One cannot say that the law is above our politicians

Jul 14, 2020

The US Supreme Court has many things in common with the Australian High Court, including some reputation for containing the odd sexual harasser, but most Australians are thankful that they have not come to be regarded as pawns of the president or party which put them on the court for life.

This week the American court, generally regarded as slavishly Republican in tendency affirmed that President Trump was not above the law. He had no automatic immunity against subpoenas and requests for information from either house of the American legislature, nor against officials enforcing the criminal law. Both were seeking the president’s tax returns and information about his businesses, creditors and relationships with various banks.

Alas for those who want the tax information to hinder or harm his chances at the November election, it is likely that caveats placed on the broad proposition by the court will delay any actual production before that time.

 If Trump is to lose the election, as seems increasingly likely, the court’s decision may be of little political impact, since the zeal to pursue the matter afterwards could then be expected to abate.

[I must confess that I made a bet about a year ago that Trump would be re-elected, based on my faith in the eternal capacity of the Democrats to seize defeat from the jaws of victory. But though many things could happen over the next four months, including the death from coronavirus or old age of either or both of the candidates, the odds now seem stacked against Trump.]

The Supreme Court’s decision is interesting enough in the context of the American situation. But it also invites some speculation about how a similar case would go in Australia, in its rather different system of government. The High Court would certainly uphold the right of criminal justice officials, or a house of parliament, to drop an embarrassing subpoena on the Governor-General, the prime minister or even an individual minister. There is ample precedent that none of these are exempt from scrutiny by mere virtue of their office by either the legislature or the courts.

But as in the Trump case, it is one thing to deny any exemption from the ordinary course of the law. Those served with subpoenas can argue that the documents in question should not be able to be read by those who asked for them on the grounds of public interest immunity, national security, legal privilege, or exemption claims similar to those allowed under the Freedom of Information Act. And, alas, my guess is that modern Australian courts would be much more respectful of such claims than American courts, even ones said to be more partisan than judicious.

Australian inquisitors would have an even greater problem. The US Supreme Court distinguished three separate personalities in the person of any old US President. One is his official self — the very institution of the executive power of American government, vested in a single person. Then there is his political self — the person who leads his party makes deals, negotiates with other nations and the states, has his own staff, and fights political war against his enemies. Finally, there is his private self — the person, with a partner, children, background, and interests. Presidents have been known to plead a right of privacy from public scrutiny over this private life, but as Bill Clinton discovered during his adventures with Monica Lewinsky and with the Ken Starr chamber, there is hardly any area of private life that can be regarded as safe from official inquisition.

In any event, the US Supreme Court does not seem to think that there is any significant difference between the functions: all can be the subject of a subpoena provided that the quasi-judicial body (such as a grand jury) or a house of congress has properly founded its inquiry within its proper functions.

“The president is the only person who alone composes a branch of government'” the majority opinion said. “As a result, there is not always a clear line between his personal and official affairs. The ‘interests of the man’ is often ‘connected with the constitutional rights of the place’ … No one can say the controversy here is less significant to the relationship between the branches simply because it involves personal papers. Quite the opposite. That appears to be what makes the matter of such consequence to the president and congress.”

That meant, of course, that such a power to subpoena could be done to harass or, in effect, to push the president in some improper way. The court would not approve of that. But this did not interfere with the principle of a right to subpoena so much as required close scrutiny of whether congress was attending to its proper purpose. Moreover, the president still had the same rights as anyone to claim privilege.

The court quoted very approvingly from a 1953 decision about the duties of a parliament.

“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees, ” judges said in US v Rumely.

It is meant to be the eyes and the voice and to embody the wisdom and will of its constituents. Unless congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served”.

Amen.  Here in Australia, few inconvenient truths are ever exacted from ministers in the House of Representatives, given the government’s majority and its power to ignore questions with bluster, and to shut down opposition criticism.

In the senate, where the government lacks a majority, a committee can ask inconvenient questions of public servants. But an unholy alliance between Labor and the coalition prevents questions, or subpoenas, being pressed if the government resists. It is within the senate’s right to insist. But Labor in opposition may grandstand about non-compliance, but remembers that it would not want this to happen to it if it were in government.

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