TRUMP’S LEADERSHIP IN CLASH BETWEEN GLOBALLY CONNECTED LIBERAL DEMOCRACIES AND POPULISM, IN THE AGE OF COVID

The last half decade has seen remarkable changes in governance in several liberal democracies. There has been a throw back to old style nationalism, isolationism and prejudice headed by cult leaders in a movement labelled populism. Regardless of populist governments’ efforts, the world has become more and more interconnected in a phenomenon known as globalism. Just in case there isn’t enough change in the world order there is deadly coronavirus pandemic, emanating from the new world power China that has devastated the world. 

 America’s Trump's lack of international leadership on the home front has also been sorely tested. Trump has done nothing to prevent the resurgence of racial tensions as a result of yet another death of an unarmed black suspect at the hands of the police.

Facing the challenges in this watershed in history are the new cult leaders who are committed to go it alone in a world where all the traditional boundaries have been breached and globalism is the de facto manner of how the world is interacting and solving its problems. The leader of this infant movement, Donald J. Trump, is the most powerful figure on the planet by virtue of the fact that America has headed the liberal democracy value system since the Second World War, has a humungous economy and a dominant military arsenal. Trump’s vision represents a hundred and eighty degree negation of the current dominant world order and the American ethos. Hence the outcome of the 2020 American Presidential election has ramifications far and beyond its borders. 

 It is useful to assess the emergence of the liberal democratic nation state and why it is being challenged by an isolationist authoritarian xenophobic extreme nationalistic model. This especially so when the problems facing the planet require global cooperation. 

THE TWENTIETH CENTURY - THE NATION STATE AND THE COMPETING IDEOLOGIES

The twentieth century was the age of the nation state. There were two world wars where tens of millions died to fight for a flag. In the first world war approximately twenty million died and thirty years later the ante was upped to sixty million. Overlapping the nations state battle was the ideological struggle between fascist, communist and liberal democracy models. This struggle ended in the second half of the millennium. With the collapse of the Berlin Wall in 1989 Francis Fukuyama, the celebrated political scientist, declared the “End of History”. He argued that liberal democracies with their free market economies, rule of law and their accountable and representative governments had won the ideological struggle. Liberal democracy was accompanied by remarkable improvements in longevity, the lifting out of billions from poverty and improvements of standards of living and education. More are dying today from overeating than undereating. However the trade off for freedom for inequality had begun to become more and more inequitable in many quarters.

INEQUITIES IN THE LIBERAL DEMOCRACIES EXPLOITED BY AUTHORITARIAN POPULISTS

What is often forgotten is that Fukuyama warned that there was risk in these democracies of “political decay”. Populism is an outcome of that decay. While Fukuyama in 1989 could never have envisioned the dramatic expansion and interconnection of the world encapsulated by globalism, he did foresee the danger inherent in democracies where inequities and the loss of dignity of groups could loom large.

Much has happened since 1989 as several of the “winners” have failed their societies while a new powerful factor, globalism, has emerged. One of the inbuilt defects of the liberal democracy was the sacrifice of equality for freedom. With the dramatic advancements in economies the “elites” lost more and more contact with those less privileged and as the world became the stage corporate leaders could transfer their plants to where the cheapest labor could be found. Industrial and factory workers lost their jobs and with environmental concerns miners were retrenched. Wealth became more and more concentrated in the urban areas and the rural populace felt more and more abandoned. 

A growing class of the population began to feel like strangers in their own country. In addition there was deep resentment of the foreigner and the immigrant. All this and more brought out resentment some of which was transformed into xenophobia and racism. In the United Kingdom it spawned Brexit. In America Donald Trump promised to make America Great Again, which was code for keeping it white. 

The new supposed defenders of the disadvantaged were not only racists they were wildly autocratic, equated loyalty to the State with loyalty to them and strove to create cult like followings. Nowhere was this more evident in the United States. Nowhere was it more consequential as the United States had been the leader of the “free world” for nearly a century and now they were bailing out. Trump was abandoning as many of his international ties as he could. In the age of globalism he was resorting to isolationism.

 A GLOBAL TREND WAS ACCELERATING WITH THE EMERGENCE OF ISOLATIONIST POPULISM

 Neverthe less the new overriding wave of how societies and nations related to one another was assuming more and more importance in the third millennium. A mind blowing increase in trade and travel together with the digital age nations became more and more interconnected.  

The world had changed in nano time. In thirty years the international corperations became almost as important as the nation state. Problems that threatened the survival of the planet and were no longer easily remediable by nation states. These challenges included climate change, colossal financial inequities, cybersecurity, artificial intelligence, hordes of immigrants, privacy of data and now as the coronavirus has proved, disease that knows no national borders or ideological differences. 

HOW THE CULT LEADERS OBTAINED AND  MAINTAIN THEIR SUPPORT

While there have been different emphases by leaders depending on their personalities and their situations generally they have garnered as much power as possible arguing that as they were elected by the people, legislatures, the bureaucratic institutions and even the judiciary could not override their decisions. They have focussed on the tribalism race or ethnicity that they believe represent the true inheritors of their respective nations. Immigrants are taboo. The only affinity they show to those outside the confines of their countries are likeminded leaders. The leaders play up the danger to their following of globalism and having to bow down to the agenda of the outside world.

On a day to day basis they create an alternative reality. They recognize no legitimate opposition only conspiracies against their leadership. The media is biased and is in cahoots with the establishment and institutions who wish to maintain privilege for the old elite. They are able to spin any and everything. In America while Trump has had notable defections his base has hung tight. By and large he is able to keep divering attention to a new issue as his phony “ideology" unravels.  Trump by his taking over the Republican base keeps the Congress representatives in line. So he held onto control by lies, diversion and fear.

And then came the virus.

YOU CAN SPIN EVERYTHING BUT HOW FAR CAN YOU SPIN A VIRUS?

It is ironic that this microscopic unseen enemy would finally change the narrative. 

Trump the greatest propagandist since the second world war had thus far spun every situation to his ersatz reality. His cult agreed that there was no such problem as climate change, coal was lovable, that experts were part of the dark state and the Federal Government was loaded with freeloaders especially scientists so he dumped them. His gut could solve everything, he could bring back mining, factories and on and on. He would drain the swamp of corruption in Washington. With regard to the Russian, Ukrainian and impeachment scandals, they were all hoaxes perpetrated by the Democrats and their fake news media to keep the power in the hands of the elite and on and on. 

With all this success he set about spinning the virus as  blown up propaganda by the usual suspects to smear him. First there would be no cases as he could keep it out by banning flights from China, then Europe and now Brazil. Then he made his spiel to the Republicans as he spun this as the virus of only the Democratic States. He needed a vaccine but refused to join the international movement to create one rather he financed the UK Oxford group with nearly a quarter of a million dollars to supply the USA directly. 

If Trump haven’t got the message the pharmaceutical companies that he was relying to produce the vaccine have. They were talking about billions of vials as they knew that this was a global problem that could only be solved globally. They were co coordinating with the World Health Organization as they were the only body which had information and contact with every medical system in the world. 

THE POPULIST MOVEMENT THEIR LEADERS AND THE VIRUS

It hasn’t passed unnoticed that the “Only I can save you” collection of populist leaders countries lead the world in deaths from the coronavirus. As might be expected way ahead by far was the USA with over a hundred thousand that have succumbed. Trump was living up to his reputation of being the greatest the world has even seen. America under his management has suffered one third of the world’s deaths with less than five percent of the world’s population America had the highest number of deaths in actual number and per capita. . 

A distant second on this grotesque list is his newest best friend from Brazil, Jair Bolsonaro with close on half a million recorded cases. Third in line is his oldest newest best friend Russia's Vladmir Putin and fourth with over a quarter million positives is his somewhat best friend, UK's Boris Johnson . Two other members of the club that made up the top ten highest death rates were fellow populists, Prime Minister Modi from India and Premier Erdogan from Turkey. 

WHAT COMES NEXT?

Just in case no one noticed, for the moment,  the coronavirus is a Northern Hemisphere problem. While it has hit the South, where it has been largely contained, it has been summer there. While the epidemiologists discuss the likelihood of a second wave in the USA in the autumn and winter of 2020/2021 what is glossed over is the possibility of a major pandemic in the Southern Hemisphere in their autumn and winter starting now. The areas most at risk are the poverty stricken African and South American countries where the virus will wreak havoc. Their health services there are non existent.

Trump’s response thus far has been to withdraw the USA from the WHO which is the only body with some know how for those regions. He will then pretend that what happens there cannot impact America. He will stick to his modified wall theory and belatedly ban all flights from countries like Kenya and Guatemala. He might suddenly awaken to the realization that the answer to the Southern threat is health care aid - maybe he will send them the swabs that he denied the fifty American States. 

If by a miracle the major efforts of nearly a half a dozen major pharmaceutical companies to produce a billion vaccines each materializes, he will claim the credit. He will say that he has been a globalist all along and rejoin the WHO now that they have stopped being a lackey of China.

MEAN WHILE

Meanwhile the role of comforter in chief is being filled by the Democratic Challenger to Trump’s Presidency, Joe Biden. He empathized with the families and friends of the coronavirus victims while Trump golfed. He then reflected the nation’s torment with the not as yet resolved disregard of black lives while Trump threatened to shoot the enraged unrestrained angry protesting multi racial mob. As Biden clarified, “The words of a President matter”. He, Biden, would take the lead to change the culture whereby the good cops would no longer stand by while the bad cops exhibited their brutality.

AS FOR THE WAR ON THE VIRUS HOAX

Trump is losing the war on spinning the virus as not being a problem. Not only do the sickening numbers bear evidence to his cavalier attitude to this agent of death but even his whacko machismo of not wearing a mask as a political statement approach is backfiring. Close on eighty percent of Americans favor wearing masks in public. And when the loudest bell ringer in his echo chamber, Fox News host Sean Hannity chastised revellers for not wearing masks as what they might do to their parents and grandparents maybe even Trump should just call it quits and claim that he recommended it all the time.

AS FOR THE IDEOLOGICAL WAR OF LIBERAL DEMOCRACY V POPULIST AUTHORITARIANISM ….

History may well reflect that a virus which produced untold plastic bodybags stacked in refrigerated containers as the morgues were crammed full, exposed the narcissism, prejudice and impotence, of those who propagated this modified fascist cult. 

The answer to some of the shortfalls of liberal democracies is to reform them and heavens knows there is plenty of room for that in the USA. The answer to the problems facing the world from climate change to the coronavirus is global cooperation on a scale not as yet envisaged. Hopefully history will also reflect on the period that we have all are living through as an aberration and a narrow escape from descending into the hell of totalitarianism and isolationism. 

VIRUS TRAGEDY COMPOUNDED BY ALLEGED POLICE MURDER OF UNARMED BLACK SUSPECT AND THE ENSUING UPROAR 

Trump’s dark inaugural address described an out of control America wracked with crime. Ironically America had witnessed a half century of a decrease in violence. As he approaches what he hopes will be his second inaugural his “Great America” is burning and he is cheering it on. Even though he claimed to be the Law and Order President when none was needed, he has no idea, with forty million unemployed, with inequities rampant in the minority groups and an out of control pandemic ravaging the nation, that his obscene attempt to spin the outrage following a videotaped murder of a black man by a rogue white cop, is not a winning election strategy. It will however rally his base. 

The looters and arsonists would well take heed of the Black Mayor of Atlanta and mother of four, Keisha Bottoms's passionate empathetic plea to those who believe that this behavior helps their cause. It adds fuel to the racist populist fire that was first lit by the Presidential incumbent. The black LGBT Mayor of Chicago, Lori Lightfoot was less empathetic expressing disgust at the behavior of the rioters when declaring a curfew of downtown Chicago. 

There are never any winners in a tragedy that the nation has literally just witnessed. The underlying narrative remains the same. None of this honors the memory of one George Floyd who was cold bloodedly savaged to death by a supposed protector of his rights while his police colleagues stood by and watched. G-d knows what they could have been thinking. 

TRUMP REMAINS PREDICTABLE IN FACE OF TRAGEDY.

One always knows what the POTUS is thinking. Rather than bring calm to the nation he is calling for his MAGA fans and the military. He left the management of the virus to the Mayors and the Governors but as "a wartime leader" he is in charge of the cavalry. He will manage the battle from the WhiteHouse without a mask to show how brave he is. 

David Gergen that insightful conservative commentator who has been an advisor to five Presidents lamented, “It is a sad week for America, Trump has fled from his duty….he was mostly busy with other things getting into a public fight with Twitter, condemning China over Hong Kong and terminating our relationship with the WHO”. Gergen added that Trump’s contribution to the tragedy that hit the nation in Minneapolis and its aftermath resulted in a stream of inappropriate inflammatory tweets including that “The only good Democrat was a dead Democrat”.

To be continued.....

TRUMP, THE RUSSIAN AND MUELLER HOAXES, OBAMAGATE, FLYNN AND BARR, - WHAT’S IT ALL ABOUT?

In many ways Trump’s whole lamentable presidential saga began with the scandal of his National Security Advisor, Michael Flynn, a former United States Army Lieutenant General, who had been forced to resign from the services in 2014.  Flynn played an active role in the 2016 Trump Presidential campaign after having already formed Flynn Intel where he provided information and assistance to foreign Governments. He had been a paid speaker in Russia in December 2015 and was pictured seated next to Putin at that conference. He was also actively representing the Turkish Government at the time of the campaign.

The significance of Flynn, who has pled guilty to his involvement with the Russians in the Trump campaign, is that he is now central to Attorney General Barr debunking the whole Russian and Mueller investigations, or what the POTUS  affectionately refers to as the Russian and Mueller Hoaxes.Trump meanwhile is campaigning about Obamagate, which was presumably a conspiracy to create the Russian and the Mueller Hoaxes. But how is this all coming together in the Age of Covid?

TRUMP’S DISASTROUS START TO HIS PRESIDENCY BEGINS WITH FLYNN

After Trump’s election in 2016 he met with President Obama who reportedly warned him against appointing Flynn as his National Security Advisor. Trump ignored his advice and that of Sally Yates, Acting Attorney General, not much later. Ms Yates gave the heads up to The WhiteHouse Counsel, on January 26, 2019, in the first week of Trump’s Presidency. 

Ms Yates advised that Vice President Pence was misinformed as he was denying that Flynn had not discussed Russian sanctions with the Russian Ambassador Sergei Kislyak. The Trump Administration ignored both Obama and Yates.

 On February 9, 2017 The Washington Post authoritatively reported that Flynn had had discussions with Kislyak on the American sanctions. Four days later, on the twenty - third day of the forty - fifth President of the United States his National Security Officer resigned for “inadvertently misleading" the Vice President and others about his discussions with Kislyak. The next day February 14, Trump shooed everyone out of the Oval Office to privately tell FBI Head James Comey, “I hope you can see your way clear to letting Flynn go. He is a good guy. I hope you can let this go”. 

As more and more revelations about Flynn’s Russian activities emerged and that he was an agent for the Turkish Government, Congressional hearings took place where Sally Yates testified and with accusations and reports flying all over the place of Russian help to Trump in the 2016 election the pressure on Flynn scandal built. Trump repeatedly defended Flynn. 

FLYNN LEADS TO COMEY AND THE REST FOLLOWS

It was all getting hotter and hotter so Trump, on May 9, did what he has now done for close on four years when a pesky bureaucrat is not “loyal”, he fired Comey. On May 10, a day later, the POTUS meets with Ambassador Kislov and Russian Foreign Minister Sergei Lavlov in the Oval Office where he reportedly told them that he had got rid of Comey. 

On May 17, Deputy Attorney General Rosenstein appointed Robert Mueller to investigate any possible collusion between the Trump campaign and the Russian Government to influence the 2016 Russian election. That was the beginning of the Russian and Mueller Hoaxes. Since then we have had the Ukrainian Hoax, the Impeachment Hoax, the Democratic Hoax on Trump's pandemic response and now we have Obamagate. What has happened in-between and why it lead to the latter is a long long story. Here is the short version. In many ways it can be divided up between BEFORE BARR and AFTER BARR.

COMEY LED TO MUELLER WHICH LED TO GUILT OF EIGHT OF TRUMP’S CAMPAIGN INCLUDING FLYNN

It is fair to say that Trump was at sixes and sevens during the two year Mueller investigation as revelation after revelation became public. The intelligence agencies were ad idem that the Russians had intervened on Trump’s behalf and Mueller showed the Russian involvement by a string of guilty pleas, convictions of members of Trump’s campaign and some who took plea bargains. All in all eight were found guilty. Two are still awaiting sentencing one of which is Flynn, the other is Stone. Twenty - six Russians were charged and indicted for their efforts in getting Trump elected. None of course stood trial. 

Mueller issued a four hundred and forty eight page report which was divided into two sections. The first detailed the Russian activities, that help was received and welcomed by the Trump Campaign and that meetings were held between representatives of the two parties which had the common purpose of making Trump President. What Mueller could not prove was that the two parties actively conspired together to this end.  The second half of his report outlined a prima facie case of Trump obstructing justice. Mueller made it quite clear that it was up to Congress to act on his report. And then came Barr.

AND THEN CAME BARR

William Barr arrived and Trump had finally got his consiglieri that he had been screaming for during the “Russian and Mueller Hoaxes”. Barr as Attorney General withheld the Mueller report and then sent a redacted version to Congress a month later. Most important he interpreted it as completely exculpatory to Trump. Barr held a national TV event where he used the Trump phraseology “No collusion” knowing full well it was not a legal term. Barr as Attorney General dismissed the obstruction of justice charges and moved on. Mueller immediately objected in a letter as to Barr’s characterization of his report arguing that his Executive Summary to the encyclopedic assessment was indicative of his findings. 

Barr continued to develop the direction that the Russian investigation was part of the Dark State even telling Congress that the Trump campaign was spied upon. He did more than that he started helping Trump create a revisionist history of what happened during the campaign.

BARR STARTS DISMANTLING THE MUELLER HOAX RESULTING IN CALLS FOR HIM TO RESIGN

The Attorney General somehow escapes the Ukrainian Hoax, even though he is mentioned in the “perfect call” as a contact to help nail Biden. He has only been sighted once in the Democratic hoax response to the pandemic at one of Trump’s press rallies as one of the maskless bit players. However he had already initiated an investigation in to how the illegally Russian Hoax started.

 Barr had been hard at work from the moment the Mueller reported landed on the consiglieri’s desk. He contacted a Connecticut US State Attorney Robert Durham. CNN reports that the two met six times prior to Barr releasing the Mueller report to the public. Details of the close association of the pair were made public following a Freedom of Information request by the transparency group American Oversight.  Barr subsequently appointed the Connecticut based Federal Prosecutor Durham to delve into how the probe into the Russian assistance of Trump Campaign was started and very soon it became a criminal investigation. Barr did boyishly admit, to the public anger of Trump, that as he was not political, Obama and Biden were not being probed!

BARR STARTS INTERFERING IN MUELLER  PROSECUTIONS - FIRSTLY ROGER STONE

It didn’t take long for Barr to meddle into prosecutions arising out of the Mueller Report starting with Trump’s life long confidant Roger Stone who was found guilty by a jury of a host of illegal activities. He overrode the prosecutors in putting in a brief for a lighter sentence. There were resignations all round from the team of professionals who had written their recommendations to the Judge on the basis of Federal guidelines. The Stone case is hung up now while the Judge considers another spurious accusation leveled by Stone.

Trump’s Attorney General was attracting more and more disquiet but what was noteworthy was the legal world was becoming more and more despondent at the besmirching of the Justice Department. An unprecedented action, (what isn’t unprecedented nowadays?), was taken by two thousand former Federal Prosecutors and other members of the Department of Justice on calling Barr to resign for carrying out the “President’s bidding”. The signatories pointed out the damage he has done to the Department of Justice’s reputation for integrity and the rule of law. 

Needless to say Trump’s consiglieri has not resigned because he does not have to answer to the American people and the Constitution which he swore an oath to. His allegiance is to his boss who employed him. So he moved onto Michael Flynn where this all started. 

BARR EXTRICATES FLYNN WHO WAS THE PROGENITOR  OF THE RUSSIAN HOAX

If The Attorney General, aka Trump’s consiglieri, was to credibly debunk the Russian Hoax, he needed to get Michael Flynn, who set this whole thing into motion, off the hook. Flynn had first been up for sentencing well over a year ago. Mueller’s prosecutors were more than satisfied with the assistance he had provided them in multiple indictments and prosecutions and recommended leniency even no jail time. 

However Flynn was too smart by half putting in his plea for leniency claiming that he had been misled by prosecutors and that was a mitigating factor. Judge Emmet Sullivan went ballistic. Flynn had plead guilty to lying about his contacts with Sergei KIslyak and had been an agent for the Turks while being the National Security Advisor. Flynn had confirmed with the Judge that he understood his guilty plea. The fastidious judge who was not above castigating Prosecutors had made sure that the plea was valid. He had called Flynn a traitor for his actions and was not buying Flynn’s baloney. He warned Flynn that if he wanted to be sentenced there and then he could end up in jail. The end result was the shortest serving National Security Advisor in history was to cooperate even more with the Prosecutors to convince Sullivan of his bona fides and then return for sentencing. And then Barr came again.

BARR GOES ONE FURTHER THAN WITH STONE - DROP THE PROSECUTION AND THE JUDGE GOES BANANAS

 Almost eighteen months later when Flynn returns for sentencing Barr dropped the prosecution against him. Flynn had plead guilty twice. Barr claimed that the whole case was based on false premises. In case G-D forbid this decision could be argued to be non political Trump had tweeted earlier that Flynn should be released. Barr does care too many hoots about the criticism. When asked how history will judge him, he nonchalantly replies that history is written by the winners.

The court is flooded with petitions again by angry jurists in similar numbers that asked Barr to resign over his interference in the Stone case. Judge Sullivan takes the unprecedented action of appointing a former no nonsense Federal Judge, who as a prosecutor finally nailed the head of the Gambino family, John Gotti, to lead evidence as to the legitimacy of Barr’s claim and whether or not Flynn can be found guilty for criminal perjury for lying twice about his guilty plea to the judge. Sullivan’s ruling has been appealed and there is little doubt in Jay H. Ell’s mind that by one way or another Flynn will walk out scot free. 

Just in case there aren’t enough agencies around to reinvestigate the Flynn saga the FBI under pressure from Trump have initiated yet another probe into the whole saga to make sure there was no breech of protocol in the Flynn investigation. 

What has this all to do with Obamagate?

TRUMP’S DIVERSIONS IN THE AGE OF COVID ARE TO PROVE THAT THE DEEP STATE FRAMED FLYNN  -  WHICH LEAD TO MUELLER - AKA OBAMAGATE

Now if, the Mueller report, stacks of criminal indictments and convictions, seventeen intelligence agencies, the Republican and Democratic Intelligence Committees and the Inspector General of the Justice Department all are id idem that the Russians assisted a willing Trump this won’t stop Barr and Trump trying to create an alternative reality. 

As mentioned earlier it all began with Flynn and if Flynn was framed Trump could argue what followed were “hoaxes”. So how did the Dark State get onto Flynn? This was effected by a process called “unmasking”. All communications with foreign adversaries are bugged. You cannot of course tap an American citizen unless you have a warrant from a judge. But believe it or not some of these “listened into” conversations with foreign adversaries are with American citizens. Now there were several over a short period of time with the same voice and Kislyak. Apparently some of the stuff related to sanctions that the Russians wanted lifted. (It is common knowledge that the Republican Platform at Trump’s nomination changed their policy on sanctions). The intelligence agencies as well as Obama’s National Security Advisor, Susan Rice, needed to know who this collaborator was so they proceeded to “unmask” the American. The American was Flynn who then lied to the FBI about the content of the taped conversations.

However Barr and Trump tp prove their point that there was collusion in the Deep State to get Flynn they point to a meeting where Obama, and Rice were present hearing a report of this from Comey who was head of the FBI. But to finally “prove” that Flynn was framed and put in a perjury trap all charges against him have to be dropped. Barr has obliged.

Now the next step in the logic is simple who was Obama’s bagman? Why Biden of course and Lindsey Graham is about to start the investigation into Biden’s son in the Senate Judiciary committee so you can see how all this ties together.

AT THE END OF THE DAY

All this is indicative of how desperate the Trump campaign is. Trump is nuts to run against Obama who will mobilize the sections of the Democratic vote that didn’t show up in full force for Hillary. The forty - fourth President is welcoming the fight in fact baiting the short tempered forty - fifth President. He called his policy on the Covid Pandemic “disastrous” and attacked him in two nationally broadcast student graduation speeches.

The Supreme Court temporarily halted the handing over from Barr’s Justice Department the grand jury testimony from the Mueller investigation to Congress, the co equal branch of Government. It will be fascinating to see how Robert’s apolitical Court finally rules on that one.

Hold onto your horses this is going to be a rough six months. As long as the USA doesn’t go to war against China it can be put down as a win.

You can’t make all these things up!

ROBERT’S SUPREME COURT AND TRUMP ON TRIAL

The Supreme Court of United States America, (SCOTUS), is one of the three co - equal branches of Government. It is the final interpreter of the Constitution in effect deciding what is the law. It has time and again adjudicated between the different interpretations of the law by the Legislative and the Executive Branches. The scope of its decisions can and have had profound influence on the political, social, economic and cultural norms of the country. 

The Court faces an historic decision with regard to the release of President Trump’s taxes that have been subpoenaed by the Legislative branch of government and the State of New York’s Attorney General. Broadly speaking SCOTUS will be defining the scope of Presidential power. In this polarized society which serendipitously is reflected by a polarized Court, the Chief Justice John Roberts has a central and deciding role to play. 

In spite of perceptions that the Supreme Court has been a liberal body, in its two hundred and forty year history it has for the most part a highly conservative institution.  It is currently facing a crucial decision with regard to whether or not the taxes and business papers of the President Donald Trump can be legitimately withheld from a criminal investigation and the Congress of the United States of America. Not only is it a legal matter of great import it has crucial political significance. Trump, incidentally, has been promising that he would reveal his tax returns for nearly four years, but has guarded their contents with an iron will. 

The POTUS has given up on the lame excuse that he cannot release his taxes because he is being audited. In the alternative reality that he operates in, the fact that that is a lie is irrelevant.  All requests the Democratically controlled House of Representatives have made to the Trump WhiteHouse, in its legitimate oversight responsibility, have been rejected. Normally such disputes are resolved by negotiation between the two parties. In the current Presidency they are unsolvable because Trump, of The Executive Branch of Government, unprecedentedly does not uphold the legitimacy of the Legislative Branch. In order to legitimize his obstinacy he has sought the protection of the Third Branch of Government, The Judiciary. The issue has finally reached the Supreme Court for arbitration.

PRESIDENT TRUMP, JUSTICE ROBERTS, THE SUPREME COURT AND POLITICS

Over the past quarter of a century SCOTUS has been accused of being extraordinarily “political”. This perception has been reinforced in the Trump Presidency. Trump unabashedly ran on appointing more conservative judges to the Federal Courts and boasts particularly about his Supreme Court picks. It is common knowledge that he colludes with the Federalist Society on nominations for every judicial appointment. At his rallies and to whoever will listen the POTUS has openly inferred that the Supreme Court will back him in the current dispute. He matter of a factly states that his opponents, generally, will first appeal his Executive Orders to a California District Court, and win there and thereafter triumph in the Ninth Circuit Federal Appeals Court. Then the beef will land up in the Supreme Court where he will finally get a fair shake!

Chief Justice Roberts, himself a Conservative appointee, has been at pains to try and change the image of his prestigious body. He went as far as criticizing President Trump who simply sees the world as those who back him and the enemy. Roberts infuriatingly commented on yet another Trump attack on an “Obama Judge……who was a disgrace”. Roberts in a rare rebuke stated, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges who do their level best to do equal right to those appearing before them” The POTUS having the last word tweeted, “Sorry Justice Roberts….Obama judges have a much different view……it would be great if the Ninth Circuit had an independent judiciary….”

Supportive of the recent criticism of the Supreme Court’s alleged partisanship are a number of landmark rulings that have had profound political effects over the past three decades. Bush v Gore where the conservative court overrode the Florida Supreme Court’s decision to have a recount of the controversial election in Florida thereby giving the Presidency to George W. Bush. What made this decision so glaringly out of sync was the fact that voting procedures are constitutionally the prerogative of individual  States. To quote the late Justice Scalia when confronted with this anomaly, he snapped, “Get over it”. To this day the question is still asked as to what Bush’s majority in Florida was? The facetious answer is one. He won five to four.

The Roberts court narrowly ruled in the Citizen’s United case allowing fortunes to be spent in elections. In the process two novel interpretations of the Constitution were enunciated, namely that corporations are individuals and money is equivalent to free speech. The most recent decision to produce a sense of shock, again decided by five votes to four, was that SCOTUS would not interfere with gerrymandering of constituencies which had ended up in giving Republicans far more legislative representation than their numbers warranted. The irony is that the Court refused to involve themselves on deciding whether this manipulation was constitutional or not on the basis that it was a political issue. The explanation being ridiculous on its face because ruling in the Republicans favor was profoundly political.

It is in this context that Chief Justice Roberts, who has been one of the majority votes in cases since 2005 is trying to restore the integrity of the court. The questions to be resolved are whether the Presidency puts Trump above the law and whether or not Article II of the Constitution allows him to prevent the execution of requests of the Legislative Branch of the Government and subpoenas from the criminal legal system.

THE CASES TRUMP IS FIGHTING DON’T DIRECTLY DEMAND TAX RECORDS FROM HIM 

Although Trump is not the defendant in three separate actions for his tax returns he has employed vast resources to prevent the release of the latter. The legal retinue include counsel from the Justice Department which since the arrival of William Barr has acted like his personal in house legal team. He also has his personal legal representatives. 

The Attorney General of New York and the House of Representatives have issued subpoenas to Trump’s accountants and two of his banks Deutsche and Capitol One for the financial records. Both entities have agreed to release the documentation but the Trump army of litigants have objected. Their time wasting obstructionist interventions have involved six separate Federal Court clashes, where twelve Federal Judges have presided. Trump has lost each and every one of them. In several of the litigations the Judges were scathing in their rulings stating the POTUS is not a monarch and is not unanswerable to the law. 

The three cases involve two central issues - one, pursued by the House of Representatives, where the latter are arguing that Trump by obstructing their lawful requests to third parties is interfering with their constitutional right to oversight of the Executive Branch of government. The second authored by the New York State Attorney General’s Office relates to their right to investigate criminal matters which arose out of the conviction of his former personal lawyer Michael Cohen who went to prison. The court documents in that case indicate support for Cohen’s contention that he committed the crime at Trump’s behest. Trump has paid a substantial fine and seen the closure of his “Charitable Foundation” which he had illegally used for personal services. 

It is pertinent to take note of Trump’s defenses to this date which broadly speaking place the President above the law. Not only is arguing that a sitting President cannot be charged for a crime he, in addition claims that he cannot be investigated for one by anybody. His personal lawyers incredulously argued his famous brag that if he shot someone on Fifth Avenue New York he could not be investigated or charged. With regard to Congress’s requests to the relevant institutions for Trump’s records he has maintained that inter alia that if the courts allowed this to go forward there was no end of harassment that the President could be subject too. 

What struck Jay H. Ell in all these Court appearances including the subsequent Supreme Court hearing, is the contention that the President is far too busy and involved with pressing domestic and foreign affairs to respond to any of these requests. Not only is that factually untrue it is a spurious point. The President is not being asked to do anything, other entities are being subpoenaed for the documents not him. In fact if he is that busy how has he the time to become involved with litigation that does not demand any action by him?

It was all this backdrop that three sets of Counsel in the Age of Covid were to enter the virtual Supreme Court for oral argument. 

ROBERT’S SUPREME COURT, PRECEDENTS AND PRESIDENTIAL OVERSIGHT AND 

PRIVILEGE 

To many legal observers and constitutional experts there was the belief with six decisions against Trump leading up to this denouement and with the Supreme Court Precedents that this would be an open and shut case. The two overriding legal precedents involve Presidents Nixon and Clinton. In 1974 the Supreme Court unanimously ruled that Nixon had to hand over incriminating tapes that he had made of his conversations in the WhiteHouse which the Special Prosecutor had subpoenaed in his investigation of the Watergate saga. Nixon complied and the result was the bipartisan vote for impeachment in the House of Representatives. Nixon elected to resign. In 1997 the court once again unanimously ruled that Bill Clinton could be deposed in a civil case where he was being sued for sexual harassment. 

Unlike with Trump in Nixon’s situation he was directly involved in delivering the tapes. Unlike in Trump’s situation Clinton spent several hours in a deposition and presumably several hours preparing for it. It is also pertinent to note that Clinton responded to a subpoena from the Special Prosecutor while Trump’s personal lawyer at the time advised the POTUS against this as he would end up being charged with making false statements. In spite of the fact that Trump was not the recipient of the subpoenas for his financial documents the court’s discussion preceded as if he was the one being summoned!

Just one further relevant point with regard to  Congress’s Presidential oversight, the fact that the practice is so everyday should be at least part of the record. While Presidents generally are loathe to hand over documents there are none in living memory that have refused point blank to not only refuse to provide any documents but refuse to allow any employee past or present of his administration to appear as a witness in any investigation of him. 

The court has placed a limitation to civil litigation against a President once out of office. In 1984 the Supreme Court held that a President could not be sued civilly for actions taken as a President. This is an understandable concept as no one can take decisions, presumably in the best interests of a country, worrying about civil litigation years later. In fact such exemptions are common place in law where, for example a doctor can provide care at a motor car accident being exempt from being sued for any outcome of her help - “The Good Samaritan Law”. 

ROBERT’S  QUESTIONING IN ORAL ARGUMENTS

John Roberts must have had as a fantasy that somehow he could gain consensus on a ruling. Reality however dictates that he probably will be the swing vote. Twice in his fifteen year tenure he had surprised by joining the liberal minority - in upholding the constitutionality of Obamacare and denying the Administration putting a citizen question in the 2020 Census Form. The reason for the latter decision was not on the right of Trump’s administration to do so but rather that they had patently bogus reasons for their desire to do so. While every lawyer will caution not to read too much into the oral arguments attention was focussed on the Chief Justice’s questions for obvious reasons. 

The Chief Justice made it clear that the President might be too busy with national and international affairs, China was referred to specifically, to respond to congressional demands for tax returns. He commented, “Most Presidents have a pretty long to do list”. While Roberts made it quite clear that Trump was not immune from criminal investigations he neutered his observation by the “fear” that this could subject the President to have to respond to investigations from hundreds of state prosecutors across the country. Roberts then made the unbelievable negation of the Clinton precedent claiming that the President would have more distraction from a criminal complaint than civil litigation. Indeed preparing for an investigation into murder would be pretty burdensome!

AT THE END OF THE DAY

Anyone who is expecting Chief Justice Roberts to hold President Trump to account and reassure the country that the President is not a monarch, need not hold their breaths.

Not only in the oral argument was Roberts’s ignoring the Nixon and Clinton precedents his assumption that the President is being asked to do anything is totally false as outlined above. Even if he was correct that the President had to physically do the sending he needs reminding that all the previous incumbents since Nixon voluntarily made their tax documents public and in addition that the President should be able to be investigated for criminal activity. 

Robert’s may well use the argument that the Congress requests are political and thereby ignore the constitutional role of the Judiciary whose function it is to interpret the Constitution. Also that argument is absurd as indicated as whatever the outcome it will have vast political implications.

Trump will finally be able argue that he got his “fair shake”.

Jay H. Ell hopes he is wrong but however Robert’s parcels this he is pretty convinced that no one will see Trump’s taxes before the November election. The Chief Justice may even agree that the Attorney General investigation is valid but rule, in effect, that it’s contents will not be revealed till after the election.

Robert’s legacy is almost sealed. His court has to be the most divisive in history having, according to Senator Whitehouse he has delivered, since 2005 over seventy,  narrow five to four decisions - favoring Republican donors, hobbling pollution regulations, enabling attacks on minority voting rights, curtailing labor’s right to organize, denying workers the ability to challenge employers in court and expanding the NRA’s agenda.

The upshot will be that Roberts might well be coupled with McConnell and Barr as part of the Trump era. The Chief Justice apparently takes in the world around him as his reference to China indicates. He listened to every minute of the impeachment trial in the Senate where Trump’s perfidy was exposed. Here he has evidence on display of more unaccountability and possible criminality. Is this really the type of Presidency that Robert’s believes the Founding Father’s envisaged when they designed the Constitution to prevent another absolute monarch?