Yesterday, the Special Counsel appointed to investigate the
alleged collusion between the Trump Campaign and the Russian
Government filed the first set of charges before a DC Federal
District Court. This came after the defendants, George
Papadopoulos, Rick Gates and Paul Manafort (a former Chairman of
the Trump Campaign), were indicted by a Grand Jury last week.
Already, one of them has pleaded guilty to the charge of perjury,
while the others have denied the charge, paving the way for
criminal trials whose dates are already scheduled. The defendants’
bail application was also heard and determined today.
What is obvious from the above is the efficiency of criminal
procedure in the US. We can easily draw lessons in judicial
proficiency for most countries in the developing world, and I have
unpacked some of the issues in earlier articles. But what is not
immediately obvious, which I’d like to dwell on here, is the
‘inefficiency’ of the lawyers involved in the investigation which
has let the criminal and congressional investigative processes to
linger to the eternal embarrassment of the Trump administration.
President Trump has himself noted that the entire investigation is
a witch-hunt designed by Democrats to excuse their “colossal loss”
at the November 2016 Poll. So why has he allowed the investigations
to continue? Why has he permitted a Special Counsel (appointed by a
Deputy Attorney General he nominated) to continue to be a thorn in
his flesh? Why has he not ordered the firing of Robert Mueller and
cleared the dark cloud hovering over his head and questioning the
legitimacy of his government? No, the answers are not obvious to
me. But how could they be?
The formative years of my legal training were in a country about
7, 000 miles from the US. The country prides itself as the largest
democracy and with the most robust legal system on the continent. I
have spent the past ten years studying, practising and analyzing
the laws of this country and I cannot see a how on earth an
investigation similar to Robert Mueller’s would be allowed to
take-off, let alone resulting in the indictment of the President’s
top campaign aides. The highest echelon of the political system
would have thrown several fiery darts at the investigation; members
of the President’s party in the Legislature would say they have
“forgiven the President” and that the alleged foreign interference
is a “family affair that will be handled at the party level”.
The President’s kinsmen will say that the investigation is a
tribal conspiracy against their ethnic group; they will allege that
it is an attempt to marginalize people from the President’s clan;
they will agitate that it is an attempt to deny them the
opportunity of eating from the national cake. The President’s
brethren-in-the-faith will allege that the investigation is nothing
but a religious agenda by the rival faith group(s). And because
Robert Mueller is from another tribe and prays in a different way,
we need not look further for evidence of partiality. Down the pike,
the ethno-poli-religious sentiments would take on a life of their
own and no one would remember the underlying investigation. In
fact, the last straw that will break the back of the
investigation’s camel is that members of the opposition party
championing the investigation will suddenly defect to the
President’s party “in the interest of the nation”. Before you know
it, there is no opposition party and no one to champion the call
for justice. This is just one option – the political option.
You may be thinking that some of the political strategies
outlined above are currently employed in the U.S to impugn the
integrity of Mueller and his team. You are right. Conservatives
have called for Mueller to resign; they have even questioned the
integrity of his team. You may think, Americans are not so
different from my country people, after all. Mba! We are different.
The difference lies in the fact that so far, their calls have
failed to sprout the desired fruit.
That will never happen in my country. Once ethno-poli-religious
sentiments are activated, they always achieve the desired goal. It
may also have crossed your mind that but for a strong legal system,
President Trump and his political acolytes may have succeeded in
frustrating the investigation. I also disagree with you. In my
country, we also have a ‘strong’ legal system (remember I said it
is the largest on the continent). So what is special about the
U.S.?
This brings me to the second option. If this happened in my
country, the President will constitute a battalion of lawyers,
whose exorbitant fees would be paid with tax payer’s money (never
mind that this is the President’s personal legal travail and there
is no budgetary appropriation).
The President’s lawyers (senior advocates, of course) would have
gone to the High Court to challenge the composition of the Special
Counsel’s team. Do you ask, on what ground? They need not have a
ground. In my country, unlike the US, access to court is the
constitutional right of every citizen, and the President being
primus inter pares non-secundum is entitled to invoke this right
under any circumstance. In fact, the courts in my country have held
that the right is unfettered, and even if a litigant is talking
rubbish, s/he must be given access to ventilate the rubbish. It is
very unlikely that a Judge would muster enough courage to disagree
with the President and his consortium of senior lawyers (God help
him/her! That may just signal an inglorious end to his/her career.
Before you know it, he will be charged with corruption and
dismissed from the Bench). In the unlikely event that the Judge
rules against the President, they would quickly activate the right
of appeal and do so till the matter gets to the Supreme Court.
Sometimes, it takes decades for a case to travel through the
judicial hierarchy and before it can arrive at the apex court,
especially when powers that be are keenly interested. Meanwhile,
the President’s lawyers would have sought and obtained an order
suspending the investigative processes, pending the determination
of the suit.
By the time the suit is finally determined (if ever), Mr.
President would have completed his two terms and the case would be
of no legal/political consequence. The country would also have been
deprived of the opportunity of promptly addressing the concern of
foreign interference in its democratic process. But who cares? In
case you are wondering how this is ever possible, I should mention
that the tests of a brilliant Lawyer in my country are: can you
make a ‘legal move’ that will keep a case in the court’s docket
till your unborn children are old enough to inherit the case file?
How efficient are you in litigating the margins? The advocacy
philosophy echoes the age-long soccer apothegm: “if you miss the
ball, do not miss the leg”. In this case, if your case has no
merit, make sure it is never heard on its merits.
The first thing I learned as a 100-level undergraduate law
student was that my country is predominantly a common law
jurisdiction, having received the British colonial legal heritage.
My Lecturer, Mr. L.O. Taiwo, also taught me that the judicial
systems in the US, the UK and most parts Canada are patterned after
the common law order. If that is the case, why haven’t President
Trump’s lawyers adopted these ‘common law strategies’ to save the
President from his misery and truncate the process? Or was Mr. L.O.
Taiwo wrong? The fact that President Trump’s lead lawyer is one of
the leading trial lawyers in the US compounds my confusion? Isn’t
he aware of this procedure? If we all practice common law, why
don’t we employ common strategies? I hope President Trump and his
legal team will take my counsel and approach this like my
countrymen. No?
Iseoluwa Akintunde writes from Canada.
Yesterday, the Special Counsel appointed to investigate the
alleged collusion between the Trump Campaign and the Russian
Government filed the first set of charges before a DC Federal
District Court. This came after the defendants, George
Papadopoulos, Rick Gates and Paul Manafort (a former Chairman of
the Trump Campaign), were indicted by a Grand Jury last week.
Already, one of them has pleaded guilty to the charge of perjury,
while the others have denied the charge, paving the way for
criminal trials whose dates are already scheduled. The defendants’
bail application was also heard and determined today.
What is obvious from the above is the efficiency of criminal
procedure in the US. We can easily draw lessons in judicial
proficiency for most countries in the developing world, and I have
unpacked some of the issues in earlier articles. But what is not
immediately obvious, which I’d like to dwell on here, is the
‘inefficiency’ of the lawyers involved in the investigation which
has let the criminal and congressional investigative processes to
linger to the eternal embarrassment of the Trump administration.
President Trump has himself noted that the entire investigation is
a witch-hunt designed by Democrats to excuse their “colossal loss”
at the November 2016 Poll. So why has he allowed the investigations
to continue? Why has he permitted a Special Counsel (appointed by a
Deputy Attorney General he nominated) to continue to be a thorn in
his flesh? Why has he not ordered the firing of Robert Mueller and
cleared the dark cloud hovering over his head and questioning the
legitimacy of his government? No, the answers are not obvious to
me. But how could they be?
The formative years of my legal training were in a country about
7, 000 miles from the US. The country prides itself as the largest
democracy and with the most robust legal system on the continent. I
have spent the past ten years studying, practising and analyzing
the laws of this country and I cannot see a how on earth an
investigation similar to Robert Mueller’s would be allowed to
take-off, let alone resulting in the indictment of the President’s
top campaign aides. The highest echelon of the political system
would have thrown several fiery darts at the investigation; members
of the President’s party in the Legislature would say they have
“forgiven the President” and that the alleged foreign interference
is a “family affair that will be handled at the party level”.
The President’s kinsmen will say that the investigation is a
tribal conspiracy against their ethnic group; they will allege that
it is an attempt to marginalize people from the President’s clan;
they will agitate that it is an attempt to deny them the
opportunity of eating from the national cake. The President’s
brethren-in-the-faith will allege that the investigation is nothing
but a religious agenda by the rival faith group(s). And because
Robert Mueller is from another tribe and prays in a different way,
we need not look further for evidence of partiality. Down the pike,
the ethno-poli-religious sentiments would take on a life of their
own and no one would remember the underlying investigation. In
fact, the last straw that will break the back of the
investigation’s camel is that members of the opposition party
championing the investigation will suddenly defect to the
President’s party “in the interest of the nation”. Before you know
it, there is no opposition party and no one to champion the call
for justice. This is just one option – the political option.
You may be thinking that some of the political strategies
outlined above are currently employed in the U.S to impugn the
integrity of Mueller and his team. You are right. Conservatives
have called for Mueller to resign; they have even questioned the
integrity of his team. You may think, Americans are not so
different from my country people, after all. Mba! We are different.
The difference lies in the fact that so far, their calls have
failed to sprout the desired fruit.
That will never happen in my country. Once ethno-poli-religious
sentiments are activated, they always achieve the desired goal. It
may also have crossed your mind that but for a strong legal system,
President Trump and his political acolytes may have succeeded in
frustrating the investigation. I also disagree with you. In my
country, we also have a ‘strong’ legal system (remember I said it
is the largest on the continent). So what is special about the
U.S.?
This brings me to the second option. If this happened in my
country, the President will constitute a battalion of lawyers,
whose exorbitant fees would be paid with tax payer’s money (never
mind that this is the President’s personal legal travail and there
is no budgetary appropriation).
The President’s lawyers (senior advocates, of course) would have
gone to the High Court to challenge the composition of the Special
Counsel’s team. Do you ask, on what ground? They need not have a
ground. In my country, unlike the US, access to court is the
constitutional right of every citizen, and the President being
primus inter pares non-secundum is entitled to invoke this right
under any circumstance. In fact, the courts in my country have held
that the right is unfettered, and even if a litigant is talking
rubbish, s/he must be given access to ventilate the rubbish. It is
very unlikely that a Judge would muster enough courage to disagree
with the President and his consortium of senior lawyers (God help
him/her! That may just signal an inglorious end to his/her career.
Before you know it, he will be charged with corruption and
dismissed from the Bench). In the unlikely event that the Judge
rules against the President, they would quickly activate the right
of appeal and do so till the matter gets to the Supreme Court.
Sometimes, it takes decades for a case to travel through the
judicial hierarchy and before it can arrive at the apex court,
especially when powers that be are keenly interested. Meanwhile,
the President’s lawyers would have sought and obtained an order
suspending the investigative processes, pending the determination
of the suit.
By the time the suit is finally determined (if ever), Mr.
President would have completed his two terms and the case would be
of no legal/political consequence. The country would also have been
deprived of the opportunity of promptly addressing the concern of
foreign interference in its democratic process. But who cares? In
case you are wondering how this is ever possible, I should mention
that the tests of a brilliant Lawyer in my country are: can you
make a ‘legal move’ that will keep a case in the court’s docket
till your unborn children are old enough to inherit the case file?
How efficient are you in litigating the margins? The advocacy
philosophy echoes the age-long soccer apothegm: “if you miss the
ball, do not miss the leg”. In this case, if your case has no
merit, make sure it is never heard on its merits.
The first thing I learned as a 100-level undergraduate law
student was that my country is predominantly a common law
jurisdiction, having received the British colonial legal heritage.
My Lecturer, Mr. L.O. Taiwo, also taught me that the judicial
systems in the US, the UK and most parts Canada are patterned after
the common law order. If that is the case, why haven’t President
Trump’s lawyers adopted these ‘common law strategies’ to save the
President from his misery and truncate the process? Or was Mr. L.O.
Taiwo wrong? The fact that President Trump’s lead lawyer is one of
the leading trial lawyers in the US compounds my confusion? Isn’t
he aware of this procedure? If we all practice common law, why
don’t we employ common strategies? I hope President Trump and his
legal team will take my counsel and approach this like my
countrymen. No?
Iseoluwa Akintunde writes from Canada.
Read more https://www.nairalaw.com/what-americans-can-learn-from-my-countrymen-by-iseoluwa-akintunde/