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My View: Mueller Is Conflicted Out

UPDATE:  An op-ed I adapted from this post was published today in USAToday. I am linking it in my entry this morning.

It's scarcely news by now that the appointment by Deputy Attorney General Rod Rosenstein of Bob Mueller to be Special Counsel to investigate possible Russian interference in the 2016 election is the Big Story in criminal law circles.

I know Mueller very slightly, having met him only once, when he was Assistant Attorney General for the Criminal Division.  From what I know of his reputation, he is an honest, no-nonsense, effective prosecutor.

Under the present circumstances, however, and not without regret, I have concluded that he cannot continue to serve as Special Counsel.
28 USC Section 528 provides as follows:

The Attorney General shall promulgate rules and regulations which require the disqualification of any officer or employee of the Department of Justice, including a United States attorney or a member of such attorney's staff, from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof. Such rules and regulations may provide that a willful violation of any provision thereof shall result in removal from office.

28 CFR Section 45.2 provides in part as follows:

Disqualification arising from personal or political relationship.

(a) Unless authorized under paragraph (b) of this section, no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:

(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

(2) Any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution....

(c) For the purposes of this section:

(2)Personal relationship means a close and substantial connection of the type normally viewed as likely to induce partiality....Whether relationships (including friendships) of an employee to other persons [outside his or her family] or organizations are "personal" must be judged on an individual basis with due regard given to the subjective opinion of the employee. 

Jim Comey and Bob Mueller have been friends for about 15 years.  They were partners in the episode that  --  I think it's no exaggeration to say  --  defined Comey's professional persona more than any other in his career.  It would be surprising if it did not also forge a permanent bond with Mueller.

It was Comey, as Deputy Attorney General, and Mueller, then head of the FBI, who together confronted White House Counsel Alberto Gonzales in the hospital bedroom of then-seriously ill Attorney General John Ashcroft in a successful attempt to block the White House from implementing a surveillance protocol Gonzales and, tentatively, President Bush favored.

The protocol was temporarily stalled.  Comey, shortly thereafter, talked with Bush at the White House and, in what I presume must have been an intense meeting, persuaded him not to go forward with it.  It was one of the most dramatic and telling episodes in the first part of the George W. Bush administration.  In essence, in the early stages of a still-shocked nation's response to the 9-11 attacks, Comey and Mueller stood arm-in-arm at the Pass at Thermopylae.

Comey now finds himself smack-dab at the center of the Russian investigation over which Mueller presides.  Questions swirl around Comey  --   about whether the President wanted/hinted/hoped/asked/directed/or something else the investigation of National Security Adviser Gen. Flynn to be stopped/abandoned/slowed/soft-peddled/something else.  This is probably the central element of the obstruction of justice case Mr. Trump's opponents would like to see made against him.  

Questions also swirl about Comey's notes about this conversation, why he gave them to a private individual (Prof. Dan Richman of Columbia Law) to convey to the press. Additional questions have arisen about whether this curious and seemingly devious means of putting contents of the notes in the public domain (leaking, in other words) was designed specifically to bring about the appointment of a Special Counsel outside the President's direct reach  -- and, indeed, whether Comey wanted, expected or intended his friend Mueller to get the job.

There is much to be said of all this, none of it very happy-making.  But one thing that can be said with considerable clarity if not comfort is that, under the governing rules (set forth above), Mueller has a long-term relationship with Comey that "may result in a personal...conflict of interest, or the appearance thereof."

He is  therefore disqualified.  I hope and believe that Mueller, whom I believe to be an honest man and a partisan of the rule of law, will see this for himself.  If he doesn't, I hope Rod Rosenstein will.

As I've said in many other contexts, I like rule-orientation and fear self-justification, a ubiquitous flaw in even the best of men.  There is no way Comey is not a central witness in this investigation (if not a subject).  Even less is there a way Mueller can be expected to evaluate Comey's credibility with the fresh neutrality, arm's-length curiosity, and objective sharp eye his job demands.

Whether Mueller's departure would work out well or badly for Mr. Trump is not knowable (it is also decidedly not the subject of this post).  My point is about the application of stated rules to the facts at hand.  Let the chips fall where they may, the application is clear: Mueller cannot remain as Special Counsel. 


This whole thing stinks. There was no collusion between "the Russians" and Trump. This was a fantasy of the Democrat-media complex. People like Susan Rice helped it by having Americans unmasked.

How people like James Comey were blind to this reality is interesting, to say the least.

According to press accounts, "Deputy Attorney General Rod Rosenstein told members of a Senate appropriations subcommittee that he is the only person who is able to fire special counsel Robert Mueller and that he has seen no reason to do so."

In light of your analysis, Bill, should I start thinking poorly of the DAG's legal knowledge and wisdom? Do you think Prez Trump can/should reject the perspective of the DAG in order to remove Mueller?

I share the view of federalist that this whole thing stinks, but for me the stink is largely in and around DOJ (past and present) and it leads me to further question the honestly and objectivity of federal prosecutors even though I am always hopeful I can give them the benefit of the doubt.

"According to press accounts, 'Deputy Attorney General Rod Rosenstein told members of a Senate appropriations subcommittee that he is the only person who is able to fire special counsel Robert Mueller and that he has seen no reason to do so.'"

According to press accounts, Trump hired a Russian prostitute to relieve herself on him, and Steve Bannon got fired last week.

Maybe you should get more analytical sources.

I also note that you refute not a single word in my discussion, and refuse even to mention the governing rules, Section 528 or Section 45.2.

Doug is remarkably incurious about the issues with "unmasking." Seems obvious that intelligence was abused for political purposes.

Still think Obama is so much more moral than Trump?

Bill: do you dispute that this is what Rod Rosenstein told members of a Senate appropriations subcommittee? I referenced press accounts because I did not see the testimony myself. More to the point, I am not seeking to refute your analysis, but rather trying to figure out if I should think less of DAG Rosenstein because he apparently does not analyze the situation the same way that you do.

I have long held DC in relative disdain because it so often seems to be the same cast of characters moving in and out of positions, and they all seem to have each others' back no matter if they have a D or R next to their name. Trump pledged to drain this swamp, and maybe he is trying, but I still see a whole lot of swampiness all around.

Meanwhile, federalist, I am very curious about "unmasking" and whether Obama was involved in that, as well as about, e.g., Prez Trump's claim that 3-5 million illegal votes were cast in 2016 and about his claim "Obama had [Trump's] ‘wires tapped’ in Trump Tower." I had hoped James Comey as FBI director could be trusted to help me better understand what is real and what was fake. But he was fired, supposedly based in part on claims that FBI rank-and-file no longer trusted him. I am hopeful incoming director Wray can help sort this out, but I am coming not to trust anyone anymore. (After all, DAG Rosenstein appointed and now defends Mueller even though Bill makes a compelling claim he is conflicted. And Mueller himself should acknowledge this if it is so clear, so it seems he cannot be trusted either even though we had to trust him as FBI director in the past.)

And yes, Tarls, given that I do not yet know if Obama played any role in "unmasking," but I do know that (1) the former FBI director could not trust Trump to tell the truth AND (2) that Trump has already, only weeks into being Prez, made seemingly wild and irresponsible statements about voting fraud and Obama's illegal behavior, I still think Obama is so much moral than Trump. This has nothing to do with policy.

You described a collegial relationship that you assume is a friendship, but the statute doesn't automatically apply to friends. To determine if a friendship is close enough to be a potential conflict, "due regard given to the subjective opinion of the employee [Mueller]." Has anyone asked him yet?

Even if they had a close friendship, it still wouldn't be potential conflict of interest since Comey isn't under investigation and he doesn't have anything "specific and substantial" to gain from influencing the outcome of the investigation.

The statute isn't concerned about their relationships with witnesses. They'd have to disqualify their own staff from taking the stand every time.

I suspect Gilbert's take here is similar to the one seemingly embraced by DAG Rosenstein, Bill. Are they misguided in their conflict analysis/assessment or are you?

Also, as I asked before, Bill, I would love your opinion on who should be seeking to have Mueller removed if they agree with your view and reject the view of the DAG in this important matter. Is this something only Prez Trump can do because AG Sessions is conflicted out or is there some other way for what you see as a serious conflict to be adequately resolved?

"The statute isn't concerned about their relationships with witnesses."

That is simply false, and understandably comes sans citation to caselaw. We have all read about cases where the prosecutor has been disciplined, or has had to leave -- or where the conviction has been overturned -- because a close (sometimes intimate) relationship between the prosecutor and a witness so far violated the ethics rules as to undermine confidence in the integrity of the outcome.

I will now be closing this comment thread and moving future to discussion to the thread that accompanies my post on my USA Today op-ed.

"I suspect Gilbert's take here is similar to the one seemingly embraced by DAG Rosenstein, Bill. Are they misguided in their conflict analysis/assessment or are you?"

I don't know what "take" Mr. Rosenstein "seemingly embraced." If you would like to spell out in specifics the counter-argument to the one I make, feel free. Thus far you have contented yourself with the really lame, "But Rosenstein SEEMS to view things differently."

An intelligent discussion can't even begin until I see some actual analysis, hopefully including precedent about the governing standards, 28 USC 528 and 28 CFR Sec. 45.2.

As I told commenter Blythe, I am closing this comment thread. Further comments can be written on the thread beneath the more current USA Today piece. That said, trolling or diversionary comments are disfavored on EVERY thread.

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