What should scare Trump most isn't the Deep State -- it's the Regular State

NICHOLAS KAMM/AFP/Getty Images
  • Developments in multiple cases involving President Donald Trump and his associates prove the legal system is working.
  • Trump is in a great deal of trouble.
  • That’s because the machinery of justice is operating as it should, even when Trump tries to intervene.

A lot of people are depressed, but I find the legal events of the last week or so very hopeful.

Recent events demonstrate, despite the fact that our politics currently center on a hush payment to a porn star and the question of whether there is a “pee tape,” that we are not a banana republic.

We are a nation of laws, where the porn star and the president and his associates all get their days in court.

We are a nation where the Justice Department can and does obtain a search warrant for the premises of the president’s own personal lawyer – as long as the Justice Department goes though an appropriate legal process, and even when its doing so is sure to make the president very, very angry at the people he hired to run the Justice Department.

These recent developments have proceeded in a manner that undermines both pro-Trump and anti-Trump narratives around our legal system.

President Donald Trump is in a great deal of trouble – not mainly because of who is in charge of the Justice Department, but because the machinery of justice as a whole appears to operating as it is supposed to, even when specific controls on that machinery are controlled by Trump’s own appointees.

The system is bureaucratic, and it is working

Consider the raid on the hotel room and offices of Trump’s personal lawyer, Michael Cohen. These raids arose out of a referral from the office of the special counsel (that is, Robert Mueller) but were:

  • Sought by the office of the US Attorney for the Southern District of New York;
  • Approved by Deputy Attorney General Rod Rosenstein;
  • And authorised by a magistrate judge.

Rosenstein is Trump’s nominee, though you might forget that given the president’s near-constant raging against him. The interim US Attorney for the SDNY, Geoffrey Berman, is also a Trump appointee, though he is recused from this case – again, an example of the bureaucracy behaving as it is supposed to.

This isn’t a case of Mueller behaving like Inspector Javert and looking through anybody’s files he wants. It’s a case of him setting off an arms-length process which led to a diverse group of officials deciding the correct course of action was a highly unusual raid not just on any lawyer, but the president’s lawyer.

Criminal defence attorney Ken White has a useful post laying out how high the hurdles must have been to get such raids approved, and why the president should be very concerned that they were met.

The distributed nature of this system creates a problem for Trump. He is not up against a conspiracy of a few political enemies, whom he can fire and replace with loyalists who will dispose of investigations that are inconvenient to him. He is up against a vast bureaucracy with a commitment to the rule of law, which has so far proved fairly resilient against his attempts to interfere.

People worry a lot about the decay of legal institutions in the US. But if we had really become a banana republic, it would have been impossible for these raids to happen.

Because the system works, Trump can’t save himself through firings

Based on the news reports this week, the Cohen raids have Trump ranting and raving about whom he might fire.

But last time he went that route, with James Comey, it backfired, because the resilient bureaucracy responded as it was supposed to – including through the appointment of the special counsel now bedeviling the president.

Paul Rosenzweig, a former Bush administration official now with the right-of-center R Street Institute think tank, lays out some reasons in The Atlantic to believe that firing either Mueller or Rosenstein would similarly fail to advance the president’s interests:

  • Firing the special counsel doesn’t end the investigation. When Richard Nixon got his own special prosecutor fired, he was just replaced with another one. Even if there were no new special counsel, you could expect investigations to continue through other arms of the DOJ – in fact, that’s already happening, with the Cohen matter being handled by the office of the US Attorney for the SDNY.
  • Firing Rosenstein would not be likely to improve Trump’s ability to interfere in the investigation, because Rosenstein’s important powers with regard to the investigation are not in his capacity as deputy attorney general, but in his capacity as acting attorney general for matters from which Attorney General Jeff Sessions has recused himself. Per Rosenzweig, if Trump fired Rosenstein and named a new, loyal deputy to replace him, that nominee could not take up Rosenstein’s powers as acting attorney general until after Senate confirmation. Until then, they would pass to the next-highest-ranking, Senate-confirmed official in the Department of Justice: that is, Solicitor General Noel Francisco. And there’s no particular reason to assume Francisco would be more helpful to Trump than Rosenstein has been.

Of course, the president might do it anyway. The president is not always a rational actor in his own best interests.

But if I were to bet, I would bet on Rosenstein and Mueller keeping their jobs.

Trump’s strategy shows he has resigned himself to being investigated – and that should worry his associates

Since the president set off a firestorm by firing Comey, he has mostly shifted to a public-relations strategy of trying to discredit the findings of any investigators, rather than actually stopping them from working.

As a sitting president, Trump is highly unlikely to be indicted, whatever the special counsel finds. It will be up to Congress to act in response to Mueller’s findings, or not. And so the president’s fate is a political question, and he has set about ensuring his base deems any claims from Mueller to be the result of a “witch hunt.”

For example, on Wednesday, Trump urged Americans through Twitter to tune into “Hannity.” Why? Well it turned out Joseph DiGenova, a lawyer, was going on the show to sayAttorney General Jeff Sessions had a responsibility to fire Rosenstein.

Not Trump. Sessions.

Of course, Sessions isn’t going to do that. (If anybody is going to fire Rosenstein, it’s Trump.) But Trump wants the public-relations message out there: Rosenstein is illegitimate, he should go, and wouldn’t it be nice if someone would fire him.

It’s telling that Trump wants people to watch DiGenova on television, but that he considered hiring DiGenova as his own attorney and decided against it. What it tells us is Trump sees DiGenova’s rantings as a public-relations message, not a legal strategy.

The tough fact for Cohen is that protection against indictment does not extend to the friends and associates and personal lawyers of a sitting president. Cohen, whom the US Attorney’s office says is under criminal investigation, may be tried in a court of law, so he can’t rely on a strategy that’s aimed at the court of public opinion.

And while Trump may have pardoned Scooter Libby in an effort to send a message to Cohen that a pardon awaits him, too, Cohen has done enough business with Trump over the years to know that a hint at a promise from him is not necessarily worth much.

He should be scared, because the system works, and he might eventually need that pardon.

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