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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.

Reader Discussion

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on July 17, 2017 at 11:13:51 am

Excellent analysis! There is little question that the Special Prosecutor/Counsel process is deeply flawed for the reasons you state, and others; the Mueller appointment, especially so.

I think it is ill-conceived, that the Special Counsel investing someone elected or appointed/hired to a Federal position should be selected from anyone who has any recent, (defining recent would of course, have to be a matter of debate) and direct connection to Federal government. Washington is too small, Federal employees are too incestuous.

In my view, the attorneys selected to be Special and Support/Assistant Counsel should instead derive from the AG offices of the States, and appointment be by the governor or legislature of the particular states.

Here to, the advantages and disadvantages to this method of appointment needs to be a matter of debate, as the legal means of implementing (and paying) for it.

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Paul Binotto
on July 18, 2017 at 10:31:16 am

I have only practiced law in one state but assure you that anyone from our state's AG office would have little relevant experience with the federal laws governing just about any special counsel's investigation. I would place just as much trust in the competence of a handful of lawyers who advertise their services on billboards. Maybe I'm too cynical. (But these are cynical times.)

I am surprised the author avoids any discussion of the actual legal expertise of the attorneys selected for this investigation. I think he is right to suggest the team should be crafted in a way to suggest the investigation will be impartial. But is it also possible assume that Mueller has selected the attorneys with experience best-suited for the needs of this particular investigation, and that many of them happen to be Democrats? I suspect the answer is "no," and would be interested to learn of his thoughts on the relative import of legal expertise versus political affiliation and how they should be balanced when assessing the appropriateness of a lawyer's selection to contribute to a special counsel's investigation.

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Angela
on July 18, 2017 at 11:52:14 am

You are probably correct and with good reason.

In my view, perhaps the greatest flaw in the Special Counsel process is that it gives legal legitimacy to an almost certainty politically motivated endeavor. The demand for a Special Counsel is politically motivated; the appointment process in response flows from a carefully considered political construct, and so on - can anything less than a politically motivated outcome be expected?

The perception (to me anyway) is not a search for an unbiased truth on a given matter of government action, but instead a search for potentially political ammunition when all conventional means have been exhausted or fully exploited. And, to have it imprinted with a legal imprimatur, is the icing on the cake. It's a grand charade and the joke is on the American people.

Now who's maybe being too cynical?

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Paul Binotto
on July 18, 2017 at 22:30:15 pm

Well, there is also the element of "political cover" for the cowardly GOP types who, fearful of any adverse reaction by the loud and boisterous members of their constituency, seek to mitigate any potential fallout from having supported the very candidate that the majority (in most instances) of that very same constituency voted for.

oops, what a dope I am. I forgot that the only *constituency* that apparently matters is the media and the Georgetown cocktail circuit.

Hey, Paul - NOW, how is that for cynical?

seeya
gabe

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gabe

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