Bob Mueller Should Recuse Himself. Here’s Why.

Bob Mueller should recuse himself, and Deputy Attorney General Rod Rosenstein should appoint a new special counsel who has similar integrity and independence.

Independence from all elements of the investigation. That is why, as someone who has supported the appointment of a special counsel and the creation of an independent commission in Congress to investigate the Russian cyber attack aimed at disrupting the 2016 election and any collusion between then-candidate Trump’s campaign and the Russian attack, I can no longer in good faith support Robert Mueller leading the investigation, despite my deep faith in his ability to thoroughly investigate the aforementioned Russian attack and potential collusion between Russia and the Trump campaign.

Robert S. Mueller III, Director of the F.B.I. from 2001 to 2013.

Yes, my argument involved fired F.B.I. Director James Comey. It is not, however, based on the naive assumptions of some conservatives who simply believe that Mueller’s friendship with Comey is disqualifying given that the fired F.B.I. director is likely to be called as a witness in the investigation.

I was aware of their friendly relationship and, at the time, supportive of Comey’s disclosure of memos he wrote after his meetings with President Trump, as the disclosure of one of the memos describing the president’s attempt to end an investigation into his former National Security Advisor, Lt. Gen. Michael Flynn, is viewed by many as a turning point in the investigation that led to Rosenstein appointing Mr. Mueller, an appointment which was long overdue.

Recently, however, a report in The Hill casts doubt on whether or not James Comey’s memos were unclassified. In response to questioning regarding classification at a June congressional hearing, Comey said, “My view was that the content of those unclassified — memorialization of those conversations — was my recollection recorded…”

He was responding to a question specifically about the memo he passed on to a friend desrcibing the president’s attempts to end the investigation into Flynn. On it’s face, legal analysts at the time claimed that Comey had not broken any laws or made any unauthorized disclosures that would violate F.B.I. policy, as his memos were unclassified.

The Hill, however, reports that out of seven memos U.S. officials described to them, four contained information that has been marked as confidential or secret, (but not top secret, as the president and Fox & Friends inaccurately claimed). It is unknown whether the memos were retroactively classified or classified at the time they were written. Comey himself acknowledged that some of the memos were written in a classified manner and some, like the Flynn memo, were not, he claimed at the June hearing. That answer, however, does not address the issue of retroactive classification (which many remember from the Hillary Clinton email saga). It also does not address The Hill’s reporting that the F.B.I. considers all of Comey’s memos to be government documents, and F.B.I. rules prohibit the dissemination of information from such documents, as the F.B.I. employment agreement states.

“Unauthorized disclosure, misuse, or negligent handling of information contained in the files, electronic or paper, of the FBI or which I may acquire as an employee of the FBI could impair national security, place human life in jeopardy, result in the denial of due process, prevent the FBI from effectively discharging its responsibilities, or violate federal law. I understand that by being granted access to such information, I am accepting a position of special trust and am obligated to protect such information from unauthorized disclosure.”

I believe James Comey. I trust James Comey. The special counsel’s investigation, unfortunately, will now inevitably include not just calling James Comey forward as a witness, but investigating whether or not information in the memo he shared with a friend who shared its content with The New York Times was confidential or secret at the time it was shared.

The appearance of a conflict of interest due to Mueller’s relationship with Comey has already provided fodder to those eager to undermine the investigation, like the president. An even greater level of conflict has emerged, and while it is sad that our president and many of his supporters have taken to calling the investigation a “Witch Hunt,” additional questions about Mueller’s independence will only serve to embolden such arguments and undermine the integrity of the investigation and its conclusions among the public.

Widespread regard for the fired F.B.I. Director (amongst those who acknowledge the Russian cyber attack and the need for an investigation into Russian meddling and possible collusion with the Trump campaign) must not interfere with the need for a fully independent special counsel. While a friendship between the two men is not in itself disqualifying, even when Comey was a likely witness, the fact that Comey himself must be investigated (and likely fully vindicated), unfortunately leads a neutral observer to the conclusion that Bob Mueller must recuse himself.