Robert Mueller should recuse himself from Russia investigation Former FBI director is too close to his successor, James Comey, to be impartial.

William G. Otis | Opinion contributor

Robert Mueller is a man of integrity with a long record of public service. In the abstract, he would be the right selection as special counsel in the Russia investigation. Under the specific circumstances of this case, however, with his longtime friend James Comey at the center of the inquiry, Mueller's the wrong choice. The public cannot be as sure as it needs to be of his objectivity.



This is true for reasons similar to those that prompted Attorney General Jeff Sessions to recuse himself from the same investigation. Sessions testified Tuesday that he felt he had no proper choice because he had a potential political conflict of interest, having been a campaign adviser to President Trump. Mueller should likewise step away because he has a potential personal conflict of interest, having been a longtime friend of a crucial witness, Comey, and Comey's key ally at the most important moment of his career.

I met Mueller only once, when he was assistant attorney general for the criminal division. From what I know of his reputation, he's an honest, no-nonsense, effective prosecutor.



Under the present circumstances, however, and not without regret, I believe that the same ethics rules the attorney general cited in his Tuesday testimony counsel against Mueller's continuing to serve in the role assigned to him.



28 USC Section 528 provides:

The Attorney General shall promulgate rules and regulations which require the disqualification of any officer or employee of the Department of Justice, including a United States attorney or a member of such attorney's staff, from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof. Such rules and regulations may provide that a willful violation of any provision thereof shall result in removal from office.



28 CFR Section 45.2 provides in part:

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 ...



(c) For the purposes of this section:

(2) Personal relationship means a close and substantial connection of the type normally viewed as likely to induce partiality. ... Whether relationships (including friendships) of an employee to other persons (outside his or her family) or organizations are "personal" must be judged on an individual basis with due regard given to the subjective opinion of the employee.

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Comey and Mueller have been friends for nearly 15 years. They were partners in the episode that defined Comey's professional persona more than any other in his public service. It would be surprising if it had not also forged a permanent bond with Mueller.



It was Comey, as deputy attorney general, and Mueller, then head of the FBI, who together confronted White House Counsel Alberto Gonzales in the hospital room of then-seriously ill Attorney General John Ashcroft in a successful attempt to block the White House from implementing a surveillance protocol that Gonzales and, tentatively, President George W. Bush favored.



The protocol was temporarily halted. Comey, shortly thereafter, talked with Bush at the White House and, in what must have been an intense meeting, persuaded him not to go forward with it. It was one of the most dramatic and telling episodes in the first part of the Bush administration. In essence, in the early stages of a still-shocked nation's response to the 9/11 attacks, Comey and Mueller stood arm-in-arm at the Pass at Thermopylae.



Comey now finds himself at the center of the Russian investigation over which Mueller presides. Questions swirl around Comey — about whether the president wanted/hinted/hoped/asked/directed/or something else the investigation of former national security adviser Michael Flynn to be stopped/abandoned/slowed/soft-peddled/something else. This is probably the central element of the obstruction of justice case that Trump's opponents would like to see made against him.



Questions also swirl about Comey's notes about this conversation and why he gave them to a private individual (professor Dan Richman of Columbia Law) to convey to journalists. Additional questions have arisen about whether this curious and seemingly devious means of putting the contents of the notes in the public domain (leaking, in other words) was designed specifically to bring about the appointment of a special counsel outside the president's direct reach — and, indeed, whether Comey wanted, expected or intended his friend Mueller to get the job.

There is much to be said for all this, none of it happy-making. One thing that can be said with clarity is that, under the ethics rules cited by Sessions, Mueller has a long-term relationship with Comey that "may result in a personal ... conflict of interest, or the appearance thereof."



Mueller is therefore disqualified. I hope and suspect that Mueller, whom I believe to be a partisan of the rule of law, will see this. If he doesn't, I hope Deputy Attorney General Rod Rosenstein will.



Experienced attorneys prefer rule-orientation and properly fear self-justification, a ubiquitous flaw in even the best of men. There is no way Comey is anything but a central witness in this investigation — if not a subject. Even less is there a way Mueller can be expected to evaluate Comey's credibility with the fresh neutrality, arm's-length curiosity, and objective sharp eye his job demands.



William G. Otis is an adjunct professor at Georgetown University Law Center, a former federal prosecutor, and former special counsel for President George H.W. Bush.

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