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The Constitution and Prosecutor Mueller: A Conversation with Mike Rappaport

with Mike Rappaport

Mike Rappaport joins us to discuss Special Counsel Robert Mueller’s investigation of the Trump administration and what the Constitution has to say about it.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 15, 2017 at 13:10:40 pm

Richard / Mike:

You two hit it on the head:

1) The press is a MAJOR player in determining WHO gets investigated AND, *more significantly* WHO DOES NOT!

2) Yep, at best we have an anemic Congress; more realistically (and more problematically) we have a CORRUPT Congress - a corruption of Duty, Virtue and (institutional) Honor.

3) How about we initiate a Lawsuit against Congress claiming that the Legislative is in violation of its constitutional duty and has failed, knowingly and willingly, to exercise that duty and thus has failed to represent the citizenry. Yeah, I know, it ain't gunna happen!

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gabe
on September 16, 2017 at 22:55:52 pm

Is not the Comey / Mueller professional and personal relationship enough to REQUIRE mueller to recuse himself in the effort? Maybe a review by the honored speakers during this pod cast

28 CFR 45.2 - Disqualification arising from personal or political relationship.
https://www.law.cornell.edu/cfr/text/28/45.2

§ 45.2 Disqualification arising from personal or political relationship.
(a) Unless authorized under paragraph (b) of this section, 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.
(b) An employee assigned to or otherwise participating in a criminal investigation or prosecution who believes that his participation may be prohibited by paragraph (a) of this section shall report the matter and all attendant facts and circumstances to his supervisor at the level of section chief or the equivalent or higher. If the supervisor determines that a personal or political relationship exists between the employee and a person or organization described in paragraph (a) of this section, he shall relieve the employee from participation unless he determines further, in writing, after full consideration of all the facts and circumstances, that:
(1) The relationship will not have the effect of rendering the employee's service less than fully impartial and professional; and
(2) 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.
(c) For the purposes of this section:
(1) Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof; and
(2) Personal relationship means a close and substantial connection of the type normally viewed as likely to induce partiality. An employee is presumed to have a personal relationship with his father, mother, brother, sister, child and spouse. Whether relationships (including friendships) of an employee to other persons or organizations are “personal” must be judged on an individual basis with due regard given to the subjective opinion of the employee.
(d) This section pertains to agency management and is not intended to create rights enforceable by private individuals or organizations.

28 CFR 600.7 - Conduct and accountability.
https://www.law.cornell.edu/cfr/text/28/600.7

§ 600.7 Conduct and accountability
(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.
(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a) (3).
(c) The Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice. Inquiries into such matters shall be handled through the appropriate office of the Department upon the approval of the Attorney General.
(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Comey is a good friend of special counsel Robert Mueller — such a good friend, for about 15 years now, that the two men have been described as "brothers in arms." Their work together during the controversies over Bush-era terrorist surveillance has been characterized as "deepening a friendship forged in the crucible of the highest levels of the national security apparatus after the 9/11 attacks," after which the men became "close partners and close allies throughout the years ahead."

Byron York
Now Mueller is investigating the Trump-Russia affair, in which, if the increasing buzz in the case is correct, allegations of obstruction against the president will be central. And central to those allegations — the key witness — will be the prosecutor's good friend, the now-aggrieved former FBI director.
Is that a conflict?

They [Comey and Mueller] have a mutual admiration society. Mueller should hire another prosecutor to deal with Comey. But Comey is central to their case, so it infects the whole prosecution. Could [a close colleague] investigate me? No, he would recuse. But Mueller's stature is great, and he may be able to overcome it.
Byron York,
Jun 11, 2017,
11:09 PM

I think it raises a serious conflict of interest that would normally require the prosecutor to recuse himself from the case. , The whole purpose of the special counsel is to have a prosecutor from outside the government and outside of the normal chain of command because inherent conflicts render the Justice Department incapable of handling it. So, now the special counsel is a close friend (mentor/mentee relationship) with the star witness, who by his own admission leaked the memos at least in part to engineer the appointment of a special counsel.
Note: this paragraph came from another big-firm lawyer and Justice Department veteran.

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Cary Voss

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