Trump Guilty! And Anniversary Blues

by Rajan Philips

Just after 5:00 PM local time on Thursday, a jury of 12 New Yorkers, seven men and five women, found the 45th President of the United States of America, Donald J. Trump, guilty on all 34 counts that he had been charged with for falsifying business records to influence the outcome of the 2016 presidential election. Each one of the 34 counts was about hiding the payment that Trump had authorized to be made to Stormy Daniels, a porn star and adult film actress, to buy her silence about a sexual liaison between them.

Neither the sex nor the silencing of it was illegal, but conspiring and acting to suppress the story from becoming public broke the New York State election law against hiding information from voters to influence an election. Hence the prosecution. And now the verdict.

The liaison had been in 2006 when Trump may not have even thought about running for president. The payment was made ten years later and one month before the November 2016 presidential election to stop the Stormy Daniel story reaching the media. The payment scheme was executed under a plan that Trump had put in place in August 2015, two months after he announced his presidential candidacy in New York.

The plan involved Michael Cohen, Trump’s nefarious personal lawyer taking care of under the table deals, and David Pecker, a tabloid magnate who provided “catch and kill” service to rich clients by buying out and not publishing scandalous stories about them. Pecker would be the “eyes and ears” of the Trump campaign and would look for negative stories from women and “take them off the market place.”

Pecker testified in court that he paid another of Trump’s liaison’s, one Karen McDougal, a former Playboy model, and bought her story, but was not reimbursed by Trump. For Stormy Daniel, the payment was made by Trump’s sidekick lawyer Michael Cohen and Cohen was reimbursed by Trump’s accountant in multiple payment and each payment was recorded as legal fees. Hence the falsification of records.

The jury heard all of this and more, including salacious details about Trump’s one night stand with Stormy, from 22 prosecution witnesses in the month long trial. Trump’s legal defence was largely limited to denouncing Michael Cohen as an inveterate liar and felon and asserting that his testimony should be rejected. The prosecution’s response was that they did not pick Cohen, but Trump did, and not only Cohen but also everyone else involved in this sordid tale.

New York Judge Juan Merchan who presided over the trial has set sentencing for July 11. That would be four days before the start of the Republican National Convention in Milwaukee, Wisconsin, where Trump is to be nominated as the Party’s presidential candidate. Although the charges that Trump has been found to be guilty of carry a maximum jail sentence of four years, the expectations in legal circles are that the Judge may settle for probation rather than imprisonment of a former President. In any event, Trump would certainly be appealing the verdict and the legal basis for his indictment and trial. He will keep grinding the American judicial wheel. And nothing will bar him being a presidential candidate.

Trump’s main defence is also political. He has already indicated that the real verdict would be delivered on November 5th, in the presidential election. He is going all out for victory, for he knows that is the only way he has to get out of his legal troubles. President Biden is in agreement with Trump that the real verdict would be on November 5th, because from his standpoint only the American people could ultimately decide to keep Trump out of the White House.

For now, the Republicans are rallying round Trump and denouncing the verdict from New York as a travesty of justice. The Democrats are celebrating the prevalence and the equal application of the rule of law even to a former President. How many Americans would want to have a convicted felon as their president? In most countries, he could not even be a candidate, and rightly so.

Anniversary Blues

In my column two weeks ago (May 19th), I made little more than passing references to two political anniversaries that come and go during the month of May. The older of the two is the anniversary of Sri Lanka becoming a republic and the First Republic Constitution that was adopted on May 22nd, 1972. The junior anniversary falls on May 19th and it marks the end of the war in 2009 – that came after nearly three decades of political violence and 37 years after Sri Lanka became a Republic. I also noted in passing that unlike the May 19th anniversary, no one observes the May 22nd anniversary officially or unofficially, and my comment itself may not have been noticed by anyone in particular.

So, it was fitting to see Dr. Nihal Jayawickrama’s fulsome reminder last week of the anniversary of the First Republic. I cannot agree more with his opinion that without Dr. Colvin R de Silva’s ministerial stewardship Sri Lanka would not have become a republic in the way and manner it did – as Dr. Colvin was wont to say, “not merely despite the Queen but in defiance of the Queen.” However, in my view, the reason why the republican anniversary has fallen into official disuse is because of the decision of the United Front Government after 1972 to officially celebrate only the Republic Day on May 22nd, and to stop commemorating the country’s independence day on February 4th, purportedly because it was a reminder of the UNP’s ‘fake independence’. That was unfortunate.

Ideally, the UF government could and should have celebrated both February 4th and May 22nd, and that would have established the same healthy tradition as in India where the independence day is celebrated on August 15th and the Republic Day on January 26th. Instead, the UF’s decision to ignore February 4th played straight into the tit-for-tat hands of JR Jayewardene. JRJ dropped all recognition of May 22nd and enshrined February 4th and other state paraphernalia such as the national flag and the national anthem in a Schedule to the 1978 Constitution and rendered them unalterable except through a referendum.

As well in my view, the very institution of the referendum was intended by JRJ to stop future negations of the state paraphernalia and to provide a mechanism for postponing elections. Judicial exuberance would later carry this further, interpretively. Imagine an underlying “basic structure” of the 1978 constitution (that was, in fact, no more than an offspring of the mind of President Jayewardene and the Parliamentary Committee that he presided over) and elevate the institution of the referendum as a requirement to amend any aspect of the basic structure. Dr. Jayawickrama, and Dr. Colvin R de Silva before him, have persuasively argued otherwise, and asserted that there is no need to use the referendum except for the specific purposes stipulated in the 1978 Constitution.

Additionally, I noted that the exceptionally flexible 1972 Constitution carried in its womb the seeds of its own undoing and was totally repudiated and wholly replaced by an exceptionally rigid constitution in 1978. Even though the anniversary of the 1972 Constitution may have fallen into disuse, the political legacy of 1972 has not died and continues to provide the parliamentary antithesis to the presidential usurpation of the 1978 constitution. Operationally, no political leader or party has been able to muster the same skill, strength and purpose of a Colvin R de Silva or a JR Jayewradene that is necessary to constitutionally resolve this political tension. But the tension is there, and it commemorates 1972.

If May 22nd is a formally forgotten anniversary, May 19th is a much remembered one. The end of the war anniversary is remembered officially and unofficially, in the north and in the south, and in places east and west where many Sri Lankans have now migrated. As I noted earlier, the end of the war anniversaries have become the continuation of the war by peaceful means. And I expressed the hope that they would remain peaceful forever and are not influenced or infected by the raw shenanigans such as allegedly involving the current Indian government and Khalistan Sikhs.

This year there has been more than the usual spate of commentaries on the end of the war commemorations. Of all the writeups, I was most struck by Meera Srinivasan’s account in The Hindu, dated May 25th, and entitled “A Poverty of Hope Among Sri Lankan Tamils.” Ms. Srinivasan’s columns are available on line and are often republished in Colombo. She is a well informed and objective writer, but what sets this particular piece apart from her other writings and the writings of others on the end of the war anniversary is, in my view, the exclusive focus on people – the survivors and victims of war. Many of them are double victims of the 2004 tsunami and the 2009 devastation.

The people and their plights are always forgotten in the misallocation of resources, haggling over devolution of powers and debates over political abstractions. Even the ever elusive reconciliation attempts are all top-down and far removed from the needs of the people. Addressing the basic needs of the people on the ground is the most basic obligation of the state and those who aspire to be its leaders.

It should not be difficult for the Sri Lankan state to return to people their land to rebuild their lives, give fishers free access to the sea and the means to transport their haul, provide basic water and sanitary services, establish schools for children, and most of all provide conclusive information on people who have gone missing after surrendering. Who will commit to making a start on this basic agenda before the next anniversary? That could be a question for the upcoming presidential election.