UVA Today

“Oh, that was a fun day in class,” student Madison White said about the subpoena discussion.

The instructors were frank about the challenges they faced in the wrangling to get President Donald Trump to speak in person and on the record. The president had submitted written responses to questions through his attorneys, but the investigative team found them largely unenlightening, they told the class.

To move Trump any further would require a legal order to appear. But the lawyers suspected that would end up in the courts and take many months to resolve.

“It would have been heavily litigated,” White said, potentially wasting time and resources. “And nobody was sure how helpful that testimony would have even been.”

The instructors asked the students what they thought the right course of action would have been. The students were split. Such discussions led them to think about the political implications of every move. Should a special counsel’s office, appointed to the task by the Department of Justice and not elected, reach judgments about whether a democratically elected president committed a crime?

Mathai noted that President Bill Clinton, who was investigated related to sexual impropriety in the Oval Office, perjured himself while honoring a subpoena to appear before a grand jury, leading to his impeachment for perjury and obstruction of justice – a cautionary tale for any president. Clinton was ultimately acquitted.

The Clinton investigation was conducted under an independent counsel, which was authorized under the Ethics in Government Act of 1978 and had more independent authority than today’s special counsel does. The independent counsel statute expired in 1999. In its absence, the special counsel regulations took its place.

The instructors told students that they were aware their case had implications for the future, but that they felt their foremost obligation was to faithfully execute their duties in the present, and for department policy and norms to light their way.

“I think part of it was they had their initial guidelines,” Mathai said. “There isn’t much case law, so they can either be overly cautious or they can run with it.”

Another decision point was how to respond to Barr’s letter casting the report’s findings. The letter, some believe, portrayed the report as being exonerating, when it was not. Mueller’s office wasn’t sure if the full report, which was Justice Department property, would ever be made public.  

The special counsel members followed the department’s regulations, White said. “They were to submit the report to the attorney general.”

She added, “What would the ramifications have been if Mueller and his team got on the courthouse steps and said this is not what our report said? They took a lot of pride in trying to do everything correctly.”

Mueller did put out a statement in response to the attorney general’s letter, and the department ultimately released a redacted report. Still, “It’s always hard to unhear the first thing said,” White commented.

The students are currently working on papers that will wrap up their work for the course. Among the options, they can talk about a specific decision made by the special counsel’s office and analyze whether it was correct, or they can give their advice for improving the special counsel statute.

Mathai and White said there was classroom discussion that perhaps some middle ground should exist between the relatively unchecked powers of an independent counsel and the more limited authority of a special counsel.

In addition to contributing to the conversations for each class, Mueller added somber personal comments about being FBI director during 9/11, the 20th anniversary of which fell during the course. The students said he joked with them at times, too, offering to serve as “second chair” to Mathai in the Law School’s Prosecution Clinic, and commenting on the last day of class that if everyone is mad at you, you must be doing something right.

White said she thought the instructors had done their best to make wise decisions under trying and uncertain conditions.

The Karsh Center for Law and Democracy sponsored the six-session course. Mueller, Zebley and Quarles are partners at WilmerHale in Washington, D.C., while Goldstein is a partner at Cooley, also in D.C.