Lawyers frequently say that “you can indict a ham sandwich.” Since grand juries only hear the prosecution side of the case, you are virtually assured of a true bill. Unfortunately, this also applies to special counsels and special prosecutors.
Their investigations frequently evolve into the Salem witch trials, in which rumors, anonymous sources, and innuendos become gospel and good people become crispy critters. “You look like a witch!” is enough to convict. So here’s my take on why Robert Mueller should recuse himself from his duties as special counsel.
I have limited personal knowledge of Robert Mueller. He was my director for a brief period of time just prior to my retirement from the FBI in 2003. But I do have opinions based on his actions.
Mueller diminished the independence of the FBI during his tenure as director. Prior to Mueller’s appointment the FBI opened cases, investigated cases, developed informants, and arrested bad guys. Then we’d visit the U.S. Attorney’s Office and hand them the paperwork. During Mueller’s tenure, the FBI was required to obtain permission from the Justice Department to open certain cases, acquire informants, and receive authority for investigative techniques. It should be noted that attorneys are not investigators. We had separate functions in the criminal justice system until Mueller merged us.
Mueller folded like a cheap suitcase in 2012 when Muslim subject-matter experts demanded the FBI purge thousands of pages in training manuals. They were allowed to remove any references to Islam that at they found offensive. Words and phrases that included the words "jihad," "radical Muslim," etc. were deleted. This action created a politically correct version of the FBI counterterrorism training manual.
Mueller was recently appointed special counsel to review "rumors" of collusion, obstruction of justice, and Russian election interference. But this "review" will probably mutate into a perjury witch hunt of associates of President Donald Trump. The special counsel statute can only be triggered if there's an underlying criminal probe. Rumors do not rise to the threshold of criminal activity.
Mueller and fired FBI Director James Comey are best buds. Family vacations, picnics, hours spent at the office, and a few cocktails after work. As an impartial arbiter Mueller will be tasked to determine whom he believes, but Muelller is predisposed to believe his friend Comey. Wouldn't you? The elements of obstruction of justice can be highly interpretive, so expect some legal exposure for our president.
The daily double of personal and political bonds describes Mueller and Comey's relationship.
Comey stated that he "leaked" the Trump meeting memo to The New York Times to stimulate the appointment of a special counsel. That admission is enlightening. As the Director of the FBI, Mr. Comey had the authority, stature and responsibility to deal with a violation of law. What he appeared to lack is courage or conviction.
The fact that Comey leaked the memo places him in some legal jeopardy. He could be charged with two federal violations. Should we expect to place Mueller into the position to investigate his dear friend? Even if Mueller believes himself capable of being impartial, our hearts will usually override our minds.
Why Mueller should step down as special counsel or recuse himself from any aspect of the investigation involving Comey:
The appointment of Mueller under the special counsel statute is illegitimate. That's because the special counsel statute can only be triggered if there's an underlying criminal probe. News to the world: There ain't no underlying crime.
The law governing the special counsel (28 CFR 600.7) specifically prohibits Mueller from serving if he has a conflict of interest in the case. The rule has been interpreted to mean that even the appearance of a conflict is sufficient for disqualification. A conflict of interest is a situation in which an individual has competing interests or loyalties.
This language seems to be written for this exact situation. The conflict itself creates a clash between that individual's self-interest or bias and his professional or public interest. It calls into question whether he can discharge his responsibilities in a fair, objective and impartial manner. The law also calls for disqualification (recusal) arising from personal or political relationship.
The daily double of personal and political bonds describes Mueller and Comey's relationship. I rest my case.
John Ligato (USMC-retired), is a former deep-cover FBI special agent and author of the new book, "The Near Enemy: A John Booker Thriller." Ligato has been an adjunct college professor, teaching counterterrorism and international security at Campbell University at Camp Lejeune, North Carolina.