Ian Linden: Will Trump "preserve, protect and defend" the American Constitution?

Photo: Caleb Fisher, Unsplash

Now that President Trump has taken office, Jo Biden's parting shot warning of the danger to American democracy posed by an oligarchy of the super-rich - assembled by President-Elect Trump -seems all the more timely. But it is not the only threat. The rule of law is the institutional foundation and safeguard of democracy. Once it is undermined democracy crumbles. There is now a real danger that politicization of the American legal system will weaken this vital safeguard.

During the 2016 American election campaign, Stephanie Clifford, a go-getter, not to say a hard-worker known as Stormy Daniels in what is politely known as adult entertainment, was given $130,000 to deny an affair with the future President of the United States. Michael Dean Cohen, Trump's lawyer and fixer from 2006-2018, attended to the fraught details of paying Daniels for a non-disclosure document (NDA). Playboy model Karen McDougal had an affair with Trump at much the same time, not long after Trump's third marriage - to Melania Knauss - and received $150,00 from another source. Not long before how to pay hush money gets onto the standard business school curriculum.

Daniel's NDA payment would prove a transaction too far in Trump's transactional politics. In 2018 Cohen was found guilty under campaign finance laws for attempting unlawfully to influence presidential elections and was fined and sentenced to three years in a federal prison in which he served thirteen and a half months. In 2021 New York State's Attorney General Office and the Manhattan District Attorney Office initiated a criminal investigation into Donald Trump's business activities. In March 2023 a New York Grand Jury convicted Trump on all 34 counts of falsifying business records to hide the origins of the hush-money he paid via Cohen (prosecutors serve up a fraud in several parts corresponding to key documents). A week or so ago Judge Juan Merchan, despite an additional contempt of court conviction, gave Trump an unconditional discharge. Trump escaped even the $50,000 fine given Cohen. Until an appellate court finds otherwise, Donald Trump may be described as the first convicted felon to be inaugurated President of the United States.

Andrew Weissmann, a former US federal prosecutor appointed by President G.W. Bush in 2004 as leader of the Enron Task Force investigating massive accounting fraud in the over $60 billion oil company bankruptcy. He was also Chief of Fraud Investigations in the Justice Department 2015-2017. Weissman said this of the unconditional discharge. "Judge Merchan made it clear that it was only because of the presidency, not Donald Trump, that he was getting this". Weissman went on to say: "And all of that is an undermining of the rule of law. It's an undermining of who we think we are in this country, but also in the rest of the world, which I think is going to have lasting damage".

Very true. But the problem is even deeper than that. Entry into the judiciary in the American system, unlike the British, is not independent of its two major political parties. A wide variety of processes for judicial appointments exist. For example, the President nominates and the Senate confirms the appointment of Federal Supreme Court justices, Courts of Appeal judges and district (regional) courts. In 13 States, partisan elections are held to select all or most State and local judges. About half the US States hold elections for their own Supreme Courts and appellate courts. Perhaps fine in an ideal democracy. But at times of intense polarization in society this is neither in the interests of the rule of law nor the common good.

Recent partisan judgements by the US Supreme Court and judiciary are worrying. The Supreme Court ruled in July 2024 by 6-3 that a US President was "entitled at a minimum to presumptive immunity from prosecution" for acts on the official and unofficial borderline committed while President. And complete immunity for official acts. In other words Trump is given almost free rein to do what might land ordinary mortals in jail. The three dissenting Judges described the ruling as making the President "a king above the law". It is unlikely he will ever face charges connected with the mob violence at the Capitol on 6 January 2020.

Rulings of the Supreme Court can have profound impacts on American society. On 29 June 2023, in a landmark case, Students for Fair Admissions v University of Virginia, the justices voted 6-3 against affirmative action on the grounds that certain policies violated the equal protection clause within the Constitution's 14th... To read on see: www.ianlinden.com/latest-blogs/so-will-trump-preserve-protect-and-defend-the-american-constitution

Professor Ian Linden is Visiting Professor at St Mary's University, Strawberry Hill, London. A past director of the Catholic Institute for International Relations, he was awarded a CMG for his work for human rights in 2000. He has also been an adviser on Europe and Justice and Peace issues to the Department of International Affairs of the Catholic Bishops Conference of England and Wales. Ian chairs a new charity for After-school schooling in Beirut for Syrian refugees and Lebanese kids in danger of dropping out partnering with CARITAS Lebanon and work on board of Las Casas Institute in Oxford with Richard Finn OP. His latest book was Global Catholicism published by Hurst in 2009.

LINK
Professor Ian Linden: www.ianlinden.com/