Outgoing FBI Director Robert Mueller breaks into laughter when asked if he considers his investigation to be either fair or impartial.(AP Photo/Evan Vucci)

 

I’ve been a skeptic of Robert Mueller as special counsel from the very beginning. I think his former position as FBI director and patron of James Comey make him hopelessly conflicted because any part of a fair inquiry has to examine how the FBI got the Trump dossier, how it used it, and its financial relationship with the author, Christopher Steele. James Comey, Mueller’s old agency, and a lot of his friends and colleagues need to answer questions and a former FBI director is not the guy to make that happen with credibility.

Admittedly, most of the critique is partisan (full disclosure: I’m a partisan) with pro- and anti-Mueller positions largely a marker for one’s views on whether Mueller’s investigation is legitimate or a sham stalking horse for an impeachment attempt. So, when something like this comes from Politico and not from Fox, you really need to sit up and take notice:

The Justice Department is refusing to reveal details of the process that led up to former FBI Director Robert Mueller being granted an ethics waiver to serve as special counsel investigating the Trump campaign’s alleged collusion with Russia during the 2016 presidential election.

In response to a POLITICO Freedom of Information Act request, the agency released a one-sentence memo Friday confirming that Mueller was granted a conflict-of-interest waiver in order to assume the politically-sensitive post.

However, the document signed by Justice’s top career official, Associate Deputy Attorney General Scott Schools, provides no detail at all of the grounds for the waiver. In fact, it’s so vague that it doesn’t even convey why anyone would think Mueller needed such a release.

“Pursuant to 5 CFR 2635.502(d), I hereby authorize Robert Mueller’s participation in the investigation into Russia’s role in the presidential campaign of 2016 and all matters arising from the investigation,” Schools wrote in the “authorization” signed on May 18, one day after Deputy Attorney General Rod Rosenstein formally appointed Mueller to the position.

The agency’s Justice Management Division said it located a two-page “recommendation memorandum” in response to POLITICO’s request, but was declining to release that on grounds it would interfere with the deliberative process inside the department.

There are a lot of very curious parts here.

Why does Mueller need a conflict of interest waiver? His firm represented Paul Manafort, but Mueller was not part of that.
Who requested the waiver?
Department of Justice has released other waivers, why not this one?

The most curious part of this is that it appears that Mueller’s waiver was constructed so that it would be immune to FOIA release:

“The memo is protected by the deliberative process privilege (Exemption 5 of the Freedom of Information Act). This is in contrast to the communications related to the Francisco waiver, in which the deliberative discussions were expressly adopted by the decision maker,” the official said.

Courts have held that when a government official invokes an adviser’s recommendation that proposal becomes a part of the final decision that must be disclosed under FOIA. When the official’s decision doesn’t expressly cite the recommendation, it can typically be withheld, although the department is not obligated to keep the recommendation under wraps.

What this means is that the memorandum that serves as the basis for Mueller’s need for a waiver describes the problem and implications but does not make a recommendation. Essentially, the problem was presented to Rosenstein and left to him to make a decision.

None of this makes a whole lot of sense. One would think both Mueller and Justice would have a vested interest in getting his waiver determination out in the open and stopping speculation. If the waiver is about Mueller’s employment at a law firm representing Manafort, one is befuddled by the secrecy. If it isn’t, one is left to wonder why it is being kept secret.