Mueller Should Recuse Himself From Obstruction of Justice Inquiry

For the same reason Jeff Sessions recused himself from the Russian Investigation, 28 CFR 45.2, Robert Mueller needs to recuse himself from the Obstruction of Justice investigation.

28 CFR 45.2 Disqualification arising from personal or political relationship.

(a) Unless authorized under paragraph (b) of this section, no employee [including Special Counsel] 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; [e.g. James Comey] or

(2) Any person or organization which he knows has a specific and substantial interest that would be directly affected [e.g. James Comey] 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) ….

(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.

Firstly in my humble opinion Mr. Mueller should not have been considered for the Special Counsel based on:

  1. The law firm in which he is a partner represents potential subject/witnesses of the investigation; Paul Manafort, Ivanka Trump and Jared Kushner.
    1. Other Wilmer Hale Partners:
      1. Thomas Mueller, relative?
      2. Joseph J. Mueller, relative?
  2. He has resigned his partnership, but has he divested his ownership (financial interest) position?
  3. He interviewed, with President Trump, for the directorship of the FBI, the day before his appointment as Special Counsel, presumably knowing that his appointment as Special Counsel was imminent.

DOJ ethics officials have cleared his prior employment at WilmerHale, as not being a conflict.

Again, in my humble opinion, he should recuse himself from the obstruction of justice (Flynn investigation and Comey firing)

He has a long working and social history (mentorship/friendship) with James Comey, a key figure in the obstruction of justice inquiry.   This certainly brings into play 28 CFR 45.2.b.2 “… an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.”  If charges of obstruction of justice re: Mike Flynn are brought Mr. Comey has potential legal jeopardy for failing to notify his superiors.   If the obstruction was the firing of Mr. Comey, he is again a central figure in the investigation and a key witness.

Additionally the DOJ official he reports to, Deputy Attorney General Rod Rosenstein, is embroiled in the Comey firing.  As such he should also recuse himself.

June 19th Update

Jared Kushner’s attorney at Wilmer Hale is effectively recusing herself, does she perceive an ethical issue with the DC Bar :

“After the appointment of our former partner Robert Mueller as special counsel, we advised Mr. Kushner to obtain the independent advice of a lawyer with appropriate experience as to whether he should continue with us as his counsel,”

Shouldn’t Mueller have a reciprocal ethics issue?