The Mueller Investigation: Impartiality and Conflicts of Interest

Recently, I wrote about the size and scope of the Mueller Investigation.  Here I discuss the criticisms of the lack of impartiality that have been raised about the investigation.

Political Orientation: The first aspect of this issue involves the political orientation of the 15 lawyers that Mueller has hired.  News reports indicate that “at least seven of the 15 lawyers Mueller has brought on to the special counsel team have donated to Democratic political candidates, five of them to Hillary Clinton.”  By contrast, no members have contributed to Republicans (except one member who gave much more to the Democrats).  So the staff of the special counsel appears, based on available information, to be strongly Democratic.

I believe this is seriously problematic.  A special counsel investigating matters, including the President, should have significant political balance.  It is true that government employees are probably strongly tilted toward the Democratic party and therefore one might defend Mueller as not being biased because he is selecting from government employees.  But the fact that government employees are politically unbalanced is not a reason to forego balance in the special counsel’s office, which after all is supposed to especially impartial.  Moreover, Mueller has hired people from outside the government to supplement his group and so could easily find Republicans.  Instead, he hired someone who represented Hillary Clinton and the Clinton Foundation.  Either this man has a political tin ear or he is playing to the dominant left within Washington.

Now, Mueller is sometime said to be a Republican.  But that is not clear.  Apparently, the last time that was “known” was 2001.  But even if Mueller is a Republican, that does not count for much.  He may be the type of Republican that Democrats love – Barack Obama asked him to continue serving as FBI Director when his term expired – such as David Souter and John Paul Stevens.  These two Republicans were liberals on the Supreme Court and took the opportunity of Barack Obama’s election to step down from the Supreme Court, allowing that liberal Democrat to replace them.  But if Mueller is a Republican, then that might justify some imbalance on his staff towards the Democratic side, but certainly not the strong imbalance we currently see.

Conflicts and Partiality:

Critics have argued that Mueller has had a long relationship with Comey and therefore should not be investigating Comey’s firing.  I don’t know whether this is a technical conflict of interest under the law of this area.  But in my view, this is a very serious problem.

Comey and Mueller first made their reputations acting together to resist a Bush Administration program.  This led to dramatic events, including a visit to the hospital room of Attorney General Ashcroft.  Both Comey and Mueller were seen as principled Republicans who were resisting overreaching by some Bush Administration officials.

If Comey were convicted now, for any of a variety of offenses, including improper handling of national security information, this would hurt Mueller.  If Comey were now found to have engaged in criminal acts, it would tend to undermine the claim that they were both courageously resisted improper political behavior.  Clearly, Mueller has a strong interest in protecting Comey’s reputation.

While Mueller does have in my view improper partiality towards Comey, it would be politically problematic to replace him now.  But Glenn Reynolds has a great idea: Simply appoint a new special counsel to investigate the Comey aspect of the investigation, while leaving Mueller in place for the remainder.