Editor’s Note: Harry Litman is the former United States attorney for the Western District of Pennsylvania and deputy assistant attorney general in the Department of Justice. He currently teaches constitutional law in the political science department of the University of California, San Diego, and practices at Constantine Cannon. The views expressed in this commentary are his own.
The bully president has been taking it on the chin from coast to coast.
First, in the Southern District of New York, he has been fighting for a special protocol that would permit him and his lawyer, Michael Cohen, to review – before the government can – the materials of Cohen that the FBI seized and identify privileged documents.
Trump’s legal argument is thin; he argues, in essence, that he is very prominent and that permitting him an initial screening role is only fair.
Judge Kimba Wood has not ruled. She might approve some modest departures from the normal procedure to permit a special master to have a role in culling the documents, but the suggestion that Trump and Cohen should have a first pass at the documents seems to be a nonstarter. Wood seemed to make her stance clear when she declared that the integrity of the Southern District attorney’s office is “unimpeachable.”
The truth is that the President’s offer to review the documents borders on the bizarre: Trump has less basis for determining whether documents are privileged than any lawyer in the proceedings, and he is obviously biased. Moreover, the offer completely undercuts any effort to argue in this and future proceedings that he is too busy to sit for a deposition. The gambit has virtually no chance of succeeding and serves primarily to communicate how anxious the President is about the seized documents.
Meanwhile, in California, Stormy Daniels and her attorney, Michael Avenatti, continue to outmaneuver the President and Cohen. In an attempt to gain some kind of leverage, Cohen filed a declaration on Wednesday saying he will invoke the Fifth Amendment and not testify if the court orders a deposition. It’s of course his right (and completely expected given the pendency of the Southern District of New York investigation), but it will mark him in the public eye as having a lot to hide and, like Trump, fearing the truth.
It amounts to a dramatic reversal of fortune for the President’s vaunted “fixer.” Cohen has gone from crowing that he would take a vacation on the $20 million Daniels would have to pay under the hush agreement to cowering before the prospect of being forced to tell the truth about the contract’s formation. Both he and Trump are plainly eager for the whole thing to go away.
And now the President has been cornered into an obviously calculated concession that Cohen was representing him in the negotiation and execution of the hush agreement with Daniels. His admission was cagy: he told “Fox and Friends” on Thursday that “Michael would represent me, and represent me on some things.”
“He represents me — like with this crazy Stormy Daniels deal, he represented me.” His formulation leaves a sliver of doubt – probably purposeful – about whether he’s acknowledging knowing about Cohen’s actions at the time, as opposed to just opining after the fact that he understands Cohen was his lawyer. Previously though, Trump had tacitly acquiesced in Cohen’s averral that Trump had been totally in the dark. Now Trump’s legal jeopardy has forced him into the open, with considerable risks of being tagged with co-conspirator liability for Cohen’s conduct.
Why is it that Trump is having little success imposing his will on these various courts?
Until early March, when Daniels sued Trump claiming that her hush agreement was invalid, Trump’s legal jeopardy seemed to reside entirely in the probe by special counsel Robert Mueller. All eyes were on that probe, and the possibility that Mueller and his team could marshal evidence that Trump and his associates had broken a wide range of criminal laws.
Now, however, we are witnessing the spectacle of Trump and Cohen trying to figure out how to prevail in individual courts of law, where they cannot browbeat their way through or threaten to fire the other side. And to Trump’s likely great chagrin, they are losing – not because of political opposition but rather because they are on the wrong side of the legal issues.
These cases subject Trump to an entirely different legal regime from the Mueller probe, which is a mixture of law and politics that allows Trump to try to leverage his political power and boorish personality to make mischief.
Mueller is a Department of Justice employee subject to the oversight of the department’s political hierarchy, and thus the President. This feature has allowed Trump to rattle sabers and consider various political maneuvers to shut the probe down or at least clip its wings.
This structure of the special counsel’s office is the grandchild of the Watergate experience. There is, of course, a particular problem inherent in an investigation by the Executive Branch of a member of the Executive Branch.
In the wake of Watergate, Congress passed a statute – the Ethics in Government Act – that provided for truly independent special prosecutors, outside the direct control of the president. But that system produced a series of independent counsels with singular and arguably overzealous focus on their targets and no oversight or influence from DOJ culture. Congress therefore opted to return to a system of department, and therefore presidential, oversight.
That choice is, on balance, the right one. But combine it with this President’s autocratic tendencies, his bullying and bluster, his instinct for chaos and attack, and his utter contempt for constitutional norms, and the result is a highly unstable situation in which the system’s ability to do justice is in grave doubt.
Moreover, the impeachment process is a form of politicized bedlam, in which politics – not principle – controls. Trump remains likely to slip the noose there.
Even more worrisome with the Mueller probe, and Trump’s fulminations in response to it, at center stage, is that it has been natural to perceive threats not just to political stability but to the bedrock of constitutional norms.
The concern is aggravated by the pusillanimity of the Republican majority in both Houses, who seem content to “let Trump be Trump,” ignoring his many assaults on constitutional norms as the best means to perpetuate their power base.
But these dire prophecies may give short shrift to the role of the federal courts.
The proceedings before the judge in Daniels’ case and the judge in Cohen’s case are a heartening reminder that even the President can be brought to heel by a single federal judge, if the law so dictates.
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In actual autocracies, like Russia, that some fear Trump is moving us toward, the courts are feeble and subservient. They bend to the will of strongmen leaders and the people know it.
Here, though, the courts remain outside the reach of Trump’s poisonous influence. Their essential health has not eroded. And at least so long as public confidence in them remains high, it is hard to see how Trump could mount a debilitating attack on them.
This provides the basis for optimism that the judicial system will continue to serve as the backstop against his abuses and the final arbiter of his constitutional outrages.