When Gough Whitlam had his commission as prime minister withdrawn by Sir John Kerr 45 years ago last week, one of his many immediate tactical mistakes was to drive to the Lodge, rather than (old) parliament house. There he tucked into lunch with a number of his senior colleagues, though not, fatally, Ken Wreidt, the leader of the Labor Party in the senate. Another present was John Menadue, then secretary of the department of prime minister and cabinet.
“Bastard has sacked us,” Whitlam told his incredulous colleagues. It was a fate, deserved or not, for which Whitlam and his colleagues ought to have been prepared. But so confident had Whitlam been that Kerr was in his pocket, that no one had gamed a parliamentary response to dismissal, including the need to block Senator Reg Withers, leader of the coalition in the senate, from moving the adoption of the supply bills. Which he did without the significance — it had been a condition of Malcolm Fraser getting his commission — being noticed.
Whitlam and other colleagues were busily drafting a House of Representatives resolution of no-confidence in the new prime minister. John Menadue withdrew from the room. He was a public servant, even if one identified with Whitlam. His role as secretary of prime minister’s was to serve the prime minister, and Fraser was now that man. In all of the recriminations from that amazing day, no one, rightly, has ever reproached John Menadue for recognising his duty.
Donald Trump is not a prime minister, one whose position can be terminated by anyone other than a general election, or by a constitutional finding of incapacity by his Cabinet. The president is not only at the apex of the Executive triangle — he commands in himself all of its power. Indeed he represents American sovereignty — the state itself. He stands in the same position as the King of England did 250 years ago, at least for four years at a time. There may be checks and balances imposed by the constitution, or the other two arms of government, but within the president’s lawful domain his authority is absolute. Even the extent to which he is subject to law is a matter of dispute.
A British, or Australian monarch also personifies executive government. But our monarch has only limited personal authority, and must generally act only in accordance with the advice of people enjoying majority support in the House of Representatives. If Trump’s position was analogous, he would have to follow the instructions of Nancy Pelosi, the Speaker. His Cabinet would be nominated by her.
November 11 1975 might show that a person standing in the place of the Australian monarch has some independent authority in a constitutional brawl. But reforms to the British (and consequently the Australian) constitutional system as a result of the successful revolt by the American colonies deprive our monarch, and its representative, of independent political authority.
For the moment at least, the current president is refusing to accept that the voters of the United States have decided not to extend his term from January 20 next year. When not twittering, he is mostly placing golf or launching generally unsuccessful litigation against state counts.
There has long been late counting after election day of postal votes sent before election day. An obvious example since 1864 has involved soldiers on duty. This year, the number of postal votes increased enormously, because of fears of coronavirus in voting queues, and because Democrat strategists thought that postal voting could short-circuit Republican efforts to effectively disenfranchise likely Democrat voters by giving them the business at polling booths.
Although many people reckon that the US Supreme Court is now so politically partisan that it would do anything to help Donald Trump in his agonies, it seems almost impossible to imagine the grounds for an intervention. None of the state outcomes are so close that they would warrant the sort of intervention — in that case a very partisan one that did enormous damage to the international reputation of the court — that occurred in 2000 in Florida, over the “hanging chads” issue, by which what is now known to have been an outcome which should have made a Democrat, Al Gore President, was cancelled for an outcome narrowly favouring George W Bush.
The public knows the outcome of the popular votes, and is easily able to do the maths for the (mostly) winner-takes-electoral college votes. On election day, media companies “call” the outcome in each state, once it is clear that the candidate running second cannot win. But this has no legal significance. The legally effective outcome occurs, usually in late November, when the polling officers complete the tally, and have “certified which slate of electoral college candidates can vote the state’s entitlement. The votes of these electors are sent to Washington.
On “the first Monday after the second Wednesday in December” — this year December 14 –the electoral college votes are added, and there is a formal result. At that point the name of the person to take up the presidency on January 20 is a matter of law, and Trump cannot legally dispute the outcome, though he retains his power for five weeks.
No doubt he could simply maintain a state of siege and denial, and refuse to go, even on January 20. Missing out between now and January 20 would be inconvenient for Joe Biden, who is strictly entitled by law to transition funding and resources, as well as briefings from the permanent administration. But it is not fatal to his rights.
If I were Joe, I would patiently wait out the mad king behind the battlements of 1600 Pennsylvania Avenue. Trump is doing far more harm to his reputation, the future political prospects of anyone called Trump, and any Republican supporting his tantrum, than the Democrats could do with the same resources. On January 20, Biden could give a lawful order to anyone, from the defence chiefs of staff, to the secret service or the White House janitor to throw the old fool out. And they would.
Australia has had occasions in which leadership or regime changes have been difficult. The obvious example, almost as comical as what is happening in Washington, would be Sir Joh Bjelke-Petersen, who in late 1987 lost the confidence of his National Party colleagues 38-9 but refused to step down as premier.
After offering a coalition with Labor and Liberal, he threatened to advise the governor, Sir Wally Campbell, to call an election. There had been one only a year before, and the new leader of the Nationals, Mike Ahern, had sent a letter to Campbell saying Sir Joh lacked support and asking to be commissioned. Campbell wanted Sir Joh to lose a vote of confidence first. Sir Joh dithered for a while, then resigned, damning his party, old colleagues and everyone else.
Perhaps his going in this manner could be said to have marked a convenient break with the past that he himself represented. The Fitzgerald royal commission was showing widespread corruption among politicians, public servants, police and even in the judiciary going back many years.
Tony Abbott agreed to go after losing the confidence of his colleagues in 2015, but there was a delay, and significant ill grace and even sabotage, before the transition occurred.
In December 1991, a campaign of undermining prime minister Bob Hawke on behalf of Paul Keating ultimately led to a delegation of Hawke Ministerial loyalists approaching Hawke to tell him, in Gareth Evan’s immortal phrase” “Time to move on, digger. The dogs are pissing on your swag”. At a Caucus meeting soon after, Hawke lost narrowly, and was initially so distressed that some colleagues wondered whether he would refuse to go. But the fury was soon contained, and an orthodox transition, if not one famous for grace, occurred.