RICHARD BUTLER. Trump: It’s not legal, it’s political and the jury’s out on that.

Sep 3, 2018

It should be anticipated that Trump will be found to have broken various US laws and, obviously, trashed established political and Constitutional rules. What it is decided should be done about this will not be guided by the law but by the now dysfunctional domestic politics of the US. That dysfunctionality, in both domestic and foreign policy, cannot be overstated. This is the US’s business, but we need to think hard about its effects on us. 

The current investigations of possible illegal/criminal conduct by Trump, members of his family and people he hired, including lawyers, is extraordinary in scale and kind.  The investigations have a multiplicity of sources, some of which are beyond his or Federal control; such as those being undertaken by the Attorney of the Southern District of New York (SDNY).

Some of the alleged conduct at issue, if proven, would normally attract severe penalties and possibly a criminal record. At this stage, however, it is not clear that the Congress would conclude, on the basis of alleged infractions of the law by Trump, that the standard for impeachment of a President specified in the Constitution: “high crimes and misdemeanours”, had been fulfilled and send it to an impeachment trial in the Senate. There the decision would be by voting and the Republicans, for now, have effectively a slim one vote majority.

There are additional issues: the overarching Presidential oath of office to “Defend and protect the Constitution”; and the debate that has been percolating since Nixon, but now intensely with respect to Trump, on whether or not a sitting President can be charged in a court of law. In Nixon’s case it was the emergence of the view in the US Supreme Court that he could, that the President is not above the law, which led Nixon to resign.

From what is now known about Trump’s conduct, and it is of such a magnitude that it would be absurd not to assume that it’s only a portion of the iceberg (a contention further enlarged by a report in today’s New York Times); it seems likely to prove to be the case that when the investigators report they will state that breaches of US law have occurred.

So logic would suggest that legal action would then be mounted, naturally in conformity with the principles that persons at issue have the right to the presumption of innocence and evidence must support the allegations against them. Presumably there would be a Grand Jury hearing, possibly leading towards an indictment.

What we are witnessing with respect to Trump is that there is no such legal logic in play, and possibly there is unlikely to be unless the mid-term Congressional elections in November remove the current Republican majority, at least in the House of Representatives. But the signs are that no matter what evidence is produced, Republicans would make the political judgment not to enforce the law.

With respect to Trump’s conduct, the law has already been shoved aside and traduced repeatedly by the Republicans and their fervent backers in right-wing media, especially Rupert Murdoch’s stable, led by Fox.

So the issues are possibly irretrievably relegated to the political arena where there is a profoundly disturbing dismissal of principles and facts in favour of a preferred political/partisan outcome.

The door has been slammed shut by Trump on the expectation that the truth of any matter can be the fundament of public discourse. The Washington Post fact checker has recorded some 4,229 falsehoods/lies he has voiced since he took office. His lie/falsehood rate is now averaging at some 7.5 per day.

Trump began his campaign for the Presidency some eight years ago by mounting a major campaign claiming that Obama was not born in America and thus could not, legally, be President. Trump lied about sending a team to Hawaii to search for the original of Obama’s birth certificate. He continued his “birther” campaign for almost five years, in spite of evidence, repeatedly presented, that his claim was false.

It would be tiresome in the extreme, if even possible, to list all of Trump’s lies/falsehoods. This is a key principle modus operandi he relies on: keep the lies coming; some of it will be believed; and, in any case, each new claim will draw attention away from and thus reduce scrutiny of the previous one.

Unsurprisingly, his heaviest and unrelenting onslaught upon the truth has been directed to the investigations by Special Counsel Robert Mueller of  the issues of alleged Russian interference in the conduct of the 2016 elections and Trump’s possible collusion with those Russian efforts.

There is now widespread comment in the US that the vociferousness of his attacks on the investigative process, the “witch hunt” and the investigators personally is clearly consistent with deep anxiety about what they might uncover.

In the last 24 hours, Trump, consistent with his modus operandi, went further charging that the Special Prosecutor’s investigation is illegal. This is a patently false claim.

And there is the gut issue of his tax returns. He is the only President since the institution of the practice 50 years ago to refuse to release his tax returns. He lied during the election campaign about why it would not be possible at that time, claiming that his returns couldn’t be released as they were still under audit. Richard Nixon released his returns in 1973 while they were under audit.

Consistent with the process described above, attention has since been directed away to other balls he’s pitched into the arena, daily. But the question of his returns is still there and two matters seem assured to bring it back: what SDNY investigators may have learned about his finances through their investigation of Trump’s former lawyer, Michael Cohen, and its grant of immunity to the Trump Organization CFO, Allen Weisselberg, in return for his cooperation in the investigation of Cohen.

An important feature of the investigations of Trump is that they are not restricted to the elections issues but include any other matters involving US domestic law, such as with respect to taxation and financial matters. Should the Democrats win the House in November, they have indicated that they would subpoena Trump’s tax returns, among other financial records required to be filed with authorities.

Returning now to the latest twist on the investigations of Trump. On 29 August Trump announced by Twitter that the White House Legal Council, Don McGahn, would shortly be leaving that job. McGahn learned of this decision from Trump’s tweet.

The WH Legal Council is not the personal lawyer of the President. His is a public service post established to seek to ensure that the Office of the President acts in conformity with the law and Constitution. There is no lawyer/client privilege between the WH Legal Council and the President.

The meaning of this development on McGahn is not clear. Clues may lie in the fact that during the last 7-10 days Trump has reportedly become seriously agitated with Attorney General Jeff Sessions and has begun again to consider firing him because he recused himself from the Russia investigation and has ignored Trump’s repeated abusive tweets calling on him to terminate Mueller’s investigation. Trump had proposed to fire Sessions almost a year ago and it was McGahn who stood in his way saying he should not do so. And, last week, it was revealed that McGahn had been interviewed by Mueller, for some 30 hours.

In normal circumstances, it should be expected that members of Congress would speak up and warn against the action Trump is contemplating on Sessions and Mueller because of the impact it would have on the separation of powers and the integrity of the US justice system, mentioning for example the consequences of Nixon’s “Saturday Night Massacre” in 1973.

But, these are not normal circumstances and a couple of days ago, senior Republican Senators began egging Trump on to do with Sessions whatever he pleased. It is plain that the point of dismissing Sessions would be to bring the Mueller investigation to an end.

It seems that Trump’s domination of the Grand Old Party is now virtually complete. It must be wondered what the investigators will need to produce to lead the Republicans away from their disastrous servitude.

During the election campaign, Trump boasted that he could shoot someone on 5th Avenue and no one in his base would care. It now seems he was right, as the Republican party itself has now effectively been  absorbed into Trump’s base. A decade ago, the Republican Party absorbed the Tea Party. This time, the flow between the core and the periphery seems to have been reversed.

Also a few days ago, a recording of Trump addressing a meeting of Evangelical pastors was leaked. In it he warns them that if the Republicans do not prevail in the mid-terms, there would be violence, initiated by the Democrats. They were asked to make this clear from their pulpits.

Finally, in the primary contest in Florida earlier this week, the Republicans signalled indelibly that they would make race a central issue in the mid-terms.

Its impossible to think about the state of the US polity without asking again what rethinking is going on in Canberra about how we conduct ourselves within the Alliance. Our national interests and integrity requires that we ensure that our foreign policy and defence decisions cease to be determined, effectively, by US decisions produced by its domestic politics and arms industries.

Richard Butler AC is formerly Australian Ambassador to the United Nations; Professor of International Affairs at NYU and Penn State University.

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