(l-r) Alan Dershowitz, Kathleen Clark, and Richard Painter. (Courtesy photos)

 

The school year is already over at many law campuses across the country, but plenty of legal academics are staying busy helping the media and public decode Robert Mueller’s appointment last week as special counsel. Mueller is tasked with investigating President Donald Trump’s alleged ties to Russia, that country’s interference in the 2016 election, and Trump’s dismissal of James Comey as director of the Federal Bureau of Investigation.

News outlets large and small have called on law professors to explain the history and role of special prosecutors, the challenges and limitations they face, and to forecast what it all might mean for the future of the Trump presidency. Here’s a sampling of what they’ve had to say. 

Is Mueller good news or bad news for Trump?

“Nobody can point me to a statute that would be violated. And a prosecutor is only allowed to look for evidence of a federal crime. And the reason I think Trump may benefit from this is this will be a secret proceeding. Mueller is a very honorable guy, so he’s not going to leak anything. And in the end, he’s going to find no crime.”

Alan Dershowitz, professor emeritus at Harvard Law School, speaking on Fox News.

“I think it in one sense it is bad news for Trump and it is good news for people who want a robust investigation because Mueller is definitely a straight shooter and he has a good reputation as an FBI director. It means that the investigation goes on. It is not going to be stopped and it also means that the deputy attorney general doesn’t want to do Trump’s bidding on this.”

Jens David Ohlin, a professor at Cornell Law School, on CNN.com.

A historical look at special counsel, and its limitations

“So we have a long history of appointing these counsels in the hope that they’re going to get to the bottom of something. What we end up doing is maybe someone lies to investigators—and you shouldn’t lie to investigators, and that’s fine. They may be punished. But for the underlying crime, we often never do find what went on or if it was a crime at all.”

Stephen Carter, a professor at Yale Law School on NPR’s Weekend edition.

“Appointing special counsel Robert Mueller to probe Russian meddling in the 2016 election (and any possible ties to President Trump’s campaign) was the only choice the Justice Department had. … But it’s also a highly imperfect solution, because it doesn’t foreclose the possibility of political interference in the investigation. The rules provide only so much protection: Congress, Trump and the Justice Department still have the power to stymie (or even terminate) Mueller’s inquiry.”

Neal Katyal, Hogan Lovells partner and professor at Georgetown University Law Center in a Washington Post op-ed.

“No one’s going to jail as a result of what the commission does but they could with a prosecutor. Congress has the power to investigate but power to prosecute is in the Executive Branch.”

William C. Banks, a professor at Syracuse University College of Law in Time.com.

On whether the work of Mueller’s former firm, Wilmer Cutler Pickering Hale and Dorr, creates a conflict of interest for him as special prosecutor. Its clients include Ivanka Trump and Jared Kushner.

“If he was not involved in the representation at all, then there’s no problem. Once he leaves the firm, he’s purged from any conflicts the firm had.”

Stephen Gillers, a professor at New York University School of Law, on NPR.

“The real risk here is interference by the White House or by [Attorney General Jeff] Sessions’ appointees, not some issue involving WilmerHale.”

Richard Painter, a professor at the University of Minnesota Law School, in Politico.

“The impartiality regulation has within it, flexibility. It would be a shame if someone of Mr. Mueller’s independence were prevented from taking the job because of a rigid interpretation of a rule. The government’s need for his services is rather extreme at this point.”

Kathleen Clark, a professor at Washington University in St. Louis School of Law, on NPR.

What’s next?

If President Donald Trump asked FBI Director James Comey to stop investigating National Security Adviser Mike Flynn and his ties to Russia, that’s obstruction of justice. But let’s be clear: It’s the impeachable offense of obstruction. It’s probably not the criminal version of that act. With the evidence now available, it’s extremely unlikely that an ordinary prosecutor could convict Trump.”

Noah Feldman, a professor at Harvard Law School, in an opinion piece on Bloomberg View.

“If [Trump] knows that he personally faces criminal prosecution and his purpose in trying to shut down or slow down the investigation is to prevent him from getting caught, or if he knows that someone he knows or cares about is at criminal risk, like a friend or a family member, and the purpose is to protect them from criminal indictment, then I think anyone would view that as obstruction.”

Bruce Green, a professor at Fordham University School of Law, in The Atlantic.

“What we have is a memo of a president asking highly inappropriate questions of an FBI director. This would be pretty thin soup for even an impeachment proceeding.”

Jonathan Turley, a professor at George Washington University Law School, in the Washington Post.

Contact Karen Sloan at ksloan@alm.com. On Twitter: @KarenSloanNLJ.