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The Robert Mueller circus rolls on

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Every time I think I am done with the appointment of Robert Mueller as Special Counsel, they pull me back in…

Circa recently published an article detailing Deputy FBI Director Andrew McCabe’s alleged bias against former National Security Advisor and former Director of the Defense Intelligence Agency, Lt. Gen. Mike Flynn. In 2014, an FBI agent filed an EEOC (Equal Employment Opportunity Commission) lawsuit against McCabe and other FBI superiors, claiming that she was sexually harassed. Then-DIA Director Flynn, who knew the agent and had worked with her on counterintelligence investigations, intervened as a reference for the agent.

Fast forward to 2016, when McCabe was the Deputy FBI Director, and “a central player in the FBI’s Russia election tampering investigation, putting him in a position to impact the criminal inquiry against Flynn.” Three FBI employees have claimed that “they personally witnessed McCabe make disparaging remarks about Flynn before and during the time the retired Army general emerged as a figure in the Russia case. The bureau employees… said they did not know the reason for McCabe’s displeasure with Flynn, but that it made them uncomfortable as the Russia probe began to unfold and pressure built to investigate Flynn. One employee even consulted a private lawyer.”

What does this have to do with Robert Mueller? Well, I am glad you asked me this. In my prior column, I noted that the Mueller investigation, which was solely an intelligence investigation, has now grown to include criminal elements as well, involving the case against Flynn. Robert Mueller, of course, was FBI Director from 2001 to 2013. And therein lies the problem. Andrew McCabe has been in the FBI since 1996. He was promoted to be a supervisory special agent at the Eurasian Organized Crime Task Force in 2003, the unit chief of FBI Headquarters in 2006, the assistant special agent in charge of the Washington Field Office’s Counterterrorism Division in 2008, and the first director of the High-Value Interrogation Group in 2009.

Now, let’s look at the conflict of interest rules. The Special Counsel is bound by 8 CFR Section 45.2 (which) provides in part:

Disqualification arising from personal or political relationship.

(a) Unless authorized under paragraph (b) of this section, no employee 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; or

(2) Any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution …

(c) For the purposes of this section:

(2) Personal relationship means a close and substantial connection of the type normally viewed as likely to induce partiality. … Whether relationships (including friendships) of an employee to other persons (outside his or her family) or organizations are “personal” must be judged on an individual basis with due regard given to the subjective opinion of the employee.

So, the question immediately becomes, does Robert Mueller have a personal relationship with Andrew McCabe? The answer is most likely, ‘yes.’ And as FBI Director Mueller approved each of McCabe’s promotions in 2006, 2008, and 2009, which likely means that Mueller thought rather highly of McCabe.

Based on their background, and on the reporting that McCabe has an antagonistic relationship with Flynn, Robert Mueller has a clear conflict of interest if he is going to be investigating, and possibly charging, Flynn. And when you add in his conflict of interest involving former FBI Director James Comey, and the many left-wing attorneys he has recruited to join his office, the whole thing starts to look ridiculous. Just how many conflict of interests are necessary for Robert Mueller to do the right thing, and resign?

Now, every time a person brings up these problems with Mueller, the usual Beltway legal experts lecture us that he is beyond reproach, in every way an ethical and moral giant. But, here is the thing – If Robert Mueller is really like that, then why hasn’t he already resigned, considering that “(e)ven the appearance of a conflict requires recusal under the law”?

 

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Comments

  • Robert Zacharias

    This is interesting and I thank you for exploring these connections.

    I’m trying to understand your main point: I think you’re saying that since McCabe had negative things to say about Flynn in the past, and since in Mueller’s FBI McCabe advanced through successive jobs, that therefore Mueller has a disqualifying personal connection and cannot proceed as Special Prosecutor.

    I believe you’re saying that if A says something disparaging about B, and A knows C, then C cannot serve as a Special Prosecutor whose investigation covers B. One presumes that lots of people know lots of people who have said things about lots of people. On your theory, it would seem that only somebody who hasn’t served at high levels of the federal government, and doesn’t know people who have, would be pure enough to serve as a Special Prosecutor. And that seems to narrow the field to absurdity.

    You quoted Gregg Jarrett’s article, which appears to misquote the relevant section of the statute; the law does *not* require somebody with a substantial personal relationship to recuse themselves, but rather to “report the matter and all attendant facts and circumstances to his supervisor at the level of section chief or the equivalent or higher.” Perhaps Mueller did this required reporting, or perhaps not. He is not, in any case, required to recuse himself in my reading.

    • Robert Zacharias

      Anybody?

      Bueller?