(First published in The Greenwich Sentinel on April 13, 2018)
From time to time, I get worked up enough about an issue or a topic to write about it. Recent events have given me cause for a deep, unsettling concern about the future of our democracy and our individual liberties.
We have inherited a form of government, unique in the history of the world, in which the government is subservient to the people, possessing only those powers specifically granted to it, with the unspoken corollary that those powers may be further limited or extinguished by the people. The Tenth Amendment to the U.S. Constitution specifically states that any powers not delegated to the government are reserved to the people. To maintain their sovereign prerogatives, the people must remain ever vigilant to ensure that these delegated powers are not abused.
This week, federal agents raided the home, office and hotel room of Michael Cohen, President Trump’s personal attorney, and purportedly confiscated materials, the confidentiality of which would be protected by the hitherto sacrosanct attorney-client privilege. They apparently did so upon receiving a “referral” from Robert Mueller’s Office of the Special Counsel, which is looking into allegations of collusion and Russian interference in the 2016 election. By all accounts, Attorney Cohen had been cooperating fully with the Special Counsel’s investigation, and the subject of the referral appears to have been unrelated to the Special Counsel’s mandate.
Similarly, on July 26, 2017, federal agents seized documents from the home of Paul Manafort, a former Trump campaign manager, in what was described as “an aggressive pre-dawn raid.” Manafort had also been cooperating with the Special Counsel’s Office, and just the day before the raid had agreed to turn additional documents over to the Senate Judiciary Committee, which is also investigating matters related to the Special Counsel’s mandate. Subsequent reports indicate that the purpose of the raid was to gather material related to Manafort’s personal financial dealings preceding his association with the Trump campaign, and Manafort subsequently sued the Special Counsel, arguing that these actions exceeded the authority of his mandate.
Strong-arm raids on nonviolent citizens involved in political disputes are features of police states, not of a representative democracy that respects the rule of law. Our own Senator Richard Blumenthal, a member of the Judiciary Committee and a former U.S. attorney, was reported to have commented on the highly unusual nature of the Manafort search, calling it “a significant and even stunning development,” because such raids are usually limited to “the most serious criminal investigations dealing with uncooperative or untrusted potential targets.”
Given the fact that, in both instances, the targets of the raids were cooperating with authorities, it is difficult not to see these actions as abusive, prosecutorial “shock and awe” tactics. And the fact that their purported purpose strayed so far from the Special Counsel’s original mandate may be viewed as evidence of the troubling tendency towards “scope creep” inherent in the lightly overseen, almost unaccountable (and unlimitedly financed) post of independent prosecutor or Special Counsel.
The President is quite vocally upset with the manner in which the Special Counsel is conducting his investigation. But do not expect him to fire Mueller.
Those who fuel the speculation that he will are either self-delusional or hoping to goad the President into taking action that can then be used as justification for an impeachment action.
He knows that, and he has repeatedly said he will not do it. I personally take him at his word.
Mr. Mueller has been given a job, and he should pursue it to conclusion, hopefully very soon. He should not use his enormous power, or allow it to be used by others, to abuse individual rights, violate privilege, or pursue matters beyond his mandate. He must be careful not to participate in or promote the despicable tendency to criminalize political differences.
If Mr. Mueller finds evidence of criminal activity on the part of the President or his campaign, then those crimes should be prosecuted to the full extent of the law.
If there is no such evidence, Mr. Mueller must have the courage to say so, definitively and soon, regardless of the criticism that will surely come his way given the massive expenditure of time and money (not to mention distraction from other important matters) that his investigation has generated. If he does that, he will burnish his personal reputation as a man of character and set a valuable precedent for the future.