By Jonathan Moseley
President Donald Trump needs to issue a new executive order immediately raising the ethical standards for all federal prosecutors, attorneys and investigators. Instead of firing Special Counsel Robert Mueller outright, Trump as president can change the rules by which Mueller and his staff operate, and he can do it today, unilaterally, taking effect immediately.
Pro-Hillary attorneys working for Mueller have no interest in finding out what really happened. They donated to Hillary. One was the Clinton Foundation’s lawyer as late as last year against Larry Klayman’s lawsuit for Freedom Watch. Mueller’s office is not looking for the truth but for Trump’s scalp.
Trump should immediately fire most of Mueller’s anti-Trump staff, which is riddled with conflicts of interest. He should order biased individuals terminated by name. Then let Mueller squirm and defend why biased attorneys should continue to contaminate his efforts. Let Democrats, Democrats pretending to be Republicans, the news media and denizens of the swamp defend attorneys who are ethically compromised. That would not end the investigation, only ensure that it is fair.
But, politically, firing the ethically compromised Mueller would look like Trump is trying to hide the truth. It is Mueller who is obscuring the truth.
Therefore, Trump should issue an executive order raising ethical standards for all federal attorneys. He has authority and the duty as president under Article II, Section 3, of the Constitution to “take Care that the Laws be faithfully executed.”
The prosecutors work for Trump, along with supporting attorneys and investigators. He is their boss. They are employees of the president, who is the chief law-enforcement officer in the country, and the head of the executive branch.
Trump should order that every prosecutor, other attorney or investigator acting on behalf of the United States of America shall investigate crimes – not people. Law enforcement means solving an actual crime that a complaining witness has reported. While other crimes may often be discovered during the course of a criminal investigation, the investigation must be conducted in good faith.
As a fundamental safeguard of liberty against a “1984” police state, prosecutors should be limited by the existence of and report from complaining witnesses, not launching their own free-ranging adventures. If unusual circumstances call for expanding the scope, the approval of the attorney general or a court should be required.
To make this specific, Trump should command all prosecutors, other attorneys and investigators to explicitly identify what precise statute(s) or regulation(s) has allegedly been violated. This identification must be formally entered in the file for the case before an investigation starts.
In addition, a conflict of interest should include a person’s personal or professional friendships, family, current or prior working relationship, or other relationships if a reasonable, objective observer would think that the relationship creates a conflict of interest.
A conflict of interest should include when an attorney’s, prosecutor’s or investigator’s bias prevents him or her from exploring alternative theories, not only actions adverse to the related person. A conflict of interest that causes one to focus only on some of those potentially guilty and excuse or ignore others is a prohibited conflict of interest.
A conflict of interest should include where a prosecutor, other attorney, or investigator has chosen to publicly support or oppose any person who is the target of a legal action by donating to them as a candidate for elected office.
No government attorney should be the sole judge of whether he or she has a conflict of interest. Today, judges and others look into their own souls to decide if they think they are compromised. It should be an objective test.
The U.S. government “wins” when a case against an innocent party is dismissed, with a minimum of disruption to an innocent person’s life and reputation. Trump should order that no prosecutor may seek a conviction of any person or entity based on a misleading or misrepresentative subset of the reliable facts, including before a grand jury. The duty of government prosecutors is to do justice, not to score points or count convictions. A prosecutor who convicts an innocent person has lost and is lost.
No prosecutor, other attorney or investigator may bring or threaten a criminal prosecution in which prospects of success depend exclusively upon intimidating a target into pleading guilty but is unlikely to prevail if presented in court before a jury or bring or threaten criminal prosecution of multiple counts for the purpose of obtaining a guilty plea by intimidation.
Any person who is not in compliance with these ethical standards should be immediately reassigned, recused and/or suspended from active duty. If the noncompliance is willful or lacking in candor or cannot be otherwise cured, he or she should be terminated.
Recusal to avoid a conflict of interest and recognition of a conflict of interest are noble acts in furtherance of the highest standards of integrity and the goals of a fair and just society and shall not be unfairly misrepresented as a wrong by the person having a conflict of interest if he or she acts properly to address the situation. Conflicts of interest routinely occur in a complex society and are commonplace for highly qualified individuals who have had varied and extensive professional experience.
However, in a private lawsuit, half of Mueller’s staff would be ordered disqualified for conflicts of interest. Mueller cannot be a judge of his “buddy cop” friend James Comey’s credibility as a witness. In any other context, Mueller would be answering charges for violating professional ethics sufficient for disbarment.
As Larry Klayman pointed out, when the establishment tells you someone is a man of great integrity, start looking for his scandals. The swamp loves its own. Mueller’s conflict of interest in building a case on his own friend James Comey’s stories require Mueller’s resignation. But this must be based upon enforcing sound rules not on raw discretion.
Jonathon Moseley is a Virginia business and criminal defense attorney who worked for Judicial Watch right out of law school. He is a member of the Northern Virginia Tea Party, former executive director of American Border Control and former talk-show co-host. Moseley got his start in politics at High Frontier, promoting Ronald Reagan’s anti-missile defense plans.