Comey, Mueller and conflicts of interest: a thought experiment

According to an article published yesterday in Newsweek: “A majority of American voters believe that Russia investigation special counsel Robert Mueller and former FBI Director James Comey are friends, despite the fact the two men have never visited each other’s homes or spent much time together outside of work.” As noted in the piece by one individual who knows Comey well: the two are essentially no more than “cordial former colleagues…” Yet “[n]ew polling by Harvard’s Center for American Political Studies shows that 54 percent of Americans think their relationship amounts to a conflict of interest.”

Should this kind of relationship – meaning a professional or work-related friendship – be deemed a conflict of interest of the sort that would require Mueller’s removal from his position as Special Counsel? One way to analyze a possible COI standard in any given context is to ask if we would be willing to apply the same standard in other contexts, i.e., here, to ask if work-related friendships should generally be viewed as giving rise to COIs beyond the Special Counsel setting.

At least for me, that thought experiment leads to a pretty strong No. Among other things, I see a world in which supervisors and subordinates are discouraged from being friendly with each other, i.e., where workplace friendships are disqualifiers in terms of reporting relationships. In this imagined world, vendors would hesitate to act in a friendly way with their customers, as doing so could lead to a loss of business. I can also envision a host of undesirable consequences of viewing work-related friendships as COIs in other contexts – including scientific research, journalism and even corporate compliance. In short, this imagined world is colder and less productive than the actual one we inhabit.

Of course, not all friendships should be beyond the reach of COI scrutiny. The philosopher Mencius once said, “Friends are the siblings God never gave us,” and for friendships of that sort of depth and nature COI treatment is entirely appropriate. But the great majority of office friendships are not truly family like – and do not create conflicting loyalties of any significance.

More broadly, the issue of where to draw the line is  already addressed in many codes of conduct, which do not deem all friendships as COI creating but only “close personal” ones. From what I know, that standard has worked well in organizations generally, and I see no reason to doubt that it would do so in the case at hand.

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