Mueller team mem­ber still has du­ties at Trump’s DOJ

Un­usual ar­range­ment raises ethics ques­tions

The Washington Times Daily - - FRONT PAGE - BY ANDREA NO­BLE

One of the lawyers whom spe­cial coun­sel Robert Mueller has hired to in­ves­ti­gate Pres­i­dent Trump is pulling dou­ble duty, still work­ing part time as a deputy so­lic­i­tor gen­eral in the Jus­tice Depart­ment.

The cu­ri­ous ar­range­ment may not pose a di­rect con­flict of in­ter­est, ethics an­a­lysts said, but it does leave Michael Dreeben on a team in­ves­ti­gat­ing Mr. Trump even as he serves as the ex­ec­u­tive branch’s at­tor­ney over­see­ing the Jus­tice Depart­ment’s crim­i­nal docket be­fore the Supreme Court.

“The whole point of the spe­cial coun­sel is to in­su­late him and his staff from the Trump ad­min­is­tra­tion,” said Jonathan Tur­ley, a con­sti­tu­tional law pro­fes­sor at Ge­orge Wash­ing­ton Univer­sity. “Hav­ing one of your chief deputies work­ing si­mul­ta­ne­ously for the spe­cial coun­sel and the so­lic­i­tor gen­eral’s of­fice can cre­ate a rather novel di­vi­sion of la­bor.”

Mr. Dree­ban is the only per­son on the 13-mem­ber team still hold­ing an­other job. All of the lawyers who were in pri­vate prac­tice re­signed from their firms, while gov­ern­ment lawyers plucked from within var­i­ous branches of the Jus­tice Depart­ment have taken leave of their posts and are on full-time de­tail to Mr. Mueller.

Rep­re­sen­ta­tives for both the Jus­tice Depart­ment and the spe­cial coun­sel con­firmed that the Jus­tice Depart­ment ap­proved the ar­range­ment.

“Michael Dreeben is work­ing on le­gal is­sues as a coun­selor in the spe­cial coun­sel’s of­fice while

re­tain­ing cer­tain re­spon­si­bil­i­ties as deputy so­lic­i­tor gen­eral to en­sure con­ti­nu­ity of rep­re­sen­ta­tion of the United States in the Supreme Court,” said Jus­tice Depart­ment spokesman Peter Carr, who de­clined to dis­cuss any steps taken to com­part­men­tal­ize Mr. Dreeben’s dual roles.

He de­clined to com­ment be­yond that, say­ing the depart­ment does not dis­cuss per­son­nel staffing mat­ters.

Mr. Dreeben is a highly re­garded lawyer who has worked in the so­lic­i­tor gen­eral’s of­fice for 28 years, achiev­ing the rare dis­tinc­tion of ar­gu­ing his 100th case be­fore the Supreme Court last year.

Still, ethics an­a­lysts out­lined a few of the ways in which a con­flict of in­ter­est could emerge.

One sce­nario could in­clude a sit­u­a­tion in which Mr. Dreeben ar­gued a po­si­tion for the so­lic­i­tor gen­eral that con­flicts with a stance that the spe­cial coun­sel wants to take.

“He’s work­ing with Bob Mueller in the in­ter­est of build­ing a pros­e­cu­to­rial case,” Mr. Tur­ley said. “It may raise some ques­tions if he’s also rep­re­sent­ing the U.S. in try­ing to ex­pand the def­i­ni­tions of crimes that might be brought against the pres­i­dent.”

Of the 21 full-time at­tor­neys work­ing for the so­lic­i­tor gen­eral, the spe­cial coun­sel’s in­ves­ti­ga­tion has also pulled ap­pel­late lawyer El­iz­a­beth Prel­ogar away from the of­fice, but on full-time de­tail.

Kath­leen Clark, an ethics law pro­fes­sor at Wash­ing­ton Univer­sity in St. Louis, laid out an­other prob­lem­atic sce­nario in which the so­lic­i­tor gen­eral’s of­fice ar­gued for a nar­row view of im­mu­nity for the pres­i­dent and Mr. Mueller’s team later sought to bring crim­i­nal charges against Mr. Trump.

With so lit­tle known about ex­actly what Mr. Mueller’s team is pur­su­ing, Ms. Clark said, she wasn’t aware of any such po­si­tional con­flict in play.

Even with Mr. Dreeben’s years of ex­pe­ri­ence, ethics an­a­lysts say, pre­cau­tions should be taken to pre­vent any con­flict be­tween his two po­si­tions — in­clud­ing a strict ban on any work for the spe­cial coun­sel on any so­lic­i­tor gen­eral com­put­ers or ac­counts. The spe­cial coun­sel has a com­puter net­work set up sep­a­rately from the Jus­tice Depart­ment for the in­ves­ti­ga­tion.

An­other pre­cau­tion would be to set boundaries for re­cusal by Mr. Dreeben from any cases taken up by the so­lic­i­tor gen­eral’s of­fice that have the po­ten­tial for over­lap with Mr. Mueller’s probe.

“It would prob­a­bly not be a good time to be work­ing on over­lap­ping mat­ters that might cre­ate the ap­pear­ance that the spe­cial coun­sel’s of­fice is be­ing di­rected by the so­lic­i­tor gen­eral’s of­fice,” said Richard Painter, who was a White House ethics coun­sel un­der Pres­i­dent Bush. “You can eas­ily avoid that by stay­ing away from re­lated mat­ters over at the so­lic­i­tor gen­eral’s of­fice.”

But he es­ti­mated that the num­ber of cases un­der re­view by the so­lic­i­tor gen­eral’s of­fice that could over­lap are likely few and far be­tween.

“Prob­a­bly 98 per­cent of work at the so­lic­i­tor gen­eral’s of­fice has noth­ing to do with what Mueller is do­ing,” he said.

Know­ing his rep­u­ta­tion as a for­mer FBI di­rec­tor, oth­ers ex­pect Mr. Mueller would have eval­u­ated and planned for such mat­ters.

Rep. Michael K. Con­away, who took over the Rus­sia in­ves­ti­ga­tion by the House Per­ma­nent Se­lect Com­mit­tee on In­tel­li­gence af­ter the re­cusal of Chair­man Devin Nunes, Cal­i­for­nia Repub­li­can, said he ex­pects Mr. Mueller would have gone to great lengths to en­sure his as­sem­bled team is “scrupu­lously de­void” of any per­ceived con­flicts of in­ter­est.

“I would think Mr. Mueller would want to be squeakier clear that Cae­sar’s wife in terms of what­ever he does and what­ever de­ci­sions he makes in or­der to main­tain the ap­pear­ance of in­tegrity in ev­ery­thing he does,” said Mr. Con­away, Texas Repub­li­can.

He said he was not fa­mil­iar with Mr. Dreeben’s back­ground.

But Ms. Clark noted that Mr. Dreeben’s work in both roles at once isn’t nec­es­sar­ily a con­flict in and of it­self. Al­though Mr. Dreeben might play a role in de­fend­ing pol­icy es­tab­lished by Mr. Trump, it isn’t the same as de­fend­ing the pres­i­dent him­self.

“The Jus­tice Depart­ment, through the so­lic­i­tor gen­eral’s of­fice and Mueller, rep­re­sents the in­ter­ests of the United States, not the in­ter­est of Don­ald Trump,” she said.


Spe­cial coun­sel Robert Mueller has hired a part-time deputy so­lic­i­tor gen­eral in the Jus­tice Depart­ment even as he in­ves­ti­gates Pres­i­dent Trump and Rus­sia med­dling.

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