If President Trump suborned perjury by his subordinates, then he committed “high crimes and misdemeanors.” His resignation or impeachment would affirm an important moral principle: honesty. But if the president resists the efforts to impeach him — by fighting subpoenas, exercising his pardon power, or otherwise refusing to cooperate — then he will affirm an even more important moral principle: reciprocity.
Reciprocity is the sine qua non of justice. An eye for an eye, do unto others as you would have them do unto you, equality under the law, and other maxims each relate to the idea that consequences must apply consistently. Yet the FBI’s rules against President Trump are unique to him and his subordinates, and inconsistent with how the FBI has treated President Trump’s immediate predecessors. Today, for example, upon hearing that Roger Stone has been indicted for making false statements to Congress, press secretary Sarah Huckabee Sanders rightly asked whether “those same standards will be applied to people who we know have given false testimony in the same matter, like Comey and Clapper and Clinton.”
At this point, whether President Trump himself is accused of any new offenses is moot. Just last week, BuzzFeed News, a clickbait-monger, said Special Counsel Robert Mueller possesses proof that President Trump directed his attorney, Michael Cohen, to make false statements to Congress. Mueller’s office denies this. Either way, such accusations are superfluous: in 2017, congressmen had already introduced resolutions to impeach President Trump. Whether impeachment ultimately happens depends entirely on the political demand for it.
Rather, the most important fact about impeachment evidence gathered through Mueller’s investigation — let alone through the targeting of President Trump’s lawyer — is that these investigations attempt to slip the burden-of-proof off the government and onto President Trump and his subordinates.
Thus, a non-criminal counterintelligence investigation becomes the pretext for a fishing expedition into any conceivable crimes. Then, the vicious cycle repeats against the next person. Under this dynamic, the president and his subordinates must, one by one, prove their own innocence to the government. Yet for everyone else in the United States such innocence stays presumed, and for President Trump’s political opponents that have engaged in similar or worse behavior, such innocence is guaranteed.
A fishing expedition against anyone, if competently executed, will find evidence of criminal behavior. “Show me the man and I’ll show you the crime,” said Beria when describing a legal system that probably had fewer legal tripwires on the books than our own laws do. In today’s over-criminalized society, the typical American professional commits multiple felonies per day. It’s not for nothing that an American prosecutor “can indict a ham sandwich.”
This fact in itself hurts the integrity of our laws. But law enforcement authorities corrupt the rule of law even further when they treat one person uniquely different from his peers. Recall that FBI Director James Comey invented a fake legal standard to indulge Hillary Clinton’s criminal misconduct while simultaneously labeling her “extremely careless.” The more that law enforcement depends on such individual invention, the less it resembles “rule of law” and the more it becomes “rule of men.”
But perhaps the FBI’s most egregious attack on the rule of law is the targeting of President Trump’s attorney, Michael Cohen. By all appearances, the FBI cared less about Michael Cohen’s own offenses than about the possibility that fishing through his records might incriminate President Trump.
Hence the absurd accusation that Donald Trump violated campaign-finance law by paying Stormy Daniels with his own money. Yet if President Trump had used his campaign donors’ money, instead, then prosecutors would have surely (and more plausibly) described that as a crime.
Ironically, reaching this Catch-22 itself required a serious rule-of-law violation: piercing the attorney-client privilege between the president and his lawyer. There’s at least probable cause to believe that any American who’s hired an attorney will also have confided incriminating information to that attorney. If such an informed attorney then merely asserts his client’s innocence in court or other communications, he may be perpetuating a fraud. An overzealous prosecutor could target the attorney and, through the attorney’s records, discover evidence against the client that might never have existed if the client hadn’t hired an attorney in the first place.
Thankfully, the silver lining to the FBI’s “witch hunt” against the president is that the president possesses powers and prerogatives that nobody else does. He should use these powers to resist these efforts to impeach him. Rule of law in America will be stronger for it.
Lew Olowski is an attorney and formerly a clerk to Radovan Karadzic, president of the Bosnian Serb Republic, at the United Nations International Criminal Tribunal for the former Yugoslavia. Lew served under Peter Robinson, who is among the world’s premiere international criminal trial lawyers litigating war crimes, genocide, and crimes against humanity. He is a graduate of Georgetown Law School.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
