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CNN Tonight

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I will be on CNN tonight on a panel discussing whether Special Counsel Bob Mueller is too personally close to a potential key witness, Jim Comey, to continue to serve.  I believe the panel will start at 8:30 EDT and run for perhaps half an hour.

My USA Today op-ed addressing this question is here.

UPDATE:  To anyone who inconvenienced himself or herself to watch, I apologize.  It was not anything like the discussion I thought it was going to be.

The final speaker rebutted the only point I was given the opportunity to make by saying that the personal relationship between Mueller and Comey did not matter, because it started with a professional or business contact.  That is incorrect.  Under the ethics rules, it is simply the fact of a personal relationship between the prosecutor and his witness, not its origin, that matters.  No one on the segment (all seven minutes of it) denied that Mueller and Comey are friends, or that this would cause a reasonable person to question Mueller's objectivity in evaluating Comey's prospective testimony.

3 Comments

Decencyevolves: I'm out of the country and not able to watch, but I have a couple of questions you may already have answered. What would your thoughts be if the President agreed with you and ordered Rosenstein to fire Mueller? What if Trump fired Rosenstein if he refused that command?

The prior and crucial question is whether my argument that the statute and regulations require recusal is correct on the merits.

If it is not correct, then no one should fire Mueller and he should stay where he is.

If it is correct, then the question is how his departure should be handled with the least damage to public confidence. The best means by far is for Mueller himself to understand that -- through no moral failing of his own but simply because of the happenstance of his years-long alliance with Comey -- he cannot be assumed to have the objectivity and impartiality the statute demands. He would then resign, acknowledging this fact.

So again, the key question is legal merit under the statutory language and the outcome to which it points, not political fireworks.

I'm pretty sure that, in any other criminal investigation where the prosecutor had been this close for this long to the government's potential star witness, the defense motion for recusal would be the temperature of the sun. Am I wrong about that?

I havent studied it and you have. That said, my perception based on the President's interactions with James Comey is that he will tolerate anyone in a leadership position at DOJ or the FBI who doesn't show personal and political loyalty by unequivocally exonerating him and bringing his Administration out from "under a cloud." That's an enormous problem that won't be resolved, whether or not Mueller or Rosenstein step down or are removed. This is unlikely to end easily or well.

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