Coming to Justice with dirty hands

February 19, 2020 18:17
US President Donald Trump obviously believes that the country’s entire legal machinery is at his personal disposal, the author says. Photo: AFP

When the North American colonies achieved independence from the British crown, the most valuable legacy that they retained was the common law.

Inherent in the common law is the separation of the judiciary from the executive and the administration.

Until relatively recently, the United States had, more or less, adhered to the fundamental principles of the common law.

Thanks to US President Donald Trump, what we are now witnessing is the unraveling of the glue that holds together the integrity of an almost liberal democracy governed by the common law.

A cardinal tenet of the common law is that no-one is above the law.

Under the US Supreme Court decision in Nixon v. Fitzgerald, a serving president enjoys immunity from civil proceedings arising out of his official conduct but is not immune from prosecution for criminal acts stemming from his official or unofficial acts done while in office.

Currently, there is a plethora of civil claims against Trump, all working their way through the system. Doubtless, he anticipates buying them off, which is his preferred modus operandi.

Far more disturbing, however, is his use – more accurately, misuse – of executive authority, against which the founding fathers appear not to have made adequate provision.

The US attorney general is the country’s senior law officer as distinct from the personal attorney of the president. Given the symbiotic relationship between Trump and William Barr, one may be forgiven for confusing these roles, as Barr self-evidently does.

Trump is accustomed to keeping his own legal poodle close at his heels as one observes with his personal attorney Rudy Giuliani. Obviously, Trump believes that the country’s entire legal machinery is at his personal disposal.

When the Justice Department reversed its position on the sentencing of Roger Stone, his longtime friend and former adviser to his election campaign, Trump protested that he had not spoken to the department and Barr claimed that he had made the decision prior to Trump’s tweet about the severity of the proposed sentence.

Unless Justice Department minutes and communications were fully disclosed, the truth of the sequence of events will never become public knowledge.

However, Barr’s interference in the prosecution tallies with Trump’s stated opinion. The four members of the prosecution division handling the Stone trial plainly drew the necessary inference, and resigned.

Nor should we be surprised that Trump has a fellow feeling for Stone, his old buddy who was convicted of jury tampering and lying to Congress, inasmuch as Trump has an ineradicable proclivity to lie.

But for the US president to arrogate to himself the right to comment on the correctness of this jury’s verdict, to attack the integrity of the judge and slate the justice department’s recommendations for sentencing is not only to demean the office of the president but to savage the foundations of the legal system which informs the country.

When Trump declared “I’m actually, I guess, the chief law enforcement officer of the country…” it is as though he enjoys a form of imperial droit de seigneur over the legal system entitling him, putting it politely, to have his way with it whenever he chooses.

All of this has to be seen against the background of sentencing policy in criminal cases.

It has long been the received wisdom in England that it is no part of the prosecution’s duty to advocate for a particular sentence once a conviction has been secured. Sentencing has always been the responsibility of the judiciary.

As any English judge in the criminal jurisdiction can attest, sentencing is a potential minefield seeded with statutory provisions, Court of Appeal guidelines, previous levels of sentence and Probation Service recommendations, all of which are aimed at achieving a fair and just outcome that incorporates retribution, with reformation and social reintegration in the hope of avoiding recidivism.

Hence, judges hearing criminal cases must develop considerable expertise in the art of sentencing. Having regard to the complexity of issues involved, not least the necessity to hold a proper balance between the individual and society, it is undesirable for the prosecution to actively participate in sentencing, creating as it does the opportunity for a degree of vindictiveness to color any recommendation.

I understand that irrespective of the prosecution’s proposals, trial judges in the US are not bound to follow them but can and determine for themselves the penalties that they impose. To this extent, the common law system remains inviolate, regardless of the infantile fulminations of a delusional president.

Yet for how long can America’s criminal justice system represent a fully functioning element of the common law if the coinage of justice is debased by effectively stripping fraud and corruption of their hallmarks of legitimacy in this cavalier manner?

Trump, by side-stepping the strict Department of Justice protocols to distil those worthy of receiving presidential clemency, among other white-collar criminals, extended executive pardons to former Illinois governor Rod Blagojevitch for his 18 counts of corruption, financier Michael Milken for securities fraud and tax violation, and Judith Negron of South Florida for a US$205 million Medicare fraud.

With a casual sweep of his little hand, fraud and corruption are re-characterized as “normal business”; a catalogue of decisions which amply demonstrate the lack of any moral fiber in this president.

To judge by the plethora of settled lawsuits over such as property deals, construction contracts and Mickey Mouse University courses, Trump has sailed perilously close to the wind, cleverly leaving his “Mr. Fixit” lawyers to keep him out of the excremental tailwinds and serve the sentences.

The Republican Party was once viewed as the Praetorian Guard of public morals. Now, as they rally round their shyster leader, their naked self-serving skins bereft of their veneer of armor, they show themselves for the grotesquely ugly collection of empty windbags they really are.

Was justice under the common law ever laid so low?

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CG

Queen's Counsel