Category: United States Law and Policy

‘The longest Tuesday’ – the US election one week later

10 November 2020

A week ago today, also a Tuesday, was election day in the United States.

The day seemed go on forever, for days, before it became apparent that Joseph Biden had won and the media networks ‘called’ the election.

It is, however, only apparent that he will be the next president: votes need to be certified by the States, the electoral college needs to meet, there needs to be a meeting of Congress to announce the winner, and so on.

There is therefore a possibility that something somehow could happen which would prevent Biden becoming president.

That said, on the information currently available, any legal challenge brought by Trump does not seem to have a realistic chance of success.

It is easier to threaten a case than to win one.

And for any legal challenge to prevail there needs to be substantial evidence and credible legal argument.

Law is not magic, and a party will not be granted a remedy just because of displeasure or disappointment.

Any (serious) lawyer for Donald Trump should be assessing the extent to which the evidence and arguments available really add up to dislodging the entirety of the majorities being reported in the key States.

There may, of course, be ‘non legal’ reasons for not conceding defeat: vanity, an attempt to create a false narrative, a desire to continue with fund-raising, an exercise in contriving some leverage for a ‘deal’ exchanging cooperation on transition for immunity from prosecution, and so on.

But such ‘non-legal’ reasons ultimately depend on the credibility and substance of the potential legal challenges.

Unless Trump and his legal team can fashion a good legal argument, then the votes will be certified, the electoral college will meet, Congress will approve, and so on.

And so, unless something exceptional and currently unforeseeable happens, Trump will cease to be the President of the United States on 20 January 2021, by automatic operation of law.

At which point, if he remains in the White House without permission, he would become a mere trespasser on federal property.

**

Thank you for visiting this independent law and policy blog.

If you value the free-to-read and independent legal and policy commentary on this blog and at my Twitter account please do support either by the Paypal box above or by becoming a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

**

Comments are welcome but pre-moderated, and so comments will not be published if irksome.

“Law & Order!” and law and order

1st September 2020

Here is a tweet from Donald Trump.

And now look at the date of this tweet: it is from the run-up to the 2016 presidential election.

In recent days, Trump has tweeted a number of times about ‘Law & Order!”.

*

One obvious reaction would be to say that his recent demands for “Law & Order!” show that he failed to keep the commitment in his 2016 tweet.

Another obvious point is that Trump’s misuse of pardons and commutations, his non-compliance with legal requirements and so on are a negation of law, just as his stoking of violence for political ends is the negation of order.

But such ‘reply guy’ points do not really matter.

*

The potency of “Law & Order!” does not depend on Trump’s record or his consistency.

What is significant about the 2016 tweet is this was how he approached the last election, with the same message as now, and it was effective.

And it may be effective again.

The fact that, in substance and in practice, Trump is not interested in either law or order is irrelevant.

“Law and Order!” has nothing to do with law and order.

It is about coercive power and about those who that power should be inflicted upon.

It is about control and it is about supremacy.

*

Of course, it is easy to mock Trump, and it is easy to point out the inconsistencies and the lies.

But he has worked out a way to get power, and his opponents so far have not.

Do not underestimate him.

(Johnson and Cummings have also worked out how to get power, and their opponents also so far have not.)

Waiting for the mass of lies, absurdities and inconstancies to somehow self-implode, and thereby eject Trump (or Johnson), is not going to work.

The thing (for want of a better word) is self-sustaining: it feeds off the simple opposition that it creates.

And there is not point ‘matching’ it, as those promoting this thing are better at lies, inconsistencies and absurdities than their opponents.

The thing would have to be defeated some other way.

And that defeat must be political and electoral.

For example, looking to the courts or to special counsel investigations is wishful thinking.

Lawyers and judges are many things but they are not fairy godmothers.

(And “activist lawyers” also feed the thing.)

*

Pointing out lies does not work when a sufficient number of voters do not mind being lied to.

And so the daunting task for the opponents of Trump (and Johnson) is to get enough voters to care that they are being lied to.

To care about law and order, and not “Law and Order!”.

And that ain’t going to be easy.

**

Thank you for visiting this independent law and policy blog.

Please support the free-to-read and independent legal and policy commentary on this blog and my Twitter account either by the Paypal box above or by becoming a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

**

Comments are welcome but pre-moderated, and so comments will not be published if irksome.

“Meddling” and the mindset of Trump and Johnson-Cummings

11th August 2020

President Trump says a lot of tosh but sometimes a word or phrase is telling.

“Meddling”

Here Trump goes on to make a partisan point about the Democrats “wanting and insisting on sending mail-in ballots, where there’s corruption all over the place”.

An opposition party in a democracy seeking to encourage the turnout for a vote is not, of course, sinister.

That is what political parties do in a democracy.

And if there is corruption or other irregularities then that is what electoral law is there to regulate. 

*

But this is to take his substantive point too seriously: the issue is the ease with which he adopted the word “meddling” from the question and employed it in his answer against the party challenging him in November’s election.

“Meddling”

The impression he gave is that he considered the legitimate political activity of a political party as a hindrance – a wrongful intervention in the natural order of things.

And this impression is similar to the impression given by the Johnson-Cummings government in the United Kingdom in respect of constitutional checks and balances on the power of the executive.

*

Before the general election, when Johnson-Cummings did not have a majority in parliament there was the attempt to bypass the legislature with the (unlawful) use of the prorogation.

After the election, now they have a majority, the main attacks are on the independent judiciary and the impartial civil service.

The impulse is always the same: the desire to remove formal impediments.

There often seems to be no greater purpose – no particular policy to be driven through – than unrestricted executive power as an end in and of itself.

The objective is the elimination of anyone in a structural position to say ‘no’ or even ‘please think about this carefully’.

*

By framing any such restraints as “meddling” the executive-minded, such as Trump or Johnson-Cummings, are doing three things.

First, they are seeking easy claps and cheers and nod-alongs from those in politics and the media who should know better, as well as from voters generally.

Second, they are signalling that they consider any form of opposition to them getting their way as inherently illegitimate – and so that there are no constitutional or democratic principles of more import than the government just getting its way.

And third, they are converting basic constitutional or democratic principles into partisan devices – and so those who support and defend certain political fundamental norms (regardless of party) become part of a perceived opposition.

*

The worry is that they can and will get away with this for as long as possible.

There are, of course, often short-term political advantages to be had for the knave or the fool by undermining any political and constitutional system.

And one hopes that the system would be self-correcting, and that basic constitutional and democratic norms will somehow reassert themselves.

But what happens when, as now seems to be the case in the United Kingdom, such opportunism and cynicism become the ongoing policy of the government?

Will basic constitutional and democratic norms reassert themselves this time?

Or will this ‘executive power project’ carry on and on?

And, if so, wouldn’t that be genuinely ‘meddlesome’ behaviour?

**

Thank you for visiting this independent law and policy blog.

Please support the free-to-read and independent legal and policy commentary on this blog and my Twitter account either by the Paypal box above or by becoming a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

**

Comments are welcome but pre-moderated, and so comments will not be published if irksome.