No Person is Above the Law

As the title of this post makes clear what follows is not about the Network Economy and especially not about the need for Deep Fibre Broadband. Readers who aren’t interested in my opinion on mainstream political matters may want to skip this read.

The release of the Mueller Report on Russian interference in the 2016 US Presidential Election campaign is a chance to step back and reflect on the state of US politics and consider what should now be the best way forward.

All of the television talk shows, which for me have filled a rainy long Easter weekend here in Hong Kong, have been analysing and dissecting the report and searching for a way forward. The main take away from all the initial political punditry is that the Democrats are now in a dilemma about what to do with the report. Robert Mueller’s non-decision on the issue of obstruction has put the ball firmly in the hands of the House Democrats.

Some Democrats, such as Presidential primary candidate Elizabeth Warren, are starting to call for impeachment of President Trump. Others are calling for more investigations, subpoenas and hearings to see what else can be discovered.

Mueller makes it quite clear the the Department of Justice rules preventing the indictment of a sitting President raised “fairness concerns” which “counselled against potentially reaching” a judgement that President Trump’s conduct constituted a federal offense. It is up to Congress to

“apply the obstruction laws to the President’s corrupt exercise of powers of office with our constitutional systems of checks and balances and the principle that no person is above the law”

But the political impeachment process, referred to above, is not the only route to justice.

Mueller highlights “that a President does not have immunity after he [sic] leaves office”. Futhermore, Mueller states :

“Given those considerations, the facts known to us, and the strong public interest in safeguarding the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”

It is in this direction that Democrats, and in particular presidential hopefuls for the 2020 election, should turn their thoughts.

The Democrats have an opportunity to cast the issue of “No Person is Above the Law” as a strong campaign theme for the next election.

The theme would involve the Democrats making it clear that at the next election the American people face a clear choice of whether to uphold this fundamental part of the Rule of Law in liberal democracies.

The next Democrat Presidential candidate should commit to appointing an Attorney-General who would ensure the legal process regarding any potential obstruction of justice by President Trump would restart once he left office. This would be the standard legal process, rather than the political impeachment process, and would be overseen by a Department of Justice lead by Attorney-General who had been approved by at least 60 members of the Senate (and hence require some Republican support).

The evidence procured through the Mueller investigation could be used along with any other material that comes to light from congressional investigations. A Grand Jury would consider the evidence and any indictments would follow.

Most importantly a trial by the third arm of the government, the Judiciary, would be required to achieve a conviction. Trump would be subject to the same process as his disgraced campaign colleagues (ie. Manafort, Flynn, Cohen et al)

The statute of limitations would not expire on most of the issues analysed by Mueller until mid-2022. The Democrats could bolster their campaign position by proposing to change the law to ensure that the clock on the statute of limitations for offences involving the President should stop for their period of office.

Trump would find it very difficult to campaign strongly for such a theme. His actions described in detail in the Mueller Report make it clear that he considers himself above the law. Any potential Trump pardons to assist his family or others would only help the Democrats make their case.

If Trump surprised everyone by not contesting the next election, perhaps resigning and receiving a Nixonian-style pardon from new President Pence before the next election, this would only amplify the campaign theme in favour of the Democrats.

“No Person is Above the Law” would resonate strongly with the American people. A complicated impeachment process involving esoteric concepts of obstruction of justice would play into Trump’s hands and be easily characterised as an extension of the Mueller “Witch Hunt”.

The next US Presidential election will undoubtedly be a referendum on Trump. The best approach is to use the Mueller investigation outcomes to campaign strongly for this fundamental aspect of the Rule of Law.

Rather than taking the low road like Trump’s “Lock Her Up” and “Witch Hunt” slogans, “No Person is Above the Law” would involve the Democrats taking the high road and symbolise a return to true liberal democracy values.