Cyprus Mail
CM Regular ColumnistFeaturedOpinion

Arms of government at war in the US

File Photo: Trump Supporters Breach The Us Capitol
FILE PHOTO

The storming of Capitol Hill in Washington on January 6, 2021 was no storming of the Bastille of 1789. It was no storming of the Winter Palace in Petrograd in 1917 either. It changed nothing and in the grand scheme of things it confirmed the strength of America’s constitution.

But it has yet to play out politically so keep your fingers crossed. When arms of government clash the consequences can be dangerous. In Cyprus we have bitter experience of what can happen when a state’s constitution is disrespected. In 1963 the Cyprus president clashed with the Constitutional Court and with the vice-president and we are still living with the consequences 60 years later. Our excuse is that we were a newly-born baby republic with no experience of self-government whereas the US constitution is more than 200 years old.

President Donald Trump got nowhere in the courts and the Supreme Court, and last week mounted what seemed like an insurrection against his vice-president and Congress, claiming that his deputy could block certification of the presidential election result by Congress on the grounds that it was fraudulent.

Trump openly urged his supporters at a rally in front of the White House last Wednesday to stop the formal certification of the election result. A mob then stormed Capitol Hill and forcibly broke police lines and stopped the certification process.

The vice-president and congressmen and women had to be taken to places of safety until order was restored. The certification process went ahead in the end and there are no other legal impediments standing in the way of the inauguration of Joe Biden as president on January 20.

Inciting insurrection means urging or encouraging others to use force against the government.

Trump’s defence if the case ever came to trial would no doubt be that he genuinely believed the election was fraudulent, and that his speech was no more than a forceful exercise of his right of freedom of expression in the honest belief that Congress could refuse to certify the result if his supporters marched on Capitol Hill in protest.

The trouble is the words he used crossed the fine line between urging his supporters to protest and urging them to storm Capitol Hill to stop the certification process: “you will never take back our country with weakness …you have to show strength… we will stop the steal,” he ranted.

The fact that the crowd became a mob and stormed Capitol Hill and used violence to block the certification proceedings in Congress is evidence of the effect of his words on his supporters. There is talk of his impeachment just a few days before his presidency is due to end, which suggests he is to be taken to have intended the natural and probable consequences of his words – this is not the law in the UK, though it may be evidence of criminal intent.

But Trump’s much bigger failing is political. In politics you need a thick skin and, more importantly, you need to play by the rules of the game. Trump was never cut out to be a politician or play by the rules let alone the US constitution.

The way the constitution works in electing the president of the US is that he is elected by the people and the states working in tandem in a system known as the electoral college. Under this system the presidential candidates fight for each state on a winner takes all basis. Each state has a number of electors who must vote for the candidate who wins the state. The electoral college is a bit of a legal fiction because electors have to cast their vote for the candidate who wins the state.

The president is elected in a way that is institutionally designed to balance representative democracy and state equality. The electors are equal to the number of congressmen and women a state elects to Congress based on population size.

The states count and certify the votes for each candidate for president and vice-president and the winner takes all the electors. It is perfectly possible to challenge the result if voter fraud is alleged but any challenge must be evidence based and made at the right time. Trump alleges fraud because he claims he was winning by a landslide until 10pm on Election Day and then lost. The problem with that argument is that postal votes were counted after votes on the day, so the fact that he was winning and then lost is nothing to the point.

Trump’s numerous challenges all failed and the principle of legal certainty kicked in once all avenues of challenge were exhausted. The states certified the results and submitted them for the joint session of Congress to progress.

The joint session is presided over by the US vice-president who formally announces the electoral votes received by each candidate and declares the successful candidate president. As the VP protested in answer to pressure from Trump not to certify the result, he had “no constitutional authority” to arrogate to himself a discretion to refuse to certify for fraud as the states and the courts had ruled there was none.

The founding fathers originally thought that Congress should elect the president but then decided it would be more democratic if the president were elected indirectly by the people of each state, apparently to show how different the US president was to the king of England.

Congress, however, retained the formal role of certifying how many votes were received by each candidate and declaring the successful candidate president – or appointing the president if there is no winner.

The fact is Joe Biden received 306 to Trump’s 232. Trump now accepts he has to leave the White House on January 20, 2021 but some commentators worry that the time between now and then is a perilous time because he is still commander in chief and thought by some American commentators to be unhinged – you could not make it up.

 

Alper Ali Riza is a queen’s counsel in the UK and a retired part time judge

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