The Special Counsel investigation led by Robert Mueller barely has gotten off the ground, and already there is a stench.

That stench was created by former FBI Director James Comey, who admitted in testimony before the Senate Intelligence Committee that he leaked, through a friend, memoranda purporting to document improper conversations between Donald Trump and Comey. Most important among those conversations was a February 14, 2017, one-on-one meeting in which Trump supposedly told Comey that Trump “hoped” that Comey would see fit to “let go” of the investigation into Michael Flynn.

As described in Comey’s prepared statement (emphasis added):

The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would “let this go.”

Comey’s version of that conversation was leaked to the NY Times, though the precise timing is disputed. Comey asserted in his testimony that the leak came only after Trump tweeted: “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!”

Trump’s attorney claims the leak came days earlier, as NY Times reporting contained language strikingly to the leaked memo as conveyed by Comey’s law professor friend to the NY Times.

Regardless of the timing, Comey says that he leaked the memoranda in order to create a need for a Special Counsel.

COMEY: I asked — the president tweeted on Friday after I got fired that I better hope there’s not tapes. I woke up in the middle of the night on Monday night because it didn’t dawn on me originally, that there might be corroboration for our conversation. There might a tape. My judgment was, I need to get that out into the public square. I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself for a variety of reasons. I asked him to because I thought that might prompt the appointment of a special counsel. I asked a close friend to do it.

That Special Counsel was appointed just a few days after the Comey-contrived leaks.

By the Order from Deputy Attorney General Rod Rosenstein, Mueller includes within his jurisdiction “any matters that arose or may arise directly from the investigation.” Comey testified that he believes Mueller is evaluating the communications between Comey and Trump with regard to potential obstruction of justice. Indeed, Comey expressed certainty in his testimony that the Special Counsel was investigating Comey’s conversations with Trump:

COMEY: … I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct. I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there, and whether that’s an offense.

What started as concerns over Russian interference in the election now is about the interactions between Comey and Trump.

CBS News reported that Mueller reportedly gave approval for Comey to testify before Congress and that the testimony was coordinated. Comey testified that he was permitted to review his memos in preparation of his written opening statement for the Committee submitted the day before his live testimony:

COMEY: Yes. I think nearly all of my written recordings of my conversations, I had a chance to review them before filing my statement. LANKFORD: Do you have a copy of any of the notes personally? COMEY: I don’t. I turned them over to Bob Mueller’s investigators.

There are a lot of questions that need to be answered about how Rod Rosenstein came to appoint Mueller in those few days after the Comey leak, and whether Comey and Mueller, directly or indirectly, had any communications regarding Trump prior to Mueller’s appointment.

Regardless, we now have the prospect of the Special Counsel investigating and necessarily assigning credibility (or lack thereof) to witnesses, including Comey.

There is a problem here that goes beyond their long professional interactions. In 2013, The Washingtonian described the close professional history, Forged Under Fire—Bob Mueller and Jim Comey’s Unusual Friendship.

The Boston Globe reported on May 20, 2017, that the men considered themselves friends, Comey, Mueller have been allies, and now spotlight is on them:

The two men have had similar careers. Both have been top federal prosecutors. Both have been FBI directors. Several people who know both men say they respect each other. “Clearly it’s a relationship based on professional colleagues, initially. But I think they would consider themselves friends,” said John Pistole, who worked for Mueller as deputy director of the FBI and also knows Comey. “Mueller is a mentor of sorts to Comey.”

[added 6-12-2017] As Mollie Hemingway notes, Comey also had referred to Mueller as his friend during this 2009 interview:

“I remember feeling great support from my friend, the FBI Director Robert Mueller.”

Whether they were just close professional friends, or consider themselves personally friendly, the fact is that they are not at arms length. This relationship, at least as reported, appears to be much more than the routine interactions you might expect two law enforcement officers to have had in the regular course of business.

Something doesn’t seem right here. Comey manipulated the system into getting his friend appointed Special Counsel, and now that friend will be investigating matters in which Comey is a key witness. More than that, Comey’s own actions in leaking government property raise legal issues as to whether Comey himself violated the law.

Even assuming Mueller is able to separate his past with Comey from his present investigation, that relationship damages the whole purpose of having a Special Counsel who is completely independent in fact and appearance.

In a truly independent investigation, friends shouldn’t be investigating friends. Mueller should step aside to remove the taint on the Special Counsel investigation created by friend and witness James Comey.



