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Op-Ed: It’s Trump who is attacking ‘all we stand for’

Michael Cohen, president Donald Trump's personal lawyer, walks on Park Avenue on April 11 in Manhattan.
(Jefferson Siegel / TNS)

“It’s an attack on our country in a true sense. It’s an attack on all we stand for.”

Donald Trump’s statement Monday, the central assertion in an unsettled tirade he launched into upon hearing that the office, home and hotel room of his attorney, Michael Cohen, were searched by the FBI, is the most perfectly wrongheaded comment of the entire Trump presidency.

It eclipses even his notorious assertion “I have the absolute right to do what I want to do with the Justice Department.”

In fact, the Cohen searches were an attack, but made by the Department of Justice on behalf of the country and in defense of the rule of law and a nonpartisan justice system.

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Trump’s unguarded view is consummately perverse and anti-constitutional. It is the antithesis of what we actually stand for.

First, no person is above the law. Not the president and not his personal lawyer.

Cohen is Trump’s longtime fixer and arguably the closest member of his circle, sometimes referred to as “Trump’s 6th child” or “Tom Hagen,” Don Corleone’s loyal consigliere in “The Godfather.” There are many countries in which that kind of proximity to the leader would guarantee insulation from legal process and a free hand to abuse normal folk. Living in one of them would be miserable and humiliating.

The president continues to outdo his own caricature.

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Conversely, it is a victory for the rule of law when the ultimate insider is subject to search and prosecution for the same reason anyone else would be: because there is probable cause, determined by a neutral magistrate, to believe he is guilty of a crime. The searches carried out against Cohen advance the principle that prosecutors in this country pursue the evidence without fear or favor.

Perhaps the most obnoxious feature of Trump’s harangue was his suggestion that the investigation led by special counsel Robert S. Mueller III is necessarily a “witch hunt” for the simple reason that Democrats are working on it. Never mind that the assertion is mistaken: Mueller and and his boss, Deputy Atty. Gen. Rod Rosenstein, are Republicans, and there is no way Trump, or Mueller for that matter, have of knowing the party affiliation of the attorneys on his team.

Much more fundamental, however, is the deep-rooted tradition in the Department of Justice that investigative and prosecutorial decisions have absolutely nothing to do with party affiliation. I prosecuted members of both parties when I was a United States attorney, and any prosecutor worth his or her salt does the same. It would be axiomatic, a practice beyond suspicion, but for the fact that Trump in the last year has so wantonly suggested that party status drives all.

Indeed, one reason Mueller may so infuriate Trump is exactly because of the special counsel’s implacable dedication to apolitical prosecution and his absolute immunity from being bullied or influenced.

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Compare Trump’s partisan enmity with well-established Justice Department practice. According to the president, when Republicans are in power, their mission is to haul Democrats into court for no reason, and when Democrats take the White House, it’s a reign of terror against Republicans. This crass notion, like so much of the Trump worldview, is the stuff of authoritarian banana republics.

The decision to execute the Cohen searches went through several independent levels within the Department of Justice and before a federal judge, to whom the department had to prove its case. That process exemplifies the core constitutional value of the dissemination of power, the system of checks and balances that is the country’s fundamental safeguard against abuse by its political leaders.

In Trump’s view — and in derogation of principle No. 1 — separation of power is an irksome inconvenience: l’etat c’est moi.

Finally, the criminal justice system’s close scrutiny of Cohen’s payout of $130,000 to porn star Stormy Daniels is at least in part a testament to the paramount importance of free and fair elections.

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Cohen’s story that his “hush” payment was driven only by his friendship and had nothing to do with the imminent 2016 presidential election has always seemed brazen and far-fetched. There have been dozens of women who have accused Trump of sexual misconduct or adulterous affairs; Daniels stands apart as someone Cohen wanted to silence because her allegations would have surfaced within weeks of election day. Accomplishing that appears to have required him to make an end-run around campaign contribution rules and then concoct an implausible story to cover his tracks. The prospective charges against Cohen — related to bank fraud and campaign finance malfeasance — would be the system’s sharp rebuke for his cynical manipulation of the law.

The president continues to outdo his own caricature. Spurred on by his solipsistic bitterness over the Mueller probe and everything connected to it, he has let slip his core principle: Trump’s fortunes and those of the public are indistinguishable.

It has never been clearer that only the vigorous operation of constitutional institutions, including the impartial and professional enforcement of the criminal law, stands between us and despotism.

Harry Litman teaches constitutional law at UC San Diego. He is a former U.S. attorney and deputy assistant attorney general.

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