If the most powerful and well-connected can be victimized by lawfare, what hope would ordinary citizens have against a vindictive prosecution?
One of the interesting aspects of the investigation of Donald Trump has been the role of the recusals in the process. While some aspects of these recusals have received significant attention, others have not. The recusal process has meant that Donald Trump, as President, has exercised much less control over these prosecutions than other Presidents. The effects of these recusals have helped fuel the fire of claims that the Deep State has used its power to attack Trump.
The prosecutions relevant to Trump have come from two offices. First, there is, of course, the investigation and prosecutions conducted by Special Counsel Mueller. Here, of course, the story is familiar. Attorney General Sessions recused himself from the Russia collusion issue, which left Deputy Attorney General Rod Rosenstein in control. After Trump used Rosenstein’s memo criticizing FBI Director James Comey as a justification for firing Comey, Rosenstein then appointed Mueller as special counsel to investigate the Russia collusion issue.
Various explanations have been offered for Rosenstein’s action—from the praiseworthy (he felt the need to uphold the rule of law) to the cynical (he was protecting his reputation with Washington insiders after the establishment strongly reacted to his memo being used to fire James Comey). But one point seems undeniable—Rosenstein’s action did not follow the Department of Justice Regulation covering special counsel appointments, which applied only to criminal investigations, not to counterintelligence investigations.
But recusals have also been important in the second area where Trump has been investigated—the prosecution of his personal lawyer, Michael Cohen, by the US. Attorney’s Office for the Southern District of New York. The prosecution of Cohen would not have been within Mueller’s jurisdiction, so it had to be sent to ordinary prosecutors. The Southern District has always claimed to be “independent” of the Department of Justice (ironically, Rudy Giuliani, the President’s lawyer, asserted this independence when he criticized Ed Meese, the Attorney General, in a prosecution in the 1980s). The U.S. Attorney for the Southern District is Geoffrey Berman, but Berman was recused for the Cohen prosecution. It is not entirely clear why Berman was recused, but it may be that Trump personally interviewed him for the job.
One can make a strong case that Trump could have avoided these prosecutions had he behaved more skillfully, such as by firing James Comey at the beginning of his administration and perhaps by not interviewing Berman.
Here, the nomination of William Barr to be Attorney General is significant. I briefly worked for Barr at Justice and it is my impression that he is an extremely sophisticated Washington insider. Thus, if anyone would know how to extricate Trump from these prosecutions and to avoid further landmines, it would be Barr.