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Is Mueller's Investigation Politically Tainted?

| 35 Comments
Special Counsels, and Independent Counsels before them, were created because the Nixon era showed us that the public cannot attain the high degree of confidence in investigations of powerful officials, particularly the President, that is needed to entrust those investigations to the Justice Department.  DOJ's highest officers are, of course, themselves politically appointed, and thus accountable, in a potentially unwholesome way, to the man in the Oval Office.

The question has now been raised whether this tradeoff  --  an increase in independence bought at the price of a decrease in political accountability  --  has its own problems.  The answer is:  Sure it does.  Tradeoffs always do.  This is why they're called tradeoffs rather than windfalls.

The Special Counsel tradeoff is an important question that has not received sufficient discussion, cf. Justice Scalia's dissent in Morrison v. Olson. But another question has surfaced as well, one we should have expected:  Whether, in avoiding a political slant in one direction, the appointment of a Special Counsel has a natural momentum to create a slant in the other.  That question is usefully explored in this morning's USA Today op-ed.

Preview:  The op-ed's answer is "yes."  I agree, but would suggest a remedy different from the one proposed.
The op-ed begins:

The FBI has historically had a well-earned reputation for competence and integrity. The American people deserve no less when it comes to extraordinary investigations that touch the highest levels of government. Justice demands that these matters be pursued with the utmost honesty, probity and impartiality. However, evidence is emerging that special counsel and former FBI director Robert Mueller's investigation of alleged Russian interference in the 2016 election, as well as the Hillary Clinton email investigations, have been fatally compromised by naked politics.

The central figure in both probes is FBI agent Peter Strzok. Strzok helped conduct the sweetheart interviews of Clinton, Cheryl Mills and Huma Abedin in the email investigation, in which the latter two blatantly lied about their knowledge of the bootleg server. They were not charged. Strzok also changed then-FBI Director James Comey's draft language on Clinton's use of her illicit server from "grossly negligent" to "extremely careless," which is the difference between criminal behavior and an unconscious error. 

The author's language is more colorful than I would have used, but his point is correct.  When the case agent in a politically charged case has a what most people would understand to be a political bias, right there you have a problem.

And what is the evidence of Strzok's bias?

Strzok promoted the Fusion GPS "Steele dossier," the sketchy gossip-ridden anti-Trump document paid for by the Clinton campaign and compiled with input from Russian intelligence sources. This document was used to persuade a Foreign Intelligence Surveillance Court to authorize government surveillance of members of the Trump team during a political campaign. It was an unprecedented investigative intrusion into the American political process that makes Watergate look like amateur hour.

Readers should examine the entire op-ed, which notes some disturbing details.  But for as discomfiting as the revelations about Agent Strzok are (emphasis added)

... it gets worse. Rather than treating Strzok's removal [from the investigation] with the transparency and candor it deserved, the Mueller team hushed it up and began stonewalling congressional inquiries. It reached the point where House Intelligence Committee Chairman Devin Nunes threatened FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein with contempt.

Worse still, former associate deputy attorney general Bruce Ohr was demoted days ago for unspecified contacts with figures behind the Steele dossier. It now appears that Ohr knew Steele and met with him while the tainted dossier was being written. Any such direct involvement by an Obama administration official with the political effort to take down the Republican candidate is a scandal of high order.

These are not the only suspect political ties between Mueller lieutenants and Clinton world: 

--  Aaron Zebley, Mueller's former chief of staff at the FBI and "right hand man" on the current investigation, previously represented Justin Cooper, Clinton's IT guy who set up the unsecure server in her Chappaqua home, and destroyed her BlackBerrys with a hammer.

--  Mueller team member and Justice Department prosecutor Andrew Weissmann wrote a fawning email to outgoing acting Attorney General Sally Yates, saying he was "so proud and in awe" of her for defying President Trump in enforcing his travel ban. Weissmann also attended Hillary Clinton's election night party in New York City, The Wall Street Journal reported. 

At least nine members of Mueller's team have given donations to the Obama, Clinton or other Democratic campaigns. One of them, attorney Jeannie Rhee, has defended President Obama's deputy national security adviser, Ben Rhodes, now a focus of the investigation into potentially illegal use of "unmasking" foreign intelligence against Trump associates...

Indeed, it may be worse than the author thinks.  Weissmann is not merely a "team member;" he is, I believe, Mueller's chief deputy.  And he has a reputation within DOJ of being decidedly on the aggressive side.

Now I should add two caveats.  First, there is, for the most part, nothing wrong with being an aggressive prosecutor.  Where the investigation is loaded with political valence, however, the balance should tip toward circumspection rather than aggressiveness.

Second, a certain degree of political self-selection is to be expected in investigations of this kind.  Hillary Clinton, for example, got her start in Washington as a lawyer for the Senate's Watergate Committee.  But exactly that fact  --  political self-selection among lawyers, like Weissmann, who volunteer for a potentially damaging probe of a pre-selected target  -- should inspire particular vigliance and caution in the chief prosecutor (here, Mr. Mueller).  The evidence cited in the op-ed strongly suggests that such caution has been absent.

The question then becomes:  What to do about it now?  The op-ed suggests that Congress should step in.

The most prudent move would be to suspend the special counsel investigation until the Justice Department inspector general's office and other watchdogs can conclude their investigations into possible illegitimate or illegal actions taken by members of Mueller's team. Then Congress must be given time to review the conclusions of the internal investigations as well as conclude their own ongoing inquiries.

It is not clear who would "suspend" the investigation, nor what Congress would do if, after its review, it concludes that the investigation is too colored with the apparent political leanings of Mr. Mueller's staff to warrant public confidence. Nor, for that matter, is the weight that would be placed on the Inspector General's findings necessarily well thought-through.  The Inspector General is himself a political appointee (and, as it happens, an Obama holdover).

In my view, the best course may strike some as naive.  I would ask Mr. Mueller to take stock of the evidence and draw the conclusion I think it demands  --  to wit, that his Office's work is too reasonably suspected of a political slant to stand.

I have previously taken the view that Mueller was, from the getgo, the wrong person to be conducting this probe, assuming any investigation outside the Justice  Department is warranted.  In doing so, however, I said, and I continue to believe, that Mueller himself is an honest and fair-minded man. In the ugly and politically poisonous atmosphere we see in Washington today, I think it preferable, until proven otherwise, to allow a public servant like Mueller  --  a former Marine captain with an honorable history  --  to step back, reflect, and do the right thing.



35 Comments

Mueller's prior reputation is no longer relevant. His actions in the instant investigation are all that matters in this politically charged atmosphere.

He has "stacked the deck" with lawyers who have come into this investigation with a not-so-hidden agenda and covered for them once evidence of that bias emerged.

An honorable man would have been more circumspect in filling out his staff in the first instance.

Decencyevolves: We can’t all be as scrupulously nonpartisan as Kenneth Starr was. I’m sure the Wall Street Journal editorial page would prefer Rudy Giuliani do this investigation, but absent proof that these investigators are actually doing something wrong, casting aspersions on them because they disagree with their politics seems a bit self-serving.

What exactly did Ken Starr do that was so partisan?

As for Mueller, let's just juxtapose his zealotry on FARA vs. the FBI's investigation and the prosecution of Russian nonsense with respect to Uranium One.

Why were these guys even investigating Flynn's transition team discussions with the Russian Ambassador? I know this won't popular around here, but I think people have the right to lie to the FBI in situations like that. The questioning crossed a line into politics, and consequently was wholly illegitimate. Flynn has some unfavorably connections, but that's no excuse to ignore guardrails.

nb.: the author is Chuck Ross, not Brian Ross of ABC

Fusion GPS Confirms Hiring DOJ Official’s Wife To Investigate Trump
Chuck Ross | Daily Caller | 12/12/2017

The co-founder of Trump dossier firm Fusion GPS confirmed in court filings on Tuesday that he met last year with Justice Department official Bruce Ohr and
hired Ohr’s wife to help with the opposition research firm’s investigation of
Donald Trump.

Glenn Simpson said in a declaration filed in federal court in Washington, D.C.
that he met “at [Ohr’s] request” weeks after the presidential election.

Simpson stated that Ohr, who recently held the position of Dep. Asst. Attorney General, sought the meeting “to discuss our findings regarding Russia and
the election.”

Simpson also disclosed that Fusion GPS hired Ohr’s wife, Nellie, to serve as
a subcontractor on Trump-related work.

~ http://dailycaller.com/2017/12/12/fusion-gps-confirms-hiring-doj-
officials-wife-to-investigate-trump/

For someone usually (and properly) concerned with HOW the law gets to its result, and not just whether the result ITSELF entails "doing something wrong," your remark seems ironic.

As liberals often point out, fairness in procedure, and not just outcome, is important. The relative importance of each is much discussed, but no serious person doubts, in a country that values due process, that a criminal investigation must be both fair and seen to be fair. This is especially true where the investigation is politically explosive and potentially may intrude prosecutors into choices normally reserved exclusively for the electoral system.

In this case, we have, at the minimum: (1) the case agent up to his eyeballs in a secretly compiled, grossly partisan dossier that was palmed off during the investigation as intelligence-related "evidence;" (2) the principal deputy investigation (and an active prosecutor) going to the election night Manhattan bash of the opposing candidate; (3) the Associate Deputy Attorney General's wife being closely linked to the dossier, a fact not revealed at the time; and (4) not fewer than nine members of the investigator's hand-selected staff contributing thousands out of their modest government salaries to the target's opponent.

So let me ask you this: If you were the defense lawyer for, say, a mayor who was the subject in a bid-rigging investigation, and this was the picture of how the investigation/prosecution team was constituted, would you think you had the makings of a motion for recusal? Would you expect the court to take that motion seriously? Would you think, and would your client think, that he had the same chance an ordinary defendant would have in seeing a disinterested approach from the prosecution side? Would you expect the public to see the prosecution staff as impartial?

I will leave it to you to answer those questions should you care to. I suspect, however, that what you'd actually do is write a recusal motion in language a good deal more florid than the words I have used -- and, for good measure, undertake a public and private campaign to persuade the biased prosecutors to step aside as the right thing to do, without having to be forced by either the court or the agency head.

I'll add only one more note. Since the WHOLE POINT of having a Special Prosecutor outside Main Justice is to assure the public of a non-politically slanted investigation, isn't it especially necessary for the prosecutor's staff to be cleaner than the proverbial hound's tooth? Is that what we have here?

It’s hard to take complaints of partisanship seriously from a party that constantly and endlessly abuses investigative powers to get at political foes. Ken Starr had no prior experience as a prosecutor and the investigation conducted by Robert Fiske, a moderate Republican, had been more than sufficient to show there was no there there insofar as Whitewater was concerned, but that wasn’t the right answer, so we were treated to four more years of investigation by Starr that again yielded nothing on Whitewater. Starr’s investigators told conservative lawyers to ask President Clinton about Lewinsky in totally unrelated civil suit depositions and suddenly the investigation shifted there.

How many partisan hearings did we have about Benghazi, yielding no meaningful evidence of misconduct by Secretary Clinton in the issue, until we were treated to hyperventilation over unrelated email server practices that again yielded nothing, other than the election of our current historically unpopular President?

Now, when it appears that the current Administration sought help from a hostile foreign power against the opposing Presidential candidate despite a farrago of lies to the contrary, when the former National Security Advisor pleads guilty to a felony and is cooperating with investigators, when Trump’s former campaign manager faces prosecution for numerous charges arising from corrupt practices involving that same foreign power, what do we hear from Republicans?:

(1) Kill the investigation before it uncovers wrongdoing that topples the Administration; and

(2) investigate Hillary Clinton instead for yet another right wing fantasy

http://www.politifact.com/truth-o-meter/article/2017/oct/24/what-you-need-know-about-hillary-clinton-and-urani/

This desire to topple over the chessboard before losing may persuade Republicans, but It doesn’t fool anyone else.

As for the notion that Mueller should step down or be fired because people connected with the investigation or DOJ are partisan, even if there is no evidence that he is, this article has a good takedown of that notion:

https://www.theatlantic.com/politics/archive/2017/12/the-nihilist-partisan-case-against-robert-mueller/548015/

“Less than a month after praising Mueller as incorruptible, [Gingrich] was blasting him, saying that ‘Republicans are delusional if they think the special counsel is going to be fair’ and calling on Congress to shut down the probe.

What drove Gingrich’s flip? He complained that some of the people who Mueller had hired had given to Democrats in the past. This is true, but is also clearly allowed within Department of Justice guidelines; ignores the fact that Mueller is the head of the investigation; and, as George Stephanopoulos noted, has been true of previous special prosecutors—like Republican donor Ken Starr, whose investigation of Bill Clinton Gingrich supported. Faced with that contradiction, Gingrich claimed that ‘we’re in a different world’ today. Indeed we are: Today, Gingrich is an ally of the president who’s being investigated. As Gingrich well knows, it is not as if the late 1990s were an era of bipartisan comity. Though he presents his objections today as principled, Gingrich’s reversal, and current labeling of Mueller as ‘corrupt,’ are probably best viewed in the context of his many comically opportunistic reversals over the years.

Nonetheless, the argument that Gingrich is making, whether sincere or not, bears examination. It allows Trump partisans to discredit the Mueller probe without having to prove that there was any wrongdoing or violation of protocols and rules—that is, without even having to establish that anyone’s supposed biases influenced any results of the probe.

They have raised the Strzok case, which doesn’t really reflect much about Mueller at all, and in any case also does not feature any proven wrongdoing in the course of Strzok’s job. The strongest argument against Mueller is his friendship with James Comey. The problem is that given Comey’s experience as both FBI director and deputy attorney general, there is practically no qualified lawyer with government experience who isn’t connected to Comey in some way. As I wrote last week, concurring with arch-conservative Andrew McCarthy, the U.S. governmental system is constructed on the idea that politically interested individuals can set aside their biases to serve in government roles, with sufficient guidelines and checks and balances.

The critique of the Mueller probe throws that concept out . . . . It far exceeds the demands of even a strong conflict-of-interest policy, and rejects the value of expertise and experience in favor of an illusory neutrality. This resembles similar right-wing critiques of academia and the press, and it is essentially nihilistic, seeking to disqualify not only avowed partisans but also those like Mueller, whose reputation Gingrich could praise heartily in May, denigrate in June, and call corrupt by December. The very idea of a reputation for fairness is obsolete before this totalizing partisanship. It doesn’t matter that Rosenstein last week rated Mueller’s work so far highly; as another lifelong Republican with a reputation for fairness, he can just as easily be written off, as Trump’s attack on him demonstrated.

The logic of Gingrich and Co. would produce the hollowing out of all non-elected precincts of the government—no agency, bureau, or department can withstand this test, as demonstrated by the fact that Trump partisans have taken to portraying the FBI, long a stronghold of conservatism and more recently a stronghold of pro-Trump feeling, as a hotbed of arch-liberal deep-state conspiracy. (It’s perhaps not a coincidence that as speaker, Gingrich worked to gut Congress’s nonpartisan and professional research staff, making the body dependent on lobbyists for information.)

Thus the cynicism of The Wall Street Journal editorial board’s conclusion that ‘Mr. Mueller is too conflicted to investigate the FBI and should step down in favor of someone more credible.’ This, of course, was just who Robert Mueller was said to be a few short months ago. Even if Rosenstein could find a replacement with a reputation as strong as Mueller’s, it’s clear that the Trump partisans would just as quickly work to undermine it. Who would satisfy the Journal’s editors? It’s hard to imagine many names beyond, say, Pirro or her Fox colleague Andrew Napolitano, both of them unshakeable Trump partisans. Appointing such a person would finally satisfy those critics, but it would also effectively end the special counsel’s investigation—which is, of course, the point.“

I'm not sure who you're answering, but it's not me. You have a lot to say (and to re-print) about Benghazi, Newt Gingrich, Robert Fiske, Whitewater, and various other stuff, but take a pass on the questions I actually asked. I will therefore repeat them, hoping that, in response, you will see fit to stick to THIS POST and to THE SPECIFICS I raise in it.

The questions, with prologue, were: In this case, we have, at the minimum: (1) the case agent up to his eyeballs in a secretly compiled, grossly partisan dossier that was palmed off during the investigation as intelligence-related "evidence;" (2) the principal deputy investigator (and an active prosecutor) going to the election night Manhattan bash of the opposing candidate; (3) the Associate Deputy Attorney General's wife being closely linked to the dossier, a fact not revealed at the time; and (4) not fewer than nine members of the investigator's hand-selected staff contributing thousands out of their modest government salaries to the target's opponent.

So let me ask you this: If you were the defense lawyer for, say, a mayor who was the subject in a bid-rigging investigation, and this was the picture of how the investigation/prosecution team was constituted, would you think you had the makings of a motion for recusal? Would you expect the court to take that motion seriously? Would you think, and would your client think, that he had the same chance an ordinary defendant would have in seeing a disinterested approach from the prosecution side? Would you expect the public to see the prosecution staff as impartial?

The first of my responses was primarily to Federalist and the second primarily to you. I’ve represented the indigent fairly exclusively since I graduated law school, so my knowledge of white collar crime and criminal proceedings is nonexistent.

Certainly, investigation into political misconduct by career prosecutors, who in many instances will have strong political views at odds with the the politicians they prosecute, can’t be derailed by that fact. If I were to argue the opposite on behalf of a political figure or Administration, I imagine I’d be quite unsuccessful. After all, Governor Don Siegelman is continuing his unsuccessful quest for a pardon despite his 8nsistence that his prosecution was entirely political.

https://washingtonspectator.org/pardon-siegelman-obama/

As for your objections, they seem twofold: (1) investigators and prosecutors involved in the Mueller investigation (although not Mueller himself) have been politically opposed to the President politically, aligned with his election opponent, and/or active contributors to the Democratic Party; and (2) Bruce Ohr, has been demoted, which appears to be a wise decision in view of the fact that (a) Ohr was an assistant to Rod Rosenstein, who is overseeing Mueller and will be in charge of any prosecutions arising from his investigation. Presumably, Ohr will have no contact with or involvement in any investigations or prosecutions arising from Mueller’s inquiry, which is as it should be; (b) Ohr has knowledge of/and a connection to opposition research that overlaps with Mueller’s inquiry.

As for the first objection, I think the article I cited to answers your objections and then some. As the author of the article mentions, Andy McCarthy admitted he loathed the Clintons, and was extremely antagonist to them and has made outlandish charges against them, yet he could be trusted to oversee the investigation of their use of the pardon power under the Bush Administration. In a two party system, allowing Administrations to derail investigations because they include investigators or prosecutors aligned with the opposition party makes investigations of corrupt practices impossible, which I think is the design of such objections.

https://www.theatlantic.com/politics/archive/2017/12/the-strange-saga-of-peter-strzok/547790/

As for the second, Ohr has been dismissed and the DOJ Inspector General can and should determine whether additional steps should be taken.

Neither of those objections seem a sufficient basis to have Mueller step down. As Rosenstein correctly recognized in today’s testimony, he lacks good cause to fire Mueller. http://www.cnn.com/2017/12/13/politics/rod-rosenstein-house-judiciary-committee/index.html

Doing so at the behest of the President’s political supporters would be a travesty.

I really need to do a better job of proofreading. Sorry Bill


The first of my responses was primarily to Federalist and the second primarily to you. I’ve represented the indigent fairly exclusively since I graduated law school, so my knowledge of white collar crime and criminal proceedings is nonexistent.

Certainly, investigation into political misconduct by career prosecutors, who in many instances will have strong political views at odds with the the politicians they prosecute, can’t be derailed by that fact. If I were to argue the opposite on behalf of a political figure or Administration, I imagine I’d be quite unsuccessful. After all, Governor Don Siegelman is continuing his unsuccessful quest for a pardon despite his insistence that his prosecution was entirely political.
https://washingtonspectator.org/pardon-siegelman-obama/

As for your objections, they seem twofold: (1) investigators and prosecutors involved in the Mueller investigation (although not Mueller himself) have been politically opposed to the President politically, aligned with his election opponent, and/or active contributors to the Democratic Party; and (2) Bruce Ohr, has been demoted, which appears to be a wise decision in view of the fact that (a) Ohr was an assistant to Rod Rosenstein, who is overseeing Mueller and will be in charge of any prosecutions arising from his investigation; and
b) Ohr has knowledge of/and a connection to opposition research that overlaps with Mueller’s inquiry. Presumably, Ohr will have no contact with or involvement in any investigations or prosecutions arising from Mueller’s inquiry, which is as it should be.

As for the first objection, I think the article I cited to answers your objections and then some. As the author of the article mentions, Andy McCarthy admitted he loathed the Clintons, and was extremely antagonist to them. McCarthy has made outlandish charges against them, yet he could be trusted to oversee the investigation of Bill Clinton’s use of the pardon power under the Bush Administration.

https://www.theatlantic.com/politics/archive/2017/12/the-strange-saga-of-peter-strzok/547790/

In a two party system, allowing Administrations to derail investigations because they include investigators or prosecutors aligned with the opposition party makes investigations of corrupt practices impossible, which I think is the design of such objections.

As for the second objection, Ohr has been dismissed and the DOJ Inspector General can and should determine whether additional steps should be taken.
Neither of those objections seem a sufficient basis to have Mueller step down. As Rosenstein correctly recognized in today’s testimony, he lacks good cause to fire Mueller.

http://www.cnn.com/2017/12/13/politics/rod-rosenstein-house-judiciary-committee/index.html

For this reason, doing so at the behest of the President’s political supporters would be a travesty.

Mueller has already failed in his role as special prosecutor by creating the appearance of impropriety in a probe that is staffed by partisans, many of whom have been exposed for personal animus and a willingness to act on that animus in regard to the subject of the probe.

Literally, he couldn't have selected a less impartial staff if he tried.I

Apparently, he has never heard of the term"extreme vetting".

Mjs—I think that underscores the absurdity of these criticisms. Rosenstein and Wray are Trump appointees and Mueller is a Republican, but the investigation is tainted unless they probe the political views of the investigators and DOJ officials under them to ensure that they aren’t Democrats and don’t dislike the Trump Administration. Is that how investigations of political Administrations supposed to work? In what case has anyone done that?

Since this is a Republican administration, it is a given that the major players will be Trump appointees.The key player-Rosenstein- has been beyond reproach in his actions thus far.

I think we can agree that the current political atmosphere is unprecedented. Never before has a President been subjected to more personal animus and multi-faceted efforts to undue the results of a lawful, democratic election-some from within the very bureaucracy he leads.

Accordingly, Mueller had a special responsibility to ensure that the staff he hand-picked for this monumental assignment was beyond reproach.The vetting had to go much deeper than an arithmetic count of the number of Democrats and Republicans and their casual likes and dislikes.

While previous political contributions probably should have been disqualifying, personal animus against the subject of the probe is another matter.It renders one hopelessly partisan and incapable of being a neutral fact-finder.

Mueller's previous reputation notwithstanding, he failed here in creating the elements of an historic probe in which all Americans can have confidence.

The country deserves nothing less.


A lot is unprecedented in this administration:

The scale and scope of Donald Trump’s lies:

https://www.nytimes.com/interactive/2017/12/14/opinion/sunday/trump-lies-obama-who-is-worse.html

His ignorance, which is so profound that his own Secretary of State has called him a moron and his National Security Advisor has described him as an idiot:

https://www.google.com/amp/www.newsweek.com/trump-idiot-kindergartner-717380%3famp=1

His extreme disrespect for basic democratic norms:

https://mobile.nytimes.com/2017/11/30/opinion/trump-putin-destruction-democracy.html?referer=https://www.google.com/

His self-dealing while in office:

https://mobile.nytimes.com/2017/10/19/opinion/selfish-trump-emoluments.html?referer=

His willingness to go on television and announce that he fired the FBI director to obstruct an investigation:

https://www.nbcnews.com/nightly-news/video/i-was-going-to-fire-comey-anyway-trump-tells-lester-holt-in-interview-941538371971

And last, but not least, his campaign’s enthusiasm at working with a hostile foreign power to undermine a political opponent:

https://www.google.com/amp/thehill.com/homenews/administration/364825-trump-jr-meets-with-senate-intel-panel-amid-russia-probe%3famp

None of that suggests that an investigation of the Administration’s potential crimes needs to be “vetted” to ensure that people who supported his opponent or those who expressed the same dismay that many in the intelligence community share due to his reckless actions are weeded out of it.

Comparing Starr to Mueller does not come out well for you.

Here is a list (HT Powerline) of some of Starr's big players:

Sam Dash (from Watergate)
Ray Jahn (prosecuted Jim McDougal and told Starr when he interviewed for the job that he hoped to find evidence exonerating Clinton)
Karen Immergut (long-time Dem who re-registered as an Indy when she took the position)
Mark Tuohey-who was described by WaPo at the time as a "well-known in local Democratic Party circles. . .He is close to some Clinton administration officials, including Associate Attorney General Jamie S. Gorelick, and last year hosted a party for Attorney General Janet Reno at his Washington home."

And here is how WaPo described the team in general: "A look at voters’ rolls and interviews with members of Starr’s staff indicate that many, if not most, of the lawyers on this investigation are registered Democrats."

Who are the counterparts to Tuohey, Dash, et. al. on Mueller's staff? Please name them.

And bringing up that Mueller is a Republican, is ridiculous. His animosity to Trump is well-known.

Nor is the problem that Mueller's team are merely Dems. It goes far beyond that. They were financial supporters of Clinton herself. Starr was not investigating whether Dole robbed the 1996 election.There was no such conflict of interest as there is with Mueller.

Even worse (HT Mark Steyn):

1) Strzok had already worked on the Hillary investigation. I do not think there is any debate to be had that she was treated with kid gloves by Strzok and the FBI compared to Trump. Trump had already denounced the investigation vehemently, meaning he had questioned Strzok's credibility.

2) The same is true with Strzok's mistress. They could not find ANYONE in the FBI's 35,000 employ capable of handling the Trump investigation that was not part of getting Hillary off the hook? Why then? Could it be that they had to hire the Hillary investigators for Trump because the Trump investigator's would uncover what the Hillary investigators did?

3) Bruce Ohr's wife works for Fusion GPS. Not as a secretary, but as someone hired to do anti-Trump "research."

Let's end with a text between Strzok and his mistress:

"I want to believe the path you threw out for consideration in Andy’s (McCabe) office that there’s no way [Trump] gets elected — but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40…"

What's the insurance policy? Could it be a dossier?

What a bunch of irrelevancy. Both the best president in the world or the worst president in the world deserve investigators that are as fair and unbiased as possible.

Actually, your list is relevant in one way. It shows that this is entirely about you not liking the guy, the law and fairness be damned.

You mention, the "campaign’s enthusiasm at working with a hostile foreign power to undermine a political opponent."

Do you mean Hillary hiring a firm working with the Russians to create a fake dossier to undermine Trump?

As noted in the commentary above, any attempt to find a full staff of qualified investigators and attorneys who are neutral on this particular president would be absolutely impossible. As is the case with jury service, the question should not be whether a person has opinions; everyone does. The question is whether the person is able to set those opinion aside and make decisions based solely on the evidence. At this point, it seems that the Mueller team, and Rosenstein in particular, are endeavoring to assemble a group that will conduct themselves accordingly.

Decency,

Let's play a bit of Carnac the Magnificent.

Answer: "It was OK that there was considerable evidence the prosecution team was biased, because my client was a really bad person."

Question: Name a line that has never appeared in a brief of yours.

As a defense attorney, I will confess that I have made sometimes made arguments that are not winning arguments. The prosecutor contributed to my political opponent, or the prosecutor thinks I'm a perfectly awful and am making terrible decisions is not a winning argument for officeholders being investigated for crimes for good reason. With Ohr and Strzok out, what more is there really beyond that?

The Graham articles, which I cited above, lay out why quite clearly, as has Andy McCarthy, who is cited in those articles and who I think we can agree is not a raging liberal:

https://www.theatlantic.com/politics/archive/2017/12/the-strange-saga-of-peter-strzok/547790/

https://www.theatlantic.com/politics/archive/2017/12/the-nihilist-partisan-case-against-robert-mueller/548015/

If you were a prosecutor involved in these prosecutions, I think you'd find the arguments being made to get rid of Mueller based on investigation staffing quite unconvincing. As I noted above, former Governor Don Siegelman did his best trying to make similar arguments regarding his prosecution, to no avail.

Generally agree, notablogger, but I think Mueller is justly criticized for not assembling a balanced team at the starting point, rather than "at this point."

During my federal service, I was asked numerous times before I began an assignment: Is there anything in your background not known heretofore that could compromise you or embarrass this office?

Mueller should have had a heightened sensitivity to this issue and went the extra mile in vetting his staff. I think a more impartial staff selection process was eminently possible.

Secondly, built into the jury selection process is the voir dire process and the resultant challenges to weed out bias and agenda-driven jurors.

Third, jury nullification is alive and well and a stain on the quest for justice.

"If you were a prosecutor involved in these prosecutions, I think you'd find the arguments being made to get rid of Mueller based on investigation staffing quite unconvincing."

Could you quote me saying that we should "get rid of Mueller based on investigation staffing"?

I have certainly said (six months ago) that he should recuse himself because he's too close to by far the chief witness in his (possible) obstruction case.

I don't recall ever saying HE should be out because of staffing. The STAFF should be changed, you bet. His chief deputy is an activist Democrat. That's fine for most DOJ cases, which are not political, but this one is political to the hilt.

Now, again, please produce the quotation in which I said that we should get rid of Mueller, or even end or curtail the investigation itself, because of staffing.

P.S. A quotation is a quotation. It is not your paraphrase or what you think you remember from somewhere.

There are maybe 5000 attorneys employed by DOJ and the USAO's. Maybe 500 of them are absolutely top-grade, experienced criminal litigators. From among that number, it would be real easy to find a team of two dozen (or whatever he's got) who would not have anything like the political valence of the current bunch.

As it is, the one-way-only tilt of the team is very concerning. It's also, as I noted before, at odds with the central purpose of having an independent prosecutor, i.e., to distill independence.

I don’t want Mueller or others to cross-examine prosecutors about their political beliefs before choosing them for this or other investigations. The WSJ suggested that the investigation be shut down due to the political views of those under Mueller and you suggested Mueller should do so himself.

The problem I have with your arguments, Bill, and those I hear from House Republicans and the WSJ is that they call for the shutdown or at least suspension of the investigation. When I hear the President suggest that he might pardon Flynn, a cooperating witness (conditional on what I should wonder) and I read about Devin Nunes working behind the scenes with Administration officials, it gives me the uneasy feeling that the Administration and its supporters will do whatever is necessary to keep the investigation from concluding if that’s what is necessary to keep Trump in office. Doing so would threaten democracy and should be scrupulously avoided. In 1974, Nixon resigned when Senate Republicans came to him and told him they lacked their support. I wonder if that’s even possible today, no matter what the investigation reveals or even if the investigation will be allowed to continue.

"The WSJ suggested that the investigation be shut down due to the political views of those under Mueller and you suggested Mueller should do so himself."

Would you mind quoting me on that?

Good luck!

Actually, at no point have I said that the investigation should be shut down. I said in an op-ed in USA Today that Mueller is a man of integrity but should not lead this particular investigation because he is too close to the chief potential obstruction-of-justice witness, Jim Comey. Under DOJ conflict of interest rules that apply to Mueller, he cannot be in this case.

I also said there is an unmistakable political tilt to the current staff of the investigation. The implication from that is that THOSE WITH A POLITICAL SLANT should be excused from the investigation, not that the investigation itself be ended.

Again, I'll wait for you to quote me rather than write my positions for me.

What you said is ambiguous, but here goes:

“The question then becomes: What to do about it now? The op-ed suggests that Congress should step in.

‘The most prudent move would be to suspend the special counsel investigation until the Justice Department inspector general's office and other watchdogs can conclude their investigations into possible illegitimate or illegal actions taken by members of Mueller's team. Then Congress must be given time to review the conclusions of the internal investigations as well as conclude their own ongoing inquiries.’

It is not clear who would ‘suspend’ the investigation, nor what Congress would do if, after its review, it concludes that the investigation is too colored with the apparent political leanings of Mr. Mueller's staff to warrant public confidence. Nor, for that matter, is the weight that would be placed on the Inspector General's findings necessarily well thought-through. The Inspector General is himself a political appointee (and, as it happens, an Obama holdover).

In my view, the best course may strike some as naive. I would ask Mr. Mueller to take stock of the evidence and draw the conclusion I think it demands -- to wit, that his Office's work is too reasonably suspected of a political slant to stand.

I have previously taken the view that Mueller was, from the getgo, the wrong person to be conducting this probe, assuming any investigation outside the Justice Department is warranted. In doing so, however, I said, and I continue to believe, that Mueller himself is an honest and fair-minded man. In the ugly and politically poisonous atmosphere we see in Washington today, I think it preferable, until proven otherwise, to allow a public servant like Mueller -- a former Marine captain with an honorable history -- to step back, reflect, and do the right thing.

I guess I misread what “do the right thing” means in that passage. It seems to me that your primary disagreement with the WSJ editorial seemed to be whether Congress should suspend the investigation or Mueller should do so himself.

If what you meant was that Mueller and Rosenstein should let some people go whose objectivity was questionable,they had done that with Ohr and Strzok already. For that bit of caution, they got raked over the coals by House Republicans, Fox News, the President and the WSJ Editorial page. Maybe those people and organizations deserve harsher criticism than Mueller and Rosenstein. I think so.

Since I'm a part-time law professor rather than an officer of DOJ, I will leave it to others to decide whether the appointment of a Special Counsel was warranted.

Assuming that it was, Mueller should not be the guy because his friend Comey is the main witness (if not a potential target, which further complicates things).

No matter who it is, however, the investigation cannot be staffed with agents or attorneys who have marked political leanings. As I argued to notablogger, there have be hundreds of capable people at DOJ who do not have such leanings.

And I don't know how you know it stops with Ohr and Strzok. A week ago, neither of us would have named either of them, since neither or us had ever heard of them.

A week from now, who else and what else will we know?

With the chief deputy investigator writing a gushing letter to Sally Yates, and then showing up at Hillary's (putative) election night victory party -- good grief. There is no way that guy should be in on this.

I just do not agree at all with your view that the staff shouldn't be "cross-examine[d]...about their political beliefs before choosing them for this or other investigations." The WHOLE POINT of the Special Counsel provision is to take politics and any scent of politics out of it. In order to do that, you have know what politics your potential staff would bring into it.

So, since House Republicans feel entitled to second guess Mueller’s staffing decisions and tell him that he should excuse qualified prosecutors based on their political beliefs, where do you draw the line? Can he employ someone who has contributed to Democrats or must he only employ donors to the GOP? People who’ve expressed private dismay at the election of Trump or only enthusiastic Trump supporters? The point Andy McCarthy made—a good one—is that he could investigate the Clintons for the DoJ even though he is intensely partisan and despised them (in fact he made wildly intemperate remarks about them). Perhaps the President, Fox News, and the WSJ should let Mueller and Rosenstein make these decisions themselves. I guess in the end you and I agree on that.

Let's start with qualified prosecutors without an axe to grind.

And yes to accomplish that you have a responsibility to conduct something akin to a "voir dire",

Anything less is an abdication of his responsibilities.

So that’s how Andy McCarthy was chosen by the Bush DoJ to investigate the Bill Clinton’s use of the pardon power? Boy did they flub that one eh?

"So, since House Republicans feel entitled to second guess Mueller’s staffing decisions..."

Wasn't there a day when you thought Congressional oversight of DOJ was a good thing? Gosh, my imagination must be getting the best of me.

"...and tell him that he should excuse qualified prosecutors based on their political beliefs, where do you draw the line?"

Before that, we need to know whether you would draw ANY line at all. Would you?

"Perhaps the President, Fox News, and the WSJ should let Mueller and Rosenstein make these decisions themselves."

And if each or both decide that Mueller should step aside, or some of his staff should step aside, or that Strzok rung a bell that can't be unrung, or that Trump committed no actionable wrongdoing, you'll be satisfied with that, right?

Sure you will!!!

Forgive me, but at this point there is no fair conclusion from your argument except that the procedure employed doesn't make that much difference, as long as we get the right (in your view) result.

Remind me to cite you on this proposition the next time a defense lawyer lectures us that it's not about the accuracy of the result, it's about the fairness of the process.

I also seriously don’t that Judges Sentelle, Sneed and Butzner used the void dire method to pick Ken Starr when Robert Fiske didn’t deliver the answers Republicans wanted about Whitewater:

http://www.nytimes.com/1994/08/13/us/appointment-in-whitewater-turns-into-a-partisan-battle.html?pagewanted=all

We can both play this game endlessly Bill and get nowhere. I suspect that what the GOP wants is for Mueller tor stop investigating before the President gets in any deeper. I want a thorough investigation that isn’t cut short by partisan efforts to do just that. If all you want is for Mueller and Rosenstein to consider whether members of their investigative staffs are biased, I think they are doing that and I’m not sure we disagree.

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