Ken White says it’s far too easy:

“Investigators and prosecutors will tell you that this is a good thing — that their power to convict targets for lying or obstruction helps catch criminals who would otherwise go free because of problems of proof. But people who hold vast power rarely think they ought not. In fact, the most petty and weak human reactions can lead to federal felony convictions during an investigation. To be a federal crime, a false statement to the federal government must be material — that is, meaningful.

But federal courts have defined materiality in a way that criminalizes trifles. Under current law, a statement is material if it is the sort of statement that could influence the federal government, whether or not it actually did. Hence, federal agents interrogating people always ask some questions as to which they already have irrefutable proof, hoping that the target will lie and hand the feds an easy conviction. That’s how FBI agents caught my client that early morning when he lied fruitlessly about being at a meeting the FBI knew with certainty he had attended.

People — good people, decent people, people who are usually honest — lie foolishly when frightened and under great stress. Is that immoral? That’s a philosophical question. Should it lead to a debilitating federal felony when it does not hinder a federal investigation in the slightest, when the federal government was fishing for a lie? No. That gives the feds far too much power to turn human frailty into crime.

Meanwhile, Glenn Reynolds says that Mueller should resign, or we need a second special counsel:

as Otis notes, the Justice Department’s rules forbid a person from participating in an investigation if doing so “may result in a personal … conflict of interest, or the appearance thereof.” Mueller clearly has one here.

And yet, despite a clear requirement that Mueller be “disqualified” from this investigation, his dismissal by either Trump or Sessions on the heels of the president’s firing of Comey would create a political firestorm that the president — even if entirely innocent of any wrongdoing whatsoever—might be unable to survive.

And Mueller can’t fix things by simply recusing himself from the “obstruction” investigation, while delegating it to a subordinate. Perhaps unwisely, he has chosen lawyers who records show have contributed substantially to Democratic campaigns. Indeed, two have given the maximum $2,700 donation to Hillary Clinton last year, while another worked for the Clinton Foundation. No one could accept them as impartial towards the man who defeated her.

So if he cares about the rules, Mueller needs to resign. But if he doesn’t, there is another way — and it may be the only way — to avoid either a tainted investigation or a political explosion.

Sessions can and should appoint a second special counsel lacking Mueller’s close relationship to any person “substantially involved in the conduct that is the subject of the investigation” of the “obstruction” issue, leaving the original investigation of “collusion” in the hands of Mueller.

And I suspect that there is no collusion. Undistracted by Comey’s nonsense, he would be able to focus on finding that.

It is entirely possible to find Trump detestable (as I do) and still think that this "investigation" is an attempt at a political soft coup.

— Rand Simberg (@Rand_Simberg) June 19, 2017

While there is some violence involved, it’s largely a war of lawyers, and lawfare:

The distinguished political scientist Angelo Codevilla coined the ominous term “cold civil war” to describe America’s precarious condition, adding: “Statesmanship’s first task is to prevent it from turning hot.” The attempted massacre on June 14 of Republican congressmen and their staff by a deranged partisan of Sen. Bernie Sanders turned up the heat a notch, but it would be mistaken to attribute much importance to this dreadful outburst of left-wing rage. The augury of American fracture will not be street violence, but a constitutional crisis implicating virtually the whole of America’s governing caste. The shock troops in the cold civil war are not gunmen but lawyers.

A considerable portion of America’s permanent bureaucracy, including elements of its intelligence community, is engaged in an illegal and unconstitutional mutiny against the elected commander-in-chief, President Donald Trump. Most of the Democratic Party and a fair sampling of the Republican establishment wants to force Trump out of office, and to this end undertook an entrapment scheme to entice the president and his staff into actions which might be construed after the fact as obstruction of justice. By means yet undisclosed, the mutineers forced Lt. Gen. Michael Flynn from office and now seek to bring down the president for allegedly obstructing an investigation of Gen. Flynn that arose in the first place from the entrapment scheme.

One of the Republican Party’s most distinguished statesman recently told a closed gathering that a “cold coup” is underway against the president.

That would certainly appear to be the case.

Does he want to cause a civil war?

I agree that if he can’t get these leaks under control, it will seriously erode his credibility.

[Update a couple minutes later]

Insiders need to shut up if they want the public to accept the results.

The way it should have gone

Your statements about President Trump draw on these memos. The same four members of the bipartisan Senate Judiciary Committee wrote you on May 26, asking for answers by June 2 to seven questions about (a) who outside the Justice Department you discussed either the investigations of Trump associates’ alleged connections with Russia or the Clinton email investigation; (b) whether you created any memos about your interactions on the same two topics with Deputy Attorneys General Rosenstein, Boente and Yates, Attorneys General Sessions and Lynch, and Presidents Trump and Obama, and who you provided copies to; (c) whether you discussed or shared such memos with anyone either inside or outside the Justice Department; and, (d) whether you retained copies or access to such memos.

As we proceed, we would like to remind you, sir, that the FBI is a law enforcement tool created by the Congress to assist the president in the carrying out of his constitutional duty to execute the laws of the United States. It has no power apart from the powers we have granted it and it is answerable, only, to the president himself.
Why did you submit a formal refusal to answer those questions which are central to your claims against President Trump in recent weeks, saying you are now a private citizen, when others, such as former CIA Director Brennan, Director of National Intelligence (DNI) Clapper and Deputy Attorney General Yates all have testified in recent weeks after leaving office? Your behavior can only be described as stonewalling and self-serving since the memos are “government work product.” Why do you think you are entitled to be treated with less accountability? Why do you deserve a forum here to give your public statement without being responsive to requests from Congressional committees?

They could still call him back.

Meanwhile, does Mueller now have a clear conflict of interest?

Whether they were just close professional friends, or consider themselves personally friendly, the fact is that they are not at arms length. This relationship, at least as reported, appears to be much more than the routine interactions you might expect two law enforcement officers to have had in the regular course of business.

Something doesn’t seem right here. Comey manipulated the system into getting his friend appointed Special Counsel, and now that friend will be investigating matters in which Comey is a key witness. More than that, Comey’s own actions in leaking government property raise legal issues as to whether Comey himself violated the law.

Even assuming Mueller is able to separate his past with Comey from his present investigation, that relationship damages the whole purpose of having a Special Counsel who is completely independent in fact and appearance.

In a truly independent investigation, friends shouldn’t be investigating friends. Mueller should step aside to remove the taint on the Special Counsel investigation created by friend and witness James Comey.

Byron York has been looking into it.

Is that a conflict? Should a prosecutor pursue a case in which the star witness is a close friend? And when the friend is not only a witness but also arguably a victim — of firing — by the target of the investigation? And when the prosecutor might also be called on to investigate some of his friend’s actions? The case would be difficult enough even without the complicating friendship.

This is by no means a definitive answer, but I put that question to five Washington lawyers Sunday — lawyers in private practice, on Capitol Hill, in think tanks, some of them veterans of the Justice Department. The verdict came back mixed. But the answers made clear this is a question that will have to be answered in the course of the Mueller investigation.

“This is very odd,” said one big-firm lawyer and Justice Department veteran Sunday.

You don’t say.

[Noon update]

James Comey has a long history of questionable obstruction cases:

Let’s begin with the case of one Frank Quattrone, a banker who Comey pursued relentlessly on banking related charges without fruition. But while he couldn’t find any wrong-doing on criminal conduct, he went after him for supposed “obstruction of justice” because of a single ambiguous email. Sound familiar?

Before he was indicted, Comey made false statements about Quattrone and his intent. The first trial ended in a hung jury but the second one got a conviction.

That conviction was overturned in 2006. Quattrone was so scarred by the harassment, he began funding projects designed to help innocent people who are victims of prosecutorial overreach or other problems. He said his motivation for supporting such projects was that at the very moment he was found guilty in the second trial, he realized there must be innocent people in prisons who lacked the financial resources to fight for justice. He also started the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School.

Quattrone has noted with interest the disparities in how he was treated by Comey for a single email compared to his handling of the Hillary Clinton email server scandal.

You might remember Martha Stewart being sent to jail. You might not remember that James Comey was the man who put her there, and not because he was able to charge her for anything he began investigating her for. The original investigation was into whether Stewart had engaged in insider trading. They didn’t even try to get her on that charge.

The more I learn about this guy, the more of a scumbucket he seems to be.

[Update a couple minutes later]

Yes, Mueller should recuse himself from any investigations involving Comey. The question is: Can Comey be sufficiently separated from the mess for him to be able to investigate at all?