Cyprus Mail 18 June 2023 - by Alper Ali Riza
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| Trump claims that in his eyes he was authorised to remove and entitled to retain the classified documents in his possession |
They are a small price to pay for incorruptible democracy that allows them to prosper
Boris Johnson and Donald Trump are rare birds. They are big beasts politically, but flawed individuals unworthy of high office. Apart from their differences over Ukraine, they are birds of a feather: untruthful, irresponsible, reckless, populist and popular, they are the detritus of democracy.
The folly of both men is that they believe they are above the law. The finding against Johnson by the parliamentary privileges committee last Friday that he misled parliament multiple times and was guilty of a serious contempt of parliament was expected. The committee had not already made up its mind before he gave evidence, as he claimed when he branded the committee a kangaroo court, but because the evidence against him was compelling.
The ringing condemnation of Johnson by the privileges committee for misleading parliament means that it is curtains for Johnson. He cannot recover politically because parliament will not believe a word he says ever again, and that means that whatever support he has in the country he can never hold ministerial office again, let alone become prime minister.
The indictment against Trump for unauthorised retention of classified sensitive documents after he left office on January 20, 2021 is more serious in that it may land him in jail if he is convicted, but it has not dented his chances of winning the nomination as the Republican Party’s candidate for president in 2024.
The indictment is long and detailed and refreshing for those of us used to the short dry indictments in England that only identify the elements of the offences charged. It has a long preamble that sets out the background and summary of the evidence relied on by the prosecution, including pictures of the boxes stored at Trump’s home that speak for themselves. Presumably the indictment was drafted in detail deliberately to show that the prosecution was not politically motivated, which is no less than the American people would expect for the prosecution of their former president and candidate for president in 2024.
Trump claims that in his eyes he was authorised to remove and entitled to retain the classified documents in his custody as president, but as every first year student of the criminal law knows ignorance of the law is not a defence to a criminal charge – for example you can’t claim as a defence to theft that you did not know that stealing was a criminal offence.
Although Trump could argue that as an ex-president he was entitled to remove and retain the documents, if the court rules he had no such right, he would have no defence. The documents referred to in the indictment appear to be properly classified as secret or top secret, and while he is presumed to be innocent until proven guilty, it is hard to see what his defence is going to be if the law is that he was not authorised to remove and retain the documents in his custody, even if he had the power to declassify them when he was president.
A Miami jury would be entitled to acquit him even if he has no defence, however, if they think the prosecution was politically motivated, but he will be anxious to mount a defence that blurs the fine line between ignorance of the law and the requirement of a guilty mind rather than rely entirely on a perverse verdict by the jury.
We shall have to wait and see, but the more interesting constitutional point in his case is that he has the right to run for president and that the indictment against him is not a bar to his candidacy. Being a natural-born American citizen, over 35 years of age and resident in the US for 14 years is all that is required to be a candidate. There is no express good character requirement. However, given that under the American constitution a sitting president “shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanours,” it would be passing strange if Trump could assume the office of US president while facing a prosecution for high crimes and misdemeanours for which a conviction would make him liable to removal from the office of president on impeachment.
It is, of course, in the nature of democracy that sometimes the people return political leaders to the highest offices of state who are amoral or unethical or who do not play by the rules or even those indicted for high crimes and misdemeanours. Democracy would not be democracy if it sought to curtail the right of free elections, which includes the right of candidates to stand for election and pass themselves off as fit and proper persons for elected office.
In advanced liberal democracies like the US the state is objective, impersonal and calibrated to ensure the highest moral, ethical and legal standards in public life. And, if once elected, leaders fall foul of those standards the state comes down on them like a ton of bricks, as it did on President Richard Nixon in 1974 and as it will no doubt do if Trump is found guilty.
There are, of course, states in which the rule of law has been corrupted and ceases to guarantee high standards in public life. Worst still, corrupted democracy, can produce political monsters like the time it inflicted Adolf Hitler on the world last century and millions perished as a result.
However, the likes of Trump and Johnson are a small price to pay for genuine incorruptible democracy that allows them to prosper – provided always that it imposes heavy deterrent penalties if they stray from the high standards in public life expected of them.
There has been no witch-hunt or political assassination of Johnson or Trump; it is just the inner demons that possess them that caused them to self-destruct: Johnson did not have to lie to parliament and Trump did not have to retain classified documents.
Alper Ali Riza is a king’s counsel in the UK and retired part time judge
