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Can Mueller be more honest than his colleagues?

by Sharyl Attkisson, opinion contributor - 04/22/18 2:45 PM ET

I think it’s entirely possible — likely, in fact — that Robert Mueller is an honest broker and performing his job as special counsel without fear or favor. That he will investigate until he reaches the end of the logical trail and present his legitimate findings accordingly, recommending prosecution of those who may have violated our nation’s laws and betrayed our trust.

But considering the information that’s become available in the past year, we would be remiss if we didn’t at least consider other possible scenarios. Here’s one of them, posited amidst the context of news that has come to light. It has to do with a special counsel probe with the appearance of several important conflicts of interest.

{mosads}There are many excellent agents within our intelligence agencies who deserve great credit and respect. But we also know that some bad actors within those agencies have a daunting record of problems that include lying about evidence; conducting politically-motivated acts; botched terrorism investigations; improper surveillance of private citizens, members of Congress and journalists; providing incorrect information to Congress; and illegally withholding evidence.

When top FBI officials spoke privately of needing an “insurance policy” in case Trump were elected, what if they felt this “policy” were necessary not just because they hated Trump, or because they believed Trump was illegally conspiring with Russia? What if they feared what a Trump administration might uncover within the intelligence agencies … and what the administration might do to take steps to reform them? Go up against the intelligence agencies, and as top Democratic Sen. Chuck Schumer (D-N.Y.) warned, “They have six ways from Sunday at getting back at you.”

Mueller isn’t exactly an unconflicted player in this scenario. He was FBI director from 2001-2013 when many alleged abuses occurred and — theoretically — would have a vested interest in protecting his former colleagues and his own legacy by preventing a Trump administration from poking around into alleged intelligence agency misdeeds.

Another factor to consider is ex-FBI Director James Comey’s admission that he conspired to secretly leak “memos” to the New York Times in hopes of publicly damaging President Trump enough to spur appointment of a special counsel — which seemed to work according to plan. If this was part of an “insurance policy” plan, then it’s possible that the planners also predetermined that the special counsel should — or would — be ex-FBI Director Robert Mueller.

Mueller is not only a friend and colleague of Comey, he personally knows and employed key players who are accused of improper behavior or wrongdoing surrounding the Trump-Russia narratives and probes. Former Deputy FBI Director Andrew McCabe, accused of lying by the Justice Department’s inspector general, worked under Mueller. So did fired FBI general counsel James Baker.

Mueller also worked with then-Director of National Intelligence James Clapper, who provided incorrect testimony to Congress about surveillance of American citizens that is linked to allegedly politically-motivated surveillance and “unmaskings,” and who has proven to be a vehement foe of President Trump.

Further complicating Mueller’s perceived status as a neutral investigator (under this scenario) is the fact that he named at least two conflicted players to his Trump-Russia investigative team: lovers Peter Strzok and Lisa Page. According to reports, the FBI couple was only removed from Mueller’s team after the Office of Inspector General discovered their text messages apparently calling into question their ability to be impartial.

Under normal circumstances, if members of a prosecutor’s team get booted for ethics reasons or conflicts of interest, that tends to call into question the entire investigative product to date. In those instances, defendants are typically afforded the chance to challenge the impartiality of the prosecution and argue that the case has been tainted.

But with the Mueller team, the investigation didn’t start over. There was no public discussion about examining and possibly segregating parts of the case that Strzok and Page had touched. No neutral party was invited to arbitrate from an impartiality standpoint.

A conflict of interest — whether perceived or real — is usually treated very seriously under the law. In fact, that’s the whole reason Mueller was appointed; because it was determined that the normal systems were fraught with conflicts of interest.

None of this is to say that Mueller can’t rise above what some would say are perceived conflicts of interest inherent in his own investigation. He may, indeed, be an extraordinary man who can set aside his personal interests, experiences, and relationships with intimately involved colleagues past and present to conduct an impartial and fair probe of a president who some in the intelligence community — it seems — are working hard to undermine.

Sharyl Attkisson (@SharylAttkisson) is an Emmy-award winning investigative journalist, author of The New York Times bestsellers “The Smear” and “Stonewalled,” and host of Sinclair’s Sunday TV program “Full Measure.”