Special Prosecutorial Abuse

By Carl M. Cannon
April 15, 2018

We’re supposed to be reassured that the FBI agents who raided the offices and home of Donald Trump’s personal lawyer, Michael A. Cohen, were, in Cohen’s words, “courteous” and “respectful.”

The president’s attorney was understandably grateful that the agents didn’t replicate the FBI’s tactics at the home of Paul Manafort, Trump’s onetime campaign manager. Busting in before dawn, guns drawn, with a “no knock” warrant while Manafort and his wife were in bed, the agents frisked Mrs. Manafort while she was still in her nightclothes.

Perhaps Cohen thinks if he sounds reasonable, he can appease Robert Mueller, the special prosecutor who ordered Manafort’s arrest, or his other federal prosecutors behind this raid. Or maybe Cohen simply developed the quickest case of Stockholm syndrome in history. Whatever his reasons, a line has been violated. The government is going after lawyers now, as part of an investigation that feels as though policy differences and partisan politics have been criminalized.

Since the day Trump entered political life, liberals, Democratic activists, and media pundits have issued ominous warnings about the coming authoritarianism. When Trump shocked his critics by winning the presidency, this alarm became a crescendo. The “f” word was bandied about: Fascism, we were admonished, was in our future if we didn’t “resist” this presidency.

The resistance has taken many forms: marches and school walkouts; myriad lawsuits against the president; the refusal by Senate Democrats to vote in favor of administration Cabinet nominees; sustained attacks on those appointees who were confirmed; national ad campaigns demanding impeachment; showy resignations from career foreign service officers; leaks of national security information by Obama administration officials; and the suspension of journalistic objectivity by entire news organizations.

It hasn’t been pretty, but no one ever said democracy was tidy. It’s not unprecedented, either: It feels like the late 1960s and early 1970. When it comes to the Justice Department crusade against Trump, however, one has to go back a century in American history to find anything comparable. The liberals worried about a police state? In some respects, it feels as though it’s already here. This is not Donald Trump’s fault. It’s the handiwork of his opponents -- with the complicity of the nation’s federal law enforcement apparatus.

Russian interference in the 2016 election became the story line immediately after the votes were counted. Then, at his Senate confirmation hearing, Jeff Sessions was asked by Minnesota Sen. Al Franken whether as attorney general Sessions would act forcefully if confronted with evidence of Russian adventurism in U.S. campaigns. Yes, Sessions said, he would. He then volunteered that he’d never met with any Russians. When it turned out that Sessions had met at least once with the Russian ambassador to the U.S., he recused himself from the whole mess.

Yet, FBI Director James Comey was pressing ahead with his own investigation – right until he was fired by Trump. This led to Comey’s own conspiracy. He leaked FBI documents to a pal who gave them to the New York Times, all with the goal of getting a special prosecutor appointed. Comey subsequently bragged about these machinations, although it’s never been explained how Mueller, a former FBI director and political ally of Comey’s, was given that appointment. Mueller’s conflict of interest seemed more obvious than Jeff Sessions’ did. In any event, Mueller then did what many previous special prosecutors have done: He quickly took the probe far afield from his original mandate.

Paul Manafort was indicted for alleged financial chicanery that had nothing to do with Russian hacking and which involved business practices that occurred years before he met Donald Trump. Ditto for Manafort deputy Rick Gates, as well as Gates’ Dutch attorney, the first lawyer Mueller went after.

It’s true that Mueller has run a parallel investigation looking at Russia, which resulted in the indictment of 13 Russians computer hackers. But were those indictments a cover story for a prosecutor actually hell-bent on nailing Trump? Putin is unlikely to extradite those Russians. The real target of this investigation is the president of the United States.

According to news leaks that apparently come from Mueller’s hand-picked prosecutorial staff, which is stacked with Democrat Party donors, the records seized in the FBI raid of Michael Cohen concern the payoffs made to porn film performer Stormy Daniels and Playboy centerfield Karen McDougal. Both women claim a 2006 sexual relationship with Donald Trump. Both women took money to keep quiet. Both are now singing like canaries -- and suing Trump to boot.

So, he’s the victim, albeit not a very sympathetic one, right? Nope. The Justice Department reportedly seized Cohen’s files on the grounds that paying these women off in 2016 was some sort of election finance violation. That’s a legal theory so pedantic, so goofy, really, that one would think it came from Twitter -- or whatever online listserv replaced the notorious “journo-list” chatroom where liberal members of the media and Democratic Party operatives exchanged talking points. So let’s put this down there where the goats can get it: When a married man who is worth several billion dollars funnels a couple of hundred grand through his lawyer to two women threatening to rat him out for past indiscretions, that’s not a campaign contribution. That’s common sense.

Put it this way: Yes, the feds put Al Capone in Alcatraz for tax evasion. But they didn’t nail him for jaywalking.

If the FBI and the Justice Department adhere to their familiar playbook, they’ll threaten (or indict) Cohen on charges relating to “mail fraud” or “wire fraud.” In plain English, what this means is that a defendant used modern banking or communications technology to do his business. The FBI has employed this dubious tactic for years. When it’s most troubling is when it’s invoked for underlying activity that isn’t specifically illegal. This is what the bureau is doing in the burgeoning NCAA basketball scandal. It seems that coaches, alums, university boosters, and athletic shoe companies are paying kids under the table to play college hoops. Although this is a violation of NCAA regulations, it is not a federal crime. The FBI is pursuing it anyway.

So far, there has been little public outcry about the overzealous law enforcement emanating from Washington. Any uproar has been limited to the subject of Russia’s election interference. A century ago, the Justice Department also went through a period in which it relied on the corrupting stimulant of public opinion to overreach. In the wake of fears about the communist revolution that swept Russia, U.S. Attorney General A. Mitchell Palmer ordered a series of raids on politicians and activists who held unpopular views. The targets then were leftists, including previous Socialist Party presidential candidate Eugene Debs. He was imprisoned for treason -- for speaking out against World War I.

The Palmer Raids, as they were known, begat the ACLU. I grew up in a family where that organization was respected and where Gene Debs was a household name. My mother once described Debs to me matter-of-factly as a political prisoner. Today’s ACLU doesn’t defend Donald Trump from prosecutorial overreach. It’s now a partisan organization unconcerned with due process. On its website, you’ll be met with a solicitation: “Donate monthly to fight Trump’s attacks on people’s rights.”

Okay, but what about the FBI’s attacks on Trump’s right to legal counsel -- and, by implication, the rights of the rest of us? Because if they can do it to his lawyer, they can do it to yours. Do the ends justify the means? Or do we live by rule of law? Choose one.

Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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