The law is in good measure a game of strategy.
Traditionally, the players shared much in common. The judges and lawyers on all sides were versed to a greater or lesser extent in the dark art of the law and the scribes who translated to the larger audience were versed to a greater or lesser extent in the related arts of literature and writing.
So it was with some appreciation for the strategy in play that I saw the investigation and likely prosecution of the president’s hatchet man branch the investigation of the president’s men and their connection to Russia onto two tracks.
One track can be blown up. The other cannot.
The investigation and series of cases already under way by the special prosecutor will be wrecked if he is fired, through a series of events that the president has the power to set in motion. I was watching a CNN show last week where a former prosecutor who is now a writer along with a longtime journalist confidently predicted that the firing of the special prosecutor would result in absolutely nothing.
“Nothing will happen,” they said with I believe correct conviction. The investigation would stop in its tracks.
But that is not so with the prosecution of the president’s lawyer in the Southern District of New York. That prosecution is lumbering along a set of rails that have been sending people to prison for an awful long time, and that train cannot be stopped, except by another practitioner of the dark art who has achieved the priestly status signified by a black robe.
So now the politicians in Washington have lost their power over the course of one part of the prosecution. That power now rests with an office of 220 lawyers in the U.S. Attorney’s Office in New York, a city that knows the president in his former life as a tabloid figure of real estate hustle.
In Manhattan, the scribes are a force unto themselves, and while news reporters must wait for documents to be filed and arguments made in most federal prosecutions, the news leaks out in Manhattan.
So it was last week that I was scouring stories reporting on the contents of the affidavit underlying the search warrant aimed at the president’s lawyer.
The fact that agents were searching for information about hush money payments to two women who said they had affairs with the president leaked out. The source was not described even in general terms. And it was apparent in reading the stories that the reporters had not seen the affidavit itself but had talked to someone who had.
So I was waiting for the matter to find its way into the public sphere, where we would have a fair shot at reporting on it. The show started on Friday with lawyers for Michael Cohen seeking an initial review of the evidence.
I then wrote the top for this piece on Sunday, but by Monday, events around the Cohen case were already blowing up into monster proportions, with a federal judge refusing to seal the name of one of his clients, Fox TV personality Sean Hannity.
“I understand that he doesn’t want his name out there, but that’s not enough under the law,” said Judge Kimba Wood, as reported on the Courthouse News site by Adam Klasfeld and Josh Russell.
With the spotlight trained on federal court in Manhattan, the effort to keep the matter under wraps had promptly unraveled. The president’s writ had lost its power.
By contrast, the investigation by the special prosecutor in the Russia matter continues to be attacked with a whole range of weapons that include diversion, smoke and confusion in addition to outright concealment and suppression, coming primarily from the president’s party in Congress.
The two congressional committees looking into the matter have at this point largely been sabotaged, while an astonishing amount of mud is being flung in all directions, from the president, his former FBI director, members of Congress and an army of spin meisters on television.
So the strategy of spinning off the domestic portion of the investigation and placing it in the hands of the federal prosecutor in Manhattan was a master stroke. It insulated one huge part of the investigation from the brunt of those political attacks and put half of the investigation, which may turn out to be the dominant half, on the much more secure and traditional footing of a big public prosecution by the U.S. Attorney’s Office in the Southern District of New York.
And the prosecution train is now on its way down track number two.