I found a very foolish tweet in my tweet stream Wednesday evening. It came from a user named “Republicans for the Rule of Law.” Sadly, the tweet’s sentiment expressed the exact opposite of the basis for the rule of law.
"Republicans for the Rule of Law, an advocacy group focused on protecting the special counsel investigation, said that the Manafort conviction proved that Mueller’s investigation 'is not a witch hunt.'"https://t.co/R9qNsnRczj
— Republicans for the Rule of Law (@ForTheRuleOfLaw) August 22, 2018
The Manafort conviction proved no such thing, of course. A witch hunt is a hunt for witches. Finding tax evaders and bank fraudsters doesn’t vindicate a witch hunt.
Will this presidential election be the most important in American history?
Unfortunately, there was a great deal of performative huffing on Wednesday — from all across the political spectrum — about Mueller’s “witches” piling up, as if pleas and convictions for anything, anything at all, mean that “witches” have been found.
Yet if the rule of law has any meaning, it has to include the stipulation that the crime you’re going after was only found if you found that crime.
Finding other crimes may well have intrinsic meaning, and that’s fair enough. Public priorities and prosecutorial discretion determine what you do about that.
But if you actually prize the rule of law, and concepts like accountability to a standard and integrity in government, you don’t claim to have identified the crime you were hunting for, if you haven’t actually found it.
I am extremely sorry to see conservatives whom I have long viewed as well-meaning jumping on the “Lo, behold the witches!” bandwagon. That’s the wide gate to mob rule, and nothing justifies the slipshod unreasonableness of it. It is not a defense of sleazy behavior on Trump’s part, to require that we speak of the outcomes of law in the terms of the rule of law, and not in terms of how certain verdicts make us feel.
Speaking in the terms of the rule of law, the situation is clear. Mueller has racked up some plea agreements for false statements (most probably from perjury traps set for the defendants); a set of convictions (Manafort), at least some of which appear reasonable and well-founded, for tax and bank fraud committed 13 years ago; and a plea agreement (Cohen) for bank fraud, along with two “confessions,” or whatever we want to call them, about actions that aren’t even crimes (paying hush money to women).
As Alan Dershowitz and Mark Levin have pointed out, the hush-money payments weren’t crimes no matter how you slice them, assuming that (a) they were made on behalf of Trump, and (b) Trump reimbursed Cohen for them. Only a plea could get them entered into the record; a court proceeding and a competent defense would shred the premise of them as crimes within minutes.
It doesn’t even matter if the payments were made “because of” the political campaign (although it’s legitimately debatable whether that was the case). It’s not a campaign finance issue either way, because if Trump ultimately paid for them, that’s his prerogative for his own campaign. He can “contribute” as much as he wants to it. And there is no such “crime” as “colluding to influence the election” by paying to avoid bad publicity. The payment itself has to be a crime of some kind; otherwise, there isn’t one.
Meanwhile, none of these outcomes has any relation to Russian interference in the 2016 election, or collusion in such interference by Americans.
That’s the rule-of-law rundown. Under the actual rule of law, it should have for us this indicative import: we don’t have a basis for throwing tantrums or demanding impromptu kinetic actions. If we run around in circles accusing each other of moral delinquency for not agreeing that tantrums and peremptory, irrational demands are now necessary, we’re just making asses of ourselves. The rule of law perspective doesn’t say “go into hysterics” — ever. It says “calm down, and don’t mistake grandstanding for a guide to doing the right thing.”
But then, the Mueller probe didn’t start out as a rule-of-law enterprise. It was never about investigating any defined, underlying crime. That’s a dangerously flawed basis for using the tools of law enforcement. It’s fine for counterintelligence, which targets operations by foreign actors. But to the extent that American citizens are considered fair game in such a probe, it’s an open door to investigating persons, and looking for crimes to pin on them.
That’s not the rule of law in action. So any indictment or conviction that comes from the Mueller investigation is uniquely unlikely to be in the spirit of the rule of law. If you proclaim yourself an advocate for the rule of law, the last train you want to be riding is the Mueller investigation.
It should be no surprise to see what is coming out of the Mueller investigation. But it should be a great learning experience. You disregard the rule of law, this is what you get: meaningless plea deals from exhausted, intimidated defendants, the unsightliest of moral posturing from everyone else, angry divisions among the people, and nothing to the purported central purpose from any of it.
Process, moreover, is not the rule of law. Stalin, Hitler, Mao, Pol Pot, Castro — all of them had process. Drug cartels and mob bosses have process. Any vicious thug can have process. The rule of law governs bigger things: the make-or-break essentials of civilization, like accountability, prior restraints on the use of state power, respect for the necessity of reliable, shared expectations.
A healthy rule of law requires even metaphors to have integrity, if they’re being used for leverage in public affairs. It’s accurate to call the Mueller probe a witch hunt, because it’s looking for something that sounds vaguely bad, but for which the law has no rigorous, empirically testable definition. The point Trump is ultimately making when he keeps referring to the “witch hunt” is that, when witches are being hunted, there’s no way to reliably validate having found one. It’s an anti-rule-of-law effort, irresponsible and corrupt at its core.
He’s right about that. Witch hunts are about holding people at perpetual, open-ended risk.
It is not accurate for Trump’s opponents to take the witch hunt metaphor, turn it on its head, and claim that witches have been found. So far, Mueller has found pleaders to tax and bank fraud and making false statements, along with one person convicted of tax and bank fraud from 2005. He hasn’t found any witches — in this case, loosely defined (and I’m being charitable here) as people who colluded with Russians to garble-mumble-election-something, although there is no method of proving anything actually happened with the garble-mumble-election-something-ing.
And he isn’t going to find any witches. There is no positive, morally satisfying, rule-of-law outcome for any of this. Witch hunts don’t offer that happy conclusion. They offer only systemic suspicion, social division, anxiety, and strife.
Which is why it’s increasingly clear that it would be hell on earth to be ruled by the people who call the Mueller probe the “rule of law.” Let each and every one of them be subject to such a rule of law. But God spare the rest of us.
