Special Counsel Mueller Must Recuse from Comey Part of Inquiry


June 11, 2017

The law is clear: Special Counsel Robert Mueller must recuse from any Comey-part of his special counsel inquiry. As the Department of Justice itself promises the world, “No DOJ employee may participate in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution, or who would be directly affected by the outcome.” A personal relationship “means a close and substantial connection of the type normally viewed as likely to induce partiality.” This requirement derives directly from section 45.2 of the Code of Federal Regulations. The law reads the requirement of recusal as mandatory: Mueller “shall” recuse from the Comey part of the inquiry if Mueller has a “personal relationship” with Comey.

This is where the ethical concern arises: a partial prosecutor will favor one party over another due to their personal relationship with one of those parties. To assess the Comey-connected issues requires review of Comey’s behavior, assessment of Comey’s intent, and judgment of Comey’s credibility. According to published media reports and near unanimity of those who know both, Mueller enjoys an “unusual friendship” with Comey in their closeness. Their actions as public servants particularly “deepening a friendship forged in the highest levels of the national security apparatus.” To many Trump supporters, that sounds like a Deep State alliance forged in the fires of another more unearthly place. The public articles read more like a modern bromance, that “stretches back over a decade” of closeness and simpatico sentiments toward and for one another’s “shared” perspectives...