The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Republican officeholders, pro-Trump partisans and anti-anti-Trump commentators have become increasingly shrill in their critiques of special counsel Robert Mueller and his investigation into whether the Trump campaign colluded with Russia to influence the U.S. election. Some concerns raised about the investigation are reasonable, but the overall thrust of the attacks—that there is something improper or illegitimate about the investigation—miss the mark.
Over at the Washington Post, former federal prosecutor and National Review contributing editor Andrew McCarthy offers a useful and sober critique of Mueller's investigation thus far and the anti-Mueller claims. His bottom line: "while there is cause for concern, the results Mueller has produced so far appear free of political taint." Further, as McCarthy notes, in the case of an FBI agent who sent texts suggesting potential bias, "Mueller was scrupulous about removing what was, at the least, the appearance of impropriety."
McCarthy's piece stresses an important point: The expression of political opinions by investigators or prosecutors is not enough, by itself, to create the appearance of impropriety. He writes:
That appearance is not established by mere expression of political opinion or activism. I was a federal prosecutor in New York for many years, and I was not shy about sharing my conservative political views. Nor were my colleagues — my best friends in the office were liberal Democrats. But it was understood that our politics were checked at the door.
It is required, though, that they remain ever-mindful that the appearance of fairness is as important as the reality. That doesn't mean opinionated investigators must bow out of politically fraught cases. But they should grasp what makes a case so fraught and remove themselves if particular views they hold could undermine an investigation.
As McCarthy notes further, Mueller's appointment was heralded when it was made because of his sterling reputation. While Mueller may not have been as quick as McCarthy might like to address misperceptions of how his office has acted—particularly with regard to one of his deputies who praised then-acting Attorney General Sally Yates' political posturing on the Trump Adminsitration immigration Executive Order—there is no reason to believe the investigation is tainted or that it has become a political witchhunt.