The waiver is believed to relate to special counsel Robert Mueller's work in recent years as a partner at the WilmerHale law firm. | Saul Loeb/AFP/Getty Images Justice Department won't disclose details on Mueller ethics waiver

The Justice Department is refusing to reveal details of the process that led up to former FBI Director Robert Mueller being granted an ethics waiver to serve as special counsel investigating the Trump campaign's alleged collusion with Russia during the 2016 presidential election.

In response to a POLITICO Freedom of Information Act request, the agency released a one-sentence memo Friday confirming that Mueller was granted a conflict-of-interest waiver in order to assume the politically sensitive post.


The waiver is believed to relate to Mueller's work in recent years as a partner at the WilmerHale law firm, which also represented former Trump campaign chairman Paul Manafort and White House adviser Jared Kushner, who is also President Donald Trump's son-in-law.

However, the document signed by Justice's top career official, Associate Deputy Attorney General Scott Schools, provides no detail at all of the grounds for the waiver. In fact, it's so vague that it doesn't even convey why anyone would think Mueller needed such a release.

"Pursuant to 5 CFR 2635.502(d), I hereby authorize Robert Mueller's participation in the investigation into Russia's role in the presidential campaign of 2016 and all matters arising from the investigation," Schools wrote in the "authorization" signed on May 18, one day after Deputy Attorney General Rod Rosenstein formally appointed Mueller to the position.

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The agency's Justice Management Division said it located a two-page "recommendation memorandum" in response to POLITICO's request but was declining to release that on grounds it would interfere with the deliberative process inside the department.

The secrecy surrounding the waiver could fuel ongoing efforts by Republican lawmakers and some Trump allies to raise doubts about the impartiality of the Mueller investigation. In order to paint the effort as tainted by anti-Trump bias, critics of the probe have seized on the political ties and contribution history of several of Mueller's deputies, as well as text messages critical of Trump allegedly exchanged by FBI agents assigned to the case.

Two ethics experts contacted by POLITICO said they were troubled that the Justice Department wasn't more forthcoming about the basis for Mueller's waiver.

"I think it's strange they're not providing the reasoning," said Kathleen Clark, a law professor at Washington University in St. Louis. "I don't understand why they wouldn't share it, especially given the current sensitivity of the issue and the way members of Congress are politically trying to undermine this investigation. ... Since the whole point of this regulation is to ensure public confidence in Mueller's impartiality, the Justice Department's refusal to provide its reason — I'm not saying they can't do it legally — but it seems inconsistent with the purpose of the regulation."

"I think it's sloppy," said Richard Painter, a former White House ethics lawyer under President George W. Bush. "The conspiratorial side of me thinks somebody at Justice is not giving you the explanation for the waiver because they want to create the impression that Robert Mueller has a problem when Robert Mueller doesn't have a problem. ... This is going to lead to Fox News conspiracy talk."

The Justice Department appears to have been more forthcoming with explanations of waivers granted to other officials. In May, Justice released a batch of ethics waivers granted to Noel Francisco in travel ban litigation despite his former law firm Jones Day's entry into that legal fight. The memos were released in response to a lawsuit filed by the liberal watchdog group American Oversight. Other ethics waivers the agency has released over the years also seem to consist of a recommendation and approval, with both documents made public together.

A spokesman for Mueller's office offered no comment on the issue.

However, a Justice Department official defended the withholding of the waiver request for the special counsel.

“The memo is protected by the deliberative process privilege (Exemption 5 of the Freedom of Information Act). This is in contrast to the communications related to the Francisco waiver, in which the deliberative discussions were expressly adopted by the decision maker," the official said.

Courts have held that when a government official invokes an adviser's recommendation, that proposal becomes a part of the final decision that must be disclosed under FOIA. When the official's decision doesn't expressly cite the recommendation, it can typically be withheld, although the department is not obligated to keep the recommendation under wraps.

About a week after Mueller's appointment in May, Justice Department spokeswoman Sarah Isgur Flores said he had been cleared for his new post by ethics officials, but her statement was vague and did not identify who gave that approval.

"Government ethics regulations permit the Department of Justice to authorize an employee to participate in a matter where their former employer represents a party," Flores said on May 23. "While we cannot confirm or deny the applicability of the regulation to the matters to which Special Counsel Mueller was appointed, we can confirm that the Department ethics experts have reviewed the matters and determined that Mr. Mueller’s participation in the matters assigned to him is appropriate."

At the time the waiver was signed, the Justice Department had not publicly confirmed any investigative interest in Manafort or Kushner. Manafort was indicted in October on charges, including money laundering and failing to register as a foreign agent for Ukraine. Kushner was reportedly questioned by Mueller's team last month but has not been charged.

WilmerHale officials have said that when Mueller worked at the firm he had no role in representing Manafort or Kushner.

CNN reported in September that while at WilmerHale, Mueller worked very briefly for a company involved in a nuclear energy project championed by Michael Flynn, the retired Defense Intelligence Agency chief who would go on to serve for less than a month as Trump's national security adviser. It's unclear whether the one-sentence waiver finding from Schools covers what was reported to be less than half an hour's work Mueller billed to the firm, IronBridge.

Earlier this month, Flynn pleaded guilty to making false statements to the FBI in the course of the investigation Mueller is now heading. The former national security adviser, who has agreed to cooperate with prosecutors, is awaiting sentencing.

Painter said that granting the waiver to Mueller was necessary and appropriate, in part to head off gamesmanship among those targeted by Mueller's investigation.

"This is a no-brainer to get the waiver," Painter said. "If you didn’t give this waiver, even if Wilmer didn't represent anyone at all when he took the job, all a defendant would need to do is hire WilmerHale and they would know Mueller is out of the case. ... He needs to control the whole investigation in order make it impossible for people to game the system."