https://www.wsj.com/articles/muellers-fr...mail_share
Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations. She is a professor at Florida International University College of Law.
"...In U.S. v. Russell (1973), the justices observed: “We may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” It didn’t take long. In Blackledge v. Perry (1974), the court concluded that due process was offended by a prosecutor’s “realistic likelihood of ‘vindictiveness’ ” that tainted the “very initiation of proceedings.”
In Young v. U.S. ex rel. Vuitton (1987), the justices held that because prosecutors have “power to employ the full machinery of the state in scrutinizing any given individual . . . we must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice.” Prosecutors must be “disinterested” and make “dispassionate assessments,” free from any personal bias.
In Williams v. Pennsylvania (2016), the court held that a state judge’s potential bias violated due process because he had played a role, a quarter-century earlier, in prosecuting the death-row inmate whose habeas corpus petition he was hearing. The passage of time and involvement of others do not vitiate the taint but heighten “the need for objective rules preventing the operation of bias that might otherwise be obscured,” the justices wrote. A single biased individual “might still have an influence that, while not so visible . . . is nevertheless significant.”
In addition to the numerous anti-Trump messages uncovered by the inspector general, there is a strong circumstantial case—including personnel, timing, methods and the absence of evidence—that Crossfire was initiated for political, not national-security, purposes....
The totality of the circumstances creates the appearance that Crossfire was politically motivated. Since an attempt by federal law enforcement to influence a presidential election “shocks the conscience,” any prosecutorial effort derived from such an outrageous abuse of power must be suppressed. The public will learn more once the inspector general finishes his investigation into Crossfire’s genesis. But given what is now known, due process demands, at a minimum, that the special counsel’s activity be paused. Those affected by Mr. Mueller’s investigation could litigate such an argument in court. One would hope, however, that given the facts either Mr. Mueller himself or Deputy Attorney General Rod Rosenstein would do it first."
