By Kandis Leung
In an unsuccessful attempt to retain Donald Trump, the former US president, in office, pro-Trump lawyers led a legal case aimed at changing the outcome of the 2020 presidential election. They have now been sanctioned by court. In a case against Michigan’s Democratic governor, Gretchen Whitmer, federal judge Linda Parker ruled that numerous lawyers, including L. Lin Wood and Sidney Powell, “engaged in a historic and significant misuse of the judicial process”.
Over the past four years, many of the norms that previously governed the behaviour of American presidents have been broken. The Trump Administration has been chastised for its arguable lack of respect for the rule of law.
During his time in office, Trump made decisions that shocked many. Some have even argued that Trump managed to undermine US democracy. For example, he has questioned the impartiality of judges who have ruled against him. He has removed at least five inspector generals, with congressional Democrats claiming that this was an act of retaliation against investigations into wrongdoings by the Trump administration. Trump has also been known to withhold his tax returns, and to frequently use inflammatory tweets as a medium of communication.
One of the most famous tweets was regarding the pardoning of his convicted political ally, Roger Stone. In November 2019, Stone was found guilty of seven counts of making false statements, perverting the course of justice, and interfering with a witness. The judge, Amy Berman Jackson, said Stone had been “threatening and intimidating” her. She said that Stone posted a picture on social media of her with gun crosshairs next to her head last year. In February 2020, Stone was sentenced to 40 months in prison.
Donald Trump, however, said the verdict was unfair. He later used his presidential powers to remit Stone’s sentence, allowing him to regain his freedom immediately after he had been set to serve his sentence. The storm over Trump’s move to reduce Stone’s sentence continues to fester. Senator Mitt Romney, a Republican, described the affair as “unprecedented and historic corruption” where “an American president [commuted] the sentence of a person convicted by a jury of lying to shield that very president.”
Trump’s actions were by many considered an abuse of power, and as disregarding of the law, as he repeatedly used his presidential power to help keep others out of jail, including many of his allies. Jack Goldsmith, the Learned Hand Professor of Law at Harvard University, said that of the 36 pardons and commutations granted during Trump’s presidency, as many as 31 were granted simply to achieve Trump’s political goals or based on personal connection, and that the pardons are “abuse of an undoubted presidential power.”
Occurrences such as these are why the US judiciary is often called political. This condition predates Trump’s presidency; the politicisation of the US judiciary is a long-standing issue in America. For the purposes of comparison, the supreme courts in the US and the UK have very different appointment systems. Under Article 2 of the Constitution, the President can directly nominate the members of the US Supreme Court. In the UK, the twelve members of the Supreme Court are nominated by an independent commission.
US politicians see the Supreme Court as an essential tool as it generally has the final say on highly controversial laws, state and federal disputes, and final appeals of stays of execution. Therefore, nominations for Supreme Court judges are inherently politicised, since presidents tend to nominate people who share their ideological positions.
When considering rule of law under the Trump administration, many would agree that Trump has caused damage to the rule of law, and to democracy in the US more broadly. If the legal system – and the issue of the separation of power – is not rectified, the politicization of the US Judiciary will continue.
Illustration: Verity Laycock