Prosecutors and the rule of law

OPINION:

Late last week, a federal judge in Alexandria, Va., questioned the authority of special counsel Robert Mueller to seek an indictment and pursue the prosecution of former Trump campaign manager Paul Manafort for alleged financial crimes that, according to the indictment, began and ended well before Donald Trump ran for president.

The application by Mr. Manafort’s lawyers before Judge T.S. Ellis III was actually a motion to dismiss the indictment against Mr. Manafort for want of jurisdiction. Stated differently, Mr. Manafort argued that Mr. Mueller exceeded the authority granted to him by the Department of Justice and thus he has no legal ability — jurisdiction — to prosecute Mr. Manafort. During the course of the oral argument on this motion, the judge opined that in his view, Mr. Mueller is only prosecuting Mr. Manafort for bank and tax fraud to squeeze him to testify against President Trump on matters that might be impeachable.

The judge’s comments as to Mr. Mueller’s motivation are dicta. Dicta are the unsolicited, unnecessary and often personal opinions of the court on matters not strictly before the court and not integral to the court’s ruling. Stated differently, there is an abundance of speculation in the media but zero evidence in the record before Judge Ellis — zero — on which he could base his opinion; and his opinion of the prosecutor’s motivation is irrelevant. It made national headlines because Trump supporters agree with it, and it is probably accurate — but it is legally meaningless.

If the present indictment were to be dismissed, the local federal prosecutors in Alexandria would present the Mueller-gathered evidence against Mr. Manafort to another grand jury and ask it to issue a new indictment that makes the identical charges as those now pending. Then they would prosecute Mr. Manafort on the same charges that Mr. Mueller originally brought. The financial crimes charged, though unrelated to Mr. Mueller’s initial duty of looking for a conspiracy between the Trump campaign and foreigners, are real, and no federal prosecutors with jurisdiction could ethically overlook them.

Judge Ellis’ actual ruling — clouded by the fog of his dicta — gave Mr. Mueller two weeks to demonstrate his lawful jurisdiction. He can easily do that with a letter from Rod Rosenstein. The letter can even be retroactive. Thus, all this focus on Judge Ellis’ personal opinion of Mr. Mueller’s motivation is much ado about national politics and has little to do with the rule of law. Who cares what a judge thinks about the motivations of the prosecutors?

The practice of indicting a person for a matter utterly unrelated to the core of the government’s investigation in order to turn the indicted person into a government witness, though often repellant, is commonplace and has received approval by numerous Supreme Court opinions.

Clearly, obtaining a guilty plea from retired Lt. Gen. Michael Flynn, the president’s former national security adviser, for lying to FBI agents about the existence of a lawful telephone conversation and obtaining a guilty plea from Rick Gates, Mr. Manafort’s former business partner and deputy Trump campaign manager, for lying about who said what at a lawful meeting are parts of a plan to get these folks to give evidence or testimony about the president that prosecutors want to hear.

I have characterized this prosecutorial behavior as extortion or bribery, but I am in a small minority in the legal and judicial communities. The courts have made clear that prosecutors can nullify prison exposure by reducing charges to induce the testimony they want from a witness. Yet if defense counsel gave the same witness so much as a lollipop to shade his testimony, both would be indicted for bribery.

All this leads to the question: How independent are these prosecutors? The modern, post-Nixon Department of Justice has a little bit of unaccountability intentionally built into it based on natural law principles of right and wrong and on fear of an imperial presidency. President Richard Nixon believed he could do as he pleased with his DOJ — and even boasted that if he did something, by definition it was not unlawful.

But prosecutors have ethical and moral obligations to prosecute crimes, and those duties transcend politics. Suppose Mr. Trump told prosecutors not to prosecute his former friend Harvey Weinstein or his former lawyer Michael Cohen? I expect they would rightly ignore him.

I know this argument offends the belief of many of my colleagues that the Constitution gives the president sole and total command over all behavior in the executive branch of the federal government. But the natural law is superior to the Constitution and superior to the government.

The natural law teaches that through the exercise of reason, we know in our hearts what is right and what is wrong. Some things are right no matter what the government says, and some things are wrong no matter what the government says. The limited quasi-independence of the modern Department of Justice, born in the ashes of a presidency that publicly proclaimed that it could do no wrong, is a hallmark to these principles.

I offer these arguments because it now appears that the feared clash between Mr. Trump and special counsel Mueller will soon come to a head, and one can only hope that the rule of law will prevail. But the rule of law is only a safeguard of our liberties when the people in whose hands we repose it for safekeeping are faithful to it though, in the motto of the DOJ, the heavens fall.

• Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is a regular contributor to The Washington Times. He is the author of nine books on the U.S. Constitution.