Deputy Attorney General Rod Rosenstein’s appointment of Robert S. Mueller III as “special counsel” for purposes of the so-called Russia investigation underscores a point I have made through the years, whenever the subject of special prosecutors or independent counsels rears its head. Because there is no such thing as an independent counsel (i.e., a lawyer who wields prosecutorial power independent of the executive branch), the structure of a “special counsel” arrangement will never give anyone confidence. A special counsel is appointed by the attorney general (here, it’s the deputy attorney general because AG Jeff Sessions has recused himself). A special counsel also reports ultimately to the president — meaning that, like any other executive-branch official (other than the vice president), a special counsel serves at the pleasure of the president and may be dismissed at any time.
Therefore, the public perception that the special-counsel arrangement has integrity hinges exclusively on the lawyer who is appointed. It is the lawyer’s reputation for probity and professionalism, and that alone, that can convince people a real investigation, governed by law and evidence not politics, is being conducted.
In this instance, Rosenstein has chosen well.