Curbing my enthusiasm: Misgivings about the Cohen raids and prosecutorial sprawl

As someone who finds Pres. Trump to be an awful person and disagrees with many (but not all) of his policies, I’m supposed to be delighted with the raids on Pres. Trump’s attorney, Michael Cohen. After all, this could be a big step toward finding out whether the Trump campaign colluded with Russian operatives to influence the 2016 election, and of course, it’s entertaining to watch such delightful people struggle to cover up an alleged affair between Pres. Trump and a porn star.

But, these raids also make me uneasy. This is one of those difficult moments when my fairness gene gets the better of me. In this investigation into Cohen, there might be a crime. On that we’ll have to wait and see. But I can’t help asking how this relates back to investigating the connections between the Trump campaign and the Russian government. It could. But on the face of it, it does not. And that has me thinking that this is starting to feel like the Whitewater investigation of Bill and Hillary Clinton, in which independent counsel Kenneth Starr wandered far and wide.

Let’s recall that, in the end, the investigation into Whitewater yielded nothing, but Starr did end up catching Clinton in a perjurious lie over the completely unrelated matter of having sexual relations with an intern in the White House. Now, I’m no fan of the Clintons. I don’t think much of them on policy grounds. But they were absolutely, positively railroaded by an empowered, aggressive, and ruthless independent counsel.  The residual political damage from those events has lasted well past the 90s. Certainly it was there in the background – and often in the foreground – for many voters of a certain age during Hillary Clinton’s run in 2016. I think you could argue that the out-of-control Starr investigation and the precedents it set of hyper-partisan, never-ending, deeply unfair investigations was a big factor in bringing us the Trump presidency. For what it’s worth, even Starr has come around to the idea that he went too far and has sought to reach out to the people he hounded.

Now, let me be clear about one aspect of the Cohen raids: I am not arguing that this was illegal or against procedure. I understand that there is a process and multiple safeguards and officials involved. Instead, I am making an argument about how the institution of the special counsel should be empowered in our legal system. I am expressing alarm at how special counsel investigations can sprawl out to areas beyond their original mandate. This sort of legal sprawl is exactly why the Starr investigation became such a circus. It spun out in every direction until it hit something. If you’re fine with sprawling investigations, okay. But by my thinking, that gives a lot of aid and comfort to the people who drove the investigations into the Clintons. Special counsels end up having a vast amount of power. That is not a legal matter. That is a policy choice and a political decision. It’s a choice of institutional design. And I’m not sure it’s good for our system.

Let me say all of this in a slightly different way to anyone who’s inclined toward hyper-partisanship: If you’re a Democrat and saw the Whitewater investigation as overreach, then I ask you to be concerned that the Mueller investigation is starting to have some features of overreach, as well. If you’re a Republican, and you think Whitewater was great, then I guess you just have to accept that the Mueller could go everywhere and anywhere. Again, I don’t think this approach is good for the law or for the country. But if you take the perspective of a hyper-partisan, then all is well.

By the way, I want the Mueller investigation to continue. I believe Trump should be impeached if he fires Mueller. And to be fair (there it is, again), Trump brought this special counselor on himself by firing Comey.  But I’m concerned that we’re not addressing the real, long-term issue: After all of this with the Mueller investigation, are our US electoral systems any less vulnerable to manipulation? THAT is what we should have daily stories on. And Pres. Trump is very much at the center of that growing scandal. He has not made securing our electoral process a priority. Security officials have testified to that. Holding him accountable for that might lead us straight back to all things Russia, anyway. So, I say rake him over the coals, but let’s keep our eyes on the right prize of the raking.

P.S. I was asked by a friend to be more specific about how I would have wanted the investigation to go.  If I had to draw a line, maybe it would be this: Mueller could have left the entire Stormy Daniels investigation to some other institution. He has ended up doing that, but only after taking deliberate steps to prompt action by the other agency. Now, under his charge, why would he do this? Well, to shake loose Russia investigation information – not really to address the Stormy Daniels affair itself. The Story Daniels affair was a pretext to yield the other information, from a Mueller perspective. Now, you could argue that they’re all just one big, happy federal investigating and prosecuting family. Why draw artificial lines? Okay, fair enough. But that is a decision about institutional design. And the way these investigations tend to metastasize, as history shows, I get concerned about sprawling power.

P.P.S. By the way, on the specific allegation of “collusion” (not officially a crime, by the way), Trump absolutely, positively wanted collusion.  He looked right at the TV camera and asked Russia to hack Hillary Clinton’s email. He’s “guilty” of attempting to collude already. But people voted for him anyway. Hyper-partisan Republicans, in this case, are highly selective in their indignation. And the other evidence that we know publicly is pretty damning – with the the Trump Jr. meeting and the timing of the Wikileaks release. But I’ll wait for the results of the entire Mueller investigation – and frankly, maintain a healthy skepticism of the intelligence analysis abilities of the our intelligence agencies.

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