Advisory Opinions - Rod Rosenstein and Robert Hur Talk Special Counsels

Episode Date: March 4, 2025

Sarah Isgur invites former Deputy Attorney General Rod Rosenstein and special counsel Robert Hur to discuss the significance of special counsels, including the appointment process involved and the public’s perception of their independence and accountability. The Agenda: —Historical context of special counsels —Evolution of special counsel regulations —The personal impact —Role of predication —Public confidence —Q&A! Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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total fund savings adventure, maybe reach out to TD Direct Investing. say stands for total fund savings adventure, maybe reach out to TD Direct Investing. Ready? I was born ready. Welcome to the Advisory Opinions Podcast, live from the University of Maryland. I'm Sarah Isger and we have two special guests with us today. Also two of my former bosses, so just bear that in mind as we continue this conversation. Rod Rosenstein was the deputy attorney general and acting attorney general over the Russia investigation when I was at the Department of Justice. And Rob Herr was the

principal associate deputy attorney general when I was at the Department of Justice, went on to be the U.S. attorney for Maryland, and of course was the special counsel that investigated President Biden in the classified documents case. And this is going to be a conversation about special counsels and whether this makes sense, what we're doing here. So I want to kick this off, and I'm scared because I'm looking at Rod's papers,

and there's like 100 of them, but he's never steered me wrong. So, Rod, here's my question. You worked on Ken Starr's independent counsel team that investigated President Clinton. Can you describe the history and the differences of how we have been investigating presidents from Nixon forward and where we've ended up? I can do all that, but I'm gonna sum it up in five minutes or less, so it won't be the full history.

But thank you, Sarah, it's a privilege to be here at Maryland and also a privilege to be on America's Preeminent Legal Podcast. So thank you for hosting. It's really important and largely misunderstood, I think, by the public to clarify when we talk about special counsels, special prosecutors, independent counsel,

that the names really don't have great significance. What really matters as a matter of constitutional principle and as a matter of policy is how were they appointed, what's the scope of their jurisdiction, and to whom are they accountable? Those are the key issues for both constitutional and policy reasons. And so let me give you a little bit of history.

I'll go back a bit before Nixon, but focus on the more recent era, just to give you a sense of how this concept evolved. So if we go back to the founding of the republic, and there were in the early years, US attorneys in each of the original 13 states who were responsible for federal law enforcement within those states, which was very limited,

because there wasn't a lot of federal law enforcement. But there really was no Department of Justice. There was an attorney general, but the attorney general wasn't really the boss of the US attorneys. So they were autonomous of the Justice Department, which didn't exist. Of course, they were accountable to the president, like everybody in the executive branch.

Fast forwarding about 100 years, up until the 1870s, now there is a Department of Justice. The attorney general has some degree of control over US attorneys. But from time to time, cases would arise where there was skepticism about whether an investigation conducted by the Department of Justice and the US attorneys would be sufficiently independent of the incumbent of Justice and the US attorneys would be sufficiently independent

of the incumbent president because the investigation might have political consequences for the president and for his party. And so this is where the concept of a special prosecutor arose and it first arose in 1875 when President Grant appointed a former US Senator to investigate a scandal known as the Whiskey Ring. And the details are important, but it is significant

just to realize that this concept of special prosecutors didn't arise in Watergate, it didn't start with Bob Mueller or Robert Herr. It goes back a very long way. And the idea was for the Attorney General to say, look, in order to promote public confidence in the outcome of this investigation, I'm gonna assign it to somebody who is not a member

of the executive branch, but for this case, and therefore whose job or career doesn't depend upon the largesse of me or the incumbent president. And so that concept originated there in the late 19th century and then from time to time, special counsels were appointed. It was relatively rare until the 1990s, but it's really well rooted in American law

and the principle was that although the special counsels could be independent in the sense that the attorney general wouldn't be exercising daily oversight of them, they were also accountable in the sense that they could ultimately be fired by the sense that the Attorney General wouldn't be exercising daily oversight of them. They were also accountable in the sense that they could ultimately be fired by the Attorney General. They weren't independent fully of the executive branch. In the Watergate era, which if any of the students here know it, it's probably from the movies, not from real life.

But in the Watergate era, President Nixon was under investigation by a special prosecutor appointed by his Department of Justice. And he was unhappy with the special prosecutor as presidents tend to be from time to time. And so he wanted the special prosecutor fired and he ordered the attorney general to fire the special prosecutor.

Those of you who listen to the Advisory Opinions podcast have heard this on a recent episode. The attorney general at the time, Elliot Richardson, refused and resigned. The deputy attorney general, Ruckelshaus, refused and resigned. The solicitor general became the acting attorney general, Robert Fork, and he carried out the president's order, which was a lawful order to fire the special prosecutor. The upshot of that though was the Congress decided, we don't want this to happen in the future. We wanna have the ability to have a prosecutor

who could investigate the president and would have more independence and couldn't be fired by the president. So they came up with what's known as the independent council statute. And under the independent council statute, enacted as part of the Ethics in Government Act, this sort of reform

of the post Nixon era, they came up with this very creative idea that instead of having the attorney general appoint a prosecutor, have the court do it. Because, well, we trust courts. That was the idea anyway. The courts are independent. And so they set up this regime whereby the courts,

a panel of judges, would pick a special prosecutor. We called them independent counsels under this regime. And these independent counsels would have a large degree of independence from the attorney general. And so that was the era. That was, in effect, for the 1980s, most of the 1990s. It actually lapsed for a bit in the early 1990s.

But we had a lot of independent councils appointed, including Ken Starr. Sarah mentioned I worked for Ken Starr when he was independent counsel investigating, among others, folks in the Clinton administration. At the end of the 1990s, there was really a consensus of both Republicans and Democrats that they didn't like that regime either because they thought independent councils were too independent. It was upheld by the Supreme Court in a vote seven to one,

only one justice, Justice Scalia disagreed, but the majority of the Supreme Court felt that it was constitutional, which is kind of an outlier really in American law, but they held that it was constitutional to have a prosecutor who was appointed by the court and was not accountable to the attorney general.

But despite the fact that it was legal to do that, the Congress decided that as a member of policy, it was a bad idea. So the independent counsel statute lapsed in the late 1990s. Janet Reno adopted a regulation to appoint special counsels. Now, as I mentioned, we'd had special counsels throughout American history, but they'd always been appointed on an ad hoc basis.

Jenna Reno actually enacted a regulation, as a matter of her discretion as attorney general, setting forth rules under which special counsels would be appointed and setting forth their reporting authority and their responsibilities. I'm pressing my five minute self-imposed limit. So we're in that. But the upshot of that is that that resulted

in the appointments of, among others, Bob Mueller, who I appointed in 2017, Jack Smith, and Rob Herr, who's gonna talk with us today about his experience. So we've had, and the regulation is still in effect. The Trump administration obviously doesn't like it, so it's very unlikely that they'll use it to appoint special counsels, but that's where we are today. Okay, by the way, just side note,

if you have never heard Rod Rosenstein read A Man for All Seasons, you have not heard it the way it should be done, and that should give you some just tiny taste of how great life can be at the Department of Justice. So you left off right at the most exciting part here. You go into the Department of Justice as Deputy Attorney General.

About six weeks before you're confirmed or so, the Attorney General recuses himself from the Russia investigation because it will look into the campaign in which he was a senior advisor and then really just days after you're confirmed as deputy attorney general now acting attorney general overseeing that investigation the president fires the FBI director FBI Director Jim Comey, and then like that, like Kaiser Soze, we have a special counsel named Robert Mueller. Why?

So, an answer that very concisely, but with a little bit of background, when I joined the Department of Justice initially as a career prosecutor, I was in the public integrity section, which has been in the news lately because they're responsible for public corruption cases nationwide. And I didn't like the independent counsel statute. And the reason I didn't like it was because I and my colleagues in the

public integrity section would have been responsible for the high-profile corruption cases in the 1990s. And instead, our job was to conduct a 90-day investigation and then hand it off to the court, which would appoint independent counsels. And there were a bunch of them appointed in the 1990s, some more famous than others. But Janet Reno, I think, appointed about six independent counsels. When I say appointed, she asked the court to appoint about six independent counsels. Some of them didn't return indictments at all. Some of them are not publicly known even today.

But even for relative to the insignificant violations, Janet Reno was a rule follower. And so if the statute said, you know, if you can't basically disprove the allegation, you have to hand it off to a special, an independent counsel, you can't make the decision yourself, Janet Reno followed those rules. So as a result of that, my colleagues and I didn't get to work on any of those interesting cases. We had to hand them off to people outside the department. I then had the opportunity to work

for an independent counsel, Ken Starr, in the late 1990s. And Ken Starr was not a fan of the independent counsel statute. And most of the folks on his team weren't really fans of it either. I mean, we did the job. And Ken made an effort. Just to mention one of the people who was on that team, a little guy, very young, named Brett Kavanaugh.

He was young. He was a little, but yes. Brett Kavanaugh, one of the finest lawyers I've worked with. Several other folks who became more prominent were on that team. Alex Azar, who ran the Warp Speed operation to develop the COVID vaccine, Amy St. Eve, who's a judge on the Seventh Circuit, and many others.

But our mission, we understood it, was, and Ken Stark took this very seriously, that we weren't going to go rogue. We were supposed to replicate the decision-making process of the Department of Justice. The concept wasn't that you're going to have an independent counsel who's going to just scrutinize every aspect of the president's life and try to turn up a crime.

The idea was let's try to do what an independent department of justice would do, but with the, hopefully the public confidence that this is not being corruptly run by the attorney general or micromanaged by the department or by the president. So I have that experience of having worked at Starr and never being a fan of the independent council statute, which as I mentioned had lapsed a decade and a half before I became deputy attorney general. So when I was nominated to be deputy AG,

there was actually a fair amount of demand on the left for a special council and I wasn't a fan of it. They pressed me on that at my confirmation hearing. There was at least one senator from Connecticut who voted against me because I refused to commit to a special counsel and my position was, how could I commit to a special counsel? I don't know anything other than what I read

in the newspaper and at the Department of Justice, we don't make decisions based on the newspaper. We make them based on the evidence. So I got into office and there were a number of developments in the first couple of weeks, and Sarah mentioned a couple of them. But the upshot is, the short answer, why did I appoint a special counsel? It was because I believe that this was the type of case in which if you're ever going to appoint a special counsel, this is the type of case to do it,

where there's a lot of public suspicion and skepticism. There are, it's not pure fantasy, there are reasons for people to be skeptical about whether the Department of Justice would do this in a neutral way. And this is a really important point, and we'll get into this more when we talk with Rob. I believed that the primary benefit

of having a special counsel, an independent counsel, a person outside the department, the primary benefit is if you don't bring criminal charges. Because the whole concept here is we wanna reassure the public that our decisions not to prosecute are sufficiently independent and unbiased. And so I felt that if we appointed a special prosecutor in that case, and we determine that President Trump

and folks surrounding him did not conspire with Russia to adversely to influence the 2016 election, that there would be greater public confidence in the outcome than if we just denounced it ourselves. Don't worry about it. The president support he's looked at this, there's nothing to see here. That would be less credible, I think,

in terms of public confidence. So that's what motivated me to do it. Obviously, you can't, it's a no-win situation, you're not gonna please everybody, but I do think, even today, as I look back on it, I think we were largely successful, at least in that part of the goal, there's still controversy over aspects

of the investigation, but Bob Mueller found that there was no evidence of President Trump or his advisors conspiring with the Russians, and I think that result is credible. I wish I could put a poll out in the field to ask the American people to tell me what they think Bob Mueller found, because I do

not think that poll would return very accurate results. Rob, we haven't forgotten about you over there. I want you to describe the experience of getting picked as a special counsel, right? Rod's sitting there behind the desk thinking, should I do this? Is this worth a special counsel? Should I keep this in the department? How do we maintain credibility? You're just out living your life, and you're going to get a phone call at some point.

And I guess as you talk about that experience, what did it mean for your life and livelihood to take on the role of special counsel and why on God's green earth would anyone do this? Great questions. Let me start off by saying it's great to be here on the College Park campus. I need to give you all a little bit of legalese. I am a member of the University System of Maryland Board of Regents. I'm a proud member of the Regents. I make my comments here today on my personal capacity. I'm not speaking for the University or the system or the Regents. So with that said... Everyone was pretty confused until you cleared that. Yeah, that's right. That's right. Well, it's a great set of questions.

The experience of being selected and asked to serve as special counsel was quite surreal. I was, as you say, Sarah, I was out there living my life. I had been proud to work during the first Trump administration at main Justice for Rod, spending about a year helping him run the department, and was just as proud to serve as US attorney for three years. And then when President Biden got elected, I resigned, returned back to private life

and was at a law firm. And this is something that I've done sort of numerous points in my career. So leaving government service, going into private practice, going back into government service. And I was getting traction. I was building a private practice. I had clients, I was doing legal work

that I was really enjoying. And then out of nowhere, I get a phone call asking me to do this thing. How I ended up on the list of candidates to serve as special counsel, I have no idea. I have not asked any of the relevant people. It was the hair. Appreciate the compliment.

I have not really asked, nor have any of the relevant people shared with me how I got selected. I don't know if it was the first person they asked or I was the 12th person they asked. There might be 11 other people that are keeping mum and that were smart enough to say, no, thank you, hard pass. There's no way I'm doing that. So in terms of what it meant for my life, it meant that I had to quickly unwind my legal practice. And when you're in the middle of a private practice matter and when you're representing a client, it means a series of difficult conversations where you say, I love working for you. I love representing you. I love helping you navigate these issues, but I've got to go do this thing.

And I'm going to make sure you're in good hands with some of my law firm partners. It meant a sacrifice for my family. Certainly in that I was certainly in the public eye. Rod just mentioned a moment ago, the fact of a no-win situation. There were plenty of people, people whose judgment I trust, who when they found out that I had said yes to this request to serve as special counsel, they said, you have made a huge mistake. You should have called me before you took the job.

No, I don't. And, you know, I understand what their perspectives were there. And I don't think it's an irrational basis, irrational position to take to say, why would anyone serve in this kind of position? That is the subject that I addressed in my congressional testimony after I concluded my tenure as special counsel. I thought that this was going to be an unpleasant task. As Rod said, this is the kind of thing that needs to be done. And to have some public trust in the result, whether it's to bring charges or to decline charges, you're guaranteed to make at least half of the country pretty upset with you. So you decline, you make one half of the country upset, you decide to prosecute, you make the

other half. Some would say that I sort of threaded the needle perfectly, then made pretty much everybody upset by making the decision that I did and then writing it up in the way that I did. But we can talk about that more in a moment. Why would anyone take this job? A larger subject that we're going to talk about today is does the special counsel vehicle make sense? Is it sustainable?

Is this the best way to go about tackling these kinds of cases? I don't profess to have the silver bullet answer to it, but these are the regulations. This is the system that the Justice Department has. These are the regs that govern how our special counsel works. And if I had been asked, because I was asked to do this and out of my sense of duty and loyalty to the department and the sense of obligation that I had really to the country, I explained in my congressional testimony that my parents were immigrants to this country. They grew up during the Korean War and they were both immensely grateful to the United States Army for their role in the Korean War. And their lives and my life

were very, very different because of the United States of America. And so that's what's motivated me to do a lot of the public service that I had in my career. And I felt that if I were to turn this opportunity, this task down, I would ultimately be ashamed of myself for passing on. So that's why I did it. And so really in the future, if you're going to try to get people to serve a special counsel again, you're going to have to find people that in that way have sort of drunk the Kool-Aid and are a little bit corny about the obligations of living in a system like ours. The bar also though, I think for each person

that we've put in this spotlight, the bar then to get the next person to say yes is just getting higher and higher. You can look at the way that Bob Mueller was treated and say like, yeah, but maybe that was just Trump or something, the frenzy around his election. And then you look at the way you were treated and each time it's getting harder to say,

this isn't a problem with the special counsel vehicle as you said rather than anything else. And at what point do we not have good people willing to say yes. Here's my next question to you though. Can you share with folks what the requirements of a special counsel are? Obviously you're not required to bring charges, but you are, you do have some requirements. There are many requirements. And for those of you who are interested in this subject, I urge you to read the regulations that apply to special counsel.

They're the so-called Part 600 regulations. They're not that long. But in brief, really, one of the things that the regs... I think the most important thing that the regs make clear is the rules, the policies, the practices that apply to justice department prosecutors who aren't special counsels also apply to the special counsel. And that's why I think so many of the people who have been appointed special counsels are people who have served as US attorneys.

The justice manual used to be called the US attorney's manual that lays out all the rules and regulations, things that you have to do if you want to bring this statute, you have to consult with so-and-so person in the department. And so really you're kind of conducting yourself as a United States attorney. And because I had served as a US attorney for three years and an AUSA before that, there was a lot of muscle memory that was very helpful in discharging my duties as special counsel. The other thing that's important is when you're appointed special counsel, you show up the first day, you get sworn in and you're brought to your office space, which is empty. And you are told, just tell us who you want and what you need. And you literally start from saying, well, I think I'll need a copy machine.

I think I'll need some paper and pens. And you go about trying to build your team. So in a hurry, you're faced with the task of kind of creating a little mini U.S. Attorney's Office within the Justice Department from scratch. And some of that involves calling people who you worked with before who are still in the Justice Department. And some of that applies to people

who maybe you worked with in the Justice Department before, but have gone back to private practice, but really calling on people whose judgment and integrity you trust implicitly to come and be a part of the team. More legal type requirements. And again, this goes to some of the points that Rodward's making earlier about, what's the right balance of independence

for this prosecutor to have from oversight from the attorney general? So this iteration, this set of regulations makes clear that there is oversight. The attorney general does oversee, not on a day-to-day basis, but does exercise oversight over the calls, the decisions that the special counsel is making.

So that is clear, I was, the attorney general did exercise oversight over what I was doing as special counsel, but the regs also build in some safeguards there and some protections for the special council's independence. And one of those things is if the special council says, I want to do X, and the attorney general says, no, you don't, I am going to overrule you, then written notice of that overruling has to be made to Congress. And I just ask a question on that that actually I've always wanted to know.

Yeah, but like, what if you go in, I mean, you're not looking to piss off the attorney general and he's not looking to have you write a report to Congress. So you go in and say, I'd really like to serve, you know, his wife with a subpoena. And the attorney general goes, is that really necessary? And you kind of look at it. It's truly hypothetical, Sarah, right? I wouldn't know, right? Truly.

And you're like, I think it's necessary. It's like, can you, right? I wouldn't know, right? Truly. And you're like, I think it's necessary. It's like, can you tell me why it's necessary? And it kind of makes you sit there and jump through some hoops, and two hours later, you're like, maybe we don't need this subpoena. You come to it on your own, though. Do you owe a report to Congress?

That is a very interesting hypothetical, and I think could well arise in real life. And I think as a Answer's no. I don't think so. I think that is the right answer. But look, I think there is- There would have to be a disagreement that is unresolved between the two. Right.

If it is resolved, you don't owe anyone anything. Correct. To play out the hypothetical, you know, if after a two-hour conversation, the attorney general said, I really don't think you need to do that. And I stuck with my other guns and said, you know, I really think I do. Then there we are. And then the attorney general was gonna have to make his own decision as to whether or not he really wants to keep saying, I don't think you need to take that step. Okay. Other requirements, of course, there is this technicality

from the special counsel regulations that requires the special counsel to write a report explaining his or her declination or prosecution decisions to the attorney general. That report, the word that proceeds in the regs is confidential. It is a confidential report to the attorney general. Which is why everyone here has read it. Yeah. So there is, of course, what the regulations say. And on the other hand, there is historical

precedent what the public and Congress and interested parties have demanded and what practices have applied to the public release of these special counsel reports. So I'm sure we're going to talk more and more detail about exactly the ins and outs of writing a special counsel report. But I will say that that is quite unusual. That is something that US attorneys don't do. US attorneys can receive all kinds of memos from their AUSA saying, well, should

we indict? Should we not? Should we not? Breaking down the evidence, here's how the evidence is going to come in. But there is no formal requirement for an AUSA to write that kind of memo to his or her supervisor in the form of a US attorney. This is different. A special counsel shall write a confidential report to the attorney general explaining his decisions. But it doesn't say how long it needs to be or how thorough it needs to be. So for instance, set aside your example here,

but Jack Smith, of course, files pretty lengthy indictments against President Trump, both in the classified documents case and in the January 6th case. He then owed a confidential report as well to the attorney general when those cases were dropped by the department at the order of the attorney general. But he could have just said, like, please see my indictment. I think he could well have. And you could have said, not enough to charge XOXO, Robbie? I probably wouldn't have not have signed it that way.

As I'm sure that everyone in the audience can appreciate, there are a whole bunch of factors that go into how long, how detailed, how thorough a special counsel report is going to be. At bottom, what is the whole point of the appointment of a special counsel? The appointment, part of the point at least, a significant part is public confidence. Do we really think that this person who undertook this disagreeable task really gave it his or her all? Really maybe didn't go down all thousand rabbit holes that could have been gone down, maybe didn't spend three years doing an investigation, but was looked under enough rocks and went down enough rabbit holes to provide enough confidence to the public that, yeah, this guy really did the job, really found the relevant facts and applied judgment to those facts and then explained it all.

So this report, for better or for worse in our American history, it is followed, maybe not read entirely from cover to cover. There are a few people that do that, but at least the first few pages, the executive summary, this is something that people really read. And it would be, I would have found it a personal, personally to be a failure if people had read the report and thought, oh my gosh, what the heck was this guy doing? He should have done XYZ and he clearly didn't do it. Ready to make your next big move?

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that keeps on giving by visiting AuraFrames.com. For a limited time listeners can get $20 off their best-selling Carver Mat Frame with code advisory. That's AuraFrames.com promo code advisory. Support the show by mentioning us at checkout. Terms and conditions apply. Rod, when a US attorneyS. attorney is appointed and confirmed into office, I do think there's this misperception from the public, and in

fact I am on TV panels where I will hear a fellow panelist say that the Department of Justice is independent from the president, and it drives me up the wall because, for instance, a president comes in and sets all sorts of priorities for his federal prosecutors in the wake of the 2008 financial crisis. I don't think you will surprise anyone to hear that President Obama said, we need to focus on white-collar crime. And everything's a trade-off. There's limited resources.

So they're going to spend less resources on violent gun crimes and more resources on white-collar crimes. President Trump comes in and says, let's reverse that. You know, violent crime is going up, and I want to move those resources back to violent crime. It's not independent of the president. It's, in fact, directed by the president to those priorities.

But there is a big difference between a US attorney who's told to bring down violent crime in their district and a special counsel who is told, Jack might have committed a crime, get all the resources you need. Hi, Jack. Thanks for pulling this event together. Get all the resources you need, as many attorneys as you need,

all the copy machines and paper and pens, as Rob says, and take as long as you want just to figure out if Jack has ever committed a crime. That focus of a special counsel makes me very nervous, should it? Well, that's not the job of a special counsel. Couple comments in response to your point. First of all, I often would talk about the Justice Department's independence, but I didn't mean it in the sense of being an independent agency because as Sarah says, the priorities, the policies are dictated by the president, and the president

ultimately has authority to overrule the department. I meant it in the sense that when it comes to making decisions about individual prosecutions, we have an obligation to make them based on the facts and the law and not on partisan political considerations. That's the degree to which the department traditionally has been independent. And just to put it in very stark terms, for example, you know, my view was we're going to make our decisions about

who to prosecute based on what the facts and the law dictate. If the president's unhappy about it, he has the power to remove me or the attorney general, and he can exercise that power that's perfectly lawful. But at the Department of Justice, as the leader of the law enforcement structure of the government, as somebody who took an oath to well and faithfully execute the law, we're bound by certain act of obligations that the president is. He's a political figure. He's not even a lawyer often. We in the department were, and so we had different responsibilities.

And one of those is to make those decisions in an independent way. When it comes to this issue though, I think a lot of people misunderstand the role of a special prosecutor as if their goal is find anything you can to prosecute Jack, sorry Jack to use you as the whipping boy, but that's not the job at all.

And that isn't the way special prosecutors have carried out the task. I mean, Rob Herr, he was charged with investigating the classified documents allegations against President Biden, and that's what he investigated. He didn't go scrutinize the president's tax returns or find out if he was in any suspicious real estate deals. That wasn't the job. He

stayed focused on what we call predication, right? In a criminal case, criminal investigation, you in theory could do a phishing expedition. There's no law against it, but the traditions of the Department of Justice are that we base our investigations on predication. We don't just investigate people, we investigate crimes. There's confusion about this sometimes because the investigation sometimes sprawl. For example, the Whitewater investigation that I worked on wound up going off in a lot of other directions. Whitewater was a real estate development in Arkansas. And I actually investigated Whitewater. You mostly know Whitewater because of Monica Lewinsky and the FBI files and other things that Ken Starr investigated, but he knew that on his

own. Janet Reno expanded his jurisdiction and said, Ken Star, I want you to do this and this and that. And so that wasn't a matter of the independent council just going off on a random fishing expedition. Bob Mueller similarly, state focused, my goal there was, look, we have an allegation. This is a serious allegation. The Russians in fact did interfere with the election. The allegation. This is a serious allegation. The Russians, in fact, didn't interfere with the election.

The allegation is that there may have been Americans involved. And we need to resolve that. But we're not going to do a phishing expedition of people who happen to get caught up in this investigation. So I think there's a misconception, Sarah, that that's the way special prosecutors operate. But that's really not. I mean, we use that in the Department of Justice

if we're pursuing, for example, a mob boss or a drug dealer, we might be able to find out they've committed other related crimes. A classic example was Al Capone, who was a mobster in Chicago in the 1930s, was prosecuted for tax evasion because they couldn't get him all the murders he committed, but they got him on tax evasion.

That's a perfectly legitimate technique, but not for pursuing legitimate business people and politicians. Just to add to that from my perspective, Sarah, there were three things that I made sure that I always had close at hand during my service as special counsel. And I looked at these documents again and again and again. One of them was the justice manual, which laid out the rules. What are the policies and the procedures that I'm supposed to follow? I looked at that a lot. Second, the special counsel regulations, which we already talked about. Third is the appointment order, the piece of paper that the attorney general issued with a specific order number on it that said, I hereby appoint Robert K. Herr, special counsel to investigate this, this thing. And I can't remember exactly

how many lines on it. It was a one sheet of paper. And so I constantly was looking back at that to say, am I staying in my lane? Am I following my, am I within the bounds of my remit here? Now, these types of orders customarily, they do have some sort of language at the end that says, and other crimes that may arise or come to the attention of the special counsel during the investigation, and that's intended to give some flexibility. But from my perspective, before going off and chasing down, you know, I keep using the phrase rabbit holes, but before I did anything that started to feel like mission creep, sort of going, having my investigation sprawl, personally, I would

have felt the obligation to go back to the attorney general and to say, sir, this is the order, this is the appointment order. Here's what I've found. I think that I would be within my rights to expand the investigation to include X. What do you think about that? And we'd have a robust discussion about it. But that's how I approached it and that's how I think

people who have been trained up in the justice department are gonna take the bounds of the remit very seriously because of exactly the issue that you're putting your finger on here, Sarah, which is are you appointing someone just to investigate someone to find a crime? Yeah. So what I'm hearing from both of you is that basically I should feel okay because even if you didn't appoint a special counsel, the same amount of resources would have been brought to bear, but it just would have been in the public integrity section or in some other, you know, would have been within the

department. But roughly the same amount of time, the same number of lawyers would have had that because some of my concern is also, you know, you, AUSA is Assistant United States Attorney's, those federal prosecutors out in the real world have seven different important cases that they're trying to juggle versus these guys who just have, who know? And that is a difference. And so when you're treating the potential target of an investigation differently on whether they have a special counsel assigned to them or not, that's, I guess, what I'm getting at that makes me feel nervous.

I think that's a legitimate concern. That was a concern of mine that, you know, just because you get elected to public office in America doesn't mean that you should be the subject of a wide-ranging fishing expedition. So, for example, there were critics on the left who have taken issue with the Mueller investigation and said, well, Rosenstein constrained him.

He didn't get to go broadly enough. He didn't investigate President Trump's entire financial history and all his real estate deals. And the answer constrained him. He didn't get to go broadly enough. He didn't investigate President Trump's entire financial history and all his real estate deals. And the answer is, no, he didn't, because that's not the way we conduct criminal investigations. We focus on what the predication is. And if we resolve that issue, then we

move on to other priorities. Otherwise, we risk what Sarah said, which is we've got a target. Let's do what we need to do to bring down that particular target. There's a public perception that special councils operate that way, but it's a war with the reality of the special counsel investigations

that I've been involved in, which is really most of the last 20 or 30 years. That's not the way they've operated. They've been relatively focused on the core allegations, and then as Rob said, some collateral issues may come up. But to give you a concrete example, in the Mueller investigation, when allegations arose involving the president's a-offs through Michael Cohen prior to the 2016 election, Bob Mueller did not investigate that.

That's not in the scope of why I pointed you. We're gonna have that held in the normal course that we go to the FBI and the Southern District of New York U.S. Attorney's Office, which ultimately did prosecute Michael Cohen and not anybody else. And I think that was appropriate. It wasn't Bob Mueller's task to pursue every lead

that might result in charges against a particular person. It was just to resolve the core allegation. Sir, I think you pose, ask a question at getting at this issue in a really interesting way, which is if a particular investigation is handled by the public integrity section, might it take six months? And if you hand it off to a special counsel, isn't there an incentive for a special counsel to have it take eight months or 10 months or 12 months, just to pour additional energy and time and resources into it.

I think that is, I agree with Rod, I think that's a valid concern. Here's the way I look at it. It's inescapable that you are gonna place a certain amount of trust in the discretion of whoever it is that gets tapped to serve as the special counsel. And one of the things that I think you're looking for

in tapping people to serve in this role are people who are gonna have the sense not to go all wild. For me personally, I thought it was very important, of course, for my investigation to be conducted thoroughly and professionally, and for people who looked at the report and kicked the tires after the fact,

for them to conclude like, yeah, he did a solid, thorough, professional job. I also though, thought it was very important for the investigation to be done swiftly. I didn't think the investigation should last one day longer but it absolutely had to. I was also very conscious of the fact that the further I got into an election year,

the more fraught the aftermath of the release of my findings in my report would be. So you better believe that my team and I hauled ass in terms of trying to finish. You say that on this podcast. Sorry, you can bleep that out. We worked very, very hard, very, very diligently to try to reach a very reflective, well-founded result as quickly as possible. Bet you kind of wish that report had come out in June,

though, instead, after a debate, maybe? Might have been some good timing there. Okay, I want to get to the meat here, and here's the meat. You described a primary motivation for having the special counsel regulation as maintaining credibility in the decisions of the Department of Justice when it comes to bringing or not bringing charges against high-profile political people who are either,

you know, for instance, the president who appoints the very people who would be looking into this or the candidate opposed to the person who these people were appointed by. And here we are in the year of our Lord 2025. And it does not feel to me that these special councils have done much to buoy the public's confidence. Mueller did not bring charges against Trump.

Rob here did not bring charges against Biden. Jack Smith and David Weiss both brought charges in their special counsel investigations. The American people elected the target of Jack Smith cases after they were dropped, and the other president pardoned the target of David Weiss's convictions. That would be Hunter Biden. In the meantime, trust in law enforcement and the Department of Justice has fallen. Does it feel like the special counsel is having the reverse of its intended effect?

It's raising the profile of these politically sensitive cases, putting a focus on them so that no matter what the department does, it is seen as more political because of the special counsel's singularity. And then as you answer that, but of course, in all things, like democracy, the question is what's the alternative? Is this the best case given all of our other options?

So what are our other options? I think that's the key question. I mean, you know, if you go back in time to the Mueller appointment, for example, challenge people who say, well, you didn't promote public confidence. Well, what's your alternative? What would happen if we done it any other way? And I think you're in a situation where no choice is going to be 100% successful in promoting public confidence. But again, it's what are you trying to promote public confidence in? And my personal view was that the legitimate

use of outside prosecutors is to reassure the public that a decision not to prosecute is credible. And if you keep that in mind as your sort of lodestar, and that is influenced in part by my experience as a career prosecutor, the people that were in the Department of Justice with me were just as capable and sometimes more capable of doing a matter correctly and then the folks who were hired outside by the special prosecutor, so I don't think they going to necessarily reach a result substantively that was better.

Sarah pointed out there's certainly a resource differences. The special counsels tend to accrue more resources. But in recent years, this was an issue for me, it's an issue for Rob. We wanted these things resolved quickly. We used the Ken Star model as a counter example. That one went on for almost a decade. There were three or four independent councils by the time it finished. My mandate to Bob Mueller was, look, I'm appointing you not to drag this out for four or eight years, but to get this resolved expeditiously, ideally before the next election. And that's what happened. And Rob Herr had the same experience from resolving his matter quickly. So I think that that is a way to promote public confidence.

I do feel strongly though that we shouldn't be using special counsels to investigate political opponents of the incumbent administration, which is of course what Jack Smith was tasked to do. Merrick Garland was in a difficult situation. It's easy to criticize from outside the department. I've been subject to a lot of criticism myself for my decisions, but my view was, and I faced this issue eight years ago

when I was getting pressure from the right that wanted a special prosecutor appointed to investigate Hillary Clinton. Well, we have one for Donald Trump. Why shouldn't we have one for Hillary Clinton, too? And my view was, number one, we look at the predication. Number two, as a policy matter, if we're going to investigate our political opponents,

what message are we sending if we don't trust ourselves to do it? So I thought appointing a special prosecutor to investigate our political opponent would really be crossing a Rubicon. I didn't want to cross that Rubicon. So I think you have to put these in different categories. The Russian investigation, the Biden investigation

that Rob pursued. These are investigations where an outside prosecutor told the American people, we've done a thorough independent investigation. We've determined that there's no basis to charge the president. And that part of it, I think, the public has greater confidence in than they would

if the decision had been made within the department. The Smith case is a different situation. Rob, special councils, worst form of government except for all the others. And give me some of what the others could be. Not the independent council statute, no one's voting for that. But surely there's some alternatives.

There are. Let me expand briefly with some thoughts to follow up on what Raj just said though. I think the key thing to think about, and again, this is in line with what he said about, it's easy to Monday morning quarterback about decisions that have been made by people who were in the seat at the time. At this point in history, we're not riding on a blank slate. There has been history written, lots and lots of history with respect to independent councils and special prosecutors and special councils now.

And so the situation that Merrick Garland found himself in was, well, there was a special council appointed to investigate President Trump in office. Yes, I would be appointing Jackson to investigate a political opponent. The hue and cry attacking the partiality of an attorney general investigating Donald Trump when Joe Biden is his boss. The political pressure that Merrick Garland would have faced day in, day out would have

been quite intense. And then once he made the decision to appoint Jack Smith and then documents were found at the Peden-Binodin Center in Washington, DC, the die was cast. I don't really think that he had any other palatable choice, feasible choice other than to say, well, I've got a special counsel going for Donald Trump here. I'm not going to appoint one for my boss. No way. He had to appoint one.

So I think it's important to think about what the right next step is with the concept of path dependence. We have lots and lots of decisions and that is going to lend weight to arguments in favor of trying to swing the cudgel again and bring another special counsel for in the next politically fraught situation. So what are other options? I've heard and thought about this a lot. And unfortunately, you know, I think of the old adage, I forget who said, was it Churchill who said democracy is the worst form of government there is except for all the others. Special counsel is not great, but it's hard to think of another one that would work well.

One that I have given some thought to is one that Chuck Rosenberg, I think has talked about quite thoughtfully, which is when Patrick Fitzgerald, I believe, was appointed as acting attorney general by Jim Comey to handle a particular matter. Now, because there were no special regs in place, special counsel regs in place at the time, Pat Fitzgerald did not have to write a report. I think he did give a press conference about his findings and his matter that he handled. But that was a way in which he was basically given the authority of the department to handle it in an independent way, but without being saddled with the requirements to write a special counsel report.

That's another way to go about it, but that's also, it's going to create a lot of intense pressure and scrutiny of the person who ends up landing in that role. So that's a long way of saying, I don't have a silver bullet. I don't have the magic wand answer here, but I do agree with you, Sarah, that the job of being a special counsel seems to grow more and more distasteful and challenging and difficult with each iteration of it. And it's difficult to think about who's going to sign up for the next gig. If we have time, Sarah, I'll share a story with you I haven't talked about publicly. But I appointed Bob Mueller, I think it was in early May of 2017, about two months later, the department's inspector general

called us up for a meeting in the department's, we call it the SCIF, the Secure Information Facility, which of course would have been classified at the time. It isn't anymore that the inspector general had found these disturbing text messages written by FBI employees who'd been working on the Russia investigation. I knew at that point, at some point, those are going to become public. They wound up becoming public about six months later after Congress opinioned them. But when we walked out of the room, I turned to Bob Mueller. Now, Bob Mueller at the time, you only know him post-Russia. Bob Mueller was one of the most respected lawyers in America when he was appointed, just like Ken Starr, just like Rob Herr. And this is one of those jobs

where you're never more popular than on day one. It's only downhill from there. But, you know, Bob was a hero to many, pretty much everybody in law enforcement. In fact, there's only one congressman on either side who criticized Bob Mueller's appointment. I realized that, you know, he had this problem that he was facing. We walked out in the hall and I said, you know, Bob, I'm really sorry I got you into this. And he said, if I didn't do it, I really would have regretted it because he's a Marine. Like Rob, somebody has to do this. It's public service and he was willing to step up and do it. But I agree with Sarah that I think for, particularly for younger

lawyers, you know, for somebody like Bob Mueller near the end of his career, it's less risky than for somebody like Rob Herr, who I think deserves a lot of credit for taking this on at a point where you don't know what the impact is going to be on you personally. This is my fear that there's so many jobs now in D.C. that I keep putting them into this bucket of like, oh, but it has to be your last job. You know, when I went into the Department of like, oh, it has to be your last job. You know, when I went into the Department of Justice, I thought we really shouldn't ever have an attorney general who needs a job after they leave this because you want them to be able to exercise their judgment in a way that's not worried about how they're

going to make money and send their kids to college after they leave. And now it's like half the jobs I think that about, including, but not limited to, the special counsel role. Let me throw one out there, which is the Office of Legal Counsel, the Department of Justice has said that the department cannot indict a sitting president. I think we all now think that a state can't indict a sitting president. The sitting president is immune from criminal process while he is in office of the presidency.

If that is the case, do we need a special counsel investigating presidents while they're in office? Isn't that the job of Congress? They can do what they want while he's in office. After this person leaves office, then the Department of Justice can investigate whatever they want at that point, and it will have lowered the temperature from the current political battles that the president is fighting

or that the other side wants, or reelection and everything else, rather than put the Department of Justice in this position to begin with. I think it depends on the nature of the allegation. So there are going to be allegations the president did something in the course of exercising his official duties, which the Supreme Court will now address. There are going to be allegations the president committed a violation before he became president. That's the sort of matter that Rob investigated. But more often, there are going to be investigations where they're not really focused on the president.

The Russian investigation, although in the public consciousness, it was about Donald Trump, it wasn't really about Donald Trump. It was about Russian election interference and folks who may or may not have been supporting the president, who fell within suspicion. But those things are potential crimes that need to be investigated by the Department of Justice. So I don't think investigating by Congress is the right answer.

My personal view of that was that whether or not the president can be indicted was an issue we didn't have to face unless we determined that the evidence warranted the indictment of the president, then we'd have to face it. I didn't think that that should influence the investigative decision. So we conducted the investigation

like we did with Whitewater, the way we would with any other potential subject of investigation. And if, in the unfortunate circumstance, if we determined the charges ought to be pursued against the president, then we'd have to deal with this issue that Sarah raised, which is that OLC opinion, which of course is not law,

that's the opinion of a long gone lawyer in the Office of Legal Counsel. It's not binding. We'd have to deal with the issue whether or not we were gonna enforce that or found that to be an appropriate policy going forward, but we didn't reach that issue. What do you think Rob, make Congress great again.

They're the most politically accountable branch, make them do this dirty work. Well, let me answer it this way. One of the arguments that I heard during my time as special counsel was, we don't know why you're here. We don't know what you are doing because OLC has already spoken and said, you cannot indict a sitting president. So how should you just put pens down and pack up and go home? Whatever the standalone rhetorical force of that argument might be,

the way that I answered in my head was, well, the Attorney General of the United States is a pretty smart guy, and he saw fit to appoint me special counsel. I don't think he appointed me with the thought that then I would just put my pens down and say, sir, I don't know what I'm doing. I don't, I'm just, I'm not going to actually do this because I don't think it makes sense. If you'll know, if you recall, one of the things that I made clear in the first two lines of my report was my conclusion was based on the evidence that I found in my investigation,

charges are not warranted here. The next sentence was, this would be my conclusion, even if it weren't DOJ policy that one cannot indict a sitting President of the United States. I thought it was important for both of those sentences to be announced to the public. I did not think it would be appropriate to have a hanging Chad left

for everyone to read the first sentence and think like, oh my gosh, are you reaching this conclusion just because he's the sitting president of the United States? No, so I included both of those sentences. So that is not really a direct answer to your question, Sarah, but I think does get at the issue of what factors, I think all this really go, I think all these factors really go to the decision

of the attorney general in the first place to say like, do we need to appoint a special counsel here or not? I want to open it up to you guys for questions. Just raise your hand. I'll call on you, state your question. I'll repeat it to these guys. But before we do, let me answer the most pressing question that I'm sure many of you have, which is what do you do when the people you work for who work right next to each other are

called Rod and Rob? And the answer is you sound like an idiot, but you're like, Rod-duh and Rod-buh, and otherwise we just call them boss. So, yes, red hat. Can the Inspector General instigate a special counsel because it feels like the role of the special counsel mirrors the Inspector General in many ways? No, the Inspector General actually wouldn't have any jurisdiction over most of these matters. The Inspector General of each agency only has jurisdiction to investigate alleged wrongdoing relating to the agency.

So it wouldn't have authority to investigate the president, number one. Number two, and this is really largely misunderstood by the public, the Inspector General has zero prosecutorial authority. The Inspector General is an investigator. He has the ability to do administrative reviews that result in reports to the attorney general, which the Congress usually gets access to about potential management issues within the department. He also has the ability to refer matters

for potential prosecution, just like the FBI, but he doesn't have any actual prosecutorial authority. So he can't issue subpoenas, he can't file indictments, those things cannot be done by inspectors general. So the question is, David Weiss started as a US attorney holdover who had been appointed by President Trump and stayed on during the Biden administration, it was handling the

investigation into Hunter Biden. And then, like in Super Mario World, ate like a mushroom and became a special counsel from having been a US attorney. That was not in the question. I just added that. So Rob, what do you think of that as the bottom up Mario approach to special counsels? I think there's there might be something to it but I think you got to remember the context in which David Weiss handled those investigations and then eventually being in social counsel.

He was a holdover, Trump appointed US attorney. And so I think part of the reason that he was allowed to remain in his post as US attorney in Delaware was to say, look, it would be a bad look on a Biden justice department to fire you while you're in the middle of an investigation of the sitting president's son. So we're gonna let you go on. In my understanding, again, I don't have any inside baseball knowledge of this,

but reading the reports, what the reports say is that he tried to take certain investigative steps in other jurisdictions, the other US attorneys that were Biden appointees did not play ball with him. And so he went to the attorney general and said, look, I need you to make me a special counsel so I could do stuff outside my jurisdiction of Delaware. And that's why he became a special counsel. But I think to answer your question, you're going to have to have that magic confluence of circumstances where you've got to hold over where the instant accusation of political partiality isn't really going to

be able to be leveled. I'd like to preface my answer by saying that I know David Weiss and Merrick Garland. I like them both. I think they're, you know, principal public servants and great lawyers. Can't wait for the butt that's coming here. I have no idea why they made that appointment. It was completely unnecessary. David Weiss was already conducting the investigation.

It was David Weiss before. it was David Weiss after. The public confidence in the investigation was a function of whether or not you have confidence in David Weiss. So I don't think that appointment accomplished anything. When I was US attorney, I was appointed by President Bush. I continued to serve under President Obama. There was a period in about 2012 when there was a sticky issue in Washington and Eric Holder was being pressured to appoint special counsels. He didn't want to do that. So he assigned me to investigate a matter in Washington, D.C.

It was outside my jurisdiction. I was Maryland U.S. attorney. No big deal. He signed a piece of paper making me a special attorney in D.C. I had full authority to pursue that case. So I don't think there was any need for a point, David Weiss, to pursue that case. So I don't think there was any need to appoint David Weiss to do that. Maybe there was some political benefit and I think that would be the only justification for it. You know, the whole concept is you're going to appoint somebody

independent. So if you appoint the guy who already has the job, you really haven't accomplished all that much. The model that Rob mentioned earlier, the Pat Fitzgerald model was sort of similar, but Pat wasn't appointed under the regulations. Jim Comey made a point of saying it's not under the regulations. I'm just giving him some degree of independence, which I think David Wise probably already had. So I'm not sure what was accomplished by that. Your special counsel world would also really, as I understand it, only be for investigations into the sitting president by the appointees of that president at the point that you're picking special counsels

for the president's son, why not the president's chief of staff, why not other political friends of... Because if the idea is, well, the political appointees won't look into someone because the president will be mad about it, well, that's got to be a pretty big group of people for a guy who just got elected president. I wouldn't limit it to the president. Under mad about it, well, that's got to be a pretty big group of people for a guy who just got elected president.

I wouldn't limit it to the president. Under the independent council statute, it actually applied to specific people, like the president's campaign chair and cabinet members. But that, again, was by operation of law, and my motto would be a matter of discretion, as is true under the regulation. There was no obligation to appoint Rob Herrera.

As Rob said, Merrick Garland, under these circumstances, felt compelled to do it, but he wasn't required by law or by the regulation. I think it always should be a discretionary decision by the attorney general or the acting attorney general as to, under these circumstances, do we think we're gonna get a benefit in terms of public confidence that outweighs the cost in terms of all the baggage

that now comes along with appointment of special counsel, including, thanks to Judge Cannon, including the possibility that judges may find that the appointments are unlawful, which is something that wasn't even in the field of play when I made my appointment at bottom line, there was no doubt that special counsels were lawful. In fact, independent councils were constitutional.

So that's yet another factor that I think, you know, counts on the opposite side of the ledger when you're making that decision. Okay, we have three questions, and they all, they just sit together so nicely, and I'm thrilled. Are the restraints that we have on the executive enough, and how does the Supreme Court's decision on presidential immunity fit into all this?

Do we live in a world where a president will be impeached or could be indicted? As in, is this conversation pretty pointless? Did we just kind of waste everyone's time? Rob-uh. Yeah. I think we are living in a world where the principles that were outlined in the presidential immunity decision

of the Supreme Court make clear that for a lot of what's happening here and what is on the public consciousness and equal concern about limits on the executive branch, the primary remedy is going to be political. And again, speaking exclusively personally, I think that is the right approach. Why do I think that is because I think there are other countries in the world where it is a matter of course, where somebody serves as president and then they leave office and they are prosecuted and sometimes imprisoned. And then that happens with the next office holder and then the next office holder.

And I'm not sure that that is the kind of republic that we want to be living in. First question obviously is prompted by four weeks of the Trump administration. And my answer to that is I think it's too early to say that there are no guardrails. And so I think that's a premature question. On the second one, the issue of presidential immunity, the thing to keep in mind is number one,

the contours of that opinion are not entirely clear. It's a little fuzzy at the margins, right? The president clearly can't be held accountable for conduct that is core within his responsibility as president, but there are things that are collateral that potentially he could. Number one, number two, I think more significant,

is that opinion only applies to the president. So if hypothetically the president. So if, hypothetically, the president were to order somebody to do something illegal, it's no longer a crime for the president, but it's still a crime for the person who carries out the order. So I'm not sure that that decision is really going to have any substantive impact.

I don't think we're going to see an executive branch official just ignoring criminal law. So I don't think that's as great of a concern. The third question with regard to impeachment, that's an easy one for me. I was threatened with impeachment as most DOJ officials are these days. And the unfortunate answer if you're in the job is it's purely a political remedy. It's not a legal remedy. So there in fact are no rules.

You can be impeached for anything or nothing, whatever a majority of the Congress and the Senate, or the Congress to get impeached, the Senate to get convicted, whatever they believe. So impeachment is not a legal proceeding. It's something to keep in mind when you're in these high-profile government jobs, it's actually very interesting to be

in the congressional arena because they're not bound by law the way we are at the Department of Justice. It's a very interesting to be in the congressional arena because they're not bound by law the way we are at the Department of Justice. It's a very different environment. I have one book recommendation on that, by the way. Chief Justice Rehnquist, I believe in 1994, wrote a book called Grand Inquest about both the impeachment of Samuel Chase, which

is the first impeachment in the United States and the only one of a sitting Supreme Court Justice, and the impeachment of Andrew Johnson, the president who took over after Lincoln was assassinated. He wrote it before he then oversaw an impeachment of Bill Clinton. So it's kind of this incredible book both in terms of the history that you get to read, but also as you know who's writing it, you're like, you have no idea, man. You have no idea what's coming your way. So that's a great book on this. I want to thank the University of Maryland for having us and Jack and Matt and the Federalist Society here

for hosting us. But most of all, I want to thank this incredible audience for asking incredible questions that really put such a nice bow on this conversation. So thank you all for being here. Thank you for joining us. That's the end.