Robert Mueller received a limited vindication last week when U.S. District Judge T.S. Ellis III ruled the special counsel’s Virginia prosecution of Paul Manafort can proceed. Vindication, because Manafort’s legal team had hoped the judge would declare that Mueller’s enterprise had sprawled outside its legal mandate. Limited, because Judge Ellis denounced the prosecutors’ tactics as “distasteful” and cautioned “those involved” to be “sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.”
The challenge in Judge Ellis’s courtroom is hardly the only question of legal legitimacy facing the special prosecutor. There are regulations governing what federal prosecutors are to do if they suspect there is even the possibility they have a conflict of interest. Those regulations may be interpreted as requiring Mueller to step aside.
No doubt, some challenges to the legitimacy of an investigation can be seen as shameless efforts to derail justice. I surmised, back in January, that the special prosecutor’s investigation into Trump might turn into a sort of O.J. Trial in which the sloppiness and mistakes of investigators would make possible a cynical defense based on an imagined conspiracy. I had no idea that the Justice Department’s inspector general would eventually document extensive evidence of actual bias by the lead investigator. FBI agent Peter Strzok “clearly shows a biased state of mind,” the IG testified. It is as if Mark Fuhrman had been on tape, not just using the n-word, but explicitly saying he was out to get Simpson. It may not have changed the question of Simpson’s guilt, but it would have changed, dramatically, how people viewed his acquittal.
Appellate and constitutional lawyers David B. Rivkin, Jr. and Elizabeth Price Foley recently made a compelling case that the political bias among the FBI agents working on “Crossfire Hurricane” renders illegitimate everything flowing from that investigation. If “Crossfire was politically motivated then its culmination, the appointment of a special counsel, inherited the taint,” Rivkin and Foley wrote in the Wall Street Journal. “All special-counsel activities—investigations, plea deals, subpoenas, reports, indictments and convictions—are fruit of a poisonous tree, byproducts of a violation of due process.” Rivkin and Foley add: “That Mr. Mueller and his staff had nothing to do with Crossfire’s origin offers no cure.”
Another challenge to the legitimacy of the Mueller investigation comes from Northwestern University law professor Steven Calabresi. He has argued that the special counsel’s appointment is inconsistent with the Constitution: Mueller “is a principal officer, and since he has not been nominated by the President and confirmed by the Senate, everything he has done since May 1, 2017 has been unconstitutional and has been illegal.” Calabresi was met with significant push-back from fellow law professors, including Northwestern’s Steven Lubet and Andrew Koppelman. Professing friendship with Calabresi, they nonetheless dismissed his “reading of the Constitution’s text [as] strained and unprecedented.”
And then there’s President Trump himself, who hasn’t hesitated to denounce Mueller. But Trump’s complaint hasn’t been jurisprudential so much as bluntly political—that the special counsel’s office is staffed with an overabundance of Democrats. Trump regularly tweets that Mueller is “the leader of the 13 Angry Democrats on a Witch Hunt.” Yes, Mueller might have been wiser to have made a point of maintaining a fastidious partisan balance on his team. But that imbalance isn’t proof of bias or a conflict.
The president’s bluster notwithstanding, under longstanding Justice Department regulations Mueller may have significant conflicts of interests in his role—conflicts that aren’t partisan, but rather personal and professional—conflicts that could oblige him to let some other attorney take over his responsibilities.
All federal prosecutors are governed by regulation 28 C.F.R. 45.2, “Disqualification arising from personal or political relationship.” It reads that, without special authorization, “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.” It can be argued that this regulation has serious implications for Mueller.
The firing of James Comey is reported to be central to the Mueller investigation, and there is no doubt that Comey has “a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.” The outcome could vindicate Comey as Washington’s last honest man or it could lead to Comey’s prosecution. Which way the investigation leads is largely in Mueller’s hands. The “specific and substantial interest” is clearly there, but that leaves the question of whether Mueller and Comey have the sort of “personal or political relationship” imagined by the regulation.
Mueller has been friends with Comey for many years. The two had known one another long before they teamed up to confound the Cheney crowd in the George W. Bush administration—a dramatic (or at least highly dramatized) incident that looms large in the Comey and Mueller legends.
In 2004 Comey was deputy attorney general and Mueller was director of the FBI. They both were opposed to the super-secret post-9/11 Terrorist Surveillance Program. They convinced attorney general John Ashcroft not to reauthorize the program unless the administration made significant changes to it. But before Ashcroft could take action, he was struck with pancreatitis and hospitalized. Comey raced to Ashcroft’s bedside to head off White House lawyers who were on their way to try to get the woozy AG to sign the TSP reauthorization. Mueller called the FBI agents guarding Ashcroft and told them not to allow the Secret Service or anyone else to remove Comey from Ashcroft’s room.
They succeeded in keeping Ashcroft from being cajoled into signing while sedated. But for all the high drama the TSP question was only put off. More drama ensued: Days later Comey and Mueller met, one after the other, with the president. Both had written resignations in advance. Each told Bush he would resign if the other resigned. Both said they would quit if TSP weren’t revised. Bush caved.
Mueller fought alongside Comey in Washington’s trenches, the sort of brothers-in-arms political battles that might forge lifelong bonds. Comey has been described as viewing Mueller as the “one person in government whom he could confide in and trust.” But for all that, is theirs “a personal or political relationship” of the sort DoJ regulations count as a conflict of interest?
Gary Elden, an experienced litigator with Shook, Hardy & Bacon in Chicago, pours cold water on the proposition that Mueller has conflicts arising out of his relationship with Comey. The regulations involving “personal” relationships entail something away from the office: “I would not interpret it to mean someone who you have worked with and respect,” Elden says. And indeed, the regulation specifically mentions relationships such as “father, mother, brother, sister, child and spouse.” But it also covers “friendships” if they are “of the type normally viewed as likely to induce partiality.”
Beyond questions of Comey’s behavior, the actions and attitudes of the FBI have become central to the investigation into Trump. For the “Fruit of the Poisonous Tree” reasons put forward by Rivkin and Foley, a finding that FBI agents and officials were acting with malice or even simple bias, would undercut the foundation of the whole Mueller enterprise. The implications for the FBI—not just the individual agents involved, but the organization as a whole—are momentous. And so we have to ask whether a former head of the FBI is the right man to see the investigation through.
It will be remembered that the regulation not only prohibits a prosecutor from participating in a case if he has a relationship with any person “substantially involved in the conduct that is the subject of the investigation or prosecution,” but also if he has a relationship with an organization that is so involved. The prosecutor has to offer to bow out if he has a relationship with an “organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”
The FBI has a “specific and substantial interest” in Mueller’s investigation. Mueller has a longstanding relationship with the bureau—indeed, it could be argued he has a personal stake in its reputation. How is it that Mueller doesn’t have a conflict of interest if the terms of 28 C.F.R. 45.2 are applied to him?
Elden offers a reasonable caution here, one about a slippery slope created if those being investigated are given too much leeway to discredit officers of the court. “The system cannot allow a subject of an investigation to disable the investigation by attacking the prosecution,” Elden says.
There is more, however, to the regulation. If there is any question of a conflict of interest, a prosecutor is required to “report the matter and all attendant facts and circumstances to his supervisor.” In this case, that would be deputy AG Rod Rosenstein. The supervisor is obliged to make a judgment as to whether there is a conflict and, more broadly, determine whether there could be any appearance of a conflict. The regulation reads “he shall relieve the employee from participation unless he determines further, in writing, after full consideration of all the facts and circumstances, that…The employee’s participation would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.”
Perhaps the peculiar circumstances of the Mueller appointment—the full and unredacted authorization documents have not been made public—include a special waiver relieving the special counsel of the restrictions of 28 C.F.R. 45.2. Repeated emails to the special counsel’s office asking whether the regulation applies to Mueller have gone unanswered. But we do know that Rosenstein did explicitly apply 28 C.F.R. 600.7 to Mueller, the section of the Code of Federal Regulations covering a special counsel’s “Conduct and accountability.” The first provision of that section states “A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” The last provision of that section includes “conflict of interest” as “good cause” for the AG to remove a special counsel.
However one describes Robert Mueller’s relationship with James Comey, there is clearly a relationship. And there is no disputing Mueller’s longstanding and career-defining relationship with the FBI. Both Comey and the FBI are central to the investigation into Trump; both have a huge stake in the outcome of that investigation. But it might be asked why the question of conflicts matters now? After all, Mueller’s relationships with Comey and the FBI were clearly known before he was appointed special counsel. Rosenstein must have, at the very least, considered the question before giving Mueller this crucial assignment. Or did he? The appointment of the special counsel all happened very fast and the deputy attorney general may, in his haste, have glossed over the obligations of 28 C.F.R. 45.2.
But if that’s the case, why haven’t Trump’s defenders been hollering about the conflict regulations from the get-go? Perhaps it’s because the regulations offer a defendant no cause of action, no grounds for invalidating a prosecution. Instead, the rules are enforced by the DoJ itself, a matter of self-policing and Caesar’s-wife propriety. The regulation “pertains to agency management,” reads the final provision of 28 C.F.R. 45.2, “and is not intended to create rights enforceable by private individuals or organizations.”
Even though Mueller’s basic conflicts were well-known to begin with, they have come to have more significance. Recent findings by DoJ’s inspector general—for example, that FBI agent Peter Strzok’s “Russia-related text messages” suggested he “might be willing to take official action to impact presidential candidate Trump’s electoral prospects…” —has made Mueller’s FBI and Comey conflicts acute.
At the very least that creates “an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution,” the very outcome the regulations are meant to prevent.
That there is such a public perception is not necessarily Mueller’s fault, though he is enough of an old Washington hand to have recognized from the beginning the threat his conflicts posed. Were he to step aside now, citing conflicts of interest, chances are public confidence in the investigation would sour further rather than being restored.
And yet, there is still an argument to be made that Mueller should recognize his conflicts of interest raise significant questions about whether he is suited to be the special counsel. Ours is a time when fundamental norms of political propriety are being cast aside right and left. It’s no help in shoring up standards of public life if the man championed for his unassailable integrity fails to act to address his own conflicts.
“There is no reason for this investigation to stop, but there is no reason for Mueller to run it,” says NYU law professor and University of Chicago senior lecturer Richard Epstein. “With witnesses there is a finite supply and you have to control for bias. But with prosecutors they can come from everywhere, so there is no need to tolerate this kind of conflict when the supply of suitable prosecutors is very large.”
