Federal Bureau of Investigation Director Robert Mueller testifies before the US Senate Judiciary Committee on oversight during a hearing on Capitol Hill in Washington, June 19, 2013.
Saul Loeb—AFP/Getty Images
By Michael German
May 18, 2017
IDEAS
German, a fellow in the Liberty & National Security Program at the Brennan Center for Justice at NYU School of Law, served for 16 years as a special agent with the FBI, specializing in domestic terrorism and covert operations

I am not a fan of Robert S. Mueller, III. He was the third director I worked under as an FBI agent. I joined the Bureau in 1988, when William Sessions served as director; worked through Louis Freeh’s term; and finally resigned in 2004, just about three years into Mueller’s tenure. I only had one direct interaction with him as an agent. In 2002, I alerted him to a whistleblower complaint I made about a mishandled counterterrorism case. Though he had called for whistleblowers to report any problems in terrorism investigations just a few months earlier, he never responded to my email, and the retaliation against me only intensified. Two years later, I reported the matter to Congress and resigned, starting a new career as a civil-rights advocate lobbying against many of the policies and practices Mueller implemented at the FBI.

It might therefore come as a surprise that I think Mueller is a fine choice to serve as special counsel to oversee the FBI’s investigation of Russian interference in the 2016 presidential election.

Mueller is a good selection both because of what he is, and what he isn’t. First, his experience as a federal prosecutor is unsurpassed, including stints leading the Justice Department’s Criminal Division and the United States Attorney’s office in San Francisco. In just one of his notable cases, Mueller led the prosecution of Libyan intelligence agents responsible for the Pan Am 103 bombing over Lockerbie, Scotland. Then he spent twelve years directing the FBI. He clearly knows how to run large, multi-faceted investigations and prosecute complex cases, and his experience will aid him in navigating the Justice Department and FBI bureaucracies.

As for what he isn’t: Though he is reportedly registered as a Republican, he has never been a politician. He has served both Republican and Democratic administrations and enjoys broad support on both sides of the aisle in Congress. The primary job of the special counsel is to regain the public trust by operating independently, without any real or perceived political interference. Mueller is clearly capable of conducting such an investigation.

Mueller’s commitment to our nation’s security goes back even further than his time at the Justice Department. After graduating from Princeton and New York University, Mueller enlisted in the U.S. Marines in 1968, serving with valor in Vietnam and earning a Bronze Star and a Purple Heart. Though Mueller’s FBI focused on counterterrorism as its primary mission, it also kept a close watch on Russian espionage and cyber crime, arresting Russian hackers in 2005 and rolling up a large spy ring in 2010. It is hard to imagine someone better placed to understand the threat posed by Russian interference in our electoral process.

But Mueller is not a knight in shining armor who is going to come and single-handedly rescue our democracy. Mueller does not have a perfect record of standing up against abuses of power. In the early 1990s, New York Times columnist William Safire wrote a series of articles highly critical of Mueller’s management of financial investigations of the Bank of Credit and Commerce International as well as the Banca Nazionale del Lavoro while he served as head of the Justice Department’s Criminal Division. Safire and others alleged Mueller and the Justice Department were slow to address fraud in these two institutions, at least in part because they implicated U.S. intelligence activities, including the secret provision of arms to Saddam Hussein’s Iraq. When Mueller’s name was floated as a potential nominee to direct the FBI a decade later, Safire penned a scathing review of Mueller’s qualifications: “I remember him as an intelligent apparatchik who showed a marked lack of interest in pursuing the Iraqgate investigation. He helped staff the Public Integrity Division with time-servers who would not rock the boat.”

While Safire’s criticisms may not have been entirely fair considering Mueller’s subordinate position in the Justice Department hierarchy, Mueller’s time at the FBI included other notable periods of inaction in response to abuses of power. Mueller made no public objection to the Bush Administration’s torture program, for instance, despite the fact that FBI jurisdiction over these crimes was so clear FBI agents at Guantanamo Bay kept a “war crimes” file, and an FBI lawyer wrote a memo outlining a prosecution strategy the agents there could pursue. According to a 370-page Inspector General report documenting the FBI participation and observation of detainee abuse, FBI headquarters routinely ignored reports of torture filed by agents in Guantanamo, Iraq and Afghanistan. Though Bureau officials at times instructed agents to avoid the “enhanced” interrogation techniques used by the CIA and military, and many honorably refused on their own accord, the Inspector General criticized FBI leadership for failing to issue written guidance to this effect until after the Abu Ghraib scandal broke in 2004, leading to confusion about the policy in the field.

Mueller was also reluctant to intervene when FBI officials inadvertently discovered that the National Security Agency was operating a warrantless wiretapping program in violation of the Foreign Intelligence Surveillance Act. Ironically, it was James Comey, who as Deputy Attorney General in 2004 finally raised concerns about the program, leading to the hospital room confrontation that cemented his reputation for independence. Mueller supported his then-boss Comey’s insurgency, but then helped negotiate minor modifications that allowed the program to continue for another several years. In congressional testimony regarding the Patriot Act, Mueller downplayed abuses and minimized the true extent of the impact these surveillance programs imposed on Americans’ privacy. His FBI-led aggressive investigations and prosecutions against the NSA whistleblowers who tried to raise the alarm.

These episodes don’t disqualify Mueller to serve as special counsel in the Russia investigation. Rather, they serve as reminders that we must remain vigilant and demand public accountability over his investigation. Our system isn’t built on trust in any one government official — not the special counsel, not the FBI director, not the President of the United States. It is built on checks and balances between co-equal branches of government and public accountability.

Appointing a special counsel of Robert Mueller’s talent and experience is a laudable step, but it is only the first of many necessary to restore public trust in our institutions of government.

Congress must continue and intensify the investigations it is currently conducting, respectful of the special counsel investigation but not abdicating its responsibility to gather evidence for its legislative purposes and to keep the public adequately informed. As James Madison said, “If angels were to govern men, neither external nor internal controls on government would be necessary.” There are no angels in this story, so it is up to all of us to hold all our government officials accountable to the law.

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