Robert Mueller received a limited vindication last week when U.S. District Judge T.S. Ellis III ruled the special counsel’s Virginia prosecution of Paul Manafort can proceed. Vindication, because Manafort’s legal team had hoped the judge would declare that Mueller’s enterprise had sprawled outside its legal mandate. Limited, because Judge Ellis denounced the prosecutors’ tactics as "distasteful" and cautioned "those involved" to be "sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions."
The challenge in Judge Ellis’s courtroom is hardly the only question of legal legitimacy facing the special prosecutor. There are regulations governing what federal prosecutors are to do if they suspect there is even the possibility they have a conflict of interest. Those regulations may be interpreted as requiring Mueller to step aside.
No doubt, some challenges to the legitimacy of an investigation can be seen as shameless efforts to derail justice. I surmised, back in January, that the special prosecutor’s investigation into Trump might turn into a sort of O.J. Trial in which the sloppiness and mistakes of investigators would make possible a cynical defense based on an imagined conspiracy. I had no idea that the Justice Department’s inspector general would eventually document extensive evidence of actual bias by the lead investigator. FBI agent Peter Strzok "clearly shows a biased state of mind," the IG testified. It is as if Mark Fuhrman had been on tape, not just using the n-word, but explicitly saying he was out to get Simpson. It may not have changed the question of Simpson’s guilt, but it would have changed, dramatically, how people viewed his acquittal.