After what many termed the most contentious Presidential election in the history of the United States, a new battle ensued. The battle of how to evict Trump from the White House, and it was, to say the least, fierce and deeply worrisome. It pitched Republicans against Democrats, America’s Christian fundamentalists, the Evangelicals against the rest of Americans, pushing the world’s greatest democracy to the brink of a coup. Last Wednesday, the acclaimed winner of the contentious election, Joe R. Biden Jnr and his Vice, Kamala D. Harris, were sworn in as the 46th President and 49th Vice President of the USA, amidst tight security. Kingsley Jesuorobo, Emeka Eze, Jefferson Uwoghiren and Kede Aihie dissect the complex issues that surrounded Biden’s emergence as President, particularly the attack on Capitol Hill, the impeachment of Donald Trump and the possible consequences flowing therefrom even after Trump has ceased to be President, and what Joe Biden’s Presidency portends for Nigeria and the world
Can Trump be Tried or Impeached Outside Office?
On January 6, 2021, the United States of America suffered a brazen breach. The iconic Capitol of one of the world’s oldest democracies, was breached in a manner not seen since the foreign (British) invasion of the democratic citadel on August 24, 1814.
In his departure address to Americans, President Donald Trump touted: “I am especially proud to be the first President in decades, who has started no new wars”.
Whilst Trump was trumpeting his “no new war” claim, Americans were reeling from the horrific aftermath of an unprecedented internal war waged by insurrectionists. American prosecutors are now rounding up and prosecuting the perpetrators who allegedly besieged Washington and marched on the Capital, at the behest of Trump.
Regardless of the deep political divide in America and the polarised perspectives of people around the world about Trump, there appears to be a united opinion around the view that a wrong was committed against the United States of America by the insurrectionists. Said Trump himself of the insurrection in his farewell address: “All Americans were horrified by the assault on our Capitol. Political violence is an attack on everything we cherish as Americans. It can never be tolerated.”
In a swift and unprecedented response to the insurrection, the House of Representatives of the United States has retaliated against Trump, with his impeachment. A Senate trial is imminent, with Trump facing a real possibility of a conviction.
Meanwhile, Trump’s tenure as the President of the United States ended on January 20, 2021, with the swearing in of Joseph Biden as the 46th President.
Against the backdrop of the fact that the power of presidential impeachment was primarily designed to remove an erring President from office, legal and political pundits now ponder whether Trump can or should be tried in the Senate on the charge in respect of which he was impeached, since he is no longer in office.
Constitutional scholars who have delved into the issue, seem to be agreed that there is no express bar against a trial and possible conviction of a former President.
It is also generally agreed among scholars that, in the event of a conviction, Trump could face censure and a ban from ever holding any public office. A Senate trial therefore, has potential remedial consequences.
Hallowed Legal Principles
In light of this, I contend that the discourse ought to be engaged upon from the angles of two hallowed legal principles.
Let’s address the first principle. There is no legal system on earth that is not anchored on the popular Latin maxim “Ubi jus, ibi remedium”, which means: where there is a right, there is a remedy. The expanded meaning is that where law has established a right, there should be a corresponding remedy for its breach. When assessed from this angle, one should easily see why the trial of Trump ought to proceed to its logical conclusion, even after his departure from office.
Assuming that he committed the alleged constitutional breach, letting Trump off the hook simply because he is no longer the president will leave Americans without a remedy for the breach which they have suffered at the hands of the former President.
The second relevant legal principle is that, no man is above the law in any constitutional democracy. Though originally scripted by the great American President,Theodore Roosevelt in his Third Annual Message to Congress on December 7, 1903, wherein he said: “No man is above the law, and no man is below it”; this phrase that is associated with the broader principle of the “rule of law” has assumed irreversible significance in all constitutional contexts. This principle is not only immutably fundamental, but at least in the Presidential context, is illustrated and aided by another hallowed principle that “nemo judex in causa sua”, that is, “no one can be a judge in his own cause” – a principle that underpinned Department of Justice’s opinion, that the President of the United States cannot pardon himself. When this discourse is also assessed from this angle, one should easily see that it behooves the Congress to hold the former President accountable, through the completion of the impeachment trial process. To not do so just because the accused is no longer in power, renders him unequal to others who are held liable for infractions, irrespective of their stations in life.
Kingsley Jesuorobo, former President, Canadian Association of Nigerian Lawyers (CANL)