When I first met Ryan Casey, he was chairman of the Lincoln County Democratic Party in Sioux Falls, South Dakota who had served as chairman of South Dakota's delegation to the 2012 Democratic National Convention. A graduate of the U.S. Naval Academy and of Georgetown University, he was on his way to Seattle to study law at the University of Washington. Now he's an attorney, a commander in the U.S. Naval Reserve and the author of today's guest post.Will Robert Mueller indict Trump? Speculation has been rampant, though insiders don’t expect the special counsel to contravene a DOJ legal opinion that seems to preclude indictment of a sitting president. But the will-he-or-won’t-he dichotomy asks the wrong question. Using strategies of warfare, Mueller has likely already conceived an endgame, setting the stage for Trump’s downfall.Strategic warfare developed as a means to fight and win wars effectively and efficiently as human societies grew in size and began to operate within a political system. In primitive times, war was not strategic; tribes fought each other in brutal battles that amounted to primal, ritualized violence geared as much toward displaying dominance and masculinity as to actually accomplishing a military objective. Since then, from ancient China to medieval Europe to the modern world, the greatest strategists like Sun Tzu, Miyamoto Musashi, Carl von Clausewitz, and T.E. Lawrence have produced writings that capture their strategic philosophies. Likewise, history’s greatest generals, such as Alexander the Great, Hannibal, Genghis Khan, Napoleon Bonaparte, Erwin Rommel, and Vo Nguyen Giap have demonstrated these strategies in action. Author Robert Greene has assembled and organized this collective wisdom of strategic warfare in his excellent book, The 33 Strategies of War.The essence of strategic warfare is thinking ahead toward long-term goals, deciding when to expend resources or take risks, and when to be patient, or even retreat. A strategist must master his or her emotions, constantly striving to view the world with detached objectivity. Fear, anger, and overconfidence are just a few of the most dangerous emotions; by the same token, a cunning strategist can exploit a less composed enemy. Greene sums up Sun Tzu’s philosophy: “By playing on the psychological weaknesses of the opponent, by maneuvering him into precarious positions, by inducing feelings of frustration and confusion, a strategist can get the other side to break down mentally before surrendering physically.”Mueller’s investigation can be seen as an extended battle against both a hostile foreign power and a lawless, belligerent president. “War is not some separate realm divorced from the rest of society,” Greene contends. It brings out the best and the worst in human nature, and reflects society’s trends. As institutions and norms unravel periodically, human competition in its various forms mirrors this evolution, as in the case of guerilla warfare, terrorism, industrial espionage, cybercrime, and the kind of slash-and-burn politics that Newt Gingrich, Mitch McConnell, and now Donald Trump have used to great effect.Those who know Mueller say he’s about the last person you’d expect to go rogue. And yet, it is hard to imagine an ambitious, career lawman like Mueller, who fought and bled for his country as a combat Marine in Vietnam, would take Trump’s shocking corruption and treason lying down. He must have realized at the outset this situation demanded the utmost in strategic thinking.Mueller’s strategy turns Trump’s impulsive aggression against him. In jujitsu, a weaker fighter can defeat a more powerful opponent by manipulating the enemy’s force and energy. Already we are seeing how Mueller, operating in the background, remains several steps ahead of Trump using subtle, indirect moves. Meanwhile, Trump’s arrogance has led him to underestimate the threat of his own legal exposure. Instead of hiring top-flight defense attorneys and heeding their advice, he has opted for a chaotic carousel of mediocre lawyers and frequently ignored them. The following five strategies of war, as described by Greene, help explain how Mueller will outmaneuver and ultimately defeat Trump -- even without indicting the president.1. LOSE BATTLES BUT WIN THE WAR: THE GRAND STRATEGYThe grand strategist looks beyond the immediate battles and concerns of the moment and concentrates on his long-term objective. His ultimate goals dictate his actions as he fights the temptation to react to each and every event. All humans are capable of some rational thought, and can devise plans to get what they want, but grand strategists are able to look more deeply into themselves, and to grapple with the lessons of the past to gain a clearer sense of the future.Napoleon mastered visualizing clear objectives in intense detail. Before a campaign even began, with his advisers gathered around, he would point to a precise spot on a map and identify where the last battle would unfold. To the aides’ shock, time and time again, Napoleon’s vision proved uncanny.Mueller devised his grand strategy early on, visualizing the type of evidence he was likely to uncover, which witnesses he could squeeze to cooperate, what impact their testimony would have on future events, and how Trump would react. Ken White, a former Assistant U.S. Attorney, explains that a lot of long-term grand jury investigations are specifically designed to provoke reactions. “One of the ways [federal prosecutors] work is to rattle everyone’s cage real loud and see what happens.” Not only do tactics like these trigger stupid mistakes by those under investigation, they also motivate other wrongdoers and witnesses to come forward and attempt to cut deals with the government. Certainly Mueller will go where the evidence leads him, but in this scandal, there are “many secrets; no mysteries,” as David Frum has observed. Indeed, Trump’s brazen coordination with Russia and attempts to obstruct justice have taken place largely in public view.Like Napoleon, Mueller is playing the long game. Because Trump’s culpability is a political matter as well as a legal question, it is hard to know exactly how this will end. The corrosive effect of exorbitant money in politics has rendered our democratic process largely dysfunctional. Thankfully, Mueller has been able to operate with prosecutorial independence, and his results so far — the indictments, convictions, guilty pleas, and cooperation agreements — speak for themselves. Furthermore, if a grand strategist is a master at controlling his emotions and focusing on the ultimate objective, Trump is the opposite. His constant outbursts are predictable — a serious liability in warfare. One day, we may learn that soon after his appointment, Mueller gathered his team around a map, and pointed to the place where Trump would meet his end.2. HIT THEM WHERE IT HURTS: THE CENTER OF GRAVITY STRATEGYAll powerful people rely on sources of strength for their lifeblood; choke off these, and their power dries up. In war, a superior general does not focus solely on the enemy’s army, or even its leader. Instead, he keys in on an opponent’s critical vulnerability. Military power, after all, does not reside in the army itself, but in its foundations of support, like funding, supplies, public backing, and foreign alliances. Greene observes, “A person, like an army, usually gets his or her power from three or four simultaneous sources: money, popularity, skillful maneuvering, some particular advantage he has fostered. Knock out one and he will have to depend more on the others; knock out those and he is lost.” For this reason, a strategist must examine closely what is propping up his enemy, because it likely holds the key to what will bring him down.Trump’s power is rooted in his fame and the veneer of self-made wealth. In truth, as the New York Times recently revealed in a major exposé, Trump’s money is the product of fraudulent transfers of his father’s fortune, which itself was amassed largely through outright fraud and tax evasion. But Trump squandered most of his inheritance long ago in reckless real estate deals, and by the 1990s, he had declared bankruptcy and left creditors holding the bag for more than $900 million. No longer able to secure loans through legitimate channels, Trump began to pay cash for real estate, apparently financing these transactions through illicit deals with Russian oligarchs seeking to launder money. By the 2008–09 recession, not a single U.S. bank would go near him. For the past decade at least, Trump has been beholden to former Soviet oligarchs under Putin’s control.Trump is paralyzed by the fear that these oligarchs will reveal his illicit dealings-- or worse, simply call his loans due. He is so overleveraged he faces serious risk of a financial wipeout. Should that happen, the aura of wealth and success he has cultivated for so long would shatter, his power evaporating along with it.In untangling Trump’s criminal enterprise, Mueller’s investigation will lay bare the phoniness of his wealth. Paul Manafort, Trump’s former campaign chair, likely sits at the nexus of Trump’s corrupt business practices and coordination with the Russian government during the 2016 campaign. Manafort is now cooperating with Mueller as part of a major plea agreement following his conviction by a jury in August of various financial crimes. The deal saves Manafort from standing trial on a second wave of charges that included illegal foreign lobbying, conspiracy, money laundering, and obstruction of justice. Meanwhile, federal investigators in the Southern District of New York, working on a referral from Mueller, previously secured a guilty plea from Trump fixer Michael Cohen. He, too, is now cooperating with the special counsel. Prosecutors have granted immunity to other key figures in the case, including Trump Organization CFO Allen Weisselberg. Weisselberg knows more than anyone about Trump’s finances, having worked for the Trump family since the 1980s. Even before the devastating Manafort plea, Vanity Fair’s Bess Levin characterized prosecutors’ aggressive moves on Cohen and Weisselberg: “For Trump, this is the equivalent of being kicked in the balls after taking a crowbar to the face.”The information contained in forthcoming indictments, along with testimony and evidence put forth in criminal trials, will put Trump’s business incompetence and criminality on full display. It is true that America has become practically numb to Trump’s daily outrages and revelations about his illicit dealings. Even the explosive Times investigation into the Trump family’s wide-ranging financial crimes was largely swallowed up by the Kavanaugh controversy. But Mueller’s disclosures are different-- they carry the imprimatur of the federal courts, and the penalties of the criminal justice system.The cumulative effect of these revelations will chip away Trump’s political support. To strike at his critical vulnerability, it is not necessary to erode his base completely. In 2016, Trump won only 46.1% of the national popular vote, and his job approval rating has hovered in the low 40s throughout most of his presidency. But while Trump’s support among Republicans remains high (which helps explain congressional Republicans’ undying fealty to him), the GOP itself is shrinking. Overall, Trump is historically and increasingly unpopular. As Mueller systematically chokes off the sources of his power, Trump will act out, accelerating his own downfall.3. DESTROY FROM WITHINFor thousands of years, humans have erected walls around cities and military outposts to defend or deter against invasion. And for almost as long, military leaders have strategized about ways to breach these places. The conventional approach was to lay siege to the fortress and attempt to scale or break through its walls, using methods like battering rams, siege towers, or catapults. Invading armies encircled the fortress, depriving its people of food, water, and supplies. As starvation and despair took their toll, eventually the garrison would succumb. This method, however, was often bloody and time-consuming.More enlightened strategists later devised cleverer ways to breach a city’s walls. Their approach derived from a great insight: the supposed strength of a fortress was an illusion; inside its walls were people who were trapped, afraid, and even desperate. The proper strategy, therefore, was aimed at infiltrating the disaffected inhabitants already inside the city. By inflaming the dread and discontent among these people-- and spreading it to others-- strategists learned they could rot the fortress’s foundation from the inside, causing it to collapse on itself.Here, Trump is under siege, and the people around him know they are trapped. This is the same strategy Mueller used frequently in prosecuting the Mob. Last November, a person close to the Trump Administration told the Washington Post, “This investigation is a classic Gambino-style roll-up. You have to anticipate this roll-up will reach everyone in this administration.” Neither Trump’s businesses nor his campaign ever had to withstand meaningful scrutiny, but now Mueller is closing in and squeezing Trump’s associates, one by one. A lifetime habit of surrounding himself with unqualified sycophants has left Trump exposed; sloppy criminals like Paul Manafort, Rick Gates, Michael Cohen, and Roger Stone are easy pickings for Mueller. So are other witnesses desperate to protect themselves, like White House Counsel Don McGahn. Former National Security Advisor Michael Flynn already pleaded guilty last December to lying to the FBI, and has since been cooperating with Mueller. The government almost certainly has recordings of illicit phone conversations between Flynn and then-Russian ambassador, Sergey Kislyak. All of these loose ends present an enormous liability for Trump.No one should question Mueller’s commitment to achieving his objective in a criminal case, and his prosecution of Gambino crime boss John Gotti shows why. To nail Gotti, Mueller cut a deal with Sammy “the Bull” Gravano, a ruthless Mob hit man who had admitted to killing 19 men. In exchange for Gravano’s testimony against Gotti, Gravano was rewarded with a light sentence. Describing this episode for Vanity Fair, journalist Howard Blum imagined how much it must have gnawed at Mueller’s lofty moral code to allow a murderer with a body count of 19 to wind up spending “not much more time in jail than a deadbeat dad.” But in the end, Mueller got his man.Constant leaks from Trump’s inner circle offer a glimpse into the turmoil raging inside the castle walls. As these disaffected inhabitants flip on the president, he will only grow more erratic, and make more mistakes. Through a combination of subtle maneuvering and aggressive strikes, Mueller is destroying Trump from within.4. MANEUVER YOUR ENEMY INTO WEAKNESSThe key to maneuver warfare is to create dilemmas for an enemy that present him with only bad options. In this way, a strategist can unsettle the enemy before the battle begins. He maneuvers to frustrate and disorient his opponent and place him in a bad position, like looking into the sun or having to fight uphill.To maneuver, a strategist crafts a plan with branches that allows for contingencies. The ideal plan is neither too rigid nor too vague. It must establish markers guiding toward the strategic objective even when unforeseen events arise, yet leave a strategist room to adjust to the inevitable chaos and fog of war. As an agitated or impulsive enemy reacts, a flexible plan allows the prepared strategist to respond to changing circumstances quickly and rationally. A strategist who keeps more options open than his enemy has more room to maneuver, regardless of who holds territory. This flexibility constitutes a significant strategic advantage.Mueller is executing a plan with many branches, all of which further his ultimate objective. He is gathering as much information as possible, and will produce for the American people a definitive record of what the Russians did, how they did it, which Americans conspired with them, and who participated in the cover-up. Just as a strategist who dictates the tempo in battle has a powerful edge, Mueller is capitalizing on his ability to decide whom to indict and when, whether to subpoena Trump, when to issue a report to Rosenstein, how to operate in light of the critical 2018 midterm elections, whether to name Trump as an unindicted co-conspirator, and how to prosecute him once he is no longer president. Additionally, Mueller’s plan must anticipate Trump’s reactions.If Trump tries to fire federal investigators, Mueller has a ready response. Because many of Mueller’s targets are probably exposed to both state and federal criminal charges, state prosecutors could pick up where their federal counterparts leave off. Fordham Law professor Jed Shugerman explains, “Not only is it permissible for federal prosecutors to share evidence with state prosecutors; it is standard, especially in multi-jurisdiction organized crime cases. And frankly, this case has become an organized crime case.” Specifically, Trump and his associates have almost certainly violated several New York state financial laws, and a presidential pardon does not absolve state crimes. For this reason, Mueller has been working closely with New York state officials for more than a year. Trump and his associates may be exposed in other states where he has done business, including New Jersey, Connecticut, Florida, Virginia, Washington, D.C., California, and Arizona. Trump finds himself surrounded as he struggles to wage a multi-front war against Mueller, SDNY, the DOJ’s Public Integrity Section, the New York Attorney General, and the Manhattan District Attorney, just for starters. There is little question a Trump firing spree would backfire as it triggers a rash of additional parallel investigations in the states and adds to Mueller’s growing evidence of obstruction of justice.Mueller has also moved to block Trump’s use of pardons to thwart the investigation. Prior to his plea agreement, Trump openly dangled the possibility of pardoning Manafort, praising his bravery for going to trial instead of cooperating. But in locking down Manafort’s deal, Mueller required him to admit to many state-law crimes beyond the reach of any Trump pardon. Not only was Manafort forced to promise not to seek clemency, the agreement also required him to immediately forfeit an estimated $46 million in real estate and financial assets, “without regard to the status of his criminal conviction.”Mueller knows Trump must also ponder the political costs of issuing pardons to cover up his crimes. The choice he faces requires trading away political support to contain the legal exposure for himself and his children. But even for Trump, a volley of get-out-of-jail-free cards to protect his family and cronies would likely be politically catastrophic. And, given the truckloads of evidence Mueller has already amassed from other sources-- probably including recordings of Trump’s own voice-- this tradeoff is unsustainable.Mueller’s investigation has continually forced Trump into hopeless dilemmas. He looks guilty by refusing to answer the special counsel’s questions, but will further incriminate himself if he talks. Pardoning fellow conspirators is even more politically toxic, though Trump seems incapable of restraining himself as Mueller continues his roll-up. It is obvious Trump is politically and operationally constrained; his own top aides routinely ignore his orders, he cannot fire Jeff Sessions, the Attorney General he despises, and twice he has tried and failed to fire Mueller. On multiple occasions, Trump has even reportedly attempted to fire chief of staff John Kelly, who simply ignores the president. At this point, Trump has already waited far too long to hope to contain the damage through pardons. He has few options remaining, and all of them are bad.5. OCCUPY THE MORAL HIGH GROUND"War is simply a continuation of political intercourse, with the addition of other means,” Prussian general and military strategist Carl von Clausewitz famously declared. In a democracy, there is no greater strategic imperative than to occupy the moral high ground.Throughout history, in almost every culture, the concept of morality-- i.e. good vs. evil-- evolved as a way to keep order in society. Antisocial behavior, or “evil” was the opposite of what was social, or “good.” Periodically, when civil strife erodes the consensus surrounding certain values-- like truthfulness or respect for the rule of law-- society faces a moral reckoning, and must reestablish what is social vs. antisocial behavior. We now seem to be in one of these times.In 1517, a young, unknown priest named Martin Luther challenged Pope Leo X for selling indulgences. Initially Luther had merely intended to question the theological relationship between God’s forgiveness and indulgences paid to the Catholic Church. But when Leo and his lieutenants at the Vatican lashed out at Luther, he came to believe that much of the Church was rotten to the core, and in need of drastic reform. Luther’s strategy in the Protestant Reformation was to make his war with the pope public, garnering as much attention as possible and transforming his moral cause into a political one. Using recent advances in printing technology to disseminate his writings to the masses, he attacked the pope’s decadent lifestyle, and exposed the Church’s deep hypocrisies. The moral anger Luther sparked spread like wildfire across much of Europe, crippling the public image of the pope and the Church itself. “By using morality so consciously and publicly,” Greene writes, Luther “transformed it into a strategy for winning power. The Reformation was one of the greatest political victories in history.”Of course, morality is in the eye of the beholder, and history’s demagogues have learned to exploit the breakdown of moral consensus on social vs. antisocial behavior to flout established norms of political conduct. Demagogues use morality not for social cohesion, but to gain a visceral connection with their supporters by stoking fear and resentment through racial and cultural division. Manipulating the media, demagogues play for the moral high ground, and then contort their moral arguments to suit their needs.To counteract a demagogue, a strategist must fight moral fire with moral fire. All savvy politicians know skillful messaging helps solidify the righteousness of their cause, but against a demagogue, it is imperative. A crafty strategist baits the demagogue into overbearing counterattacks, showing himself to be noble and principled by comparison. Rather than trumpet his own goodness, the strategist allows the public to see the glaring contrast between his virtuous deeds and the demagogue’s repulsive antics. But moral maneuvering requires diligence and skill; a strategist cannot simply assume the public will see justice in his cause all on their own. And allowing an opponent to morally frame the conflict is akin to giving away the most favorable position on the battlefield.On the afternoon of October 20, 1973-- the day of the Saturday night massacre-- Watergate Special Prosecutor Archibald Cox held a news conference that proved critical in turning public opinion away from Nixon. Cox appeared with his wife, Phyllis, and calmly but earnestly showed his anguish over trying to reconcile Nixon’s demands with faithfulness to the rule of law. Cox explained to viewers how his father had brought him up to feel great respect for the presidency, but now, he was called to defend basic principles of law. Philip Heymann, a Cox assistant at the time, recalls, “He spoke with confidence, without apparent emotion, and radiating love of his country and respect for its commitment to law... Cox represented a part of all of us that had been lost or compromised; we had missed that part until Cox brought it back.”The day may come when Mueller has to speak to the American people in the same way. Trump has waged a guerilla war to undercut Mueller’s moral authority, and over the past year, some polls have suggested it may be working. But although opinions on Mueller have become polarized, his long game seems to be bearing fruit-- as the special counsel has racked up convictions and guilty pleas, Trump’s approval rating has declined, while Mueller’s has risen. When it comes to the Russia investigation, a recent CNN poll shows Mueller with a 20-point advantage over Trump, 50–30. Several polls have suggested most Americans think Trump is lying, and probably guilty of wrongdoing. They believe Mueller’s probe is legitimate, consistent with the rule of law, and deals with important issues of public interest.Robert Mueller was chosen to serve as special counsel based not only on his extensive record of public service at DOJ and the FBI, but because of his sterling reputation for professionalism, integrity, and patriotism. He is beyond reproach-- at least in any sane universe. After graduating from Princeton in 1966, Mueller joined the U.S. Marine Corps and volunteered to serve in Vietnam. When his platoon was ambushed in Quảng Tri province on December 11, 1968, he disregarded his own safety and braved enemy fire to recover the body of a fallen Marine. The horrific firefight decimated half the platoon -- 13 Marines were killed that day, and 31 more were wounded. It was some of the heaviest fire those Marines ever experienced in Vietnam, but through the chaos, Mueller took control and maintained poise. For his actions, Mueller earned a Bronze Star with Combat “V” for valor, one of the military’s highest awards for combat bravery. Months later, North Vietnamese fighters again attacked one of Mueller’s squads on patrol. The Marine on point was killed instantly, and Mueller was shot through the thigh by an AK-47 round as he led the rest of his platoon in to rescue the others. So much adrenaline was coursing through his veins that at first he didn’t even notice, and kept fighting. Mueller had to be medevacked out by helicopter, and was subsequently awarded a Purple Heart.The ordeal of Vietnam seemed to only deepen Mueller’s abiding sense of patriotism and duty, especially as he rose through the ranks in government. In an interview with journalist Garrett Graff, Mueller spoke of his service in the war, noting how extremely lucky he considers himself to have made it out of Vietnam. “There were many-- many-- who did not. And perhaps because I did survive Vietnam, I have always felt compelled to contribute.”Mueller’s combat experience also lent perspective as he faced adversity throughout his professional life. He told Graff in 2008 that nothing he ever confronted in his career-- from prosecuting the Mob to terror investigations to showdowns with the Bush White House-- was as challenging or intense as leading men in combat and seeing them cut down by enemy fire. “You see a lot, and every day after is a blessing.”Thanks to his supreme competence and impeccable reputation, Mueller has seized the moral high ground. But to continue to occupy it, he must remain vigilant as he tells the American people the rest of this story. Trump’s ascendancy to the presidency and steadfast support from Republicans is nothing if not an object lesson in the power of a demagogue to exploit tribal divisions and rally supporters around a sense of victimization. If the president really can invent his own truth among a significant portion of the American people, he might well invent his own law, too-- especially as he appoints loyalists to the Supreme Court and the rest of the federal bench. For now, though, Mueller is letting his actions do the talking. If his early indictments are any indication, he has much more to say.Trump recognizes that his constitutional protection from criminal prosecution makes the court of public opinion the only court that matters, at least for now. His obvious strategy is to do what he does best: demagogue and divide, attack investigators, and undermine legal institutions.We’re about to find out whether, under these conditions, the American judicial system is capable of confronting a president as lawless and belligerent as Trump. If the political process is the remedy for a rogue president, what redress is there when the political system defaults? Contrary to the Framers’ design, minority rule is one of the central features of this political era. Despite winning fewer votes than Democrats, Republicans control all three branches of the federal government, and most state governments as well. In six of the last seven presidential elections, Democrats have won the national popular vote, including by 3 million votes in 2016. In the 2012, 2014, and 2016 elections that have determined the makeup of the current U.S. Senate, Democrats won 15 million more votes overall than Republicans. With the Senate’s confirmation of Kavanaugh to the Supreme Court, Trump has, after less than two years in office, placed the same number of justices on the Court as Barack Obama did in eight. More to the point: a president who won just 46 percent of the popular vote nominated a judge who was historically unpopular, and that judge was confirmed to the Supreme Court by senators who represent just 44 percent of voters. Sure, the political fortunes of America’s two parties have tended to rise and fall over time, and there will always be some distortion in the marketplace. But there is an unavoidable, disheartening conclusion here: America’s political system faces systemic market failure.On a recent podcast, Ezra Klein explored the ramifications of this grim reality as it relates to the Mueller investigation:
People keep waiting for Robert Mueller like he’s some deus ex machina to find something like the key, the goblet, to open the treasure chest... We seem, to me, to be handing him a responsibility to force political consequence that is actually-- and maybe properly-- in our (the public’s) hands, or certainly in our representatives in Congress’s hands.And what if there never are any consequences? What if we learn all of this, and more, but the fact that the consequences here are political means they are politicized? And in a country this politically divided, it means justice never gets done. And the lesson, in the end, is that partisanship overwhelms lawfulness, and the president isn’t so much above the law, as he is separated from the law, protected by a zone of partisanship, in which law doesn’t really reach, unless it is useful for the political party with the power to deploy it. That would be saying something terrible about our political system. But it might also be something true about our political system.
And yet…there are good reasons to have faith that in the end, partisanship will not overwhelm lawfulness-- and that the president is not, in fact, beyond the reach of the law. First, the norm of prosecutorial independence is stronger than most people realize. Second, the interplay between Trump’s political standing and a meticulous criminal case against him will be more dynamic than many appreciate. Admittedly, it takes a certain imagination to foresee this interplay. And yes, there is evidence to the contrary: most recently, the Kavanaugh episode illustrated that partisan hostility and allegiance overwhelms investigatory fact-finding, even when accusations as serious as attempted rape are at issue. But in that instance,Trump had complete control over Kavanaugh’s FBI background check. He has no such control over Mueller’s investigation. Moreover, Kavanaugh’s and Trump’s responses to the political and legal threat of those allegations were instructive in themselves. Kavanaugh debased himself the way he did, and Trump so shamelessly curtailed the FBI’s review, not so much just because they could, but because they thought they had to.America’s legal institutions are bigger and stronger than any one man-- even a demagogic president enabled by toadies in Congress and on the Supreme Court. Bruce Green, a Fordham Law ethics expert, and Rebecca Roiphe, a professor at New York Law School, have explored the survivability of the rule of law under Trump. “While norms may seem fragile, more malleable and weaker than the law itself, they are, in fact, far stronger than they seem,” Roiphe writes. This is due to both the deep-rootedness of the rule of law, and the diffuse nature of the many lawyers and other officials who serve in DOJ and throughout the executive branch.The norm of prosecutorial independence in America predates the republic itself; the concept derives from British law, and took root firmly after the Civil War as the federal criminal justice system expanded. Though not enshrined in the U.S. Constitution, federal statute, or Supreme Court case law, prosecutorial independence is very much embedded in our justice system. Over time, it has only grown stronger.While it may seem a weakness that upholding a norm as critical as prosecutorial independence rests on the personal choices of fallible individuals, the fact that there are so many of them to police each other turns this into an institutional strength. Myriad executive agencies are staffed by professionals who enjoy degrees of independence from the president. This was no accident, Green and Roiphe point out, and it constitutes an important check on partisan politics. Like a diversified portfolio, the American justice system is comprised of thousands of lawyers and agents who, as officers of the court, take oaths of fidelity to their profession and to their public obligations. During Watergate, DOJ professionals stopped Nixon. Now, Mueller and his team are working overtime to stop Trump, too.History’s lessons of warfare demonstrate how shrewd, composed warriors defeat impulsive fools, no matter how powerful. Right now, Trump basks in winning battles, but he is losing the war. Mueller is skillfully executing a grand strategy as Trump acts on his emotions. “He who is prudent and lies in wait for an enemy who is not, will be victorious,” wrote Sun Tzu 2,500 years ago. No one should underestimate the depths to which Trump will go to save himself. But with superior strategy, expertise, and integrity, Mueller and his team occupy the moral high ground and defend the rule of law with mounting evidence that plainly incriminates the President of the United States. Ultimately, in both the court of law and the court of public opinion, the weight of this evidence will be too much for Trump to survive. At present, perhaps only Robert Mueller knows how this will end. But as the walls close in around him, we too may soon visualize the place where Trump himself will fall.
