In my post about Robert Mueller’s conflict of interest in investigating “obstruction of justice” claims based on the testimony of his friend James Comey, I ducked the legal question of whether the conflict requires Mueller to withdraw or be removed. My argument was that it provides President Trump with sufficient grounds to remove Mueller if he so chooses.

Let’s now look at legal provisions dealing with conflicts of interest in this context. 28 U.S.C. 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.

The statute does not address “special counsel.” However, in my view they are brought under its scope by 28 CFR 600.7.

Based on the authority conferred by 28 U.S.C. 528, the Attorney General promulgated 28 CFR 45.2. It provides:

(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. (b) An employee assigned to or otherwise participating in a criminal investigation or prosecution who believes that his participation may be prohibited by paragraph (a) of this section shall report the matter and all attendant facts and circumstances to his supervisor at the level of section chief or the equivalent or higher. If the supervisor determines that a personal or political relationship exists between the employee and a person or organization described in paragraph (a) of this section, he shall relieve the employee from participation unless he determines further, in writing, after full consideration of all the facts and circumstances, that: (1) The relationship will not have the effect of rendering the employee’s service less than fully impartial and professional; and (2) The employee’s participation would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution. (c) For the purposes of this section: (1)Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof; and (2)Personal relationship means a close and substantial connection of the type normally viewed as likely to induce partiality. An employee is presumed to have a personal relationship with his father, mother, brother, sister, child and spouse. Whether relationships (including friendships) of an employee to other persons or organizations are “personal” must be judged on an individual basis with due regard given to the subjective opinion of the employee. (d) This section pertains to agency management and is not intended to create rights enforceable by private individuals or organizations.

The threshold question is whether Comey was “substantially involved in the conduct that is the subject of the investigation or prosecution” or has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution. Comey’s conduct is not the subject of Mueller’s investigation, in the sense that he isn’t the target of the investigation (though he could be if the investigation spills over into leaking). But Comey’s conduct is a partial subject, in the sense that Mueller will apparently investigate what transpired between Comey and the president — a subject that goes to the heart of any “obstruction” claim.

In any case, it seems to me that Comey has a specific and substantial interest that likely will be affected by the outcome of the investigation. Mueller may well determine whether Trump is lying, as Comey says, or that Comey is lying, as Trump insists. Comey has a specific and substantial interest in not being found to be a liar.

The next question is whether Mueller has a “close and substantial connection” with Comey “of the type normally viewed as likely to induce partiality?” I think so. As I have argued, they are friends and former colleagues who stood side-by-side in at least one very important legal struggle.

If the requisite personal relationship exists, the question for purposes of removal becomes whether: (1) the relationship will have the effect of rendering Mueller’s service less than fully impartial and professional or (2) Mueller’s participation would create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.

Whatever one concludes about the first prong of this test, I think it’s plain that Mueller’s participation in the investigation of “obstruction of justice” would “create an appearance of conflict of interest likely to affect the public perception of the integrity of the investigation.” If Mueller adopts Comey’s version of the facts, large segments of the population will question whether this is an impartial assessment, given his close relationship with Comey.

Mueller could try to avoid this perception by recusing himself from the “obstruction of justice” portion of the investigation. As I have argued, though, that’s the only Trump-related allegation that even arguably requires a “special counsel” to investigate.

Moreover, I agree with the source quoted by Byron York who says Mueller “could announce that the Comey part of the case will be handled by someone else within his office, but that is complex and not very satisfactory.” For one thing, it would leave a prosecutor selected by Mueller in charge of the “obstruction” investigation.

The Rule stipulates that it “pertains to agency management and is not intended to create rights enforceable by private individuals or organizations.” In other words, it’s for the DOJ to make the determinations called for through the normal chain of command.

Thus, Michael Flynn or Jared Kushner, for example, would not be able to enforce the Rule against Mueller. However, President Trump has ultimate “agency management” authority over the Justice Department. Thus, if he finds that the Rule requires Mueller’s removal, he has the right under the Rule to remove him, and should do so. Alternatively, Deputy Attorney General Rosenstein could do so. 28 CFR 600.7 gives the Attorney General (who in this case recused himself) the power to remove a special counsel for, among other things, “conflict of interest.”

I want to emphasize that this analysis is preliminary. I haven’t conducted research on the statute and regulations discussed above; nor am I an expert on them.

My purpose here is to lay out the applicable statutory and regulatory provisions and to provide my initial take on how they apply to this special counsel on the facts as I understand them.