By Gregg Jarrett, ,
Published June 13, 2017
Legal Notice: “Proudly Announcing The Newly-Formed Law Firm of Mueller & Comey. We Specialize In Bungling Cases, Ignoring Legal Standards, And Bringing Down Presidents.”
I have not yet received the announcement in the mail. But I expect it will arrive any day now.
After all, Robert Mueller and James Comey appear to be acting in concert as co-special counsel. Why not make it official with a formal notice of their union?
It was obvious it would evolve this way from the very moment Mueller was named on May 17th.
Which is why I wrote a column two days later, arguing that Mueller should resign as special counsel. He has a flagrant conflict of interest that disqualifies him from serving. To wit, his personal and professional closeness to Comey. They have long been allies. Comey regards his predecessor at the FBI as a mentor, while Mueller considers Comey his protégé.
It was evident at the outset that the fired FBI Director would be the pivotal witness in any potential obstruction of justice investigation by Mueller. Therefore, it was incomprehensible that Rod Rosenstein, the Acting Attorney General, would choose him. It was equally baffling that Mueller would accept the position.
I remember reacting to the news with the words, “are you kidding?” Turns out, it was no joke.
Conflict of Interest Defined
The law governing the special counsel (28 CFR 600.7) specifically prohibits Mueller from serving if he has a “conflict of interest.” Even the appearance of a conflict is disallowed.
The same Code of Federal Regulations defines what constitutes a conflict. That is, “a personal relationship with any person substantially involved in the conduct that is the subject of the investigation or prosecution” (28 CFR 45.2). Comey is that person. He was substantially involved in the conversation with President Trump who may be the subject of an obstruction investigation. In fact, the former Director is the only other person involved. There were no witnesses beyond himself.
A conflict of interest is a situation in which an individual has competing interests or loyalties. Here, it sets up a clash between the special counsel’s self-interest or bias and his professional or public interest in discharging his responsibilities in a fair, objective and impartial manner. His close association with the star witness raises the likelihood of prejudice or favoritism which is anathema to the fair administration of justice.
Mueller has no choice but to disqualify himself. The law affords him no discretion because the recusal is mandatory in its language. It does not say “may” or “can” or “might”. It says the special counsel “shall” recuse himself in such instances.
An excellent post by Robert Barnes, a constitutional lawyer, identifies five statutes, regulations and codes of conduct that Mueller is violating because of his conflict of interest with Comey. Byron York, chief political correspondent for the Washington Examiner recounts in detail the close personal relationship between Mueller and Comey which gives rise to the blatant conflict of interest.
Mueller and Comey
As I pointed out three weeks ago, the relationship between Mueller and Comey is not a casual one. They are well known to be good friends and former colleagues who worked side-by-side at the FBI and Department of Justice handling together several important cases. Agents quipped they were joined at the hip.
In one memorable case, they stood in solidarity, both threatening to resign over the warrantless wiretapping fiasco involving then-Attorney General John Ashcroft in 2004.
But the Comey-Mueller duo are best known for “badly bungling the biggest case they ever handled” together –the 2001 anthrax letters attacks that killed 5 people and infected 17 others in Washington in 2001. The story is well told by Carl M. Cannon, executive editor and Washington bureau chief of RealClearPolitics.
It appears that Mueller, Comey and others misinterpreted the evidence and botched the case by fingering an innocent man, Steven Hatfill. It ended up costing taxpayers roughly $ 5 million in a legal settlement.
Here is the interesting part that few people recall. Hatfill’s successful lawsuit accused the FBI and DOJ of leaking information about him to the press in violation of the federal Privacy Act. Sound familiar? That’s right, a leak. Very much like Comey’s premeditated leak to the media of his now infamous memo reciting his alleged conversation with President Trump. Perhaps, old habits are hard to break.
As York points out, the Washington Post published a story the day Mueller was appointed special counsel entitled, “Brothers In Arms: The Long Friendship Between Mueller And Comey.” But nowhere in the article does it venture toward the obvious –that their relationship presents a glaring and disqualifying conflict of interest. So much for journalistic curiosity.
Perhaps most revealing is a lengthy Washingtonian story four years ago, describing in detail a deep friendship that stretches back over a decade. Mueller and Comey became “close partners and close allies”. So close, “there was only one person in government whom Comey could confide in and trust: Bob Mueller.”
Against this backdrop, the inevitable conflict of interest comes into full view. If the special counsel is investigating whether the president tried to obstruct justice, the case becomes a test of “he said…he said.” Which man will Mueller believe? His good friend or the man who fired his good friend? How can Mueller fairly and impartially assess Comey’s credibility versus Trump’s? He cannot.
Equally important, how can the public be assured that Mueller’s decision is free of partiality, if not animus, driven by his personal affection for Comey? It is reasonable to assume that Mueller was not pleased to see his good friend fired by Trump. Might the special counsel be tempted to exact retribution by conjuring criminality where none may exist? This is precisely why there are legal and ethical rules which demand recusal based on prior relationships.
What If Comey Becomes a Target?
It is bad enough that the special counsel is a close friend of the star witness in any pursuit of obstruction against the president. But what are we to make of Comey’s conduct? If it is criminal, would Mueller decide to prosecute his friend? Or will he be tempted to overlook incriminating evidence? That evidence is worth examining.
Comey was stunningly wrong when testified that his memo of the conversation with the president was his personal property. It was not. The Federal Records Act and the Records Management regulations at the DOJ and FBI state that anything done in the course and scope of government employment is the property of the government, not the employee. Comey was acting as the FBI Director when he conversed with Trump about a pending case. He wrote the memo in his official capacity. It was not Comey’s to keep personally or give away to someone outside the government without permission.
It is a crime for an employee, such as Comey, to convert government property to his own personal use. Yes, 18 USC 641 makes it a felony to “steal, sell or convey” it to someone else. That is exactly what Comey did by giving it to a professor at Columbia University Law School for the sole purpose of leaking it to the media. Comey’s ultimate design was for the leak to prompt the appointment of a special prosecutor who, conveniently, is his good friend Robert Mueller.
Beyond the statutory violation, Comey’s non-disclosure contract promises he will not disclose the very type of record or information he leaked. Doing so, subjects him to “criminal sanctions and personal liability in a civil action”, according to the terms of his agreement. It matters not that he is no longer employed by the FBI. It is a binding, enforceable, and actionable contract regardless of Comey’s job status.
Finally, there is some evidence Comey may have lied in his testimony. He was asked if he ever received the recusal of Attorney General Jeff Sessions in the form of a DOJ memo outlining the “parameters of the recusal.” Comey answered, under oath, “no.” Hours later, the DOJ released that very memo sent to Comey which it alleges he received and read. If so, this would seem to be persuasive evidence Comey did not tell the truth. Lying to congress and perjury are felonies.
There are other parts of Comey’s testimony which are being called into question, including his claim he never authored a memo about any prior presidential conversations, as well as his statement that he only leaked the contents of his memorandum after Trump issued a tweet about the possibility of tapes. A story in the New York Times suggests something quite different.
Robert Mueller’s disqualifying conflict of interest is now more glaring than ever after the Comey hearing before the Senate Intelligence Committee. The panel proved to be an oxymoron in its failure to ask obvious questions about any conversations Mueller had with Comey before he testified. Senators are known for their lack of intellectual curiosity, but this was well beyond the pale.
How many times did the two friends meet or converse? Did they plan Comey’s testimony? Did they devise a way for him to avoid his own potential legal jeopardy over deliberate leaks to the media? Not one senator bothered to pose those questions.
Significantly, did Mueller and Comey agree to a plan to make a case against President Trump for obstruction of justice? Are they now acting in concert to bring down the president?
It sure looks and smells like that. Indeed, there is a distinct stench arising from the all-too cozy Mueller-Comey relationship. So, why not call it what seems to be?
The law firm of Mueller & Comey… acting as co-special counsel.
Maybe that is the only “collusion” in this whole sordid affair.