“On War”: Democrats and Mueller

Strategy Beats Tactics

It is time for war — that is, Vom Kriege (“On War”), the classic text of Carl von Clausewitz advising his readers on how best to deliver a meaningful result from a brutal business. Most famous for a deeply cynical (and I think, improperly understood) view that war is just politics waged by other means, Vom Kriege holds a few simple but powerful lessons that could stand review.

First among them: the battle favors the defender.

The Finns in action.

Between comparable rivals, the outcome will be decided based on the emotional reserves of the armies themselves, as well as the small favors bestowed by luck. On otherwise equal terms, inspiration runs deeper when defending against an aggressor, and the ground favors those who know it well. History tells us that the thinking of Clausewitz holds even when parity does not. For instance, when the vastly superior Soviet army invaded Finland in 1939, the Finns made do with vintage World War I ordnance. In practice drills on their own fields, they ranged their inferior artillery long before the arrival of the Red Army. In war, they fired once, awaiting only a sufficient enough reason to justify expending the shell. Sometimes they rode a bicycle between battlefields; other times, they skied. No matter how humble the commute, the Finns drew heavily on the advantages of knowing where they were going, and why they were fighting.

Second, Clausewitz advises that war strategy should always be kept simple. Battles are by nature complex: instructions can be misconstrued; day turns to night; smoke clouds the battlefield. The failure to furnish a legible strategy robs your army of the ability to repair back to a stable constant in the midst of chaos. As Commanding General of the Army, Ulysses S. Grant earned notice for austere instructions to his officers, but more important than his concision was his whole approach to the war. First, as a commander in the west, he sought to cut the Confederacy at the Mississippi River; later, when assuming command of all Union forces, he remained loyal to the existing strategy of encircling and eventually destroying the Confederate Army of Northern Virginia. These were not complex designs; only in their execution, and incredibly so in their execution, did they present difficulty. Victorious generals find it enough to grapple with the inevitable and ensuing hazards of war without introducing a few of their own.

These insights remain relevant, and for more than just battle. Neither Clausewitz nor Grant would have refused Michigan Democrat Senator Debbie Stabenow the resources she requested in the 2016 election, for example, by citing the hope that, in withholding money from her state, the rival presidential campaign would be induced to spend less there as well. Unlike the Clinton campaign, both generals would have sent the money. Likewise, they never would have spurned volunteers or sent buses filled with them back home. In war, or any other prolonged and complicated antagonism, the best weapon is not a nine-dimensional-chess move but the strengths that your rival knows about in advance, but can do little to thwart. Cleverness, as an organizing principle, amounts to sophistry, a rudderless journey that ends in humiliation.

The Mueller Probe: Democrats Determined to Run and Re-Run the 2016 Playbook

And yet, time and again, we see the Democrats elevate and embrace tactics over strategy when it comes to their framing of and response to the Mueller probe.

This is most apparent in their recitation of “norms” that Donald Trump has violated — on the apparent expectation that most ordinary Americans would feel outraged by these violations. But norms are most like jargon: a useful shortcut for those in the know. To elevate a norm as an end in itself is to place professional autonomy over and above the principles those norms were intended to safeguard in the first place. It is to prefer to win a battle, even at the cost of the war.

I find nothing inherently wrong with norms, or jargon. To target either simply for the sake of denouncing them suggests an anti-intellectualism — I’m speaking here of a hostility to knowledge itself — that can easily lend itself to an anti-democratic impulse. It is a dangerous potential of a childish mind.

But I find nothing inherently right with them either — or, more accurately, nothing in them that represents a self-executing virtue. They work only if they work as intended, and it is the underlying intention that locates the legitimacy, not the number or the importance of the custodians willing to attest to the norm. To traffic exclusively in norms — for example, the one I will discuss below: federal prosecutorial independence — is to offer an impromptu “stress test” of the status quo.

I would strongly advise against that. In fact, the insight of Donald Trump’s politics is to rely on the administration of just such a test. After all, Trump could never command a majority based on his own politics or proposals, but he can position himself as the beneficiary of an audit of the status quo — namely, whether ordinary people believe the establishment works for their benefit.

And he has done just that. Perhaps a political and media establishment bleeding credibility in the wake of an unjust war in Iraq, as well as recovery from recession that mainly restored affluence to the wealthy, may not perceive the state of their own disrepair. But their weakness persists regardless of their willingness to acknowledge it, and the establishment can no more count on a passive defense of norms, no matter how credible, than Trump can win based on affirmative assent to his agenda.

Prosecutorial Independence: A Norm Worth Defending, But Not On its Own

“Can the President Control the Department of Justice?” ask Rebecca Roiphe and Bruce A. Green in the Alabama Law Review. The answer to this seemingly simple question is not a straightforward one: “the law is silent,” Roiphe and Green tell us, with neither the president’s control of criminal investigations nor the independence of those investigations from presidential interference ever explicitly established. But history can be summoned to provide guidance — although it too is mixed.

On the one hand, it is clear that the president appoints the Attorney General (and may also fire her); the country’s first presidents did, in fact, make recommendations regarding who and what should and should not be prosecuted; and the power to pardon, granted to the president, indicates some sort of decisive role for the president in the administration of justice.

On the other hand, keeping federal prosecutors free from outside interference, especially at the level of discrete investigations or cases, and especially the sort of interference Roiphe and Green deem “partisan” or “personal” in nature, is a well understood norm — so much so that the authors find the failure to enshrine it in statute actually attests to its wide acceptance. To buttress their reading, Roiphe and Green point to history, and characterize the “evolving understanding” of prosecutorial independence as a permanent feature of American government. Here their hand is strengthened by the absurdity of pointing to the country’s earliest days — when federal prosecutors were rare, federal criminal law scant, and the federal administrative apparatus anemic — to derive any sort of authoritative precedent. Instead, they look to the critical post-Civil War juncture, when the scope, capacity, and power of federal government expanded amidst partisan political divides, patronage machines, and a faith in professional expertise that many believed would mitigate the proliferating influence of small and self-interested concerns.

When the Department of Justice was founded in 1870, the consolidation of power under the Attorney General was intended to rid federal legal decision-making of cronyism and corruption. This was but one move among many in the same direction. As a scholar, Woodrow Wilson epitomized the faith in objective expertise in arguing for the creation of a federal civil service system; as a politician and president, he advanced those interests — and revealed some of their biased assumptions, including an abiding racism. Still, by the time he ended his service as president, and certainly by the time the ideals of the progressive movement came to fruition in the New Deal, the growth of the executive had clearly not resulted in unchecked presidential power within it: independent commissions, civil service protections, and prosecutorial independence ensconced in the Department of Justice all had a recognized place in the administrative state.

In the awful event that the Trump administration exposes prosecutorial independence to legal challenge, I hope that the lawyers defending this professional norm cite the work of Roiphe and Green, along with others. I find their reading of history persuasive and assured.

Here is what is crucial: I also regard it as vulnerable. I attribute its weakness not to the unhealthy reach of “fake news,” but rather to its inherent assumptions of what is tenable and true, as well as an overconfident belief that relatively minor distinctions wield an influence over ordinary people more powerful than actual outcomes or results.

“In modern times, as far as the public record reflects,” Roiphe and Green write, “contemporary US presidents do not ordinarily seek to control or direct prosecutors’ conduct of individual federal cases.” Only later in a footnote do we learn: “absent a universal commitment to prosecutorial independence, a President can control government lawyers’ work as a practical matter by hiring an AG whose primary loyalty is to the administration.” This is no mere caveat; nor does it imply that this appointment power would affect only the general direction of litigation, sparing individual investigations of interference.

In fact, in recent years, we have seen just that — albeit, this kind of political influence has been more evident in those cases that the Department of Justice chose not to pursue. I am most familiar with the Bush and Obama administrations’ refusal to prosecute opioid manufacturers and distributors (which I discuss at length here); one particularly brazen chapter in that shameless saga, the firing of US Attorney John Brownlee, is elided over by Roiphe and Green, who fail to specify the backstory, so it remains unacknowledged as a potential breach of the norms that they present as, until very recently, widely cherished.

To be clear: the fact that Congress convened hearings to discuss the Brownlee case underscores the arguments that Roiphe and Green make. But, to be equally clear: prosecutorial independence has not been a pristine creature, placed under threat only by history’s villains. Others have trespassed.

Nor do I find the carefully defined prosecutorial independence of Roiphe and Green to be self-evidently good for its own sake. At this point in time, we cannot adequately explain why Eric Holder’s Department of Justice failed to prosecute or meaningfully punish corporate wrongdoers, but Jesse Eisinger has written an entire book on this subject, and he devotes considerable attention to the “unwritten script” of US Attorneys, who, in aspiring for promotion, avoid trials for the fear of losing them. The norms of any given profession may or may not equate to or align with pursuing the public good — and it seems obvious that in this most recent example, at least in terms of opioid manufacturers and distributors, it cost lives.

In the wake of such costly failure, I can easily imagine the American people agreeing to the proposition that the president can and maybe even should interfere in individual investigations, but that he do so openly, and share his reasons with the public. I would not support such a rule, but I would not be surprised by its sympathetic hearing. Simply put, the criminal division of the Department of Justice cannot, at this point in time, survive a “legitimacy audit” or “stress test.” If US Attorneys and their allies want others to defer to their professional norms, they should have taken better care to place those norms in service of the American people.

Forget the Battle: Win the War

Our recent political history instructs us that norms are a grievously weakened surrogate to discuss values; similarly, professional autonomy is not even remotely adequate assurance of accountability to the public. Both are tactics, not strategies — and, in this case as well as others, to posit them as a complete or sufficient argument is to invite Donald Trump onto exactly the ground he would most like to dig his trenches.

I value the contribution that sensible norms make, and I also value scholarly treatments examining the history of those norms. I hope all are put to good use. But it’s stupid and wrong-headed for the public case against Donald Trump to devolve into a legitimacy audit of the criminal division of the DOJ. At heart, this is not a question of prosecutorial independence; this is a question of whether the president is above the law — and, specifically, whether he can use any of the powers of his office, including those he owns outright, to exempt himself from criminal laws and investigations that would otherwise apply.

The checkered history of prosecutorial independence probably does come down on Roiphe and Green’s side. That might be useful in court, but other than that, for the purposes of our current national crisis, I really don’t care. All of American history, including the revolution itself, can be summoned to corroborate the simple and powerful contention that the American republic is not a monarchy; the law may at certain times be invested in one or another official, but it is not defined by her person, but rather her office. The democratic republic rejects the assertion of Louis XIV that the “the state, is me.” In fact, the principal reason we have one president or a “unitary executive” (rather than a committee, as the framers briefly considered during the convention), is so that he may be held accountable for wrongdoing, including in cases of impeachment. The framers designed the system to concentrate responsibility more so than power; to suggest otherwise is an affront to the thousands upon thousands who died for the most noble aspirations of the American experiment.

The idea that no person is above the law is a simple one that we are called on to defend. It can be defended on skis, on bicycles, trailing a caravan of goats and armed with only a bow and arrow. This is home turf.

Trump and his allies already have their own political narrative in place (I discussed it here). However bumbling their daily escapades, their positioning of themselves as defenders against encroachments of an unbound national security state is not just audacious, it is also shrewd, and broadly speaking, legible. Consider this recent passage from The New York Times:

Sam Nunberg, a former campaign adviser, said the president should not fire Mr. Sessions, Mr. Rosenstein or Robert S. Mueller III, the special counsel in charge of the Russia investigation, because “they’re perfect foils.” They and James B. Comey, the F.B.I. director fired by Mr. Trump last year, have become symbols of the “deep state” that Mr. Trump says he is fighting.

“They have given us every single talking point that we have needed,” Mr. Nunberg said. “All I need to do is quote them. Their mind-set is they know better. It’s this gilded Washington, ‘we know best and you’re just not smart enough to understand.’ ”

Though widely derided, the successful launch of this narrative is not without effect. As Charles Pierce notes in Vanity Fair, “the president’s approval rating among Republicans is the highest of any Republican president since World War II at this point in his administration* with the exception of where George W. Bush was at immediately after the attacks of 9/11.”

Now is the time to counter this narrative. Importantly, the president’s commitment to exempting himself from the laws of the democratic republic predates the arrival of Rudy Giuliani. We learned only this past week that, in late January, his first team of lawyers put forward an expansive view of the president’s control of federal investigations in order to exempt himself from subpoena. Much attention has focused on the first part of their assertion; I think that’s idiotic. All the attention should go to the latter. Even if a person subscribed to some bizarre reading of history that suggested the presidency retained control over specific cases of federal criminal law, that same person could not argue that this power extended to excusing the president from legal review and still claim to be faithful to the American project.

We don’t elect kings in this country. Take every regiment you can find and fight this war.

---

Posted from my blog with SteemPress : https://selfscroll.com/on-war-democrats-and-mueller/

---