The legacy media (of course) has focused on all the evidence Robert Mueller considered in his report about whether President Donald Trump obstructed justice during the Russian (non)collusion investigation, questioning whether the special counsel made the right decision not to prosecute the Commander-in-Chief.
Perhaps most significant among that evidence is the claim that Trump wanted former White House counsel Don McGahn to have Mueller removed as special counsel, because of conflicts of interest, then asked McGahn to deny to the media that the president asked him to fire Mueller.
There are disputes in the testimony between witnesses, which is why Mueller didn’t move forward with a “prosecutorial decision” on that point (or on any other). But setting aside the analysis about what happened, and interpreting it under the law, there is one question that is not being addressed:
What about Mueller’s conflict(s) of interest?
There was at least one that has been officially recognized, because Mueller and the Department of Justice have admitted it. The American people just haven’t been told what it is, because DOJ is keeping it a secret.
National Legal and Policy Center filed a lawsuit on Wednesday against DOJ to force the release of the document that identifies the conflict(s) of interest for which Mueller received an ethics waiver from the department, so he could serve as Special Counsel. As NLPC President Peter Flaherty reported:
Justice Department foot-dragging on a Freedom of Information Act (FOIA) request filed by NLPC in September 2018 necessitated the suit. We asked for all records pertaining to the appointment of Mueller to be Special Counsel by Deputy Attorney General Rod Rosenstein on May 17, 2017. The Justice Department regulations governing appointment of Special Counsels require a “detailed review of ethics and conflicts of interest issues” of any individual who is under consideration.
NLPC has already received a Justice Department document confirming that Mueller had a conflict, but it is withholding another saying what the conflict was about.
DOJ is withholding the document under a “deliberative process privilege” under the FOIA.
Mueller’s report published yesterday by Attorney General William Barr cites one incident, which was initiated by a January 25, 2018 New York Times article that reported Trump ordered McGahn to “fire” Mueller because of three alleged conflicts of interest that disqualified him from running the Russia investigation. The newspaper — citing anonymous sources as it often does — reported:
First, [President Trump] claimed that a dispute years ago over fees at Trump National Golf Club in Sterling, Va., had prompted Mr. Mueller, the F.B.I. director at the time, to resign his membership. The president also said Mr. Mueller could not be impartial because he had most recently worked for the law firm that previously represented the president’s son-in-law, Jared Kushner. Finally, the president said, Mr. Mueller had been interviewed to return as the F.B.I. director the day before he was appointed special counsel in May.
McGahn reportedly refused to terminate Mueller, saying he would quit instead of instigate what he considered another “Saturday Night Massacre” akin to Richard Nixon’s demand that Justice Department officials fire special prosecutor Archibald Cox during the Watergate scandal. After Trump asked McGahn to dispute the article about the claim that he demanded Mueller’s removal, McGahn refused, saying the article was accurate on that point at least. Mueller’s report goes on to detail disagreements between McGahn and the President about whether he really said to “fire” Mueller, and other fallout from the incident.
But was the president justified in at least questioning whether Mueller had proper judgment and oversight authority due to the conflicts of interest cited in the New York Times article? More importantly, was one of those reasons the conflict cited as the reason for the waiver granted by DOJ so Mueller could serve as Special Counsel? Or is there another conflict cited in the document that no one is talking about?
“The ethics waiver exemption granted to Mr. Mueller on May 18, 2017…could only be granted under DOJ regulations if there was a finding that his participation in the Russia election interference investigation ‘would raise a question in the mind of a reasonable person about his impartiality’,” NLPC’s complaint states, citing the FOIA statute addressing conflicts of interest.
“Because the two-page recommendation memorandum justifying the ethics waiver was withheld in its entirety,” the complaint continues, “the public does not know which…reasons were invoked to authorize Mr. Mueller’s conflicts waiver.”
Democrats, including House Judiciary Committee Chairman Jerrold Nadler, House Intelligence Committee Chairman Adam Schiff, and House Oversight and Government Reform Chairman Elijah Cummings, have all demanded transparency about the Mueller report and its underlying evidence in their efforts to hold the executive branch accountable.
They also should hold their investigator accountable, and demand transparency with regard to all evidence that led to his appointment.