Undermining the presumption of regularity

The “presumption of regularity” is a term that is typically applied in relation to both elected and appointed government officials where it is assumed that, in the execution of their duties, they will act according to the law and properly discharge their functions. It is not an assumption that is easily dismissed since it is readily accepted that there could be errors in judgement and failings in leadership. What would undermine this belief would be a discernable pattern of misconduct and a perceived effort to conceal it.

A number of political commentators are arguing that events in the USA are moving in just such a direction. At the same time that the process is in-hand to select and appoint a new head for the Federal Bureau of Investigation (FBI), fresh controversy has surfaced concerning the abrupt termination of James Comey, the previous holder of that post.

In particular, the New York Times has reported that, according to notes kept by James Comey concerning his meetings with Donald Trump, the latter had tried to influence him in relation to the FBI’s investigation of Michael Flynn, the former national security advisor. Flynn was subsequently forced to resign after it was revealed that he had misled the US Vice President about his contacts with the Russian ambassador to the U.S.

There are opposing views as to the exact nature of the President’s alleged intervention. Some believe that the President was blatantly trying to condition the FBI Director to abandon the Bureau’s investigation of Flynn whereas others hold that the President had been merely conveying his personal opinion about the character of his national security advisor. In either case, it has also been established that, in appointing Flynn as his national security advisor, Donald Trump had disregarded the specific warnings from the then acting attorney general, Sally Yates, given before her dismissal by Trump, earlier this year.

In these circumstances, the original probe into the possibility of Russian interference in the US presidential election has now evolved into an inquiry as to whether Donald Trump exerted unwarranted pressure on the FBI Director to influence the outcome of the investigation and whether the President eventually fired the Director because he had not bowed to such pressure.

The way things are developing has even led a number of political commentators to speculate on the possibility that the whole issue could lead to a call for the impeachment of Donald Trump. The US constitution gives the US Congress the power to bring formal charges against a government official for crimes alleged to have been committed. To date, no US President has been removed from office by impeachment and an ensuing conviction. Andrew Jackson (in 1868) and Bill Clinton (in 1998) are the only two US Presidents to have been successfully impeached by the US Congress but both were later acquitted by the US Senate. An impeachment process was also launched against Richard Nixon who resigned his office before a vote was taken.

Undoubtedly, the Russiagate question will continue to figure prominently in the news over the forthcoming days amid rumours that a high ranking individual within the White House staff is under investigation by the FBI. In the meantime, the Justice Department has appointed former FBI director Robert Mueller as special counsel to oversee the broad investigation into possible ties between Trump’s campaign and Russian officials.

Broadly speaking, a “special counsel” is a person appointed to conduct investigations on behalf of the federal government. They are often referred to also as “independent counsels” because they are brought in from the outside to avoid having a situation where the government is investigating itself. What is very important in this case is that Robert Mueller enjoys the trust of both parties in Congress. This is imperative if the public is to be ultimately convinced that the investigation will be carried out properly and exhaustively even though it concerns the President and his staff.