Commentary: Eighteen Real Attacks on the ‘Rule of Law’

by Adam Mill

 

Donald Trump, we are told over and over and over again, threatens the “rule of law.” To pick a piece at random, I note that Joel Mathis of The Week recently wrote, “When we talk about Trump and the rule of law, mostly we talk about how he’s flouting and evading the constraint of laws he doesn’t like: His newly declared state of emergency to circumvent Congress’ refusal to appropriate funds for a Mexican border wall is just the best recent example.” You don’t have to take my word for the absurdity of this claim that the emergency declaration flouts the rule of law; read the New York Times: Trump has, at a minimum, a colorable legal claim for this emergency declaration.

In the Mathis example, as in most of these cases, the “violation” generally amounts to a policy difference or the departure from a “norm” like the one used to buck presidential oversight of powerful federal agencies.

The suffocating sanctimoniousness of the “Trump-is-threatening-the-rule-of-law” crowd is exceeded only by their hypocrisy. Don’t believe me? Here is a list of 18 actual violations of the law and Constitution done in service of removing Trump from office. I’ll bet you can’t find a single objection from any of these “rule-of-law” hand wringers to these flagrant and unpunished transgressions of the law.

Unmasking: Obama Administration officials “unmasked” hundreds of Americans who were caught up in government surveillance of foreign nationals. It’s illegal for the government to spy on Americans without a warrant. So when an American is heard speaking to a target of a legal foreign wiretap, the government is supposed to take action to shield the American from the effect of the surveillance. Without those safeguards, it’s just the government spying on an American citizen without a warrant. Hundreds of Americans were outed (unmasked) by former United Nations Ambassador Samantha Power and other Obama officials in the closing months of Obama’s tenure, despite the fact that Power as the U.S. ambassador to the U.N. had no reason to be perusing the private conversations of American citizens.

Clinton and DNC money laundering during the 2016 campaign: In a complaint filed with the Federal Election Commission in 2017, the Committee to Defend the President (CDP) alleged “about $84 million was funneled illegally from the DNC through state party chapters and back into the war chest of the Clinton campaign. The political action committee claims that even though the FEC acknowledged receipt of the complaint and claimed that an investigation would be conducted, the needle has barely moved.”

Payoffs or offers to pay-off women who accused Trump: As I noted in a 2018 article, “Remember all those women who came out around [October 2016] accusing candidate Trump of sexual harassment? Turns out that a lawyer sympathetic to candidate Clinton contacted Clinton donors for money with which to pay some of these women to accuse Trump right before the election.” The Hill and the New York Times also reported the story at the time.

The Ohrs’ and their pay-for-smear Fusion GPS money: Then-Assistant Attorney General Bruce Ohr trafficked in Clinton-procured Trump-Russia “collusion” claims by shuttling from Fusion GPS subcontractor Christopher Steele to the FBI. Ohr did so at the same time Fusion GPS was paying his wife, Nellie, to help prepare this same Trump/Russia material. This is an apparent violation of a federal lawbarring government employees from participating in decisions in which they have a financial interest.

The Sally Yates insurrection: Shortly after President Trump assumed office, he issued an executive order citing his power under the Immigration and Nationality Act to place a travel moratorium on immigrants from seven Muslim-majority countries. Sally Yates, the Obama-era holdover who temporarily served as acting attorney general, oversaw a vetting of this executive order and the Department of Justice issued a legal opinion confirming the order was legal and proper. Nevertheless, Yates used her authority to instruct the Department of Justice to defy the president. She clearly violated the president’s authority under Article II of the Constitution as the chief executive by refusing to carry out an order she acknowledged was legal. Unfortunately, this appears to have set the tone for the Justice Department’s continued resistance to the president ever since.

Andrew McCabe makes repeated false statements to FBI investigators: In February 2018, the Department of Justice Office of Inspector General issued a report finding numerous instances of false statements and/or lack of candor to FBI investigators concerning leaks from the FBI to the media. As I recently pointed out, not only has McCabe not been prosecuted, Special Counsel Robert Mueller has relied upon McCabe’s statements to reach a conviction of Michael Flynn (who pleaded guilty to lying to the FBI).

The Michael Flynn set-up: Flynn is a retired United States Army lieutenant general who served for 33 years until his retirement in 2014. In January 2017, two FBI agents surprised Flynn with an interview about a legal and routine conversation he had with the Russian ambassador in his capacity as an incoming administration official. On December 1, 2017, Flynn pleaded guilty to what his interrogators considered unintentional misremembering of the facts. Flynn’s interrogators did not actually think he was lying on purpose. News reports speculated that the special counsel threatened to prosecute Flynn’s son and Flynn was otherwise financially ruined by the prosecution, leaving him little choice but to admit to “lying” about not remembering details of a conversation.

Leak of the wiretap of Flynn’s conversation with the Russian ambassador: In the early weeks of the Trump Administration, the Intelligence Community illegally leaked accounts of their surveillance of the Flynn conversation to the press. In addition to violating rules regarding the handling of classified material, the leak severely undercut the president’s ability to conduct foreign affairs as contemplated by Article II of the Constitution.

Leak of President Trump’s conversation with the Russian foreign minister in which the president revealed classified information: Under Article II, the president is the elected head of the executive branch and is in charge of foreign policy. This leak is another example of vigilante bureaucrats usurping that constitutional authority. Also, this leak may violate a federal law against unauthorized disclosure of classified information. Such leaks undermine the ability of the elected president conducting foreign policy through candid discussions with foreign leaders (which is essential to this constitutional role). The leak also undermined the president’s absolute constitutional authority to determine how to use classified information.

Rod Rosenstein’s self-appointment oversight of investigation into his own actions: The deputy attorney general installed himself as the oversight attorney over Robert Mueller’s special counsel investigation to “[continue] to conduct the investigation confirmed by Director James B. Comey,” and implicitly whether President Trump’s firing of Comey constituted obstruction of that same investigation. Rosenstein, in fact, wrote a memo recommending Comey’s firing on May 9, 2017, making him a potential accessory to this same act. Placing himself over the investigation gave Rosenstein the opportunity to use his position to shield himself from potential liability for the Comey firing. A federal regulation prohibits an attorney from overseeing an investigation when that attorney has a “substantial interest that would be directly affected by the outcome of the investigation.” Rosenstein shouldn’t be allowed to supervise an investigation into his own conduct. Gee, I wonder whether Mueller will find Rosenstein at fault?

Leak of President Trump’s conversation with Australian Prime Minister Malcolm Turnbull and Mexican President Enrique Peña Nieto: As noted by the Atlantic, whoever leaked these conversations undermined the constitutional authority of the president and national security: “Leaking the transcript of a presidential call to a foreign leader is unprecedented, shocking, and dangerous. It is vitally important that a president be able to speak confidentially—and perhaps even more important that foreign leaders understand that they can reply in confidence.”

Mueller snatches private emails without a warrant:. Mueller seized the Trump transition emails without a warrant or notification to the Trump team. The emails were taken without any opportunity to test privilege claims and in apparent violation of the Presidential Transition Act of 1963, which recognized that until the president-elect assumed office, the transition team should be treated as a private entity with constitutional protections against warrantless searches and seizures.

Rosenstein threatens to investigate congressional staffers if they didn’t back off investigating his actions: Rosenstein “criticized the Committee for sending our requests in writing and was further critical of the Committee’s request to have DOJ/FBI do the same when responding,” the committee’s then-senior counsel for counterterrorism Kash Patel wrote to the House general counsel’s office. “Going so far as to say that if the Committee likes being litigators, then ‘we [DOJ] too [are] litigators, and we will subpoena your records and your emails,’ referring to HPSCI [House Permanent Select Committee on Intelligence] and Congress overall.” As Mollie Hemingway noted at the time, the Justice Department spun but did not deny the essential facts of these accounts. It’s troubling, to say the least, when a deputy attorney general feels empowered to intimidate staff representatives from Congress.

Prosecution of Concord for engaging in political speech: As noted in my article in The Federalist, the Justice Department’s prosecution of Concord, a Russian technology firm, is simply punishing pro-Trump/anti-Clinton speech during an election. It’s unconstitutional because the First Amendment protects both the speaker and consumer of speech, and because if the government is going to attack speech, it certainly can’t pick its targets based upon viewpoint.

The raid on Michael Cohen’s law office. The legal basis for this raid remains shrouded in secrecy as the application for the search warrant has not been released to the public. This has not stopped the pundits from concluding that the basis for search was well-founded. It should also be noted that the ACLU similarly disgraced itself by supporting the raid on Cohen’s office without having seen any of the justification for the raid. Nevertheless, as Alan Dershowitz pointed out, this raid is a shocking invasion of the Sixth Amendment right to attorney-client communication and unnecessarily trampled on the expectation of confidentiality for any potential client.

The Department of Justice defies its constitutional masters: Justice officials ignored congressional subpoenas and presidential direction to turn over key documents pertaining to interference in the 2016 elections. To add constitutional insult to grave constitutional injury, Rod Rosenstein publicly laughed at and mocked Congress during a speech at the Newseum. Not only has Rosenstein repeatedly and flagrantly violated the constitutional authority of the chief executive over the Department of Justice under Article II, he has displayed public contempt for Congress’s rights to information under Article I.

Trampling Trump’s attorney-client privilege: Michael Cohen blatantly violated attorney-client confidentiality by testifying against his former client before Congress.

Repeated instances of non-candid statements to the Foreign Intelligence Surveillance Court: Beyond the dubious Carter Page warrants that many have questioned, the FISC issued a little-noticed opinion voiding the government’s use of the secret database of general surveillance that it queries. This database is believed to include all texts, emails, voice mails, phone records, and perhaps phone calls themselves of all Americans. Did you send a picture of your privates on your phone? Yes, that is likely in the database, too. It is often not the actual phones that the government asks permission to search when it applies for a search warrant. It’s the database. Those pictures and texts have already been snatched into the database, which has been abused by bureaucrats and possibly contractors to spy on Americans. The Intelligence Community was supposed to certify that it had guarded against these abuses but these certifications turned out to have been invalid. In one opinion, the FISA court declared itself to be a victim “an institutional lack of candor.”

In the post-Trump era, the phrase “rule of law,” has come to take on an Orwellian opposite, like “Freedom is slavery” or “Ignorance is strength.” The violations of the law committed to “get Trump” are characterized as necessary steps to protect the law at the same time partisan legal minds declare every Trump action to be illegal or unconstitutional. Little or no analysis is applied in service to the one law that seems to have displaced 2,000 years of legal tradition: Hurting Trump is “legal.” Helping trump is “illegal.” It’s as simple as that.

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Adam Mill is a pseudonym. He works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. Adam graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Adam’s greatest pride is his 12-year-old son, who shares a love of deep political discussion and hiking in the alpine as often as possible. Check out Adam’s new novel on Kindle, “Recrudescence.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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