It was quite a week for the Rule of Law: President Trump’s longtime attorney Michael Cohen pleaded guilty to eight felonies, President Trump’s former campaign manager Paul Manafort was convicted of eight of his own felonies by a unanimous jury (a lone holdout on the jury resulted in the dismissal of ten other charges), and President Trump himself was directly implicated by Cohen (while under oath before a federal judge, which would expose Cohen to further penalties if he was committing perjury) in conspiring to violate federal campaign laws in order to influence his own election in 2016. The other shoe has dropped.
But the President’s assault on the Rule of Law has only deepened. He attacked the common practice of prosecutors putting pressure on witnesses in order to encourage “flipping” against their superiors, and he praised Manafort’s refusal to strike a deal to avoid trial. Manafort, who lost his own personal freedom during the trial due to alleged witness tampering, is hoping for a pardon from Trump in exchange for his cowardly stand against both Truth itself and the Law. But Manafort (who was Trump’s campaign manager when the Republican platform was changed to eliminate critiques of Russia’s illegal annexation of the Ukraine, where Manafort had previously worked for politicians supported by Russia) faces another federal trial soon, and he may now be rethinking his chances after the first jury found him guilty beyond a reasonable doubt. Moreover, his acquittal on ten of the counts may leave him open to state criminal charges that would avoid double jeopardy—and be beyond the reach of a Presidential pardon, who can only pardon federal crimes.
This whirlwind of judicial action was followed by two revelations that are sure to give the President even greater concern about how the Rule of Law is steadily closing in on him: the publisher of the National Enquirer, David Pecker, and the chief financial officer of the Trump organization, Allen Weisselberg, both received limited immunity from prosecution for their cooperation in the Cohen investigation. Pecker is reported to have a safe filled with other negative stories about Trump that the National Enquirer“killed” rather than publish; if true, each of those stories could lead to further evidence that Trump engaged in felonies to stop those stories from being published. But Weisselberg, who began working for the Trump organization under Trump’s father, is the real threat: he personally met with Trump to get Trump’s signature on every check and also prepared Trump’s tax returns. Weisselberg’s broad cooperation in exchange for immunity could go to the heart of every financial transaction that Trump has ever engaged in that may violate state or federal law.
Pecker and Weisselberg were both implicated in conspiracy to commit the felonies that Michael Cohen confessed to that Cohen stated under oath was directed by Trump. Cohen’s recording of his conversation with Trump about one of the transactions has already been released, showing that Trump’s denials about prior knowledge of the cover up were false. Trump has attacked Cohen as a liar in an attempt to discredit the evidence against him, but Pecker and Weisselberg apparently corroborated Cohen’s account. As Jennifer Rubin noted this week in the Washington Post, the most important part of the Cohen’s plea is that “it’s not Cohen’s word against Trump’s, but rather a raft of witnesses whom prosecutors have or will be able to talk to (some to avoid liability of their own) and documents as well. There is, in short, a ton of evidence out there concerning the campaign finance scheme”(https://www.washingtonpost.com/news/opinions/wp/2018/08/22/what-you-may-have-missed-in-the-cohen-plea/?utm_term=.476a5b80f14a).
That’s how the Rule of Law works: prosecutors collect evidence and interview witnesses and then present that evidence and those witnesses in court subject to challenge and cross-examination. Often, those witnesses have different “recollections” or make statements that directly contradict each other. It is then the job of the judge and jury to determine whom they believe. Conflicting versions of the Truth does not mean there is no Truth. Moreover, presenting “alternative facts” does not make them Facts—no matter how loudly, how insistently, or how often you may repeat or tweet them. It turns out Truth Is Truth.
Lost in the week’s whirlwind is the statement by the President’s attorney Rudy Giuliani that opened the week that “truth isn’t truth” when two people present their own different versions of the truth. Giuliani claimed that the President therefore shouldn’t sit for an interview with Robert Mueller and his team, because that would be a “perjury trap” even if Trump told the “truth.” But Giuliani knows better than that from his years as a federal prosecutor: the fact that a mob boss claims he didn’t direct one of his lieutenants to launder some money or to destroy some evidence doesn’t mean the mob boss didn’t commit perjury when he lied about it under oath. The only way someone can fall into a “perjury trap”—as President Bill Clinton did in his own deposition, leading to his impeachment—is not to tell the Truth. Truth IsTruth, and the Rule of Law is designed to allow a judge and a jury to sort through the evidence to determine as best they can what the Truth really is.
That process applies to administrative law as well as criminal law. Agencies are delegated authority by Congress through statutes to implement those statutes, and the President has sworn to take care to faithfully execute those statutes in accordance with Congressional direction. The Administrative Procedure Act (APA) and extensive case law establish standards for the courts when reviewing agency actions to determine if those agency actions are consistent with both the statutes and the allowable evidence upon which the agency took action. As I have taught my students (since last year), a tweet is not the law—and, no matter what the President may claim in an Executive Order or to the press, federal courts hold agencies to the standards that the Rule of Law requires. The courts must take a “hard look” at the agency’s action and reject it if it is legally “arbitrary and capricious.”
And that is exactly what they’ve been finding recently regarding Trump’s assault on the regulatory state. This is especially true for environmental cases over the past two weeks (https://www.washingtonpost.com/energy-environment/2018/08/18/trump-administration-keeps-losing-environmental-court-cases/?noredirect=on&utm_term=.0c3685a63fe6), with courts striking down efforts where former EPA Administrator Scott Pruitt and Interior Secretary Ryan Zinke had played fast-and-loose with the requirements of environmental statutes and the APA. Not surprisingly, the agencies are losing cases where the Rule of Law requires a hard look at the evidence for compliance with the law. Acting EPA Administrator Andrew Wheeler will be more careful about EPA actions going forward, because he understands that both process and evidence matter under the Rule of Law. The substance of the Trump administration’s policy preferences won’t change, however, so we should continue to expect attempts to weaken environmental regulation and enforcement under Wheeler. But he is much more likely to follow the law than Pruitt was and to be more careful about the evidence the EPA presents to support those efforts to weaken regulation. That itself is a victory for the Rule of Law.
America still faces serious challenges to the Rule of Law, and I continue to believe we will face a genuine Constitutional crisis as the Rule of Law (and its focus on Truth) continue to close in on the President. But this was a good week for the Rule of Law. The week also confirmed a theory that many believe is Truth: the President of the United States conspired with at least one felon to influence his own election in ways that violate federal law. Those actions also qualify, as Adam Liptak explained this week in the New York Times, as precisely the types of actions that the Constitutional framers intended to remedy through impeachment (https://www.nytimes.com/2018/08/22/us/politics/offense-impeachable-constitution.html). My own view is that any attempt to impeach the President should await the release of the Mueller’s report, because this week’s revelations are just the tip of the iceberg. We need to review much more of the evidence to determine which Truth Is Truth.
The Rule of Law is closing in. We citizens now need to ensure that it is defended and able to withstand the President’s (and his enablers’) attacks on it. It will not stand up on its own.