Democracy, which involves checks and balances, accountability, a legal system to ensure that no one is above the law and participation by all its citizens, is under threat throughout the world. At best a democratic form of government is imperfect and to quote Winston Churchill in 1947, “It is the worst form of government except all the others that have been tried from time to time”. Historically and broadly only two types of government were considered to be in operation - a monarchy/dictatorship and various forms of democracy. While no elected ruler would admit to being a dictator, the modern day autocrat is called a “populist”.
Implicitly in a democracy rulers are not only subject to the same laws as the citizenry but it is anticipated that they would behave in a manner that would engender trust between them and “We The People”. However, no constitution could encompass, for example, laws against pathological lying . Nor could the most comprehensively constructed instrument prevent subversion by a determined demagogue. While populists are springing up all over the world in countries such as USA, UK, India, Hungary, Poland and Turkey, widespread corruption is also threatening the democratic process in countries such as South Africa as well as attacks on the institutions that sustain democracies are evident in countries such as Israel.
Jay H. Ell will focus on the United States as for practical purposes they are the most powerful country in the world militarily and economically. The consequence of their dominance being that for well over fifty years, they have flexed their muscles to encourage, prop up and financially support democracies throughout the world. Therefore whatever transpires in the USA’s upcoming fight for traditional Western Liberal values and morality will not only determine the future of America but the rest of the planet. Currently there are only two constitutional roadblocks to prevent democracy from dying in the USA - the impeachment and removal of the President Donald J. Trump in the Senate of the United States of America and the 2020 elections.
THE FOUNDERS OF THE USA REPUBLIC CONSTITUTIONAL DEMOCRACY AND THE SAFEGUARDS INSTITUTED TO PREVENT IT MORPHING INTO A MONARCHY.
The Founders of the Republic went to endless painstaking effort to prevent their democracy from failing. Their overriding objective is they wanted a “Republic”, with an elected ruler whose actions were answerable as opposed to a monarchy who had absolute power. Armed with the writings of the enlightenment philosophers they cobbled together a network of three co equal structures to prevent despotism. These three institutions would be the Office Of The Presidency, the Legislature and the Judiciary. Of the three, the Legislature was regarded as the most equal amongst equals. In order to dissipate power even further the Legislature would be divided into two co - equal bodies whose differing roles would be defined by their electoral constituency and their term of office. Thus the House of Representatives would be peopled by those who represented locally defined communitIes who only served a two year term while the Senate would be populated by the senior fathers of the Republic who would be representing the whole State and would serve for six years. The triumvirate would be completed by an independent judiciary who would be appointed for life. In spite of these safety valves the Founders sort to put in place one further remedy to prevent a President from turning into an absolute monarch - impeachment and removal which would require both legislative bodies to acquiesce.
FOUNDERS CRITERIA FOR IMPEACHMENT AND REMOVAL OF A PRESIDENT AS IT RELATES TO DONALD J TRUMP
Well how are the Founders’ efforts to prevent a monarch/dictator in this age of populism, faring? The Constitutionally stated criteria for removal were treason, bribery, high crimes and misdemeanors, leaving the legislature of the day to interpret what these words meant. However it is instructive to read what Alexander Hamilton, one of three chief architects of the Constitution, argued as to who should be impeached in the Federalist Papers. The latter made up the working documents for the deliberations.
“When a man unprincipled in private life, desperate in his fortune,….despotic in his ordinary demeanor… known to have scoffed … at the principles of liberty - when such a man is seen to mount the hobby horse of popularity …. to take every opportunity of embarrassing the General Government and bringing it under suspicion…..”
Looking at Hamilton’s discussion of what represents an impeachable President he might easily have had the current POTUS in mind. Trump has boasted as to how “unprincipled in private life” he was. He Informed his adoring cult that he was the one to drain the swamp as he had been part of it. That statement was not considered as one of his 15,413 lies he has been found to have uttered in the first thousand and fifty - five days of his office. In full view of the body politic he has had to settle a case relating to his fraudulent Trump University, for twenty - five million dollars and was fined two million dollars for using his Charity Foundation for his political purposes.
Then there is no one more “despotic in his ordinary demeanor …. known to have scoffed ….at the principles of liberty” than Trump . The Presidency has been dictated by total disregard for the rule of law and is encapsulated by one statement, namely that he was entitled to shoot anyone on Fifth Avenue without being charged - a position he has even argued in a court of law.
There also will be no dispute that in order to effect his perfidy he has been, “seen to mount the hobby horse of popularity..”
Trump has argued almost daily against one or other of the institutions of government including the Judiciary, the law enforcement and security agencies which actions are described by Hamilton this way - “to take every opportunity of embarrassing the General Government and bringing it under suspicion…..” ToTrump the very institutions that allow for democracy to operate are “The Dark State”.
So there is very little doubt if Hamilton was looking for a President to remove from office Trump is the man.
THE CHARGES AGAINST TRUMP AND THE CONSTITUTION.
Having established what type of a person Trump is the charges against him should come as no surprise. A recurrent fear of the Founders, including George Washington, the First President, was foreign intervention in American elections. In addition to his scant regard for the rule of law Trump has repeatedly invoked and welcomed foreign aid in his personal Presidential election bids.
The articles of impeachment against him, which will be ratified by the House of Representatives this week, are that he abused his power and obstructed congress in Congress’s lawful oversight of him The two charges are specifically in connection to the months long conspiracy he orchestrated to criminally bribe, with tax payer money, a foreign country Ukraine, to assist him in his re election campaign and then obstruct justice in the investigation of this circumstance by Congress.
The facts of the charges are not in dispute although one of the multiple, even contradictory defenses employed by his allies is an innocent interpretation of his written memo. Those Republicans using this counter ignore the fact that Trump himself has illegally with held the documentation and witnesses that might have attested to their interpretation of his actions.
Generally speaking the contention of those defending him claim that he was given no due process, again ignoring the fact that he refused participation by ordering witnesses not to appear and not producing any documents that might have backed his claims. Ironically the same Congresspeople who claim there has not been a fair trial to date openly state they are not going to provide a fair trial in the Senate - they are just going to acquit him.
HOW ARE THE CONSTITUTIONAL CHECKS AND BALANCES, OF THE LEGISLATIVE BODIES AND THE JUDICIARY STANDING UP?
The Legislative Branch
The Legislative branch has two chambers, The House of Representatives which draw up the impeachment articles, that is the indictment, and the Senate which conducts a trial as to whether the President should be removed or not. The former has completed its task. The Senate is under control of The Republicans whose leader, Mitch McConnell, rivals the POTUS for his callous disregard for the meaning and intent of the Constitution. He has openly stated that he is working in tandem with the President’s defense team to coordinate a strategy for his acquittal at the soonest possible moment in the process.
The Chairman of the Senate Judiciary Committee, Lindsey Graham has told the world that he doesn’t pretend to be an impartial juror. He too has reached the depths of hypocritical depravity as he lead the prosecution of the trial of Bill Clinton for betraying his office by lying under oath about a consensual sexual affair. As a punishment Graham should have to stand in the public square and read out aloud all day the standards of behavior and integrity that he previously demanded from an occupier of the highest office in the land.
No - one expects twenty Republicans in the Senate to defect and vote with the Democrats to remove Trump from office. However it is an open question as to how many might and more significantly will there be three or more that can at least object to McConnell’s rulings to prevent the fair trial that the Republicans have been screaming that they want ever since this scandal began. For example, should at least three vote with the Democrats then witnesses that Trump has withheld to date such as John Bolton, his former National Security Advisor and Mick Mulvaney, his current Acting Chief of Staff, could be summoned. Jay H. Ell would love to hear from Rudi Guiliani who states that he represents his client and who has just stated that he needed Ambassador Yovanovitch "out of the way".
It is fair to state that the Republicans to date have made a mockery of their Constitutional responsibility of Presidential oversight. In the House of Representatives it would be charitable to label their efforts as juvenile both in the Intelligence and Judiciary Committees. There is still a chance that enough Republican Senators will help right the Democracy by at least allowing for a comprehensive trial in the Senate.
The Judicial Branch.
Thus far the lower courts have all upheld the Constitution in the disputes with Trump's actions and failure to produce documents. A crucial test is on the horizon, the production of Trump tax records which have been demanded by Congressional Committees as part of Constitutional oversight and one by a Prosecutor in New York investigating the illegal payments to Stormy Daniels, a porn star that he allegedly had an affair with. The fact that the Supreme Court is even hearing these appeals is a victory for Trump as production of documents for Congressional oversight and for investigation of a President for actions while not in office is settled law. The Supreme Court unanimously decided cases against Nixon and Clinton. The Supreme Court is expected to rule by June. While this litigation will have no impact on the current issue at hand if Trump’s frantic defense of the secrecy of his financial records are anything to go by, their release will obviously have a colossal impact on the electorate in 2020.
Jay H. Ell cannot he too optimistic as to the role the Supreme Court might play as a check on Presidential over reach. Thus far the Conservative majority have exhibited no evidence that they will reign in Executive Power. Although there have been several hundred academics and leading jurists who have signed letters for Trump’s removal the number one legal officer in the land, Attorney General Barr interprets Trump’s powers as similar to those of a monarch - the very antithesis of the Framers, who enshrined a Republican democracy.
Many commenators hope that Chief Justice Roberts, who will be overseeing the Senate Trial, will take an active role in ensuring a thorough hearing. Jay H. Ell will be be agreeably surprised but he is not holding his breath.
AT THE END OF THE DAY.
The American Democracy experiment hangs by a thread as Republicans, generally, have abandoned all the principles of their party to create a cult of Trump. What is left of the credibility of the GOP is in the hands of a few Republican Senators .Trump’s populism has not supported the principles of democracy at home and worldwide he has shown a preference for autocratic leaders. The outcome of American democracy will have a profound impact, one way or another, on the international trend to abandon that form of government.
The electorate might have the final say on the type of government that will operate in the year 2021. The recent Fox Poll shows that fifty percent believe that Trump should be removed from office, while forty one percent don’t. The same poll showed that he abused power by soliciting interference by a foreign government by fifty three percent versus thirty eight percent, committed bribery, forty three to thirty eight percent and obstructed Congress by forty eight to thirty four percent.
Thus while all the indicators are for Trump’s guilt and in the event of his survival the same factors that allowed his minority election ln 2016 are still operational - namely a bizarre distribution of votes in the Electoral College and foreign interference to assist him.
As Winston Churchill noted, Democracy can be easily subverted. He would have known as he witnessed Hitler being democratically elected by a minority as well as Stalin who from 1901 onwards was repeatedly kept in power by various "democratic" processes. Between them they murdered over sixteen million souls…..
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