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Who Would Replace Mueller?

I argued in my USA Today op-ed that Bob Mueller is too close to his probable star witness, Jim Comey, to serve as the Special Counsel looking into President Trump's asserted conflict of interest in firing Comey, and discouraging Comey from pursuing an investigation of former National Security Adviser Mike Flynn (assuming arguendo that this happened).  As I noted, under the ethics statutes and regulations that govern officers of the Justice Department, Mueller has a long-term relationship with Comey that "may result in a personal ... conflict of interest, or the appearance thereof" (emphasis added).

While I think this language is sufficient per se to require Mueller to step aside, I also believe that, if there were any doubt, the statute should be given a broad reading in the present climate.  The country is inflamed in ways that seem increasingly to produce rancor and violence.  In this atmosphere, it's imperative that the public see that ethics rules are followed to the letter, thus to promote maximum faith in the outcome of the Special Counsel's investigation no matter what it is.  That is not realistically possible if the chief prosecutor has a years-long friendship with his main witness, and with it a strong, pre-existing opinion of his credibility.  If that happened in the investigation and prosecution of an ordinary citizen, his defense lawyer would raise the roof, and properly so. Trump deserves the same treatment the man on the street would get, not less and not more.

I have been asked who should replace Mueller.  There are several possibilities.
I should start with two observations.

First, some have said that my argument assumes or implies that Mueller is untrustworthy, or otherwise lacks character.  I assume nothing of the kind.  To the contrary, as I have said many times, so far as I know, Bob Mueller is a man of integrity, with a long record of public service that deserves and gets broad respect. The problem is not with Mueller.  The problem with which the ethics statute is concerned is that taking a favorable view of your friends is a ubiquitous turn-of-mind even in the most disciplined of men. Partiality toward the people who have stood with you is inevitable (and, in other areas of life, commendable).  But the unforgiving objectivity required of prosecutors is a different kettle of fish.

Second, there is still an active debate among lawyers about having special counsels at all, as opposed to relying on the often highly skilled career attorneys in the Justice Department.  The argument for special counsels is that Department attorneys simply cannot be insulated from political pressure no matter what efforts are made to do so. If it looks like your boss's job depends on a certain outcome, the pressure to reach that outcome is not less powerful for being (perhaps) less visible. And it is powerful indeed.

The counter-argument is that special counsels have a pre-determined defendant, and this is the opposite of the way prosecutions are supposed to work.  In a normal prosecution, the government follows the evidence and finds the defendant at the end of the trail.  But when a special prosecutor is appointed, the defendant is, for practical purposes, named at the beginning of the trail, and the search for evidence (and, indeed, for prosecutable offenses at all) tends to be geared to vindicate your appointment.  A second criticism is that a special counsel is a constitutional loose cannon, and muddies the Framers' intent to create a unitary executive.  See Justice Scalia's lone dissent in Morrison v. Olson.

I will not address that question here, fascinating though it be.  I'm assuming that the present Special Counsel provision is valid.

So.....if Mueller is to be recused, who should take the reins?  There are a number of well-regarded people of high integrity and substantial experience in law and government who would deserve and win widespread public approval.

My model for choosing candidates is the one President Reagan used when he chose former Eighth Circuit Judge William Webster to be head of the CIA.  Because the CIA had lost a  degree of public confidence in the previous decade because of accusations of political abuse, Reagan wanted a person of known probity and rectitude.  He looked to those who had served on the federal bench, and found such a man in Webster.   

My candidates for Special Counsel are:

--  Judge Ray Randolph, a senior Judge on the US Court of Appeals for the DC Circuit.  Judge Randolph graduated summa cum laude from the University of Pennsylvania Law School and started his career clerking for Judge Henry Friendly, widely considered the best judge of his generation.  He was an Assistant to the Solicitor General at DOJ before being appointed to the DC Circuit.

--  Judge Laurence Silberman, likewise a senior Judge on the DC Circuit.  He is a graduate of Harvard Law School,  As Deputy Attorney General from 1974 to 1975, Silberman was tasked with reviewing J. Edgar Hoover's secret files, which he has described as "the single worst experience of my long governmental service."

--  Dean David Levi of Duke Law School.  Dean Levi is the son of Ed Levi, the Attorney General under President Ford.  Dean Levi is a graduate of Stanford Law, where he was president of the Stanford Law Review.  He was both an Assistant US Attorney and then United States Attorney, followed by 17 years of service as a US District Judge for the Eastern District of California.  He left that position to become Dean at Duke.

--  Former US District Judge Mark Filip.  Filip served for four years as a federal District Judge, then became Deputy Attorney General in the administration of President George W. Bush.  President Obama held him on briefly as Acting Attorney General. Filip held a Marshall Scholarship at Oxford University, then graduated magna cum laude from Harvard Law School.

--  Judge Julie Carnes of the US Court of Appeals for the Eleventh Circuit.  Judge Carnes served for 12 years as a federal prosecutor in Atlanta.  She was appointed to the District Court by President George H. W. Bush in 1992, and served there for 12 years.  President Obama appointed her to the Eleventh Circuit, and she won Senate confirmation to that seat by a vote of 94-0.  

All these candidates have important qualities in common:  Many years' experience on the bench; experience at the Justice Department or in a US Attorney's Office; exceptional knowledge of and breadth in federal law; and, most important, stellar reputations for independence and integrity.

Bob Mueller is the right man in the wrong job because of his years-long friendship with his star witness.  There are a number of outstanding potential replacements who have all his qualities without the appearance-of-partiality problem.

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