The last few decades have not been good ones for those of us who believe in the rule of law, who subscribe to our country’s proudest boast, that ours is a government of laws, and not men (or persons).
What this means is that we are governed not by arbitrary political power, but that our republic is committed to the values that endure from the founding generation. These core values include an appreciation that there can be no order without law, no law without morality, and, indeed, that there can be no morality without religion. These traditional views have been largely abandoned by our legal and political elites on the left, a trend that Duke’s Dean Paul Carrington characterized as “legal nihilism,” the belief that law doesn’t matter and that’s it’s simply all about politics.
We’ve seen enough of this in practice to persuade some supporters of President Trump that a nihilistic and lawless legal system, in the person of Special Prosecutor Robert Mueller, might overturn of the will of the people expressed in President Trump’s election. Mueller is a good friend of the dismissed FBI Director, James Comey, and has staffed his team with a group of donors to Democratic candidates.
Traditional views of the rule of law have been largely abandoned by our legal and political elites on the left, a trend that has been characterized as “legal nihilism,” the belief that law doesn’t matter and that’s it’s simply all about politics.
I am actually encouraged by Mueller’s appointment, however. I think he’s going to get to the bottom of things quickly, and I think he’ll find that there’s nothing there. And that’s the best and cleanest way to dispose of a false issue.
First, Mueller is a person of the highest integrity, and I can speak to that because I know something about the law firm from which he and many of those he hired came. This is the firm now known as Wilmer, Hale once known as Wilmer, Cutler, & Pickering. I worked for two years at that firm, and I have never been surrounded by more brilliant and principled individuals. There were more Democrats than Republicans at the firm, but unlike the academy, there was a diversity of political views, and there was a commitment to the law itself that was, I think, the real thing.
One of the most zealous former Special Prosecutors, Ken Starr (scourge of Bill Clinton) has expressed his trust in Mueller and the team he has assembled, and that means a lot to me (I have long known and respected Judge Starr, and have had the pleasure of working with him).
Second, I think Mueller will find that, as President Trump claims, he never attempted to “obstruct justice,” and, indeed, never attempted to stop such an investigation. There is no denying that Trump expressed his “hope” to Comey that Trump’s fired aide, General Michael Flynn, would not be hurt by such an investigation, but Trump apparently gave no direct orders to cease investigating Flynn, and, to the contrary, even Comey admitted that Trump expressed his wish that if any of his “satellites” – apparently referring to those persons who were connected to his campaign – had colluded with the Russians, he, Trump, wanted to have that revealed.
To obstruct justice in this context would require two things, as the lawyers call them, actus reus and mens rea. The first means evidence of a criminal act and the second refers to the intention to commit it. If Trump is telling the truth, neither occurred here – the investigation was never stopped, and Trump never sought to stop it. Last year the Supreme Court unanimously held that former Virginia Governor Bob McDonnell was not corrupt because he never ordered his subordinates to aid a donor. What Trump did was so much more benign that that. From what evidence we’ve seen, Flynn had not done anything out of line with the Russians, and if that’s so there was neither an actus reus (wrongful act) nor a mens res (intentional wrong) from which one might infer an obstruction of justice.
If Mueller is an honest man, this is the conclusion he will have to reach, and he will, when he makes his report, have to exonerate the president. And since it’ll be easy to examine the evidence, we should expect the issue to disappear before very long. In that case, the president will emerge stronger, not weaker, from the investigation. That would be a defeat for the legal nihilists, and a pleasant surprise and a reassurance that the rule of law is returning to this country.
Stephen B. Presser is the Raoul Berger Professor Emeritus at Northwestern’s Pritzker School of Law and the author of Law Professors: Three Centuries of Shaping American Law.