By David Flint
It became obvious to me from his 2016 campaign speech at Gettysburg that if Donald Trump were to achieve even a modicum of what he promised, he would begin to restore America to the status Ronald Reagan had achieved, the world’s dominant power. Not only were his objectives encouraging, so were the ways he proposed to achieve them. This was especially so in his plan to restore the interpretation of the constitution to the original intention of the founders, thus ending the usurpation by the Supreme Court of the role of a parallel legislature and of the power to amend the constitution. This would bring to an end the influence the Court had long had across the world both in relation to encouraging a culture of death and a similar aggrandisement on the part of other constitutional courts.
When I wrote twice in a leading Australian newspaper about my assessment of the desirability and indeed likelihood of a Trump victory in 2016, I was roundly attacked. Typical was an email from a long-standing acquaintance from his off-shore retirement, “Have your lost your marbles?”
In any event the re-election of President Trump is crucial for at least three reasons.
First, this will be an affirmation that the presidency must continue as originally intended, the sole repository of the executive power of the United States.
The attempt to graft onto the constitution some version of the British Westminster system will hopefully be dealt the death blow it should have received after the failure in 1868 of the clearly unconstitutional impeachment of Andrew Johnson.
Only with this executive authority can an American leader, so disposed, maintain and enhance the standing, status and authority of the United States. This is especially so in the necessary reversal of the naïve policy of enriching hostile and dictatorial powers, one massively so and at enormous cost to ordinary Americans, in the vain and foolish hope that they would become peaceful, democratic, and free.
The legitimate exercise of that executive authority was seen most recently in the protection of American lives and the defence of the American embassy in Iraq though the timely dispatch of a prominent terrorist. The proposition that this exercise of the role of the commander-in-chief can only be done with the consent of one or both houses is clearly unconstitutional and lacking in practicality. The office was created to deal with precisely this problem.
From this emerges the second reason why Donald Trump should be re-elected. It is only through this that he will be able to set in concrete his overarching and important agenda, to make America great again.
Of all the people of the free world, Australians should understand this need. As a federal commonwealth, Australia is, more than any other country, the child of both Britain and the United States. And since the British settlement, Australians have only known a world dominated by a succession of two benign Anglosphere powers each committed to the rule of law, the accountability of government and above all, to the proposition implied to the British and express to the Americans, that man is endowed by his Creator with certain unalienable rights. The only alternative to this, a world dominated by fascist and communist empires, is a world too terrible to contemplate.
There is a third reason why it is crucial for free countries that President Trump win. While meticulously attentive to constitutional and democratic requirements, he never abdicates his responsibilities to domestic surrogates. His economic and foreign policies have been more successful than those of most of his predecessors. He thus provides a unique model for leadership.
While these points would normally be self-evident, the impact of his remarkable achievements has been improperly diminished by the perverse refusal of his opponents to accept his lawful election.
That refusal has extended to mounting and maintaining, from even before his inauguration, an irrational, spiteful and increasingly pointless coup d’état to remove him.
The Coup Against President Trump: A Soap-Opera of Many Episodes
This refusal of President Trump’s opponents to accept his election has been made all the more extraordinary by a preparedness on the part of senior officials not only to be disloyal to his office and his person, but also to breach the elementary principles of sound constitutional governance, and even to commit criminal acts to further a nefarious enterprise to overthrow him as lawful president.
There is yet another malevolent feature of this imbroglio, and that has been the emergence of a mainstream media prepared to abandon both the purpose and the ethical basis of a constitutionally guaranteed free and responsible press to further the coup.
The coup has continued as if it were a television serial, composed of an apparently endless series of episodes each one based on fantasies so ridiculous they would be the stuff of comedy were the enterprise not to be so destructive of the national interest.
Apart from such infantile excesses as considering having the president declared mentally incapable, the major and longest episode was the Mueller probe. This was into some alleged collusion, whatever that imprecise term means, between the Trump election campaign and Russia. The ultimate aim was to demonstrate that Donald Trump was a Russian agent, a puppet of Vladimir Putin.
It was obvious from the beginning that this was based on fantasies assembled by a former British MI6 agent, Christopher Steele, who under oath has admitted that the dossier is in significant parts unverified and unverifiable.
A farrago of falsity and filth manufactured from Russia, the Steele Dossier was in fact no more than paid election material for the 2016 Democratic Party presidential candidate, Hilary Clinton.
It should have been obvious to Special Counsel Robert S. Mueller III that not only was he improperly appointed, there was nothing to investigate. Yet he chose a most partisan team of investigators and dragged out the probe for two years. Unable to find a skerrick of evidence of any collusion, he went beyond his power and authority to conclude with the gratuitous opinion that he could not exonerate the President in relation to the obstruction of justice.
That Mueller should have closed the investigation within days of accepting the brief has been demonstrated by Doug Wead’s revelation (Inside Trump’s White House) that when the President’s children visited foreign capitals, heads of state would refer to the Mueller investigation and say how sorry they were that their father had to put up with ‘this nonsense.’ The reason was that as soon as the story broke, the world’s leading intelligence services soon confirmed to their respective governments that the allegations were totally unsupported. As is the subject of the current soi-disant impeachment which, when it is finally interred, is unfortunately likely to be followed by other episodes in this soap opera, even beyond the re-election.
While we saw a tendency in the cosmopolitan media to underrate, to dismiss and to ridicule Ronald Reagan, the President who brought down the evil empire, its treatment of Donald Trump has been unprecedented in its hostile and unmitigated bias.
President Trump has met all this with remarkable resilience and strength, always emerging triumphant from each episode. Indeed there is an analogy here with the continual failure in the celebrated cartoon of Wile E. Coyote to catch the perpetually escaping Road Runner. As viewers inevitably think of Coyote, why do not the denizens of the swamp abandon their foolish and unachievable endeavour?
Soi-Disant Impeachment: The Speaker Cannot Win
What needs to be understood and should be explained by a responsible media is that the founders made a conscious decision to avoid a collective executive.
Under Alexander Hamilton’s leadership, they chose a mirror image of what in essence they had already known in the thirteen colonies and what prevailed in Britain since the 1688 Glorious Revolution, Constitutional Monarchy Mark I. This involved a separation of powers with an executive monarch functioning under a Bill of Rights. The current Westminster system, Constitutional Monarchy Mark II, with a de facto collective executive at the mercy of the House of Commons did not arise until after, and to an extent as a result of, American independence.
Most of the witnesses called before the recent impeachment investigation were academics and bureaucrats who, rather than giving direct admissible evidence of wrongdoing, argued President Trump should be impeached because he did exactly as the constitution intends, he determined the foreign, defence and other executive polices of the United States instead of delegating their conduct to the diplomats and bureaucrats. Being such they did not like this, but that did not make his practice impeachable.
An appalling feature of the impeachment investigation was that it was conducted more as a show trial in a dictatorship than that expected in an old democracy. Unlike someone accused of terrorism or mass murder, the President was refused the essence of due process, trial before an impartial judge and the right to confront his accuser, to cross examine witnesses and to call his own. The Speaker and the committee chairman have by their behaviour set an appalling example to the world and for those who yearn for freedom. It is now open to tyrants to say to the downtrodden, “What I am giving you is exactly the process over which Speaker Nancy Pelosi and Chairmen Adam Schiff and Jerry Nadler gave none other than the American President. Why should you complain?”
The example the House gave to the world was a show trial worthy of Andrey Yanuaryevich Vyshinsky. The effect on those who set the United States as a model of democratic and legal values and who yearn for freedom, was appalling.
Then the House rushed to approve Articles of Impeachment on the basis of absolutely no admissible direct evidence and with exculpatory evidence to the contrary.
While the Democrats insisted the adoption of the Articles of Impeachment be expedited because the President posed a ‘clear and present danger’ to American democracy, the Speaker has delayed delivering the Articles to the Senate until she is satisfied that the trial is fair. The point is that due process demands the trial be fair to the accused and, in any event, it is for the Senate alone to determine how the trial is conducted.
This is the first recorded incident when Articles of Impeachment have been withheld as a bargaining tool to impose conditions on the Lords or the Senate.
Until the Articles are delivered to the Senate, it is doubtful then whether the President has actually been impeached. English precedents indicate clearly that while a vote is necessary in the House of Commons to approve the Articles, the House then resolved to authorise or direct a member or members ‘to impeach’ the official before the Lords. A similar process occurred in the United States so that in the impeachment of President Andrew Johnson, a committee was directed ‘to go to the Senate, and at the bar thereof to impeach’ the President of ‘high crimes and misdemeanors.’
The act of impeaching thus lies in presenting the case at the bar, or at least in so communicating it to the Lords or the Senate.
In the case of the impeachment of the Governor of Florida, Harrison Reed, in 1868, where impeachment itself led to immediate suspension, the Florida Supreme Court held that an impeachment does not occur until it is presented to a lawful meeting of the Senate. The court saw an analogy with a criminal indictment which it said had no effect whatever until it is presented to the court ‘in actual, open, and legal session, and received and filed therein.’
Another arguable analogy could be in the need to consummate a marriage. On this basis it would seem to be open to the Senate to treat the alleged impeachment as a nullity just as an unconsummated marriage may be the subject of an annulment.
The point is, the Speaker cannot win. If there is no impeachment and she does not deliver it, it can be annulled or even ignored. If there is already an impeachment there is no formal need to communicate or deliver the Articles. Accordingly there is nothing to stop the Senate from proceeding with the trial, and then either dismissing the charge or hearing it. If no members come to prosecute the case and thus, to impeach the President, so be it.
In conclusion, it remains crucial to the wellbeing not only of the United States but also for the free world that Donald Trump be re-elected and that America maintain and enhance its extraordinarily benign role as the leader of the free world.
David Flint, an emeritus professor of law, is a graduate of the Universities of Sydney, London and Paris
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