Robert Mueller

  • June 13, 2017

    by Dan Froomkin

    Attorney General Jeff Sessions has never been clear about what exactly he has recused himself from.

    He has arguably violated it at least once already, by participating in the firing of FBI Director James Comey.

    Expectations are mounting about special counsel Robert Mueller's investigation of connections between the Trump campaign and Russia. But if and when Mueller decides to press criminal charges against top Trump officials – not to mention Trump himself -- the pressure to shut him down will become immense.

    How Sessions defines his recusal going forward, therefore, could be hugely consequential should Sessions manage to keep his job and should Mueller manage to do his.

    Senators on the Intelligence Committee will get a chance to question Sessions today, and they could do worse than focusing on that recusal and what he is willing to say it means.

    Specifically, they should get Sessions to say on the record whether or not he is recusing himself from any and all matters that fall under Mueller's remit going forward -- as well as promising not to fire Mueller or any member of his team.

    The attorney general's official recusal statement on March 2 was an oddly-worded exercise in obfuscation. "I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States," Sessions said.

  • June 9, 2017

    by Dan Froomkin

    Special counsel Robert Mueller is now investigating whether Donald Trump's conduct toward former FBI Director James Comey constituted obstruction of justice.

    Comey made that pretty clear on Thursday during his testimony to the Senate Intelligence Committee. "I don't think it's for me to say whether the conversation I had with the president was an effort to obstruct," he said. "That's a conclusion I'm sure the special counsel will work towards to try and understand what the intention was there, and whether that's an offense."

    Asked again, Comey replied: "I don't know, that's Bob Mueller's job to sort that out."

    What is less clear is how enthusiastically Mueller, whose mandate is to investigate the wider issue of Russian interference with the 2016 presidential election, will explore that particular topic – and, if he reaches the conclusion that Trump did indeed obstruct justice, what he can do about it.

    On Friday afternoon at a press conference, Trump accused Comey of lying about their conversations and, in an unwitting endorsement of Mueller's investigation, said he would be "100 percent" willing to be deposed by Mueller under oath.

    "I would be glad to tell him exactly what I just told you," Trump said, raising the possibility that he could end up being accused of perjury as well as obstruction of justice.

    At the American Constitution Society (ACS) convention, running from Thursday through Saturday, top progressive lawyers said Trump's behavior certainly appears to constitute obstruction. They said they hope Mueller investigates Trump's conduct vigorously, with plenty of subpoenas and interviews.

    "I think certainly the role of the president in an effort to potentially obstruct the investigation is a critical part of any investigation about Russian efforts to influence the election," ACS President Caroline Fredrickson said.

  • May 24, 2017
    Guest Post

    by Dan Froomkin and Caroline Fredrickson

    Robert Mueller's appointment as a special counsel to oversee the Justice Department's investigation of Russia's interference in the 2016 presidential election does not in any way preclude muscular congressional oversight into the matter.

    Nor does it give congressional witnesses carte blanche to duck questions they do not feel like answering in public.

    Within hours of the announcement about Mueller, Republican members of Congress started using his leadership of the investigation as an excuse to stand down.

    “You’ve got a special counsel who has prosecutorial powers now, and I think we in Congress have to be very careful not to interfere," Sen. Lindsey Graham (R-S.C.) told reporters on Thursday. "Public access to this is probably going to be very limited now. It’s going to really limit what the public will know about this.”

    And one of several congressional witnesses-in-waiting cited Mueller as an excuse not to answer even basic questions from his ostensible congressional overseers. Deputy Attorney General Rod Rosenstein, who played a highly controversial role in Comey's firing, briefed Senate and House members last week -- in a closed session, despite the lack of any discussion of classified material.

    “Basically any question of any substance, it was, ‘I can’t comment because it may be the subject of an investigation by Mueller,’ ” Sen. Jeff Merkley (D-Ore.) told the New York Times.

    Rep. Lloyd Doggett (D-Teaxs) said in a statement that "the most frequent answer I heard to questions from members of either party was 'I cannot answer that question.' He declined to answer any question concerning his personal conduct, motivation, or the circumstances of the firing of FBI Director James Comey, indicating that even this could be within the scope of the Mueller investigation."

  • May 28, 2009
    Guest Post

    By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.
    In what can only be described as results oriented decision-making of the worst sort, a divided Supreme Court in Ashcroft v. Iqbal, went the extra mile to protect high-ranking federal officials from accountability for their unlawful conduct. The case involved a Bivens damage action by Javaid Iqbal, a former inmate of a super-max prison in New York, alleging that a number of federal officials, including Attorney General John Ashcroft and FBI Director Robert Mueller, violated his rights under the First and Fifth Amendments when they created a policy that assigned Iqbal to a harsh-treatment detention facility solely because he is an Arab Muslim.

    In reversing the ruling of the Second Circuit, the Court's five most conservative members ignored precedent and reversed longstanding policy in a head-long rush to protect Ashcroft and Mueller (right) from answering for their discriminatory actions. In the process the Court ended all supervisor liability for federal officials under Bivens even though various forms of such liability were conceded by the Government and recognized by all federal circuits that had addressed the issue.

    The majority did not stop, however, with protecting supervisory federal officials from constitutional accountability. The opinion, written by Justice Kennedy, went further and also found that even if, as alleged by Iqbal, Ashcroft and Mueller were not acting as mere supervisors, but were personally involved in designing a intentionally discriminatory policy, such allegations were insufficient under Rule 8 to state a claim because they were too general to be afforded the assumption of truth when ruling on a motion to dismiss. Using its newly minted "plausibility" test for interpreting Rule 8's notice pleading standards, the majority, in effect, required Iqbal to do the impossible and include behind-the-scenes factual detail in his complaint to withstand a motion to dismiss. This one-two punch - no supervisor liability and a new Rule 8 plus pleading standard requiring factual detail known only to the government - will place most high-ranking federal officials beyond the reach of judicial remedies for constitutional violations.