As Scott noted this morning, the Washington Post reports that the “special counsel’s” investigation has widened to include an examination of whether President Trump attempted to obstruct justice. There’s a good chance that the report is based on leaks from Mueller’s team.
Whatever the source of the leaks, the purpose seems obvious — to make it more politically costly for Trump to fire Mueller. If he sacked Mueller, Trump could no longer say, as he did when he sacked Comey, that he’s not a target of the investigation.
If any of the leaks come from Mueller’s team, as seems likely, this would confirm that he’s just another Washington “power player” — a “very DC animal,” as one source told me — like his good friend Jim Comey. I’ve always doubted the notion that Mueller is an above reproach, agenda-less, play it straight guy. Indeed, I’m not sure that specimen exists in Washington.
In any event, now that we know Mueller is investigating Trump for obstruction of justice, the conflict of interest arising from his close relationship with Comey becomes more acute. As I’ve argued before, Comey will surely be at the heart of any investigation of alleged obstruction by the president. I question whether Mueller can fairly investigate claims in which his friend figures so centrally. I’m certain he cannot do so without at least the appearance of partiality.
Andy McCarthy argues that “too much is made of Mueller’s being pals with Jim Comey.” But the two are more than just pals who enjoy a “cordial relationship” (as Andy puts it). They were comrades-in-arms during the events that made Comey’s career — the showdown with the Bush administration over reauthorizing a key surveillance program. And Comey’s gushing testimony about Mueller evinces a warm and deep relationship.
McCarthy says it’s unlikely that Comey will be a witness in Mueller’s probe and, if he becomes one, “we can trust Mueller at that point to apply the relevant ethical rules and decide. . .whether his recusal is required to avoid the appearance of impropriety.”
Yesterday, when McCarthy published this, there was no indication that Mueller is investigating the president for obstruction of justice. Now, if the Post’s report is correct, we know that Mueller is. This places Comey front-and-center, not because his testimony makes out a legitimate case of obstruction in what Comey has alleged, but because it almost certainly is part of the basis for the case of obstruction — legitimate or not — that is being investigated.
In my view, then, we are at the point where Mueller must decide whether his recusal is required to avoid the appearance of impropriety. He may already have decided that recusal is not required.
I don’t trust him to make the right decision. His interest, I suspect, is in remaining the ultimate non-elected Washington power player. In addition, it’s hard to imagine him telling his recently-assembled dream team, “sorry folks, I’m done here.”
We frequently hear that if President Trump were to fire Mueller, it would trigger a “constitutional crisis.” Maybe. For sure, Trump’s enemies would say so.
But suppose in a year or two (or maybe during the 2020 election season), Mueller decides — based on the work and recommendations of leftists like Michael Dreeben and Clintonistas like Jeannie Rhee — to find that the president of the United States obstructed justice, thereby triggering impeachment. Might not that create a constitutional crisis?
Trump’s enemies would call it a vindication of the Constitution, not a crisis. But many others would regard it as something like an attempted coup.
In our fractured polity, there is no consensus about what amounts to a constitutional crisis (or perhaps even whether there’s anything wrong with one). It’s always a question of whose ox is gored.
For Trump, the Mueller question comes down to take pain now or (very possibly) take pain later. The pain Trump would take now for firing Mueller is certain. If he doesn’t fire Mueller, he might not take pain later, but if he does, the pain will be more severe.