President Trump’s legal team is zeroing-in on the relationship between former FBI directors Robert Mueller and James Comey to argue that their long professional partnership represents a conflict of interest that compromises Mueller’s integrity as special counsel.
The effort to make the case about a conflict of interest around Mueller’s investigative body comes amid reports that Mueller is looking into whether Trump is guilty of obstruction of justice for allegedly asking Comey to drop an investigation into former national security adviser Michael Flynn. Trump later fired Comey.
The president tweeted Friday that he is under investigation for firing fired Comey — proceedings Trump ripped as a “witch hunt.”
Those making the case that Mueller is compromised because of his relationship with Comey point to a Justice Department statute that says recusal is necessary when there is the “appearance” of a “personal” conflict of interest.
“Mueller is compromised by the close professional — and I would sure think personal — relationship with Comey,” said Bill Otis, the former special counsel for President George H.W. Bush. “That is an encompassing standard…that should be interpreted broadly so that the public will have maximum confidence in the outcome of the special counsel’s work, however it winds up.”
That is not the view of many others in the legal community, who are irate that some would seek to cast doubt on the veracity of Mueller’s special counsel by alleging that he is incapable of conducting a fair investigation.
Mueller, a decorated Navy veteran, has a sterling reputation as an independent investigator.
“Mueller is absolutely not compromised by his professional relationship with Comey,” said Richard Painter, the White House ethics lawyer for President George W. Bush. “This is just an effort to undermine the credibility of the special counsel.”
Spokespeople for Trump’s legal team and Mueller’s special counsel declined to comment.
These heavy questions and many more hung over Washington on Friday as Mueller built the special counsel’s staff by hiring a dozen top-level prosecutors.
Mueller’s hires have experience in complicated investigations, including Watergate, Enron and Mafia prosecutions. That’s raised speculation that the special counsel investigation might extend to Trump’s business empire, which the president has tried to shield from public scrutiny.
“The biggest risks in these kinds of cases are the collateral offenses,” said Jonathan Turley, a legal professor at George Washington University.
Vice President Pence has obtained legal counsel, as has Trump’s personal attorney Michael Cohen. Members of Trump’s transition team are being told to preserve materials that might be relevant to the special counsel’s investigation.
“If I worked at the White House right now I’d quit,” said Painter. “There’s no way I’d stick around and wait for someone to throw me under the bus.”
The administration’s allies are pushing back back furiously on the special counsel investigation, pointing to donations some prosecutors made to Democratic candidates. Trump’s backers are also fuming over the latest round of anonymous leaks, which they say are designed to keep a shadow of suspicion over the White House.
Deputy attorney general Rod Rosenstein took the unusual step Thursday of releasing a statement warning that reports citing anonymous officials are not to be trusted, suggesting that the leaks revealing the obstruction investigation into Trump did not come from the Justice Department or the special counsel.
Still, speculation is growing that Trump is laying the groundwork to have Mueller removed special counsel, an action that Trump’s allies warn would backfire and potentially lead to impeachment.
“It would be a mistake to fire Mueller at this point,” said Bill Barr, a former attorney general in the George H.W. Bush administration.
The fate of Rosenstein is also the subject of intense speculation. There are questions about whether the deputy attorney general, who wrote the memo the administration initially used to justify firing Comey, will have to recuse himself from the investigation if he becomes a witness in the obstruction case.
“The safest thing is probably for him to recuse himself,” said John Wood, a former U.S. attorney.
Again, the legal community is split here.
“Rosenstein needs to stay on to protect the integrity of the investigation,” said Robert Ray, the former independent counsel for the Whitewater case. “If Rod thinks he needs to recuse, I’m sure he will, but for the life of me I don’t see a basis for it.”
But the allegations that Mueller is too close to Comey have moved to the forefront of the debate around the special counsel and go to the heart of whether the special counsel can conduct an impartial investigation around Trump and his associates.
Mueller was the director of the FBI in 2003, when Comey was deputy attorney general under John Ashcroft.
Their professional relationship was cemented in 2004, when Mueller backed Comey in a dramatic standoff against George W. Bush when the president sought to reauthorize a controversial surveillance program they believed to be illegal.
Comey famously rushed to the bedside of a hospitalized Ashcroft to talk him out of reauthorizing the program. Mueller assisted, ordering Ashcroft’s FBI detail to give Comey access and to not allow White House officials to be alone with the sick attorney general.
Both threatened to resign the next day. Bush backed off, ultimately asking the Justice Department to find firmer legal footing for the surveillance program.
That dramatic story takes on new meaning in 2017 with Comey and Mueller back in the thick of things.
Comey has given his detractors some additional political ammunition, testifying before the Senate Intelligence Committee that he leaked details of his private meetings with Trump in order to spur the Justice Department to appoint a special counsel.
It worked. Rosenstein appointed Mueller.
“Their historical stand together during the Bush administration has made them part of the legacy and lore of the Justice Department,” Turley said. “Mueller would be a tremendous choice for a special counsel. I would not have recommended him for this one.”
Now, legal experts are debating the veracity of two bombshell reports in the Washington Post. One story said Trump is the target of an obstruction investigation. A second said that the financial transactions of Trump’s son-in-law, Jared Kushner, had attracted the scrutiny of the special counsel.
Kushner’s spokesman said that it is “standard practice” for the special counsel to request records associated with the investigation.
Barr, the former attorney general, said the media stories were overblown. Most of what is going on now is early, normal course investigative work that says nothing about the special counsel’s ultimate findings, Barr said.
“I suspect the Washington Post story exaggerates the maturity of the investigation,” he told The Hill. “I don’t think it has crystallized to that point.”
Barr also called the obstruction investigation “asinine” and warned that the special counsel risks “taking on the look of an entirely political operation to overthrow the president.”
But Ray, the Whitewater lawyer, said the White House is not doing itself any favors by attacking Mueller.
“I’m sure the White House feels threatened and under siege, but it’s unfortunate that they’re trying to undermine the duly appointed special counsel,” he said. “I’ve lived through this before. It does nothing but prolong the investigation. That’s not in anyone’s interests and will only undermine public confidence.”