But now the White House and its allies may be preparing to claim that former FBI director Robert S. Mueller III has conflicts of interest that prevent him from assuming his role as special counsel in the Trump-Russia investigation. Like so many of their other ethics claims, this one does not hold up.
Their first argument is that Mueller must stand down from the investigation for at least a year because lawyers in the law firm from which he just resigned, WilmerHale, represent Jared Kushner and Paul Manafort, two people who may be involved in the investigation. It appears, however, that Mueller never represented either of these individuals nor obtained any confidential client information about either of them. Under the professional conduct rules of the District of Columbia, among the toughest in the nation on lawyers moving in and out of government, Mueller is free to leave the firm and, as special prosecutor, investigate and if appropriate prosecute either of these individuals represented by his former firm.
This makes perfect sense. Otherwise, a person involved in an investigation could hire one of Washington's largest law firms (WilmerHale has hundreds of attorneys) and thereby prevent the Justice Department, including the special counsel's office, from hiring any of that firm's lawyers to investigate or prosecute him or any of his co-conspirators. With so many Trump administration officials potentially tangled up in this investigation and lawyering up all over Washington, such a recusal rule could make it extremely difficult for the special prosecutor to hire a staff.
According to press reports, the Trump administration is contemplating using ethics rules primarily intended for government officials who are not lawyers — and thus are not subject to other ethics rules — to block Mueller's investigation of the Trump-Russia scandal. Under these ethics rules of the Office of Government Ethics and a related Trump executive order, a government official should not, without prior approval, participate in a particular matter in which his former employer is involved. For example, a Defense Department official who came to government from defense contractor Lockheed Martin should not, without authorization, be allowed to work on a Lockheed defense contract for at least a year after leaving the company.
In many such situations, the Trump administration has apparently given its prior approval for its political appointees to participate in particular matters in which their former employers are parties or represent parties. These approvals have so far been kept secret, and the Trump administration is resisting a request by the Office of Government Ethics for access to the waivers.
Ironically, it is in just such a situation as the Mueller case — if the government officials involved are lawyers and therefore subject to bar ethics rules on the revolving door — that a conflicts waiver would be appropriate. If the White House were to resist granting such a waiver for Mueller and his staff while secretly approving waivers to lobbyists and others, that action would represent not only an abuse of government ethics rules but also yet another data point in an emerging pattern of obstruction of justice.
It should also be noted that Trump's ethics executive order relating to the Office of Government Ethics regulations does not on its face even apply here. That order, a watered-down version of one promulgated by President Barack Obama, extends the recusal rule for entering Trump appointees another year, to two years. But it applies only to political appointees, which Mueller of course is not.
Another supposed conflict involving Mueller is equally specious: that because Mueller and Comey worked together extensively in the past, the special counsel is inclined to be sympathetic to Comey's version of events and credit that over Trump's conflicting account. Fox News's Gregg Jarrett contended that Mueller should resign because he "may harbor a conspicuous bias" stemming from his friendship with Comey. "It is reasonable to assume Mueller was not pleased to see Comey canned," Jarrett wrote. "He may be tempted to conjure criminality where none really exists."
This argument is ridiculous. Prosecutors are not precluded from an investigation because they have previously worked with defendants or witnesses in unrelated matters. Nobody heard of such an "ethics" rule until it was invented for purposes of derailing the Mueller investigation.
These attacks on Mueller are instances in which ethics is being turned on its head — not to protect the integrity of government but to undermine it. That cannot be allowed to succeed.