- The Washington Times - Monday, December 4, 2017

Special counsel Robert Mueller has locked in two guilty pleas and two criminal indictments in the seven months since he took over the investigation into Russian interference in the presidential election last year, but there is one statistic he has yet to make public: the investigation’s cost.

The special counsel released a statement of expenditures providing a first look at what the probe is costing taxpayers. Depending on how funds have been spent, the disclosures could open the investigation to additional criticism.

“There is a spotlight on the cost of these matters, some of which have been extremely exorbitant in the past,” said Randall Samborn, senior vice president of Levick and a former spokesman for Patrick Fitzgerald’s special counsel investigation into the unmasking of CIA agent Valerie Plame in the mid-2000s.

Kenneth W. Starr’s 1990s-era investigation into President Clinton ranks as the priciest independent counsel investigation on record, costing taxpayers about $73 million and involving the work of more than 170 employees and federal government detailees. Compared with that record-breaking probe, Mr. Mueller, a former director of the FBI, appears to be running a tighter operation.

Mr. Starr’s office employed 35 attorneys, including 15 hired from outside the federal government, according to a 1999 Government Accountability Office report on the staffing levels of the investigation.

By contrast, Mr. Mueller’s team has 17 attorneys, five of whom were hired from outside the government. A report from ABC News suggests he has spent about $5 million thus far.

DOCUMENT: See bill taxpayers foot for funding special prosecutors

“If it’s a million dollars or several million dollars since May, that would not be an extraordinary amount of money for the amount of work that has to be done,” said Carol Elder Bruce, a former independent counsel who oversaw the 17-month, $7 million investigation into Clinton administration Interior Secretary Bruce Babbitt in a case involving political donations and an Indian casino license.

Mr. Mueller’s office has declined to provide details on how many other people have been detailed from various agencies or divisions of the Justice Department to work on the team.

But as records from the Starr investigation show, that number can easily run into the hundreds. From 1994 to 2000, past the point at which Robert Ray was sworn in as Mr. Starr’s replacement, a GAO report found that the office of the independent counsel had a total of 171 employees and detailees. An acknowledgment included in the independent counsel’s final report in 2002 thanks more than 200 people who were involved in the investigation, as well as hundreds of other agents and law enforcement personnel detailed to the probe but were not named.

Unfair advantage?

For critics who question the legitimacy of the ongoing investigation, future disclosures about staffing levels and expenditures can fuel a new line of attack against what President Trump has repeatedly labeled “a witch hunt.”

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When the Clinton administration was the target of a series of independent counsel investigations in the 1990s, critics contended that the limitless resources for special prosecutors can give investigators unfair advantages over those in their crosshairs.

“[Independent counsel] investigators, armed with a limitless checkbook, a flexible jurisdictional mandate, no competing case demands, and all the time they need, can investigate their case far beyond that which would seem reasonable in the normal case and have the incentive to pursue avenues that would not survive the competition for scarce resources were the matter under DOJ scrutiny,” Georgetown law professor Julie O’Sullivan wrote in a 1996 study critical of the independent counsel law.

In large part because of such criticism, the manner in which the special counsel is appointed has changed, with the investigation authorized through a different statute. But both entities had a broad degree of freedom over their expenses and budgets. The Justice Department is now required to provide “all appropriate resources” to the special counsel, and investigators are obligated to submit an initial proposed budget and subsequent budget requests each year the investigation continues. It is now up to the attorney general — or in this case Deputy Attorney General Rod Rosenstein because Attorney General Jeff Sessions has recused himself from the matter — to determine each year “whether the investigation should continue and, if so, establish the budget for the next year.”

But it’s hard to know whether an investigation is worth it when no budget or expenses are made available, said Chris Farrell, director of research at the legal watchdog group Judicial Watch.

“No matter where anybody lands on the spectrum, whether they are rabidly pro-Mueller or think it’s a witch hunt, the beauty of the cost is it’s just a math equation and it’s an objective yardstick to evaluate where taxpayers’ dollars are going and whether it’s a benefit,” Mr. Farrell said.

Judicial Watch has filed a lawsuit seeking access to the special counsel’s budget numbers in an effort to force public disclosure of the cost of the investigation.

“If I’m given unlimited staff and unlimited attorneys and a blank checkbook, you’d be amazed what I can do,” Mr. Farrell said.

True costs

The numerous independent and special counsel investigations undertaken since Watergate have incurred a broad range of costs to taxpayers, from the $25 million spent on David Barrett’s record-length 11-year investigation of Mr. Clinton’s Housing and Urban Development secretary to Mr. Fitzgerald’s investigation of the Valerie Plame affair, which cost $2.7 million, according to GAO reports.

“It’s proper for these types of numbers to be available and disclosed, and if you look at a history of independent counsels since Watergate, you see a broad spectrum of costs that are incurred,” Mr. Samborn said. “Where these investigations have been conducted by people really outside of government experience, the costs have tended to perhaps be higher.”

Personnel costs constitute a significant chunk of the cost, but former investigators note that salaries for those detailed to the special counsel’s office from other areas of the federal government are not “additional” costs because the detailees would have been on the government payroll regardless.

Office space rental, the purchase of supplies such as copy machines, and court transcription services are a few of the other mundane but pricey items that pushed up costs during past independent counsel investigations, according to involved attorneys.

“It’s rental space that kills you,” said Ms. Bruce, whose probe of Mr. Babbitt ended without criminal charges after she concluded there was no evidence to support charges of illegal political interference.

Ms. Bruce said that throughout her investigation she stressed the importance of efficiency to her team. Given Mr. Mueller’s background in public service, she said, he would likely be mindful of the same concerns.

“Every single day, I reminded myself and my staff we were doing the people’s work. We were very frugal in how we handled things,” Ms. Bruce said.

A different beast

The nature of a special counsel investigation sets it apart from the typical U.S. attorney-run investigation and can require more flexibility in time and cost than the standard investigation, said Andrew Leipold, a law professor at University of Illinois who served as a consultant on Mr. Starr’s Whitewater investigation.

“What’s distinctive about some of these special counsel investigations is you don’t know what the scope of what you are looking at is until you are doing it,” Mr. Leipold said. “It is not a question of, ‘This happened,’ and investigate and get the details. Instead, you are saying, ‘What if anything there is to find?’ So it’s really, really hard until you are in the middle of the investigation to know what you are going to find and where it is going to go.”

Singling out the cost of special counsel investigations can also be problematic because the Justice Department doesn’t typically break down the costs of prosecuting individual cases.

“If you just put a number out there with no breakdown, that has its own sticker shock because the average person who is not involved in criminal investigations can’t understand why it would cost that much to prove someone did or didn’t do something,” Ms. Bruce said.

Given the partisan divide over the necessity of the Mueller investigation, analysts expect outcry over the money spent on the probe no matter what the cost.

“If people are not happy about the mere appointment of a special counsel, they will see that as a reason to criticize,” Mr. Bruce said. “But I would think that it’s hard to put a price tag on the importance of doing a good and thorough investigation, for the sake of the people being investigated as well as the sake of the country, to get an answer as to what happened in our election.”

While some members of Congress previously called for setting limits on the cost or length of time Mr. Mueller’s probe can run, others say that would create a host of problems complicating the goal of a fair and thorough investigation.

“That could create all sorts of incentive for people to run out the clock and not cooperate,” Mr. Leipold said. “Coming in at half the cost and half the credibility is no bargain.”

• Andrea Noble can be reached at anoble@washingtontimes.com.

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