The media is reporting that President Donald Trump’s legal team is investigating possible conflicts of interest by former FBI Director Robert Mueller. Today I ran a column in USA Today on those conflicts of not just Mueller but Deputy Attorney General Rod Rosenstein. I have great respect for Mueller but I believe it was a mistake of Rosenstein to select him given his history with Comey and his reported interview with Trump for Comey’s job. Nevertheless, as I have stated since this story broke this morning, I am very concerned with any concerted effort to investigate the investigators. Such an approach is less evidence of a strategy as a spasm. Clearly, defense counsel has a right — if not an obligation — to raise any known conflicts of interest with the Justice Department. Yet, such investigations can easily get out of hand and can trip legal wires if aides are too aggressive in investigating the investigators.
Both The Washington Post and The New York Times reported that the Trump legal team is looking for ways to “undercut” Mueller on conflicts with his investigation. President Trump told the New York Times that he has evidence of multiple conflicts by Mueller that he might release. It was a highly disturbing interview since it sounded like a clear threat to an investigator. If Trump has such evidence, he should release it — not threaten an investigator with the possibility of a release.
The coverage also says that Trump is looking into whether he can pardon himself or others. The issue of a self-pardon remains a long-standing debate among constitutional scholars with good-faith arguments on both sides. Article II does not expressly bar a self-pardon and most academics probably favor the unfettered interpretation.
The Trump legal team needs to proceed extremely cautiously with any investigation of Mueller or his staff. An over-zealous aide can easily trip a legal wire, including obstruction, in a pursuit for such information. Having said that, it is not uncommon for defense counsel to raise conflicts as part of guaranteeing a fair process for their clients.
This should not be the focus of the legal team. This White House is in desperate need of a strategy, not more tactical moves. Their are plenty of people examining both sides of this investigation. If the team has evidence of the conflicts referenced by the President, they should raise those conflicts with Main Justice. Otherwise, there is much work to be done and diminishing time to do it.