Dealing With Allegations Of Corruption By Heads Of Government

Dealing With Allegations Of Corruption By Heads Of Government Presented by: Peter Alldridge (Drapers' Professor of Law) Models 1. Head of Government legally/constitutionally immune for actions performed when in office 2. Head of Government is treated as normal citizen - investigation and prosecution by regular agencies (Israel, UK, NZ) 3. Head of Government is treated as normal citizen, with temporary immunity from criminal proceedings, which are deferred till term of office is over (France). 4. Special procedure deals with criminality by Head of Government (US) Immunity or ...??? - 'It's a matter for a political process leading to removal from office'. 'Normal' procedures apply ... - Who investigates? - Who prosecutes? - Political accountability and susceptibility to influence of those who investigate and prosecute? - Head of Government not able fully to concentrate on job while facing criminal proceedings. 'Normal' Procedures Apply Only After Leaving Office - Who investigates? - Who prosecutes? - Political accountability of those who investigate and prosecute? - Susceptibility to influence of those who investigate and prosecute, either from political friends or foes of ex Head of Government. When Can A President Be Impeached? - Article II Section IV • The President, Vice-President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. - (Two-thirds majority of Senate) - Activities prior to becoming President? Allegations Against Trump: 1. The Money Laundering allegations - (A) Trump Hotels, Deutsche bank and the Ruble 2. The Money Laundering Allegations (B) (Republican Party and the NRA) 3. The Sex Trafficking allegations Trump Model management 4. Trump's tax affairs 5. Complicity in Russian interference in the 2016 US election. Individual One on Manafort indictment 6. Profiting from Presidency: the Emoluments Clause litigation 7. The Finances of the Inauguration (Jan 2017) 8. The Trump Foundation (Charity) 9. Nepotism 10. Obstruction of Justice (Flynn, Cohen, sacking Comey) 11. Impeachment Feb 2020 - The phone call with Ukraine soliciting action against Biden and his son. (The posited deal with Russia) - Russia wanted 1. (specifically) Magnitsky Act sanctions lifted 2. (generally) influence over US. - Trump wanted hotel in Moscow, which required funding, consents &c, loans (DB). Putin to get penthouse. Mueller (Special Counsel) Investigation Outcome - Investigation into: 1. Allegations of Russian interference in the 2016 Presidential election; and 2. Allegation that trump obstructed justice by firing Comey, the FBI Director, in order to obstruct that enquiry. - Many individual prosecutions of people around Trump, and finding that there was: 1. Clear evidence of Russian interference in 2016 US Presidential Election; and 2. Significant damning evidence of obstruction of justice - No recommendation to indict the President (because of an existing, but questionable DOJ policy that a sitting President cannot be indicted). - No recommendation to impeach (because, said Mueller, that was a decision for the House). - House Democrats decided not to impeach. Impeachment (House of Representatives v Trump, Feb 2020) - Allegations • Trump made delivery of military aid to Ukraine conditional upon Ukraine mounting an anti-corruption investigation of the business activities in Ukraine of Joe (the favorite to contest the 2020 election with him) and Hunter Biden (Joe's son). - Articles of Impeachment): • Abuse of power • Obstruction of Congress in its investigation of the President's conduct regarding Ukraine. Result - 52-48 acquittal, on party lines, save for one Republican (Mitt Romney). - (In 1974 President Nixon's position had become untenable when he learnt that he had lost the support of a significant number of Republican Senators told him). Pardons - The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. - Only applies to federal matters. Limitations Of The Pardon Power - Only applies to federal offences (equivalent powers in State law are held by Governors). - Person pardoned loses rights in respect of self-incrimination &c, and may be subject to subpoena either by courts or congressional committees. Trump And The Rule Of Law - Traditional constitutional position is that Federal prosecutors are DoJ employees who make decisions independently of politics and political appointees. - Responding to Investigations/prosecutions/impeachment - Directed prosecutors in the Flynn case not to accept a guilty plea. - Enlisting the Department of Justice - the idea of the 'Rule of Law Emergency' - Sacking AG SDNY_DC EDNY and inserting placemen - Taking direct control of prosecutions h wants to fail And So (I) The US? - Does the Constitution require amendment? - Was there/should there be a mechanism that could have prevented this (dangerous) state of affairs coming into being? - What about the order of succession in the case of a 'stolen' election? - A major crime family - RICO &c? (ii) The World? - Quasi-political procedures, like impeachment, only work if the decision- making body puts aside party loyalty. - The value of the other mechanisms varies from jurisdiction to jurisdiction. - Other things being equal, from the point of view of the Rule of Law, the earlier it is dealt with, the better