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. ]]>
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