- - Tuesday, April 10, 2018

ANALYSIS/OPINION:

Alas, these are not happy days for the fundamental civil rights we’ve always taken for granted in America.

The U.S. government raids a lawyer’s office at daybreak to fish for evidence against a designated target, and on Capitol Hill the CEO of Facebook testifies that he has been colluding with Robert Mueller, the special prosecutor in hot pursuit of Donald Trump, hoping to collect whatever evidence, or reasonable facsimile thereof, they can find to destroy a duly elected presidency.

This has never been tried before, not even in the hoary past, but who’s to say it won’t work. Mark Zuckerberg of Facebook told Congress Tuesday that his company is working with Mr. Mueller as “part of the investigation into Russian meddling in the 2016 election.”

He told Sen. Patrick Leahy of Vermont, a Democrat, that several employees had been interviewed by one of Mr. Mueller’s lawyers, but that he had not been. “I want to be careful here,” he said, “because our work with the special counsel is confidential and I want to make sure that in an open session I’m not revealing something that’s not confidential.”

Mr. Zuckerberg was not under oath, which was unusual for such proceedings, and he was thus enabled to tell fibs, stretchers, prevarications and extensions of remarks whenever convenient. When Mr. Leahy asked whether Facebook employees had answered questions under subpoena he first said yes, they had.

“Actually, let me clarify that,” he quickly added. The correct answer was not yes, but no. “I’m actually not aware of a subpoena, but there may have been. I know we’re working with them now.”

Far more serious was Mr. Mueller’s raid on the office of Michael Cohen, the president’s lawyer. The lawyer-client privilege has always been held as sacrosanct, not quite in the league with the priestly confessional, but private and protected by law. There are exceptions, such as a client conspiring with his lawyer to commit a crime or fraudulent act and covering it up, plotting to conceal evidence, encourage perjury, conceal income or tamper with a witness. But these are things that no lawyer, particularly a special counsel or prosecutor, would never, ever, do. Surely.

The New York Times reports that the FBI, which conducted the raid, was looking for documents going back “several years,” before Mr. Trump was president. Evidence of payments to porn queen Stormy Daniels, if there were any, was said to be only part of the documents Mr. Mueller wants to see. (Note to Mr. Mueller: Color photographs and video of Stormy working at her profession are said to be readily available on the Internet.)

Alarms have been raised, some in Congress, though not nearly as many and as passionate as ought to be. The raid was, in the words of Sen. Rand Paul of Kentucky, a Republican, “a great overstep” of the legitimacy of the inquiry into Russian collusion, if any, in the 2016 election.

Sen. Cory Gardner of Colorado, another Republican, is wary of the inevitable slippery slope, where legitimate intentions risk sliding into the abyss. Politicians of no particular good intentions will seize the Facebook inquiry to enable regulation of free speech and content. Others are concerned that the Mueller precedent will lead to further flouting of the lawyer-client privilege, with government lawyers raiding at will to obtain evidence or whatever else they think might be relevant, useful (or merely titillating).

Alan Dershowitz, the distinguished Harvard law professor (and a liberal Democrat), says the Mueller raid marked “a dangerous day for lawyer-client privilege.”

“If this were Hillary Clinton’s office [raided by the government], the American Civil Liberties Union would be on every TV station in America jumping up and down [in protest]. The deafening silence of the ACLU and civil libertarians about the intrusion into the lawyer-client confidentiality is really appalling.”

He observes that Mr. Mueller is farming out certain elements of his investigation to the U.S. attorney’s office in New York to stay within the confines of the Russian collusion inquiry, as set out by the U.S. deputy attorney general who appointed Mr. Mueller.

It’s hard to avoid the suspicion that Mr. Mueller, having failed to find any evidence of the president’s collusion with Vladimir Putin to cook the results of the 2016 election, must now find evidence that can be portrayed as collusion at something else that can be portrayed as important.

Mr. Mueller has had a distinguished career and is held as decent, honorable and well-regarded by his peers, but if he winds up his investigation with nothing to show for it he knows he will never be forgiven. The mob, which has been unable to come to terms with losing the election, wants somebody’s blood. Mobs always do.


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