Trump threatens the rule of law in the United States

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The message the president is sending through his tweets is that he believes the rule of law doesn’t apply to him and that anyone who thinks otherwise will be fired. That’s undemocratic on its face and a blatant violation of the president’s oath of office.

–Senator Dianne Feinstein (D-CA), Press Release, June 16, 2017

In testimony last week, fired FBI Director James Comey testified to the occurence of facts which constitute a compelling case of obstruction of justice by the President of the United States. According to the Washington Post, Trump’s attempts to influence the investigation of Michael Flynn included not only his entreaty to Comey to let the Flynn matter go, but also similar appeals to other top intelligence officials.

Since the Comey testimony, Trump has engaged in a vicious series of attacks on Robert Mueller and others working on the investigation into Trump’s and the Trump campaign’s contacts with Russians — before and during the 2016 presidential campaign, during the transition, and since Trump assumed office on January 20, 2017.

In effect, Trump not only appears to have engaged in obstruction of justice in asking Comey to drop the Flynn investigation and then firing Comey when he didn’t, but also to be engaged in an ongoing series of actions aimed at influencing the investigation. These actions include his vicious attacks on Mueller and his team, and his very obvious attempt to plant uncertainty in the minds of Mueller and others as to whether they will be fired.

Each day, Trump engages in new acts of apparent obstruction of justice.

The country is faced with an unprecedented situation in which it is possible if not likely that a criminal clique is in control of the government of the United States, and is systematically attempting to dismantle the ongoing investigations into their crimes.  In the case of Trump, these include his “high crimes and misdemeanors”,  in the words of the Constitution stating grounds for impeachment.

The situation is somewhat similar to that faced by Guatemala not too many years ago, when a lawyer involved with drug cartels was installed as Attorney General of the Nation. He immediately began releasing drug criminals from prison, and it was a matter of some weeks before he was removed from office.

Here we have a president against whom a strong prima facie case of obstruction of justice has been made in sworn congressional testimony by former FBI director Comey, who until the last few days has been universally respected as a man with a record of great integrity. The obstruction of justice consists in allegedly directing efforts aimed at influencing if not ending investigations into Michael Flynn, and Trump’s  own potential criminal activities and impeachable offenses.

Politicians have been reluctant to state the obvious:  Trump appears to be guilty of obstruction of justice, and to be engaged in continuing efforts to obstruct justice. He may fire Special Counsel Robert Mueller within days.  The desperate logic of his situation and his reported emotional state suggest that he will do so.

Important legal questions arise.

First, if Trump attempts to fire Mueller in order to obstruct justice, would his order be lawful and produce legal effects?

In other words, would Trump’s order to dismiss Mueller be legally effective if the order itself involved the commission of the felony of obstruction of justice?

Could Mueller or others challenge the dismissal in the courts?

While these questions may appear unrealistic, they merit urgent and serious consideration. To draw an extreme example to make a legal point, could the Vice-President lawfully assume the Presidency through the act of murdering the President?

We all need to recognize that Trump and his coterie are engaged in a no-holds-barred struggle for power, and appear unconstrained by the rule of law in that struggle.

It is time for those who believe in the rule of law and the Constitution to stop showing deference to the President, and to start speaking out in candor about what is occurring.

Today, Senator Dianne Feinstein (D-California) did just that. She stated:

I’m growing increasingly concerned that the president will attempt to fire not only Robert Mueller, the special counsel investigating possible obstruction of justice, but also Deputy Attorney General Rosenstein who appointed Mueller.

The message the president is sending through his tweets is that he believes the rule of law doesn’t apply to him and that anyone who thinks otherwise will be fired. That’s undemocratic on its face and a blatant violation of the president’s oath of office.

First of all, the president has no authority to fire Robert Mueller. That authority clearly lies with the attorney general—or in this case, because the attorney general has recused himself, with the deputy attorney general. Rosenstein testified under oath this week that he would not fire Mueller without good cause and that none exists.

And second, if the president thinks he can fire Deputy Attorney General Rosenstein and replace him with someone who will shut down the investigation, he’s in for a rude awakening. Even his staunchest supporters will balk at such a blatant effort to subvert the law.

It’s becoming clear to me that the president has embarked on an effort to undermine anyone with the ability to bring any misdeeds to light, be that Congress, the media or the Justice Department. The Senate should not let that happen. We’re a nation of laws that apply equally to everyone, a lesson the president would be wise to learn.

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Senator Dianne Feinstein, Press Release, June 16, 2017.

Senator Feinstein  deserves our highest praise for her “profile in courage”, for standing out when others were content to criticize without speaking clearly and consequentially.

See Timothy Snyder, “On Tyranny: Tewenty Lessons from the Twentieth Century,” Chapter 8 (“Stand Out”).

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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