Recusal and Refusal

When Robert Mueller was appointed Special Counsel to look into the to-date totally evidence-free allegations of collusion between Trumpworld and Russia, I had no problem with Mueller’s long and very close personal and professional friendship with James Comey, the ex-Director of the FBI. Their relationship has been described as “mentor  –  mentee” and “teacher – student”. They have worked together over decades. The Washington Post described them as “brothers in arms”.

But that made no difference to me as long as the question related to Russia and Trumpworld. I figured hey, Comey has resigned, Mueller will be looking forwards.

Now, however, two things have happened. First, James Comey has stated that he illegally leaked FBI documents specifically in order to get a Special Counsel appointed … and guess what, that Special Counsel just happens to be his long-time good friend! Hmmm …

Next, unconfirmed media reports in the Washington Post say that Mueller’s investigation has pivoted to look into to-date equally evidence-free allegations that President Trump’s interactions with James Comey constitute obstruction of justice. (They don’t for several reasons, but that’s a separate question.)

HOWEVER … if the WaPo is right (unlikely but possible), now that the decision has been made to choose to investigate James Comey’s obstruction claims, now that Comey has become a principal witness, Robert Mueller is ethically required to recuse himself. One of the restrictions on the Special Counsel is that he be free of conflicts of interest.

(b) The Attorney General shall consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment, and to ensure that a Special Counsel undergoes an appropriate background investigation and a detailed review of ethics and conflicts of interest issues. 


Look, the whole point of a Special Counsel is to get someone IMPARTIAL to look into a question. That person cannot be best friends with a principal witness and participant in the case. By all accounts, Mueller is an honest man. But he cannot claim that he is conflict-free in a case involving someone with whom he has what is called a “covered relationship”. Here is a typical government list of what constitutes a “covered relationship” for purposes of conflicts of interest (emphasis mine).

(b) “Covered relationship.” You have a “covered relationship” with:

(1) A person from whom you are merely seeking employment;

(2) A person, other than a prospective employer, with whom you have or seek a business, contractual, or other financial relationship (other than a routine consumer transaction);

(3) A member of your household or a relative or other individual with whom you have a close personal relationship;

(4) Any organization with which your spouse, parent, or dependent child is, or seeks to be, connected;

mueller comey two

Nobody disputes that Mueller assuredly has “a close personal relationship” with James Comey, as well as a close professional relationship. As a result, he is ethically required to leave to others the question of possible obstruction of justice involving President Trump and James Comey.

From the first, Mueller has been described as being a person of high moral standards and personal honesty. And I’m sure that there are those who would say something like “Well, he can be impartial anyhow, so there is no need for him to recuse himself.” But here’s a curious thing.

Again according to the government, the honesty of the employee is NOT a factor in deciding if there is a conflict of interest.

(f) Relevant considerations. An employee’s reputation for honesty and integrity is not a relevant consideration for purposes of any determination required by this section.


Upon reflection, this made sense to me because the conflict exists whether the conflicted employee is honest or not. We’re required to avoid the conflict, not to judge whether we think the person can withstand the conflict.

Finally, regarding Mueller’s honesty … it will be interesting to see whether he recuses himself in this matter, or whether he refuses to recuse. One thing is obvious. He cannot ethically investigate his good buddy, his “brother in arms”. It’s a conflict of interest no matter how honest Robert Mueller is.

Attorney General Jeff Sessions recognized his own conflict in the Russia-Trumpworld case and recused himself.

Is Special Counsel Robert Mueller equally honest?

Here, the Fox family moved into the downstairs apartment. By which I mean that a dang vixen fox moved into the 1-foot (300 mm) crawl space under the kitchen and had three kits. She clashed with our cat yesterday, no injuries, a draw. However, as a result, the cat has decamped for the hills. I think the Fox family moved out last night as well. Sure hope the cat comes back … ah, springtime.

Regards to all, h/t to Steve McIntyre for inspiration and information,


14 thoughts on “Recusal and Refusal

  1. The WaPo report based on another FBI leak is probably not correct.
    No less a left/liberal than Professor Alan Dershowitz, Harvard Law emeritus, has said so in writing in an op-ed. Even if what Comey said Trump said in the infamous one on one were true, there was no legal obstruction of justice. His reasoning is very sound. 1. Comey did nothing so there was no obstruction. Hope is not a command. 2. Trump has absolute pardon power (Constitution Article 2 section 2.1) so no matter what Comey might have eventually concluded about Flynn, it would essentially be irrelevant if Trump wished it so. Pardon is how the Scooter Libbey Iran contra coverup affair ended, providing directly relevant precedent. Exercise of pardon is not impeachable no matter the circumstances or intent because it is an express presidential power. Doubt Mueller would waste time on a nothingburger politicized Democrat obstruct notion that has no legal foundation–and from which he would have to recuse himself.
    Read today that Ken Starr, former special prosecutor of Clinton, reached the same conclusion as Dershowitz on different (requisite intent) grounds.
    WaPo has been wrong concerning several other leaks purporting to damage Trump. This is likely just more leftist MSM Trump hating fake news from the deep state.

    Liked by 1 person

    • “Pardon is how the Scooter Libby[…….]affair ended.”
      Not so.
      Scooter Libby was convicted and sentenced. Bush commuted the sentence.


  2. Some of the recent Leaks have been so unbelievable (and so quickly shown to be wrong) that I really wonder if they are part of an investigation to track down who is leaking.

    re: Mueller’s investigation, reports that he has hired lawyers who are heavy Democrat donors (one report I saw said that several of them contributed the legal limit to multiple campaigns), and one was a Clinton lawyer also raises questions about the impartiality of the investigation.


  3. Mueller and Comey are, and have always been, partisan Democrat Party members,their publicly stated political affiliations aside. The fact Mueller is bringing multiple Clinton, Obama and Carter admin foot soldiers into his “non-partisan” and “fair” investigation of charges Comey has already publicly stated are false tells me all I need to know. Names I recognize from the 1970s,80’s,90’s and the 21st century, every one of them partisan Democrat Party foot soldiers. And media will not pursue any of this. Imagine that.


  4. Gotta love WaPo and Bezos:

    “The story goes on to report how Jeff Bezos, the founder and CEO of Amazon who purchased The Washington Post in 2013 shortly after, clinched a $600 million contract with the CIA. The contract was supposed to be a deal for Mr. Bezos and his web-based business to build the CIA a private cloud for intel data.
    But the conflict of interest rather face-slaps, doesn’t it? After all, The Washington Post does cover the CIA — particularly stories that cite the agency’s findings of Russian hacking activities, a topic that’s been particularly hot among the left of late.”


  5. Now I don’t think much of Oliver Stone but this interview with Tucker Carlson on the Trump-Russian connection threw me for a loop. Of course he’s so left I can understand why he might defend Putin.


  6. The question on my mind: if Mueller recuses himself because of conflict of interest, who then takes the reins of the investigation? the next in command? Will there be a fight about the next Special Prosecutor? Will Rosen… “have” to appoint someone else?


  7. While I didn’t think a special prosecutor was necessary in the first place, when Mueller was selected like you I thought OK he is a stand up guy and will look at the Russian Collusion and the extra stuff I had hoped would be the illegal unmasking. Then the names of the members of his team started being announced and a number had Clinton ties and were donors to Democrat’s. That raised my antennae .. Now ABC is reporting (maybe falsely who knows) the Deputy AG Rosenstein (Mueller’s boss) may recuse himself due to his involvement in the Comey firing.. so whose on deck? Rachel Brand, who is a former Supreme Court Clerk for Justice Kennedy .. and the Dems are going nuts over this report, since the DOJ assigns resources and make the final prosecutorial decisions.. and in the meantime the average Joe is wondering when the government is going to get around to fixing the Obamacare mess, and getting some tax relief..


  8. I hate to think it but it is possible that Mueller will recuse himself once he has finished loading up the department with Democratic lawyers and supporters. That way he has cleared himself of any supposed wrong doing by his recusal but still left the department to go after Trump and colleagues. Historically, once a special prosecutor’s (or special counsel’s) office has been set up someone is gone to jail. It might not be the original intended but they usually wind up indicting someone.


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