Gregg Jarrett: Why Robert Mueller should resign as special counsel

Robert Mueller has a serious conflict of interest that should disqualify him from serving as special counsel. 

He has had a long and close relationship with someone who will surely become a pivotal witness –James Comey. 

No one doubts Mueller’s sterling credentials.  That is not the issue. He is eminently qualified.  The problem arises in his duty to fairly and objectively evaluate the evidence he gathers. 

How can Americans have confidence in the results if they know the special counsel may harbor a conspicuous bias?  They cannot.  The conflict inevitably discredits whatever conclusion is reached.  It renders the entire investigatory exercise suspect, and it only elevates the controversy surrounding it.    

For this reason, Mueller should not serve as special counsel.   

Conflict Defined

The law governing the special counsel (28 CFR 600.7) specifically prohibits him from serving if he has a conflict of interest in the case.  The rule has been interpreted to mean that even the appearance of a conflict is sufficient for disqualification. 

A conflict of interest is a situation in which an individual has competing interests or loyalties.  The conflict itself creates a clash between that individual’s self-interest or bias and his professional or public interest.  It calls into question whether he can discharge his responsibilities in a fair, objective and impartial manner.    

Identical rules govern prosecutors who, for example, must recuse themselves from handling a case against a person with whom they have worked or had a personal relationship.  The same would be true if a prosecutor had a close relationship with a witness in the case.  The prior association raises the real or perceived possibility of prejudice or favoritism which is contrary to the fair administration of justice.

So what exactly is Mueller’s conflict?  He and James Comey are good friends and former colleagues who worked hand-in-hand for years at the FBI.  Agents will tell you they were joined at the hip.  They stood together in solidarity, both threatening to resign…

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