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Similarly, although Mr. Horowitz found no evidence that then-FBI Director James Comey was trying
to influence the election, Mr. Comey did make decisions based on political considerations. He told the
inspector general that his election-eve decision to reopen the Clinton email investigation was
motivated by a desire to protect her assumed presidency’s legitimacy.

The inspector general wrote that Mr. Strzok’s text messages “created the appearance that investigative
decisions were impacted by bias or improper considerations.” The report adds, importantly, that “most
of the text messages raising such questions pertained to the Russia investigation.” Given how biases
ineluctably shape behavior, these facts create a strong inference that by squelching the Clinton
investigation and building a narrative of Trump-Russia collusion, a group of government officials
sought to bolster Mrs. Clinton’s electoral chances and, if the unthinkable happened, obtain an
insurance policy to cripple the Trump administration with accusations of illegitimacy.

What does this have to do with Mr. Mueller, who was appointed in May 2017 after President Trump
fired Mr. Comey? The inspector general concludes that the pervasive bias “cast a cloud over the FBI
investigations to which these employees were assigned,” including Crossfire. And if Crossfire was
politically motivated, then its culmination, the appointment of a special counsel, inherited the taint. All
special-counsel activities—investigations, plea deals, subpoenas, reports, indictments and
convictions—are fruit of a poisonous tree, byproducts of a violation of due process. That Mr. Mueller
and his staff had nothing to do with Crossfire’s origin offers no cure.

When the government deprives a person of life, liberty or property, it is required to use fundamentally
fair processes. The Supreme Court has made clear that when governmental action “shocks the
conscience,” it violates due process. Such conduct includes investigative or prosecutorial efforts that
appear, under the totality of the circumstances, to be motivated by corruption, bias or entrapment.

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.

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