We, the People: A radical idea that must persist
For Mueller, a question of three conflicts
As the special counsel investigation surrounding President Trump goes on, we still don't know what evidence Robert Mueller and his team have amassed behind closed doors. It's entirely possible they have built a strong case that Trump illegally conspired with Russian President Putin, which Trump's critics have long claimed but which Trump denies.
If the New York Times' list of questions that Mueller wants to ask Trump is accurate, however, it's hard not to notice that Mueller is treading in waters in which he - the special counsel - may have at least three serious conflicts of interest.
The first area has to do with Mueller's reported inquires into Trump's alleged desire to terminate Mueller himself as special counsel, as well as Trump's firing of Mueller's longtime friend and colleague, former FBI director James Comey.
Think of it this way: You're the boss at a company and decide to fire an important manager. Maybe you believe he acted improperly, conspired against you, or is simply not the right man for the job. He's unhappy you fired him. Now imagine the fired employee - or his good friend and colleague - is awarded the power to judge and assess your motives regarding that firing and other matters. Would it be fair to have the very people who feel wronged be put in charge of determining your fate?
Mueller garners a great deal of respect from many in politics, the law and media. But no matter how close to perfect an investigator might be, it may not be reasonable to expect him to be able to completely set aside his feelings on matters of his own position or the treatment of a longtime friend and colleague.
This question isn't unique to this case. As discussed in an article in Boston College Law Review, "Rethinking Prosecutors' Conflicts of Interest," legal scholars Bruce Green and Rebecca Roiphe write that "prosecutorial conflicts are ubiquitous" and "ought to be taken seriously ... They threaten prosecutors' exercise of discretion in all cases and pose multiple threats in some cases." The authors also raise conflicts arising from "institutional ties, that may distort prosecutors' ability to ascertain and pursue the public interest."
That brings us to a second area of possible conflicts of interest. Mueller's institutional ties would seem to be relevant in a case whose counterpoints rest largely on the institution's own alleged misbehavior. By that I mean some in the intelligence community and the Department of Justice allegedly conspired to "get Trump," promulgated and leaked questionable "intelligence" that turned out to be political opposition research, and exploited the government's most intrusive surveillance authority to spy on Americans who were tied to Trump during the presidential campaign. Mueller was an integral part of this very "community" for the better part of three decades.
A third possible conflict of interest involves the case's entanglements with two of the people instrumental in Mueller's appointment as special counsel. Though we didn't know it at the time, it was his old friend Comey who secretly leaked - or gave - information to the New York Times to spur the appointment. And Mueller's actual appointment was made by Deputy Attorney General Rod Rosenstein, who we now know signed his name to at least one of the controversial wiretaps against a Trump campaign associate. To make matters more complex, Rosenstein is the one who provided President Trump a strongly worded memo supporting the decision to fire Comey - an act for which Mueller also apparently is investigating Trump.
If Trump illegally colluded with Russia, these three perceived conflicts might seem to be little more than footnotes to what would be one of the biggest stories of our time. But if there turns out to be scant evidence that Trump broke the law, then a fair legal mind would have to turn his attention to those who might have conspired to make it seem as though he did. Can Mueller be counted on, if necessary, to look in an uncomfortable direction toward friends, colleagues and those who are responsible for his own appointment?
But the perception of a single conflict of interest can be considered serious enough to trigger a lawyer's responsibility to recuse or excuse himself. One could argue that Mueller's perceived conflicts are equal to if not more direct than those that led Attorney General Jeff Sessions to recuse himself from any Russia probes. Mueller's failure to publicly address his own conflicts in the case as he continues work may provide the biggest question mark on his ability to remain impartial.
In "Rethinking Prosecutors' Conflicts of Interest," the authors state that issues invariably arise over a prosecutor's "failure of disinterestedness." Mueller may be a fair, aggressive prosecutor. Yet, to some, it would appear that he is most interested, indeed.
Sharyl Attkisson (@SharylAttkisson) is an Emmy-award winning investigative journalist, author of The New York Times bestsellers "The Smear" and "Stonewalled," and host of Sinclair's Sunday TV program "Full Measure."