The Justice Department is offering more insight into how it addressed potential conflicts of interest when former FBI Director Robert Mueller was appointed special counsel for the Trump-Russia investigation more than two years ago, but officials are continuing to keep key parts of their internal ethics analysis secret.
A memo obtained Friday by the pro-transparency organization Property of the People shows that a top Justice Department ethics official concluded Mueller’s sterling reputation and lengthy history of federal service meant it was unlikely any reasonable person would doubt his independence.
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The head of DOJ’s ethics office, Cynthia Shaw, suggested such doubts were unlikely. That arguably turned out to be an poor prediction because President Donald Trump, some of his attorneys, and many of his allies made sustained efforts to paint Mueller as a hack carrying out a vendetta against Trump on behalf of Democrats.
“I am not convinced that an authorization is needed, but unequivocally, if one is, the overwhelming need of the Government for Mr. Mueller’s services greatly outweighs the concern that a reasonable person may question the integrity of the Department’s programs and operations,” Shaw wrote in a May 18, 2017, memo to Associate Deputy Attorney General Scott Schools. “I am not certain that a reasonable person in possession of the relevant facts would question his impartiality.”
The key — and perhaps only — ethics issue addressed in the memo is whether Mueller’s work as a partner at law firm WilmerHale created a potential conflict because a Wilmer client was involved in the investigation.
Shaw doesn’t mention the client’s name but it appears to be former Trump campaign chairman Paul Manafort, who was represented by Wilmer partner Reginald Brown before switching attorneys a couple of months before his indictment in October 2017.
Mueller “has not represented the current firm client who may have some involvement in the investigation and has no confidential information pertaining to that client,” Shaw wrote.
WilmerHale also did legal work for the president’s daughter Ivanka Trump and her husband, Jared Kushner, primarily on compliance with federal ethics and financial disclosure laws.
The law firm connection was just one of several purported Mueller conflicts Trump complained about to aides and advisers in the spring of 2017, according to Mueller’s final report. The report said Trump raised such complaints with then-senior adviser Steve Bannon, then-White House counsel Don McGahn and then-chief of staff Reince Priebus.
All three men told Mueller’s team that they pushed back on or resisted requests to act on the alleged conflicts. Bannon called the claims “ridiculous,” while McGahn viewed them as “silly” and “not real.” The issue of the alleged conflicts triggered a major falling-out between Trump and McGahn, as well as a dispute over whether Trump instructed McGahn to have Mueller fired on that basis.
In June 2017, one of Trump’s personal lawyers called Mueller’s office to complain about the alleged conflicts, including Mueller’s work for WilmerHale, according to the special counsel’s report. Around the same time, close Trump friend Chris Ruddy gave an interview to “PBS NewsHour” decrying “real conflicts” for Mueller and specifically mentioning Mueller’s status at the law firm.
Yet, just weeks before the public and private tempest over the issue, the DOJ ethics official concluded there would be no reasonable resistance to Mueller on grounds of his impartiality.
“Mr. Mueller served as Director of the FBI for 12 years,” Shaw wrote. “He served the last two years of his tenure after Congress passed a statute specifically authorizing him to serve two years beyond the statutory term for FBI Directors. He served as Assistant Attorney General for the Criminal Division. He served as U.S. Attorney for the Northern District of California. He has been appointed to positions of responsibility by presidents of both political parties. He has a longstanding reputation for integrity.”
The disclosure of the memo is belated, coming more than two years after Mueller’s appointment and about five months after he closed up shop.
Still, it is something of a breakthrough because the Justice Department often seeks to withhold the rationale for ethics waivers by separating the bare-bones waiver from the underlying paperwork, which is typically treated as a recommendation exempt from disclosure under the Freedom of Information Act.
However, the final two paragraphs of Shaw’s memo are still almost entirely redacted as relating to DOJ’s deliberative process.
Jeffrey Light, an attorney for Property of the People, said the group might press further for those still-secret passages in its ongoing FOIA lawsuit. “The case is still live and my client is still considering how to proceed,” Light told POLITICO.