Advice to Trump: Make Mueller defend his raid

If Special Counsel Robert Mueller believed he had actionable grounds to suspect Pres. Trump of some crime that Mueller was authorized to investigate, he should have raided Trump's home and offices, not the offices of Trump's attorney, Michael Cohen.  When Mueller seized Cohen's records, he was seizing privileged information between a lawyer and not only his one client, Donald Trump, but also such privileged information from Cohen and all his clients.  Mueller was not only doing potentially serious damage to Cohen's profession, but also violating a bedrock principle – client-attorney confidentiality – on which our legal system stands.  When Pres. Trump said that this is an attack on everything we stand for, he was not kidding. 

Some have argued that Robert Mueller should be fired for this.  It's possible, however, if not likely, that such a dismissal is exactly what Mueller is seeking, for it would eliminate the need to produce any incriminating evidence against Trump.  It would instead – to a ready, eager and potentially violent audience – lend itself to the perception that there actually was such evidence, and that the supposed evidence, and not the raids against Trump's associates, was the real reason for this dismissal.  Indeed, if Mueller actually has no such evidence, then – if he is unprincipled – it is a likely course of action to take.

If that is not the reason, then why was Cohen, who was cooperating with Mueller's investigation, raided?  Former Trump campaign manager Paul Manafort was also cooperating and was also raided.  Mueller's investigators say it was because they had "high confidence" that neither man could be trusted not to move evidence outside their jurisdiction.  But isn't that true for any guilty party under investigation?  (And isn't a belief in the party's guilt the reason for an investigation to begin with?)  The only distinguishing feature here is that the investigators weren't sure exactly what they thought Cohen was guilty of.  Hush money to Stormy Daniels – which is legal?  This justifies an FBI raid?  Are you kidding?

Alan Dershowitz (at 2:30) suggests that, seeing no benefit from cooperation, others under investigation will stop cooperating.  But that would a deterrent to Mueller only if he thought there was some evidence to be gained from it.  If not, if his real purpose was simply to punish association with Trump, and so force his own firing, then Mueller will welcome any resistance, as it will make his punitive measures easier to (falsely) justify.

In such a case, what choice does Trump have?  How many professional interests of close associates to him is he willing to sacrifice?  And how many will be willing to associate with him?  At some point, it seems entirely within Mueller's power to force Trump to fire him.

To guard against this possibility, a bipartisan group of four U.S. senators are currently advocating that any firing be put under judicial review.  This would be potentially advantageous to Democrats, as it might prevent such a firing.  On the other hand, if Trump did fire Mueller, it would, in theory, be advantageous to Republicans in that it would prevent charges that Trump himself was trying to suppress evidence.  In theory.  In reality, Democrats and media allies would charge the judge(s) with being partisan.  Beyond that, it would – as if firing or not firing Mueller were simply a legal issue – take authority away from a duly elected president and hand it to the judiciary.  Fortunately, it reportedly appears unlikely to be enacted.

There is nothing to stop Pres. Trump from taking the initiative to place himself under a similar kind of process, except that he, and not a judge, would ultimately retain the authority to dismiss Mueller or not.  Prior to any such decision, he could prepare a public document giving the reasons for such a dismissal and present it to Mueller for public comment or rebuttal.

In particular (and with regard to an issue that probably could not be legitimately raised under a strictly judicial review), Trump might allege that, based on the (allegedly) unjustified raids conducted against Trump associates, Mueller appears to be attempting to provoke a dismissal.  And Trump could support that allegation with the argument that, absent any evidence produced by the "investigation," Mueller's dismissal would, for Trump's enemies, be the most desirable way to end the "investigation" into the possible "collusion" between Trump and the Russians.  On that basis, Trump may order Mueller, if he has any significant evidence against Trump that would justify his retention, to produce it at that time or be dismissed.

Such an ultimatum as that would presume that the raids had no legitimate justification.  Mueller could argue that they did; if so, Trump could rebut, always giving Mueller the opportunity to respond.

Following this public, documented process, then Pres. Trump can make his decision.  Whatever it may be, he will have a public, documented basis for it.  If he fires Mueller, then Americans will be able to view the best arguments Mueller could make against such firing.  With such a document, it would be more difficult for anyone to unfairly characterize the decision, one way or the other.  And it's the kind of disciplined decision-making process that should be undergone in any case.

Bert Peterson operates a website focusing on health care and political education,

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