Originally uploaded at SSRN.


The resignations of United States Attorneys Geoffrey Berman and Jessie Liu from their respective positions in the Southern District of New York and the District of Columbia, and Attorney General William Barr’s and President Donald Trump’s persistent undermining of Special Counsel Robert Mueller’s Russian interference and obstruction of justice investigations and prosecutions are clarion calls to reform the process by which the executive branch criminally investigates itself. But there is another critical circumstance—the Special Counsel regulations—that has been largely overlooked and has been grossly underappreciated in the public discussion about undue executive branch influence. These regulations are foundational, their impact is deeply consequential, and absent meaningful reform there is little to prevent a repeat of such executive branch interventions now and in administrations to come.

This Essay discusses these regulations and illuminates how they compromise not only the integrity of investigations of executive branch wrongdoing but also the public trust. In so doing, this Essay reviews a high-profile occurrence during the Mueller investigation and explains how the regulations arguably hamstrung Muller during this process. It proposes a two-pronged legislative remedy that calls for a return to the former Independent Counsel Statute with a significant modification, and defends its constitutionality.