Robert Mueller, the somber-faced and demanding FBI director who led the bureau through the Sept. 11 attacks, and James Comey, his more approachable and outwardly affable successor, may be poles apart stylistically but both command a wealth of respect in the law enforcement and legal community.
That hasn’t stopped President Donald Trump and his associates from repeatedly trying to draw unflattering attention to their relationship, insinuating a personal bond they suggest could disqualify Mueller from credibly serving as special counsel in charge of the Russia investigation. Most recently, in an interview that aired Friday on “Fox & Friends,” Trump claimed Mueller was “very, very good friends with Comey, which is bothersome.”
The emphasis on their ties, besides being aimed at undermining Mueller’s credibility and the legitimacy of his investigation, could also be an attempt by Trump to make the case for an eventual Mueller dismissal on conflict of interest grounds.
But the truth is more complicated and not squarely on the president’s side.
Mueller and Comey, both known for their integrity and self-assuredness, served closely alongside each other in the Bush administration Justice Department. They played pivotal roles in a 2004 White House confrontation and have spoken warmly of each other over the years, with Comey describing Mueller as “one of the finest people I’ve ever met.” But they’re not known to be especially close friends, and legal experts say whatever connection they do have doesn’t come close to meriting Mueller’s removal.
“Jim has never been to Bob’s house. Bob has never been to Jim’s house,” said David Kelley, who succeeded Comey as U.S. attorney in Manhattan and has known him and Mueller for years. “They’ve had lunch together once and dinner together twice, once with their spouses and again after Jim became the FBI director so that Bob could give him the rundown of what to look for.”
All of that information would have been available to Deputy Attorney General Rod Rosenstein — who himself has known both men for years — when he appointed Mueller last month to run the investigation into potential coordination between Russia and the Trump campaign. That probe is also expected to explore the circumstances of Trump’s firing of Comey on May 9 and whether that dismissal was an attempt to obstruct the Russia probe.
The norms of legal ethics would generally frown upon a prosecutor who investigated a matter in which a friend or relative was a target of a crime. But Comey, though a likely witness, would not be a considered a victim of a crime in the classic sense as the firing in and of itself would not be illegal, said Stephen Gillers, a legal ethics scholar at the New York University law school.
“Although Comey may well be what I call roadkill in the subjects Mueller is investigating, he’s not the victim. His firing has been a consequence of the crime that Mueller is investigating. Their friendship would not require recusing,” he said.
Trump’s efforts to highlight, and exaggerate, their relationship seem by design, as conflict of interest is one of the few grounds for dismissal of a special counsel.
As president, Trump could demand that Rosenstein fire Mueller by citing a conflict of interest, but Rosenstein has said he wouldn’t follow any order that he didn’t think was lawful or appropriate and that he had seen no legitimate basis to dismiss the special counsel. A conceivable argument for conflict of interest could include a family connection or a business tie, none of which is known to exist in the relationship between Mueller and Comey.
“Being workplace acquaintances doesn’t come close to a conflict of interest,” said Northwestern University law professor Steven Lubet.
Comey was selected by President Barack Obama in 2013 to succeed Mueller as FBI director. At a White House ceremony, Mueller praised Comey as a man of “honesty, dedication and integrity,” and Comey repaid the favor minutes later by joking that he “must be out of my mind to be following Bob Mueller.”
Years earlier, Comey was acting attorney general and Mueller the FBI director when both were on the same side of a tense faceoff over the renewal of a sweeping domestic surveillance program.
Comey, in dramatic 2007 testimony that helped cement his reputation for political independence, recalled how he rushed to the hospital to prevent White House officials from trying to coax the ailing John Ashcroft, who’d given the powers of his position to Comey, into reauthorizing the program. He called his chief of staff and told him to get as many people to the hospital as possible.
“I hung up, called Director Mueller and — with whom I’d been discussing this particular matter and had been a great help to me over that week — and told him what was happening,” Comey testified. “He said, ‘I’ll meet you at the hospital right now.'”
Mueller instructed his agents not to allow Comey to be removed from Ashcroft’s room and showed up as promised at the hospital. Comey was prepared to resign from the Justice Department if his concerns were ignored and, he said, Mueller was among the officials willing to leave, too.
Though they were allies that dramatic night, a more relevant takeaway to their supporters is a shared commitment to the rule of law.
“Anybody who knows Bob Mueller knows two things: One, if there were facts that would impede his ability to conduct an investigation that’s beyond reproach, he wouldn’t do it,” Kelley said. “Two, Jim is a witness in this case, one of possibly many. So what’s the point?”
“If that’s the best you’ve got from the White House, really, bring it on,” he said.
Pearson reported from New York.
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