One of the things that most concerned the U.S. Constitution’s framers was the misuse of the criminal justice system by those in power to check their political foes. We have a Bill of Rights, in large part, to protect us against this most harmful abuse of arbitrary power. Ostensibly, we are protected from unreasonable searches and seizures, from delayed trials and unnecessary incarceration, from being forced to be witnesses against ourselves, and from “cruel and unusual punishments.”
Unfortunately, all the parchment safeguards in the world cannot guard a citizenry from a truly corrupt government, and a corrupt government is capable of securing its evil ends by enlisting persons of good faith who may find themselves unwittingly employed in miscreancy. Something very like this has occurred in the Robert Mueller prosecutorial investigation of Donald Trump for alleged collusion with Russians to influence the 2016 presidential election.
Evidence is accumulating that Mueller’s appointment as special prosecutor was the result of fabricated accusations concocted by conflicted officials in the Obama administration, who wished to prevent Trump’s election—or, failing that, to create (as disgraced FBI Agent Peter Strzok put it) an “insurance policy,” that would prevent Trump from continuing in office.
Whether it was a coordinated plot or not, former FBI Director James Comey’s leaking of information designed to result in the appointment of a special counsel succeeded, and for almost two years now Mueller’s activities have compromised the Trump Administration’s effectiveness.
Special prosecutors can, if they are talented, command almost unlimited resources. Mueller is just such a talented individual. He has amassed a large group of zealous minions, adept at employing harsh tools designed to turn lower level functionaries against their former associates, culminating most recently in what federal Judge T.S. Ellis III has labelled an attempt to squeeze the president’s one-time campaign manager Paul Manafort into turning on Trump himself.
The astute Alan Dershowitz predicts Manafort probably will be convicted, and that in order to avoid a lengthy prison sentence Manafort is likely to “sing”—or, as the former Harvard Law School professor remarked even more ominously, to “compose.” In other words, Dershowitz has indicated the grave risk that Manafort, in order to save himself from spending the rest of his life in prison, may simply make up something to implicate Trump.
Should this happen, of course, it would make the corruption that led to the Mueller investigation pale by comparison, as Mueller and his prosecutors, instead of seeking justice, pervert it.
One of our greatest civil libertarians, Harvey Silverglate, in 2011 wrote an influential polemic, Three Felonies a Day: How the Feds Target the Innocent, arguing that our criminal laws had been so riddled with a myriad of purported offenses, that any zealous prosecutor could very easily secure a criminal conviction of anyone. This is eerily reminiscent of Stalin’s secret police chief, Lavrentiy Beria’s comment, regarding an equally problematic justice system: “Show me the man, and I’ll show you the crime.”
If one reads Mueller’s indictment of Manafort, one discovers that he is being pursued for 32 separate offenses, including failure to register as a foreign agent, bank fraud, money laundering, and tax evasion, principally involving millions of dollars of funds earned through foreign consulting activities, and funneled through a bewildering variety of Virginia, Florida, Delaware, Cyprus, Grenadines, and United Kingdom business organizations. Manafort may or may not have violated a complex series of federal laws of a kind that Silverglate chronicled, but all of the alleged infractions took place years before Manafort worked as campaign manager for Trump, and none of them have anything to do with alleged Russian interference with our 2016 election, the ostensible reason for Mueller’s investigation
My colleague Steven Calabresi has raised questions about the constitutionality of appointments of special prosecutors, since the statute authorizing their appointment, insofar as it immunizes them to a great extent from executive control, means that they exercise power inconsistent with our basic scheme of checks and balances and separation of powers. Calabresi is concerned, as is Dershowitz, with the abuse of arbitrary power, and the attempt to use the Manafort trial possibly to fabricate a case against the president ought to concern any true civil libertarian.
Manafort claims he is innocent of the charges against him, and that any failures to comply with the federal reporting requirements are due not to his intent to avoid the law, but rather to administrative failures and misdeeds of those below him, in particular his associate Rick Gates. Manafort’s defense lawyers have told the jury in his case that Gates—who has pled guilty to offenses similar to those of which Manafort has been accused, and is expected to be a witness against Manafort—is the real villain, and has been seeking to obscure the fact that he, Gates, embezzled millions from Manafort. Gates may well be a compromised and an easily impeached witness, and if the prosecution’s case depends on Gates’s word, Manafort’s jury may acquit him.
Whether or not Manafort escapes conviction in the trial now being conducted in Northern Virginia, Mueller’s prosecutors have another proceeding against Manafort in a District of Columbia court, where a local jury, likely composed of former Clinton supporters, will probably be much less sympathetic to a former Trump associate. This is just another manifestation of the dangers of politicizing law enforcement.
Even though Mueller himself may well be a virtuous individual, the newly emerged institution of which he is a part, the special prosecutor, appears to be an untethered and dangerous abuse of the criminal law our Constitution was designed to prevent. There is no reason why offenses of a kind that Manafort and Gates were accused of cannot be brought by the regular procedures of the Justice Department, subject to the supervision of the executive branch. Not actual Russian meddling, but political chicanery prompted Mueller’s appointment.
Special prosecutions such as that conducted by Mueller appear to be more of a threat to the rule of law than tools for its preservation. The practice of appointing them ought to cease, and, for the moment, whether or not Manafort and Gates violated federal law, the future of our Constitutional safeguards against arbitrary power are now in the hands of a judge and jury in Northern Virginia.
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