Trump's Assault on the Rule of Law

The president’s comments on Monday underline his campaign against the American approach to fair and impartial justice.

Kevin Lamarque / Reuters

Hours after the FBI raided the office, home, and hotel room of his sometime-personal attorney Michael Cohen, President Trump delivered an angry response at the White House on Monday.

The group of people he targeted is wide and deep: Special Counsel Robert Mueller, Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, former FBI Director James Comey, and his own appointee as U.S. Attorney for the Southern District of New York. Taken together, however, it becomes apparent that Trump is not really angry at individuals so much as he is at the rule of law itself.

“It’s a disgraceful situation,” he said. “It's a total witch hunt.”

The reason for the raid on Cohen’s spaces is not yet clear. Cohen’s attorney said the Southern District of New York, the federal government’s prosecutorial office for Manhattan, had conducted the raid using a search warrant, and that it was “in part, a referral by the Office of Special Counsel, Robert Mueller.” The lawyer, Stephen Ryan, called it “completely inappropriate and unnecessary” and said his client had already been cooperating with authorities. Such raids sometimes indicate prosecutors are concerned that an individual might try to conceal or destroy evidence.

The raid is extraordinary, not least because Cohen has served as a lawyer for Trump. The requirements for seeking and obtaining a warrant for such a raid to override attorney-client privilege are strenuous and lengthy. The Washington Post reported that Cohen is being investigated for possible bank fraud and campaign-finance violations. He’s been in the news recently as the man who paid porn actress Stormy Daniels $130,000 shortly before the election in exchange for her silence about an affair she says she had with Trump years ago.

Also of note is the fact that the special counsel did not oversee the raid. According to Bloomberg, “Mueller brought information involving Cohen to Rosenstein, who decided that the inquiry should be handled by federal prosecutors in New York, according to a person familiar with the situation.”

In recent days, Trump has seemed to distance himself from Cohen. Last week, he denied knowledge of Daniels’s non-disclosure deal, saying, “You'll have to ask Michael Cohen. Michael is my attorney.” So it’s notable that Trump took Monday’s raid as such a personal affront, launching into a lengthy rant before a Cabinet meeting.

At each step of the way, the actions that have angered Trump have been steps taken by senior officials specifically following the law. In a shocking turn of phrase, even by his standards, Trump said, “So I just heard they broke into the office of one of my personal attorneys.” Of course, “they” didn’t “break in”—they obtained a search warrant: sought by the U.S. Attorney, with the sign-off of the deputy attorney general, and approved by a magistrate judge. “They” means the FBI, part of Trump’s own executive branch, acting according to the law.

More broadly, Trump has attacked the special counsel. The point of having a special counsel is to insulate an investigation from political pressure—indeed, Rosenstein appointed Mueller when he felt that the tenor of Trump’s earlier comments and actions made it impossible for the Justice Department to adequately investigate Russian interference in the 2016 election through normal channels. In his comments about Mueller, Trump has not broken any laws (as far as we know), but he has most certainly violated the spirit of the special-counsel regulation, attempting to pressure Mueller at all turns. He said in an interview that if Mueller investigated his personal business, it would cross a “red line.” He reportedly tried to fire Mueller, only to be talked down by aides. He has blasted the probe left and right, and on Monday all but threatened to fire Mueller again.

“We'll see what happens,” the president said. “Many people have said, ‘You should fire him.’”

Rosenstein appointed Mueller because he is the acting attorney general for Russian matters, after Sessions recused himself from related probes. That this infuriates Trump is another example of Trump’s crusade against rule of law. Sessions recused himself on the advice of career Justice Department staff and in accordance with department guidelines. Trump has no regard for the rules and procedures.

“The attorney general made a terrible mistake when he did this and when recused himself or he certainly should have let us know if he was going to recuse himself and we would have put a different attorney general in,” Trump said Monday, reprising previous comments about Sessions. “So he made what I consider to be a very terrible mistake for the country. But you'll figure that out.”

It’s not hard to see what Trump means here. His beef with Sessions is not that the attorney general broke any rules; it’s that his recusal prevents him from being in a position to interfere politically to protect Trump, and his aides like Cohen. Indeed, Trump has repeatedly voiced, both publicly and privately, his belief that the job of the attorney general is to protect the president, rather than to serve as the government’s top lawyer. This view is a radical departure from the standard approach. Trump would prefer that Sessions break the rules, and do it for Trump’s benefit.

“This is the most biased group of people,” Trump said Monday, apparently referring to Mueller’s team. “These people have the biggest conflicts of interest I have ever seen. Democrats—all. Either Democrats or a couple of Republicans who worked for President Obama.”

This is, unsurprisingly, misleading. Mueller is a lifelong Republican (though Obama appointed him to continue a tenure as FBI director that began under George W. Bush). Several members of the special counsel’s team are Democrats or donated to Obama or Clinton. Yet most of those in Trump’s doghouse right now are Republicans: not just Mueller, but Sessions, Rosenstein, Comey (who he also attacked Monday), and Geoffrey Berman, the U.S. attorney, who is a former lawyer at Rudy Giuliani’s firm and whom Trump appointed to his post after reneging on a promise and firing Preet Bharara. Believing that all of these men, especially Sessions, are part of a Democratic cabal against Trump requires more than an active imagination. It requires delusion.

Trump’s claims of persecution also ring increasingly hollow. If this is a witch hunt, Mueller has uncovered a whole coven. Trump’s former national-security adviser, Michael Flynn, and deputy campaign manager, Rick Gates, have both pleaded guilty to charges and are cooperating with Mueller. So has a campaign aide, George Papadopoulos. There is a damning indictment against Paul Manafort, Trump’s former campaign chairman. There are multiple open lines of inquiry into Trump aides. It is true that no authority has yet indicted anyone for any specific crime of collusion, but to state, as Trump did Monday, that “they found no collusion whatsoever with Russia” is to declare the outcome of the ballgame at the end of the third inning.

Trump continues to be angry that Hillary Clinton was not prosecuted, though it’s unclear what crimes she might have committed, and has publicly complained that Sessions is not pursuing her. “The other side, they don't even bother looking,” Trump said. “And the other side is where there are crimes, and those crimes are obvious. Lies, under oath, all over the place.” Not only has Clinton already been subject to investigations (which ended without charges), but what Trump fails to grasp is that it is not the president’s role to decide who has committed a crime and who should be prosecuted.

This idea, that there is a regimented process for charging people and that it ought not to be determined by political vendettas or the whims of the head of government, is central to the American project, even if the nation has at times fallen short of it. Trump has long struggled to understand and accept the idea of the rule of law. On the campaign trail, he promised to lock Hillary Clinton up and questioned the right of a federal judge to oversee a case involving Trump University. Monday’s comments, including his stunning equation of a legal warrant with a burglary, are the clearest demonstration that Trump is engaged not just in a political attack, but in a campaign against the rule of law, and the U.S. approach to justice, itself.

“It's an attack on our country, in a true sense,” Trump said Monday. “It's an attack on what we all stand for.”

He’s right about that—he’s just wrong about who’s doing the attacking.