Tags: attorney general | edwards | mueller | rosenstein

Criminalizing Politics Won't Wash the Money Out

Criminalizing Politics Won't Wash the Money Out

In August of 2008, then-presidential candidate, John Edwards spoke at a Small Change for Big Change fund raising event in West Hollywood, California. (Jose Gil/Dreamstime)

Monday, 27 August 2018 02:25 PM Current | Bio | Archive

In the last Act of "King John," William Shakespeare has Lord Salisbury utter the words that "such is the infection of the time, [t]hat for the health and physic of our right, [w]e cannot deal but with the very hand [o]f stern injustice, and confusèd wrong  . . . " ["King John," Act 5, Scenes 2, 20-23].

Salisbury is seeking to come to grips with the fact that to save England from evil it might be necessary to compromise with the loathed French Dauphin and fight his former sovereign.

Salisbury soon realizes the error of his ways, and returns to the English fold, but the point that Shakespeare is making is that the path of righteousness is sometimes murky, and occasionally it seems to point in inconsistent and incompatible directions.

U.S. Special Counsel Robert Mueller has yet to come to Salisbury’s ultimate realization, but sooner or later he should understand that his Javert-like pursuit of friends and associates of the president undermines the republic — instead of helping it.

The latest instance is the related prosecution of Trump’s former attorney Michael Cohen for purported campaign violations insofar as he was instrumental in seeking to pay "hush money" to pornstar Stormy Daniels so that her assertion of a long-ago affair with Donald Trump would not taint the Trump campaign. It's far from clear that even if the affair happened, and even if the payment was made, it would actually be a campaign finance violation.

The result of the trial for former North Carolina senator and (vice-presidential, then presidential) candidate John Edwards, an acquittal on similar charges, suggests that it would not. It additionally suggests that those who see in the Stormy Daniels affair fodder for impeachment are wrong.

But what all of this ultimately suggests is the futility and near insanity of thinking that we can legislate regulations that will make our campaigns pristine, and that will somehow remove the influence of money from politics.

America's campaign finance regulations have simply resulted in a situation where it's almost impossible to avoid violating the law. For example, the Clinton and Obama campaigns were rife with technical violations; many if not most of which have not resulted in any punishment.

Another result arises in which one now cannot run for office without a battery of lawyers and thousands of dollars spent to try and remain in compliance.

We suffer under the delusion that somehow, if we just find the right legislative solution, we can alter human nature and prevent corruption and evil. It can’t be done, and the unintended consequence of our spider’s web of criminal laws is that a zealous special counsel — even with the best of intentions — can render damage to our constitutional fabric.

It's for this reason that some scholars believe that the institution of the special counsel is in fact unconstitutional.

It is too prone to the abuse of arbitrary power.

If it is true that Mr. Mueller’s investigation was prompted by spurious information supplied by Mr. Trump’s political foes (and is increasingly likely that this is the case), it is doubly damning and ironic that his efforts are distracting and undermining an administration that have succeeded in improving the economy, reducing pernicious over-regulation, easing international tensions, and reforming our judiciary with the appointment of judges faithful to the rule of law.

The academic foes of the Clinton impeachment, such as professor Cass Sunstein, argued that our constitutional institutions of periodic elections and the separation of powers were intended to limit the powers of a president, and that impeachment should not simply be a partisan tool to reverse an election result. Sunstein and other defenders of President Clinton have, unfortunately, not been as vocal in defense of the Electoral College’s choice of Mr. Trump.

President Trump may be a flawed human being. Who isn't?

Compared to his critics he is actually a better defender of the rule of law and the Constitution. His partisan foes, who seek prematurely to end his presidency, do not seem to understand that in their zeal to reverse Mr. Trump’s election they risk grave damage to the constitutional order and to popular sovereignty itself.

President Trump could end this madness by dismissing the attorney general, the deputy attorney general, and the special counsel, but he understands that by doing so he would be risking a constitutional crisis. This is exactly what Richard Nixon found when he fired Watergate Special Prosecutor Archibald Cox.

Unlike those who attack him, then, President Trump understands that such a crisis ought to be avoided at all costs. Still, now that Mr. Mueller has secured a few convictions, and now that he ought to have realized that the chimera of Russian collusion is a partisan fantasy, he should issue his final report and withdraw before our polity is further undermined.

Let the upcoming elections be a referendum on the president, and let the pernicious and constitutionally-suspect special prosecution cease.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.

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We suffer under the delusion that somehow, if we just find the right legislative solution, we can alter human nature and prevent corruption and evil. It can’t be done, This suggests the futility and insanity of thinking that we can make our campaigns pristine.
attorney general, edwards, mueller, rosenstein
Monday, 27 August 2018 02:25 PM
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