A sitting President may be criminally indicted, tried, and convicted—all without having first been impeached and removed from office.
Looking back on the political controversies that engulfed both the United States and Canada last year, the mind naturally turns to comparisons and contrasts. On December 18, the Democratic majority in the House of Representatives successfully impeached President Donald Trump on two counts: abuse of power and obstruction of Congress. The Senate must now decide the rules of the trial of the president. As is well-known by anyone who does not live under a rock, Trump was accused of abuse of power by allegedly presenting, during a phone call with the president of the Ukraine, a quid pro quo to the government, namely the provision of military aid in exchange for a promise to investigate the Ukrainian business dealings of Hunter Biden, the son of Trump’s most serious potential Democratic Party opponent in the 2020 presidential election. He was also accused of obstructing Congress by denying to the latter access to certain documents as well as the testimony of administration officials pertaining to this phone conversation. Whichever side one takes on this controversy, it is obvious that Congress still retains enormous power to hold the President of the United States accountable.
Prime Minister Justin Trudeau of Canada was also accused of committing a serious crime, albeit with far less serious consequences. Last February, evidence emerged that Trudeau, acting through his advisers, had indirectly put pressure on Jody Wilson-Raybould, his minister of justice and attorney general, to stop a criminal prosecution of SNC-Lavalin. The latter is a Montreal-based engineering firm that stood accused of corruption in relation to bribing the Gadaffi regime to the tune of $48 million for lucrative construction contracts in Libya between 2001 and 2011. Wilson-Raybould, who made history as the first aboriginal Canadian to be appointed in the justice portfolio, refused to interfere with the on-going investigation and rebuffed entreaties from the company to negotiate a settlement. As punishment for her honesty, she was moved by Trudeau from her justice portfolio to that of veteran affairs. Soon after this demotion, Wilson-Raybould resigned from cabinet and the Liberal party caucus, choosing to serve as an independent member of parliament (she was re-elected in the fall election later in October). As fate would have it, another phone conversation was the near undoing of a politician. Wilson-Raybould had surreptitiously taped a phone conversation with Michael Wernick, the Clerk of the Privy Council, who had also applied pressure on the justice minister to stop the investigation. Her response to Wernick was that this conversation was inappropriate and was “treading on dangerous grounds.”
To date, Trudeau has not been sufficiently investigated for breaching laws pertaining to “conflicts of interest,” which prohibit a person in public office from using his position to influence, for his own private interests or those of a third party, the decision of another person in office. Instead, a few of his advisers (including Wernick) took the fall and resigned. One former executive at SNC-Lavalin has been found guilty of fraud and corruption and has been sentenced to almost nine years in prison. Additionally, the firm was recently fined $240 million and has been placed on probation for three years (it can still bid for government contracts, though). The only unofficial punishment that Trudeau has received is the loss of his party’s majority in the fall election. Yet, as the re-elected leader of a minority parliament, he does not face any impending investigation of his actions. Trudeau continues to justify his misbehavior on the grounds that he was “standing up for jobs” in Quebec, which might have been threatened by a criminal prosecution of SNC-Lavalin.
This sorry mess should serve as a cautionary tale to those Americans who have always admired the British parliamentary system, to which Canada is an heir. As far back as the time of Alexander Hamilton, there have always been Americans who have upheld the virtues of the British tradition at the expense of the republican one. One recurrent reason is the perception that the separation of the executive and legislative branches of government encourages only confusion and division over who is responsible for government. As the political scientist Theodore J. Lowi put it, “Today the president is popularly elected, but perhaps he’d have been a lot better off if we had an English-type system, in which the Prime Minister is chosen by the Commons (and the King or Queen). But our president is stuck, as head of state, alone facing millions of expectant plebs: ‘What have you done for us lately?’”
Lowi appeared to be channeling the thought of Woodrow Wilson, who is perhaps the most famous exponent of the thesis that America should move towards a more parliamentary form of government. Wilson, who was deeply influenced by Walter Bagehot’s defense of English constitutionalism, clearly thought that American government suffered from an egregious case of divided sovereignty. In 1879 Wilson published an essay in defense of “cabinet government,” or the unification of the executive and legislative branches whereby a cabinet member would also be a member of Congress, fully dedicated to directing “policy in a manner strictly accountable to majority sentiment.” Taking aim, in his essay Congressional Government (1885), at the power of standing committees in Congress to make decisions that affect the entire country, Wilson concluded that “the more power is divided the more irresponsible it becomes.” The secretive meetings that these committees held fell far short of the public and open debate that characterized parliamentary tradition.
The republican system, by contrast, left little time for any debate. As Ronald J. Pestritto explains in his excellent study Woodrow Wilson and the Roots of Modern Liberalism (2005), the House of Representatives, in Wilson’s view, could “not take the time for careful debate because it is too busy writing the details of national policy, getting bogged down in the day-to-day rulemaking function of government.” Perhaps worst of all, the presidency itself became irrelevant. As Wilson explained in Congressional Government, “A President’s usefulness is measured, not by efficiency, but by calendar months. It is reckoned that if he be good at all he will be good for four years. A Prime Minister must keep himself in favor with the majority, a President need only keep alive.” Pestritto writes: “Ultimately, Wilson wanted a unified and cohesive legislature that would reflect the fundamental unity of will that he perceived in the public mind.” Although Wilson gradually saw the presidency rather than Congress as the branch best suited, in Pestritto’s words, to “embody the public mind,” he never gave up his belief that the principle of separation of powers was a fatal hindrance to this goal of unity. Indeed, Wilson’s misgivings about this principle led him to dismiss impeachment as “an empty menace” due to the fact that the “House of Representatives is a tardy grand jury and the Senate an uncertain court.”
Political unity was a top priority within the progressivist movement to which Wilson broadly adhered. As Raymond Tatalovich and Thomas S. Engeman explain in their first-rate study The Presidency and Political Science (2003), the growing class conflicts arising from a rapidly industrializing America in the early 20th century merited strong unified leadership from its political class, according to Progressives:
All Progressives believed the Constitution was hopelessly inadequate for the new industrial and urban world, which, they argued, was the harsh reality that now followed America’s loss of agrarian innocence. They differed, however, in their diagnosis of the causes of the constitutional crisis and the solution to it. Their own shared conviction was that the weak, Jeffersonian presidency required radical improvement to make the national government competent to meet the exigencies of the new social wars of Darwinian America.
Whether a parliamentary system of government could navigate these “exigencies” more successfully than a republican one is another question. True, the prime minister in the parliamentary system is the unambiguous leader of the nation as well as its chief lawmaker, a unifying symbol that, Wilson hoped, the American presidency could emulate. Wilson, as a progressivist reformer, legitimately worried in his essay Constitutional Government in the United States (1908) that “the purchasing power of money in politics” undermined democracy, particularly in the Senate. Nevertheless, Wilson showed little doubt that a system that unites the executive and legislator would be more immune to the usual corruption that afflicts the political realm. As Pestritto explains:
Wilson also did not see the apparent irony in his calls for using the party system as a tool for progressive national leadership, as he alternately criticized the spirit of party and the corruption of party officials, and discerned in political parties the means of reforming the government.
In the century following the musings of Wilson, it is far from obvious, as Arthur Schlesinger Jr. noted in his The Imperial Presidency (1973) that parliamentary regimes can avoid the “Vietnam-Watergate effect” that revealed the dangers of placing excessive power in the hands of the executive. Judging from the SNC-Lavalin affair, there is no valid reason to conclude that a parliamentary system of government avoids the Scylla of money’s influence over politics any more than the Charybdis of corrupt political parties. The fact that talk of separatism is once again on the rise in two provinces (Alberta and Quebec) also suggests that a parliamentary system has no magic formula for unity.
As Wilson-Raybould discovered to her horror, a government with ties to a company linked to corrupt dealings with dictatorships can easily ignore the public interest as well as the rule of law. Plus, a government with a majority of seats in parliament is hard to hold accountable in a legal sense, however public the debates happen to be. If the governing party is sufficiently cowed by the prime minister, parliament can do little more than protest. The fact that a prime minister was able to sack his own minister of justice with impunity does not exactly vindicate the superiority of a parliamentary system over the republican separation of powers. If anything, we Canadians might even envy the power that Congress can wield against the Chief Executive.