Prosecuting A President

When the former President of a country which trumpets its democratic credentials is brought before the courts, we sit up and stare. There is a sense of déjà vu about Donald Trump's latest indictment, the fourth he is facing after leaving the White House in January 2021. But, there are several unusual features about the recent Georgia proceedings, which have interesting implications for the concept of the rule of law and for freedoms cherished by every democracy.

India and the United States differ with regard to political institutions and judicial systems, legal practices and conventions. The Constitutions of both countries are, however, founded on the same bedrock of fundamental rights and the independence of courts. The similarities and variations thrown up by the Georgia case against Trump are fascinating and thought provoking.

Observers around the world are agog about one question: Could any of these cases land Trump in prison? The State of New York has arraigned Trump’s companies and employees, members of his family and the President himself for misrepresenting and inflating the value of his assets to evade tax.

But, tax felonies attract prosecution under criminal statutes only if they fulfil specific conditions prescribed by the laws of the country, which means that the New York matter need not automatically lead the former President to jail. The two cases filed in federal courts, however, are clearly focused on criminal actions: inciting a mob to attack the Capitol on January 6th 2021 and illegally removing top secret documents from secure premises.

The Georgia case might be even more damning, for the alleged crime is subversion of the 2020 Presidential election process by pressurising officials. This could be the gravest of the crimes with which Trump is charged, since it uproots the democratic process itself.

Ex-President Trump and his fellow arraignees seem to have been taken by surprise by the Georgia accusations. They clearly did not realise the impropriety, even criminality of their discussions with vote counting staff and are now attempting to explain them away to escape the consequences. The US political and judicial structure does not, however, facilitate a shift of these cases to federal courts.

The United States is a federation, but unlike India, it has almost no unitary features. The Georgia case has been filed by a District Attorney of the State on behalf of Fulton county, one of the local bodies entrusted to her care. It is far more granular than the charges levelled against Trump by New York State or the Department of Justice of the federal government.

In India, criminal law is governed by national statutes like the Penal Code and the Criminal Procedure Code, with State level additions and amendments. The US’ states have, however, their own penal codes, with a fallback to concepts of common law for undefined matters.

State laws and procedures differ from federal statutes, even though in the prevention and punishment of crime their general thrust might be similar. Which means that even an exPresident can be hauled up before a jury of his peers for violating a local law by a determined District Attorney (DA).

This is because the independence of prosecuting officers is far greater in the United States than in India. The DAs are often elected and have substantial freedom to build up cases against offenders in line with their own professional assessment after examining the evidence at hand.

During the Trump Presidency itself, DAs in some States countered his policies and statutes by initiating their own legal proceedings in matters like immigration and abortion. Trump gained a fair amount of notoriety by trying to impose his will on the federal justice department and, going by his own predilections, he continues to complain that President Biden is doing the same thing in the federal cases before the courts, even though there is little proof.

The power wielded by investigators and prosecutors in the US is in glaring contrast to India, where the CBI has been weaponised against political opponents for a long time and has now become, along with the ED, merely an arm of the government. While, at the State level, police and prosecution departments have been firmly under the thumbs of the political executive since time immemorial.

Trump’s White House chief of staff, Mark Meadows, has been trying desperately to take shelter under the theory of sovereign immunity. This is a doctrine that is enshrined in many countries to safeguard those who run the government from criminal charges for acts done in the course of their duties.

There is no such clause in the US Constitution or in its laws, but it seems to be the preferred view of the Department of Justice after reading Supreme Court interpretations. So much so, that special counsel Robert Mueller refused to indict then President Trump for obstruction of justice in the enquiry into Russian interference in the 2016 Presidential election on the ground that a sitting President cannot be prosecuted.

In India, such protection is explicit. Article 361 safeguards the President and State Governors from civil and criminal action while they are in office but immunity does not cover actions done in a personal capacity.

A true democrat loathes the concept of sovereign immunity, since it places people in power beyond the reach of the long arm of the law during their tenures and sometimes even after they have stepped down from office. There is ample evidence to show, however, that the possibility of escaping legal accountability was a major attraction of the Presidency for Donald Trump. He crows about it regularly when he tweets or addresses supporters from public platforms.

The limits of the concept are now becoming clear. Mark Meadows is fighting a losing court battle to prove that his interventions with Georgia officials were a part of his job. A judge has already held that he had no formal legal or constitutional role in the conduct of the 2020 Presidential election, thus putting every intervention that he made on behalf of his boss outside the scope of his duties.

The matter is now in appeal, but Trump (like King Henry who appointed Archbishop Becket) might soon learn that persons elevated by him to the judiciary are more faithful to their functions, not his blind supporters.

The former President believes with some reason that faults committed while in office can be airbrushed out with Presidential pardons extended by a loyal successor. Unfortunately, in the United States, this path has been often shamelessly followed to shield former Presidents like Nixon from the consequences of proven crimes.

Trump has himself used the power to induce loyalty in supporters when they were asked by the Justice Department to implicate him in various crimes during his Presidency. Reinventing the Presidential pardon as a tool to shield public officials from their just desserts is a clear subversion of the democratic spirit, but the practice is rampant in the US today.

Fortunately, Presidents and Governors cannot pardon their way out of felonies committed under State and local laws, which carry equally dangerous punishments. As Trump and his collaborators are now discovering.

They did not bargain for the thoroughness and professionalism with which they could be ruthlessly pursued for violations of nonfederal statutes anywhere in the country. The sweet irony is that this has now been done by a District Attorney, who is also a black woman. She thus comes from two of the demographics that Trump mocked and belittled before and during his Presidency.

The Fulton County indictment runs to almost 100 pages and draws on extensive documentary, video and audio evidence, so much so that the “conspirators” around Trump have been seeking deferment of the trial date to find time to study the papers. This kind of preparation was expected in fiscal matters like the New York tax case, not in a charge brought by county officials.

For DA Fani Willis has chosen a difficult path to prove a calculated criminal conspiracy among 19 defendants. She has tracked the trail back to the White House itself and laid out a plot to meddle in the counting of ballots to obtain a falsified election result.

From our familiarity with a similar offence in the Indian Penal Code, we are aware of the burden of proof that it lays on prosecutors. There must be evidence of the ingredients of conspiracy-that is the existence of a common intention, as well as commission of criminal actions to further the common purpose.

What is cited in the Georgia case is violation of the Racketeer Influenced and Corrupt Organisations Act (RICO), which is normally used to rope in all perpetrators of a gang offence, including those who planned and ordered a crime, not merely those caught while committing it. The law in Georgia appears to require that each "conspirator" participated in at least two criminal activities.

The proof amassed extends to phone calls from Trump and his collaborators to persons running the elections in Georgia asking them to produce the exact number of votes needed to deliver a pro-Trump result. It even unearths the creation of a fake slate of electors to deliver the votes of Georgia in favour of Trump, when the State had in fact decided to cast them for Biden in accordance with the verdict of its voters.

The exceptional effort needed to build up such a thorough indictment, particularly at the local level is astounding, Proof that most ordinary Americans and their officials are deeply committed to democratic values.

A significant feature of the Georgia case is that many caught in the crossfire are lawyers who have advised Trump. Rudy Guiliani, former mayor of New York, leads the list. There is a fine line to be traversed when arranging legal counsel, who are, after all, expected to exert themselves to find ways to achieve the aims of their clients.

The jury will now have to decide the point at which artful legal advice mutates into criminal counsel. Trump's lawyers are already scurrying around to hone such distinctions. A winter of discontent lies ahead for the ex-President. There may, however, be celebrations in store for lovers of democracy.

Renuka Viswanathan is a former Secretary to the Government of India. Views expressed here are the writer’s own.