This past January I wrote a blog post that focused on how the concept of the “rule of law” was critical to our nation’s underlying democratic ethos. In that article I cited to one of our founders, James Madison, who expressed this idea for us in Federalist Paper No. 51 (1788) when he wrote:
“If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
It is important to learn whether our nation will see how effectively the rule of law is functioning following the issuance of the Mueller Report last month. It will be critical to test if Madison’s and the founders' concept of the separation of powers will continue to ensure that no one person stands above the law. Also, will we determine if the Houses of Congress still retain some level of control or oversight over the actions of the Executive branch.
The larger questions that loom for our nation can sometimes be lost in all the rhetoric that has followed publication of the [partially redacted] Mueller Report. While some reveled in the release of the four page summary issued by Attorney General William Barr and his assertions that Mueller had exonerated the President of all collusion with the Russian government to interfere in the 2016 presidential election as well as had no hand in any obstruction of justice, any careful review of the Report’s nearly 400 pages provides ample evidence that Trump campaign officials did little to dissuade Russian emissaries sent directly from Vladimir Putin from offering all kinds of assistance. Nor can any fair reading of the document ignore the numerous efforts cited by Mueller of Donald Trump to shut down the entire investigation.
As far back as June 2017, one of Mueller’s fiercest critics, the Wall Street Journal, categorically stated that “Russian meddling in U.S. elections is a serious matter and Americans need to know what happened,” they wrote. “If Mr. Trump or key associates canoodled with the Russians to steal an election, then he must face the likely consequence of impeachment.” But, more than any other conclusion that can be drawn from a fair reading of the Mueller Report is the fact the lack of criminality cited was not the result of a lack of trying by Trump; it was the fact that he went about trying to do so in such an incompetent manner that was compounded by the more astounding fact that so many around him willfully chose to ignore his numerous efforts to commit obstruction of justice.
NYTimes conservative columnist Bret Stephens cited just how well the rule of law operated to prevent these crimes of Trump from falling directly under the federal criminal codes that define such conduct:
“If his own staff hadn’t blocked him from firing Mueller, he would have done so. If Don Jr. had been delivered a crate full of stolen Clinton documents at that Trump Tower meeting with a shady Russian lawyer, he would have taken it. If this newspaper hadn’t exposed Paul Manafort for taking illicit cash from Ukraine’s president, he might well have wound up as a senior U.S. official vulnerable to Russian blackmail. If the Senate hadn’t blocked Trump from easing sanctions on Russia, or public opinion hadn’t revolted over his performance at Helsinki, he would have cozied up to Vladimir Putin.”
Mueller carefully drew the line that Trump did not cross — but not for lack of trying. Mueller is known for his scrupulous interpretation of the law. He has acted accordingly by stating in his Report that these series of actions of obstruction more properly should be pursued by the House of Representatives, the arm of government charged with ensuring that no President subverts the law while in office.
What is important to recognize is that Mueller believes he was fully and faithfully following the rule of law in recognizing that, based on the federal criminal codes, Trump and his minions did act in a fashion that evinced the elements of collusion with a host of Russians. But, and this is critical for each and every one who recognizes the importance of the laws that make up our democracy, what Mueller included in his Report was a direction to Congress to continue his investigation. This was because he believed a prior opinion from the Justice Department precluded him from indicting a sitting President.
It will be helpful to recall that the President was clearly identified as Individual #1 in the indictment of Michael Cohen for the illegal campaign contributions that Trump authorized to keep his out-of-wedlock affairs with Stormy Daniels and Stephanie Clifford from being made public in the weeks before the 2016 election. Mueller clearly believes that proceeding against the President while he is in office was prohibited by a Department of Justice legal opinion that precludes bringing a criminal proceeding against a sitting President.
Despite this DOJ legal opinion Trump and his counsel know that at least one criminal case awaits him the very day he leaves office. And, as Mueller has pointed out, there are another fourteen investigations he referred to other federal district courts that await future indictments of those in and around the Trump family. During his two-year investigation the Special Prosecutor brought criminal proceedings against thirty-six individuals, secured two convictions, and garnered guilty pleas and cooperating agreements from a number of other Trump insiders and campaign officials.
So, for today, the rule of law is alive and well. The Mueller Report has laid out a clear path for Congress to follow a host of findings that will determine the next series of events to take place over the next year or two. And, yes, these matters always seem to take much longer than most people believe they should. But we need to remember that the Watergate hearings, the ultimate test of the rule of law, took four years from the time a special counsel was appointed.
The question for our nation is best stated by Charles Blow, columnist for the NYTimes who stated the issue as follows:
“As Thomas Paine wrote over two hundred fifty years ago, “In America the law is king.” For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”
“Who,” writes Blow, “will we let be king in this country, the president or the law?”
Please let me hear from you on this subject as we all have a vested interest in making sure that nobody forgets or ignores the importance of the foundations of democracy that gave us the rule of law, and that no man is above the law.