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;
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,