We are in the unusual position where the President of the United States and the man most likely to be the next Prime Minister of the United Kingdom are subject to significant legal proceedings at the same time. So what happens when the most powerful politicians in their respective countries are alleged to have fallen foul of the law?
Britain’s former foreign secretary, Boris Johnson, faces a private prosecution by Marcus Ball, a 29-year-old businessman who accuses him of misconduct in public office over claims that EU membership was costing the UK £350m a week. Ball crowdfunded the case through £370,000 of donations. In a recent hearing at Westminster Magistrates Court, Ball’s lawyers argued that he knowingly lied during the 2016 Brexit referendum campaign over the cost of EU membership, and that in doing so, his conduct was criminal.
District Judge Margot Coleman rejected arguments by Johnson’s lawyers that the case was a “vexatious” attempt to undermine the 2016 referendum result and agreed that there was a prima facie case to answer, although she did not express a view on Johnson’s guilt or innocence. He will therefore face trial for allegedly “lying and misleading the British public” about the consequences of Brexit.
In a written judgment she said: “Having considered all the relevant factors, I am satisfied that this is a proper case to issue the summons as requested for the three offences [of misconduct in a public office]. The charges are indictable only. This means the proposed defendant will be required to attend this court for a preliminary hearing, and the case will then be sent to the crown court for trial.”
On putting Johnson’s name forward to the party membership, the Coleman judgment is a complicating factor for Conservative MPs, since they know that they will probably elect him as Prime Minster if they do. For Johnson, there are other more serious potential consequences: he could now face a crown court trial, and if found guilty, he might be jailed for more than six months.
Before his arrival for a state visit to the United Kingdom, President Trump endorsed Johnson to be the next British prime minister and leader of the Conservative party, stating that he had examined the Tory leadership contest “very hard” and had “always liked” Johnson. “I don’t know that he is going to be chosen, but I think he is a very good guy, a very talented person . . . I think Boris would do a very good job; I think he would be excellent,” he said.
After he was elected as President in November 2016, Trump assumed office the following January. In the two and half years since then, he has been the focus of considerable legal attention. In summarising his legal affairs, the Wikipedia page headed ‘Legal Affairs of Donald Trump,’ runs to more than 10,000 words.
His most enduring problem has been an investigation by Special Counsel Robert Mueller, a former Director of the FBI. In May 2017, Mueller began to investigate allegations of Russian interference in the 2016 US presidential election and related matters. He submitted his report in March 2019 and it was published by the US Department of Justice a month later.
In his first public remarks, Mueller said only that the probe found “insufficient evidence” of a crime, adding that his office did not take a position on whether the President criminally obstructed his investigation. “Nothing changes from the Mueller Report,” Trump wrote in a tweet soon afterwards. “There was insufficient evidence and therefore, in our Country, a person is innocent. The case is closed! Thank you.”
Trump is not the only US President to have faced significant legal problems. In November 1973, President Nixon went on television to say: “People have got to know whether or not their President is a crook. Well, I’m not a crook. I’ve earned everything I’ve got.” Ultimately, it proved to be of no avail: the Watergate scandal would subsume his presidency. In August 1974, Nixon accepted blame for misleading the country, stating that he had suffered a lapse of memory. To avoid impeachment, he resigned.
A generation later, President Clinton managed to avoid resigning – but only just. His impeachment began in December 1998 which led to a trial in the US Senate on two charges: perjury and obstruction of justice. Two months later, he was acquitted. The impeachment process followed a wide-ranging investigation of alleged abuses by Ken Starr, an Independent Counsel.
The allegations against Clinton included sexual harassment. Critical to the investigation was taped evidence from Monica Lewinsky, a former intern and Department of Defense employee with whom Clinton allegedly had a relationship. According to the Starr report, when Lewinsky’s name appeared on the witness list, Clinton began to try and conceal their relationship by suggesting that she file a false affidavit, use cover stories, and conceal gifts that he had given her.
No British Prime Minister has ever faced such legal problems. But in a few weeks’ time, both the US and UK could have leaders who are caught up in the legal process: despite Mueller, a slew of legal problems potentially await Trump as he seeks re-election next year. More immediately, Johnson may assume office as PM with the prospect of an allegedly false pledge hanging over his head in the criminal court.
Although commentators may choose to draw parallels between Trump and Johnson in relation to their legal problems, they are distinctly different. The most significant difference is that while Trump’s travails are likely to be worked out through the public process, Johnson will be brought to court by the efforts of one man with whom he has never been personally, professionally or politically involved.
Ball’s aim is to conduct politics in the courts, having been funded by others in order to achieve his aim. A source close to Johnson said that the prosecution was ‘nothing less than a politically motivated attempt to reverse Brexit and crush the will of the people. The claimant has openly admitted that his plan is to overturn the referendum via a legal challenge and he clearly intends to try and undermine the one man who can truly deliver Brexit. The decision to issue a summons is extraordinary, and flies in the face of hundreds of years of British democratic tradition.’
Putting the contentious and divisive issue of Brexit to one side, there is an important principle at stake: it is unacceptable that those who are responsible for passing the laws end up being tried in a courtroom – unless there is very good reason for them to do so. Of course, if they have broken the law, then they must face its full force. But pulling a stunt in order to achieve a political rather than a legal objective is unacceptable.
Whatever view individuals may take on matters of public importance, debate must not be shut down by the courts. Contrasting opinions and vigorous argument are the essence of democracy. The public are the people who should decide on the merits of a political case, not the courts. Attempts to criminalise free speech must be resisted and the courts should not be misused as the tools of political activists.
Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com