Two battles, however, do not this war win. The rule of law has become fragile, even brittle, under the Trump administration. The principle so fundamental to this country’s government says that no man is above the law. Yet that is precisely where Trump has positioned himself — in a no man’s land where the rules that others must abide by don’t reach him. He exercises presidential power with an audacity no occupant of the Oval Office since Richard Nixon has even contemplated. And so far, he has gotten away with it. When the rule of law meets that audacity head on, there can be only one victor, and it’s not clear it will be the rule of law.
We live, or so this president and his supporters tell us, in a post-truth world, where people cannot believe what they see or what they hear, and the truth is no longer the truth. The sense of a shared narrative grounded in reliable fact has dissolved for many Americans. A former Marine who has spent most of his life in service to his country is recast as the bad guy leading a “witch hunt” to destroy the lives of good people. That’s special counsel Robert Mueller and his investigation of Russian interference in the 2016 election, and those good people include Manafort, now a felon, and former national security adviser Michael Flynn, who has pleaded guilty to lying to the FBI about important matters. Inevitably, should he be charged or impeached, the good people will include Trump himself.
This unfortunate development has revealed the soft underbelly of the rule of law, the place where it is vulnerable. The idea that everyone, president or pauper, is accountable under the law depends upon a shared belief that our criminal justice system should be permitted to do its work. Yet Trump has launched a two-pronged attack on that work, demonizing the Justice Department and the FBI on the one hand and the facts and evidence they unearth on the other. The result is a president putting himself beyond the reach of the law he has deliberately delegitimized, without disturbing his followers, whom he has persuaded to disregard the facts and distrust the professionals.
Congress reacts, in large part, to the expressed will of the people it represents. In rare cases, citizens have rallied to force their elected leaders to action, but it is unclear whether they will rally in sufficient numbers for the rule of law. There is great division on whether it even applies to this president. Our elected representatives should be the ones to steer the presidency and return the country to a shared reverence for the foundational idea, rooted in the Constitution, that no one, not even the president, is above the law. But it doesn’t look as if they will.
The most stunning development Tuesday came when Cohen pleaded guilty to eight criminal counts. Cohen stood up in a federal courtroom in Manhattan and said that he had made payments to two women who say they had affairs with Trump— and that the payments were made at the direction of then-candidate Trump. The facts Cohen attested to under oath count the president among the participants in what was essentially a conspiracy to violate federal campaign finance law.
Tuesday was a bad day for Trump, no doubt. There were revelations and the risk of more to come, if either Cohen or Manafort becomes a cooperating witness to the special counsel’s investigation. But if Mueller follows long-existing Justice Department policy — and there is no reason to believe he won’t — he will not indict a sitting president. The consequences a president faces for misconduct, let alone high crimes and misdemeanors, are political ones , with impeachment the most severe. This president has been immune to political accountability for actions that would have caused other politicians to fail. Will Tuesday make a difference?
The president’s response a few hours after the Manafort verdict was predictable. He said Manafort was a fine man who had served Ronald Reagan. He said the conviction had nothing to do with him. He said there was still no proof of collusion between his campaign and Russia. How remarkable that the best response the president of the United States can muster is that there is still no proof of collusion. It’s hardly satisfactory. The president’s defense is, “I didn’t commit a worse crime,” which is to say, no defense at all.
When will this president be held responsible? What will happen as prosecutors continue their work and edge closer to his inner circle and his family? Do we have to wait for the pardons that Trump has been hinting at with kind words about Manafort, the “good man” who was convicted Tuesday? Do we have to wait for him to revoke Mueller’s security clearance so he cannot conduct his investigation, or fire Deputy Attorney General Rod Rosenstein and replace him with someone more malleable?
Any of these actions could do irreversible damage to the rule of law. The Constitution grants the president absolute pardon power, and although using it to silence a person who might otherwise offer testimony against the president or members of his family is awful, it is also lawful. Like other lawful actions, it might be proof of intent to obstruct an investigation, but the pardon would still take effect. The president also has the ability to remove his appointees and has asserted his right to terminate security clearances. Again, he is free to take these actions, and only lengthy legal proceedings, if any, could undo them. After Tuesday, the president’s next moves to keep investigators from his doorstep may cross the line that marks where the rule of law ends. That we have failed to assign a precise location for that line and defend it vigorously is what puts it in mortal danger.
The revelation that the president participated in, let alone directed, illegal activity during his campaign should lead his own party to demand his removal. If the GOP’s response to his worst moments is any guide, it won’t: He received mulligans for demeaning Gold Star parents, for calling white supremacists who marched in Charlottesville good people, for insulting the intelligence of black congresswomen, for calling Mexicans rapists, for making fun of a reporter with a disability, for encouraging attacks on the press, for separating migrant children from their parents and locking them in cages. There does not seem to be any bottom — nothing that goes too far for Republican elected officials, whom our Constitution entrusts with the last line of defense. Prosecutors are upholding their responsibility to the rule of law, but without similar action by the majority party in Congress, it is in danger of winking out of existence.
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