.
The White House should take greater care that Rosenstein’s stellar reputation is not squandered on unworthy causes. White House messaging laid the controversial Comey firing at Rosenstein’s feet. Subsequent efforts to clarify his role have not had a salutary effect on public perception. Regardless of the merits of the decision to fire Comey, its implementation was botched. Rosenstein, likely through little fault of his own, has been closely associated with the decision to fire Comey and the president himself has linked that decision to the Russia investigation. Rosenstein’s ability to lead the investigation in a manner that will be seen as independent was needlessly compromised.
In Mueller, Rosenstein chose a person of skill, experience and unquestioned independence to lead the investigation of Russian interference in the election and related matters. According to polling, nearly 8 in 10 Americans agreed that a special prosecutor should be appointed, remarkable for a country so politically divided.
The legal terminology can be confusing. Independent counsels, such as Whitewater prosecutor Ken Starr, were appointed by a panel of judges and were truly independent. That law expired, and the closest corollary is a special counsel, appointed by the attorney general, or, in this case, the deputy attorney general. The special counsel reports to the DOJ chain of command and theoretically has less freedom than an independent counsel appointed by judges. Technicalities aside, we have no need to worry about Mueller’s independence. Rosenstein will not attempt undue interference, and Mueller would not, in any case, respond to such an attempt.
Mueller has served presidents of both parties. Those attempting to unduly influence an investigation led by Mueller would do so at their peril.
With the aid of DOJ career prosecutors and the incredibly skilled men and women of the FBI, Mueller will conduct an investigation that will merit the confidence of the American people. Once the investigation concludes, we should confidently accept the result, regardless of the political impact.
Given the unfortunate events of the last few weeks, there were no perfect choices. Deputy Attorney General Rosenstein has, however, found a positive way forward and the right man to lead the effort.
Kerry B. Harvey served as U.S. attorney for the Eastern District of Kentucky from 2010 to 2017. He practices law in the Lexington office of Dickinson Wright.