“I mean – hell, I been surprised how sane you guys are,” intoned R. P. McMurphy in Ken Kesey’s classic, One Flew Over the Cuckoo’s Nest. “As near as I can tell you’re not any crazier than the average asshole in the street.”
I keep coming back to the oddly comforting sound of this assessment. Every era has its seeming insanities. But no period that I can recall over a half-century career in criminal and civil liberties legal practice can match 2017 (and continuing unabated into 2018) in terms of happenings both surreal and bizarre. Sure, at the center of our national circus is an American President like no other in our history. I need not give examples of this recent turn in American history, as the news emanating from Washington gives daily testimony – surreal and bizarre, and in some instances arguably dangerous (think: nuclear standoff between two willful, unpredictable, and some would say unstable heads of state located, respectively, in Washington and in Pyongyang).
I’m not a psychiatrist, although I consider myself fairly sophisticated in psychiatric matters, having cross-registered in the 1960s while at Harvard Law School in order to take a course on psychopathology at the Harvard Medical School, not to mention my own having undergone four years of classic Freudian psychoanalysis while a law student and then a young lawyer. But I can sort of understand the psychiatrists who claim to have studied the actions and words of Donald Trump from both before and during his presidency and have become worried. While I am somewhat skeptical about their ability to diagnose from afar the president’s purported mental illness, I don’t think such assessments are unethical simply because the shrinks have not personally examined the chief executive, as some have claimed. Indeed, the whole controversy over whether psychiatrists are acting ethically or not in diagnosing, or even commenting upon the president’s mental status, has simply settled into another theater in the larger war over the Trump presidency.
It is obvious, at the very least, that there is something very different about this president, and even about all of this president’s men (and, yes, they are almost entirely men). Except for Richard Nixon at his lowest, have we not had a chief executive who has exhibited such odd and often inappropriate and seemingly impulsive behavior that has allowed the word “pathological” to so readily roll off of the tongues of pundits, physicians and professors.
This I concede to the president’s many critics, particularly those in academia, the legal and medical professions, and the liberal news media. But I am having trouble processing the critics’, and especially the law professors’, abandonment of even the patina of objectivity and professionalism, all in a frenzied effort to demonstrate why and how Donald Trump is a criminal who merits prosecution followed by impeachment.
The President’s Exceptional Powers
The president’s critics and even his own lawyers, who appear to be acting as if they are defending an ordinary public figure accused of a crime, seem to forget that the President of the United States, for better or worse under our constitutional scheme, is not an ordinary anything. His position, including his legal status and attendant powers, is sui generis. Presidential actions, committed within the scope of presidential authority and duty, that “obstruct justice” are extremely limited in scope and number. A president would be guilty of shoplifting were he to steal at Walmart, and he would be guilty of homicide were he to shoot a critic. None of these actions would be within the scope of his presidential duties and hence powers. But as head of the executive branch Trump could, for instance, fire Special Counsel Robert S. Mueller, III. Were Trump to do so, he could be impeached, since impeachment is a political remedy and not a criminal justice action. But he could not be prosecuted, because such dismissal is not a crime. Were Mueller’s team to charge Trump or any of his subordinates acting under presidential orders with engaging in a political act, such a prosecution would not and should not be upheld by the courts, particularly the Supreme Court. And, in any event, the president has the unconstrained power to pardon anyone and make him or her conviction-proof.
And so, I’m taken aback by the pursuit of Trump by Special Counsel Mueller, cheered on by many of those who were critical of Mueller when he was an overzealous federal prosecutor and then Director of the much feared and rightly maligned FBI. Mueller is using all the techniques traditionally criticized by the political left and cheered by the “law-and-order” right: Bestowing promises of rewards and inducements upon terrified targets in order to turn them into potential witnesses who will, in the immortal phrase crafted by Alan Dershowitz, not only sing, but also compose. (Former Trump campaign staffer George Papadopoulos, who pled guilty to lying to the FBI, is now unsurprisingly cooperating with the probe.) Then there is Michael Flynn who, upon being charged, agreed to cooperate, with his vulnerable son apparently granted a free ride. Mueller, a master at the technique, has used his discretion to charge relatively minor offenses when he could have deluged his targets with enough charges to bury them for life. Thus, it is highly likely that Papadopoulos and Flynn, and others indicted so far, have been targeted as potential witnesses for the prosecution. (Flynn has been charged with making false statements to the FBI, a very common charge used by prosecutors to pressure the individual to cooperate with them in pursuit of higher-up targets. Paul Manafort was charged with money laundering, another common offense which prosecutors frequently use in order to turn an individual into a cooperator.) Given that under the system of vague and broad federal criminal laws prosecutors have the tools with which to indict the proverbial ham sandwich, it is not hard to demonstrate how Mueller will be able to craft a case of criminality against Trump, complete with a crowd of coerced witnesses.
But the operative question is: To what end? Does Mueller really believe that he will be able to make a criminal case against the President by using these prosecutorial tools that more than suffice in the ordinary case? There is one obstacle which I think might be insurmountable. Even if Mueller is able to orchestrate a small army of rewarded and coerced “turned” witnesses to tell tales – some perhaps true and some perhaps not – about the words and actions of the president, the special counsel will run up against a probably impermeable wall protecting the chief executive: It will not be easy to demonstrate that Trump, as candidate or especially as president, has committed a crime.
“Obstruction”: Comey’s Firing
Trump’s much-ballyhooed firing of FBI Director Comey is a prominent case in point. The President has the undoubted constitutional and statutory authority to hire, and also to fire, an FBI director. Some pundits and reporters have written that Trump fired Comey because Comey rebuffed Trump’s plea to leave former national security advisor Michael Flynn alone. Trump was apparently very aggravated by the fact that Comey would not play the role of puppet and declare – and also demonstrate – his unwavering slavish loyalty to the chief executive. Comey has said that he “took it as a direction” from Trump to cease investigating Flynn and his ties to Russia. Trump’s critics, including professors and reporters, have exaggerated this as some kind of “obstruction of justice” on the president’s part. Yet the president was entirely within the bounds of his power and authority to make this suggestion to his FBI Director; indeed, he could even have given Comey a direct order to halt the Flynn investigation. Trump’s firing Comey simply because he was unhappy with the Director’s performance and lack of loyalty is without question within the scope of his presidential authority.
None of the president’s critics, nor any lawyers or reporters, have satisfactorily explained how it is that the president, who has the unfettered presidential authority to hire and fire an FBI director, was somehow acting outside of the proper scope of his office when he finally did so. (Trump was in one sense acting against his own interests when he fired the FBI director who some, including me, believe probably delivered the presidency to Trump when, just a few days before the election, he reopened the long-lingering investigation into the manner in which Hillary Clinton handled classified emails. This grossly ill-timed intervention into the election demonstrated Comey’s poor judgment and would have justified his dismissal by even the most level-headed chief executive.)
When it was learned that Comey kept memos of his nine one-on-one conversations with his new boss in the Oval Office – because the FBI director did not want, he said, the president’s team to mischaracterize these conversations – the true extent of Comey’s agenda became apparent. He was intent of doing what FBI agents have done from time immemorial – protecting their own hides when engaging in ethically or professionally questionable conduct. That Comey has since become a darling of the progressives and of the liberals is a cause for head-shaking. Nobody on the left should so much as turn his back even for a moment on an FBI agent; nor should any conservative devoted to the rule of law ever assume that an FBI agent is acting in good faith rather than in pursuit of some less-than-wholesome agenda. Citizens have an obligation, one would think, to learn something from history.
“Collusion”: The Russian Red Herring
The whole business about Trump’s and his cohorts’ dealings with “the Russians” during the campaign is yet another red herring. To Trump’s enemies, those dealings are evidence of “collusion.” It is only the rare commentator who, like the little boy telling the emperor that he has on no clothes, points out that it was not at all criminal for the presidential campaign to try to pry from the Russians, or anyone else, negative information about Clinton. Nor was it a crime for Trump and his family company to do business with the Russians, then or now.
Mueller seems very interested in how and why it is that Trump is reportedly itching for an excuse to dismiss his attorney general Jefferson Beauregard Sessions, III. If Sessions’ provocative act, as has been widely speculated, is that he recused himself from the Russia investigation – bestowing power upon Sessions’ next-in-command who then appointed the much-feared Mueller – then one must ask the central question: Does the president not have the absolute, unfettered power to name, and then to fire, his attorney general? Since the answer is “yes,” it hardly matters what Sessions did, or failed to do, that piqued the chief executive’s anger. (Indeed, as a pure sidelight, one must laugh or at least smirk at the fact that members of the liberal news media are coming to the aid of a wronged man who, in the earlier days of his career, compiled a record that led many to suspect that he was a dyed-in-the-wool racist.)
The Real FBI
The prospect of the news media’s exercising some strange herd instinct in portraying Trump and his team as criminals being stalked by the heroic FBI and its former Director Mueller, is disconcerting and ahistorical. Few commentators recognize the very spotty history of the Bureau and the equally important lessons we should have learned about the dangers of appointing a prosecutor with the specified mission of finding criminality on the part of a pre-ordained target. One such commentator, David A. Graham, wrote in his essay for the Atlantic. “It is strange to see Democrats and other progressives, many of who [sic] have been questioning [the] intelligence community and calling for its reform since the Bush years, suddenly aligned with the FBI, defending it against attacks from the White House.” Indeed, it is strange, and perhaps also a bit hypocritical.
On the polar political opposite side of the media, we find long-time right-wing columnist and perennial bad boy (and odd-couple Trump pal) Howie Carr, who has to remind the rest of the “respectable” news media that the FBI has a wretched – not just merely questionable – history of violating the rights of others and enhancing its own power and image. “There is only one way to restore the rule of law and order. The FBI must be abolished,” wrote Carr in The Boston Herald.
I actually think that Carr is right. The FBI should long ago have been abolished. Instead, it survived the death of its long-time founding director, the fascist wannabe J. Edgar Hoover, leaving the impression that while Hoover’s reputation left much to be desired, the Bureau, under new and enlightened leadership, was an asset to the nation. That Mueller led the Bureau for 12 years helped him land his current position. In fact, it should have been a disqualifier.
In the Age of Trump, as in the realm of Lewis Carroll’s Queen of Hearts, not everything is as it appears to be.
Harvey Silverglate, WGBH/News’ “Freedom Watch” columnist and author of the “Age of Trump” series, is a lawyer and the author of Three Felonies a Day: How the Feds Target the Innocent (Encounter Books 2009/2011). The much-appreciated research and editing assistance of Nathan McGuire for this column is here noted.