In late March 2018, Robert Mueller was facing a political dilemma as his probe of Russian interference in the 2016 election heated up. His position was precarious, as campaign-style conservative attacks tried to undercut his investigation and news stories swirled around his potential firing. Then a headline changed the conversation: “Mueller told Trump’s attorneys the president remains under investigation but is not currently a criminal target.”
Mueller told Trump’s attorneys the president remains under investigation but is not currently a criminal target https://t.co/MfjtgU6HB0
— Washington Post (@washingtonpost) April 4, 2018
While Mueller’s message may not mean much about the substance of the investigation, it is a politically sophisticated method of protecting his position. After weeks of attacking Mueller, the GOP chose to celebrate Mueller’s latest announcement — precisely because it was favorable to its cause. Now it would be a stretch, even for the far right, to argue that the Special Counsel should not exist at the same time they celebrate his findings, thereby protecting Mueller’s investigation. This strategic move by Mueller reminds us of the political acumen of an American hero of centuries past. In his historic opinion establishing judicial review, Chief Justice John Marshall used Marbury v. Madison to accomplish his objective with legitimacy lent from its harshest critics.
Marbury v. Madison
In the final days before Thomas Jefferson’s inauguration as the first Democratic-Republican President of the United States, President John Adams hastily appointed Federalist justices to try to hamper his successor’s agenda. Some of the justices’ commissions were not delivered in time, and after being sworn in Jefferson instructed Secretary of State James Madison not to deliver them, meaning President Adams’ last Federalist appointees would not take the bench. One of the so-called “Midnight Justices,” William Marbury, argued that his signature and seal on the commission was all that was necessary to take the bench, and the Supreme Court subsequently heard Marbury v. Madison.
In the early days of the Supreme Court, it was expected that it must issue a writ of mandamus, or an order for an official to take a certain action or duty, in order to ameliorate damages or maintain lawfulness. The court’s decision could ostensibly move in two directions — either Madison, then-Secretary of State, would be compelled to deliver Marbury’s commission, or Marbury’s appointment would be considered invalid. Issuing a writ of Mandamus to Madison would upset Jefferson, who would ignore it and disrespect the Supreme Court’s authority. Alternatively, bowing to Jefferson’s will and deciding against Marbury would also make the court seem weak.
Marshall was facing a dilemma. His authority would be undermined no matter which way the court decided. His solution changed history. Marshall’s opinion stated that while Marbury had a right to his commission, the Supreme Court could not force Secretary Madison to act because the Judiciary Act of 1798 allowing them to do so was unconstitutional. This gave Jefferson a technical victory in the case that he could not help but accept, and allowed Marshall to interpret the constitutionality of the existing law unperturbed. While Jefferson wanted to compromise the court, he could not do so without hurting his own agenda after Marshall handed him a favorable decision.
A common solution
Marshall was under the thumb of an executive branch hostile to his work and position on the Supreme Court, yet he managed to leverage the situation into an enduring mandate for the judiciary. Mueller is investigating an exceedingly hostile president who for months has contemplated, and even attempted, removing the Special Counsel. By giving Donald Trump a headline that feels like a vindication, Mueller deftly manipulated a frenetic news cycle to put Republicans on the wrong side of their own argument that the investigation is unnecessary. Mueller put himself in a better position to stay on as the special counsel, and it is because he understands what is really important in justice: staying power.
Special Counsel Robert Mueller is moving forward with the investigation into possible coordination between Donald Trump’s campaign and the Russian government during the 2016 election, while Congress’ investigations vary in their direction and effectiveness.