When a judge nearly declares a former president to be above the law: implications for Zambia

Dr. Munyonzwe Hamalengwa

When a judge nearly declares a former president to be above the law: implications for Zambia

By Dr Munyonzwe Hamalengwa

A District Court judge in Florida, judge Aileen Cannon nearly declared former US president to be above the law. This referred to Donald Trump.

The former president transported government classified documents to his residence after he ceased to be President of the United States. Trump was intransigent, apparently in not returning the documents for one and half years until a warrant was executed at his house to retrieve the documents. In applying for the appointment of a Special Master to review the privileged status of some seized documents, Trump argued that “the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness”.

You steal documents from the government which you refuse to return for one and half years and then claim that you ought to be treated with kid gloves because you are an ex-president! I would have thrown Trump overboard with such a claim. He who comes before court and seeks equitable remedies must come with clean hands. Instead of throwing the book at Trump, what does a Trump appointed district court judge say, which alarmed not only leading judges of the 11th Circuit Court of Appeals and distinguished professors of law, the judges grovelled and supported Trump’s disguised claim to be above the law. Cannon stated, “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.’’ See Donald J. Trump (Plaintiff) v. United States of America (Defendant) (Case 9:22-, cv-81294-AMC. After all the reputational damage Trump has done to the USA within the USA and around the world, what unfairness and reputational harm or stigma can a raid on Trump’s home or any future indictment occasion to this man? The judge was swayed by Trump’s arguments and wrote, “the court takes into account the undeniably unprecedented nature of the search of a former President’s residence”.

It is absolutely unprecedented for a judge to order cessation of an ongoing investigation. This judge ordered among others that “the government is temporarily enjoined from further review and use of any of the materials seized from the plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process as determined by this court”. Isn’t this placing someone above the law? Could an ordinary moneyless and powerless Jimmy or Yolanda be accorded such “royal” treatment of a suspension of a criminal investigation? The judge swept aside any government concerns about impeding an important criminal investigation by stating that “Efficient criminal investigations are certainly desirable but so too are countervailing considerations of fair process and public trust”. Judges are sometimes fond of throwing around phrases drawn from thin air to protect the moneyed and powerful. It is Donald Trump who was violating principles of fair process and damaging the public trust by stealing government documents and refusing to return them for over one year and a half.

Judge Cannon’s decision and orders were roundly demolished by the 11th Circuit Court of Appeals and derided across the spectrum of US legal opinion.

There are many lessons that can be learnt from judge Cannon’s decision; that there are certain judges who will be recruited in their thoughts and writings to support the moneyed and the powerful. A moneyed and powerful litigant can usually drag court processes beyond recognition to delay accountability and they will always find lawyers and judges to go along, without any judge placing his or her foot to say enough is enough. The government is not above this practice as well, the government usually engages in similar practices resulting in the loss of public trust. Governments, like moneyed and powerful litigants, care more about their reputation than about justice in the result. The money used in prolonged litigation in such cases does not come from the pockets of the government officials or government lawyers or pockets of moneyed and powerful litigants. It is tax payer money and in the case of Donald Trump, it is public money through donations or ill-gotten means. Donald Trump has declared many times that he has used the income tax system to amass his wealth. A civil suit against Trump by a New York Attorney General details all that Trump use and abuse of the tax system for those who want further information on this.

What is happening in the US is happening in Zambia. Individuals are claiming that immunity from prosecution of a former head of state means he must not even be criminally investigated. In essence they are saying that criminal investigation violates the former president’s immunity from prosecution. They are saying the former president, like judge Cannon’s decision in the Trump case, is above the law. They should read the law again. Even those who claim to be above the law like Trump and Nixon did, are not above criminal investigation. Criminal investigation is necessary before any criminal charges or application to remove immunity are entertained. We must insist that no one should claim or be accorded the status of being above the law. Trump and Nixon’s claims have been shot down by dozens of judges. No person in the US or Zambia, be it a judge or lawyer or prosecutor should be recruited to go along the charade that a person is above the law because of their status as head of state, former head of state or because of their money or power.

Dr Hamalengwa is the author of the book, “Commentaries on the Laws of Zambia”.


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