The first in a week-long series What if it happened here?
Reports out of the US are suggesting that some Trump campaign lawyers are realising they could find themselves in serious trouble if they repeat their boss’s wildest claims in court.
Lying to a judge could cost them their licence.
During one hearing last week in Montgomery County, Pennsylvania, Trump lawyer Jonathan Goldstein was asked outright by Common Pleas Judge Richard Haaz if the campaign was alleging electoral fraud.
The lawyer repeated twice: “To my knowledge at present, no.”
While arguing Trump’s case in every other way, Goldstein was not prepared to lie and risk sanctions against himself.
For a lawyer, the path is quite clear and choices and consequences obvious.
But what about those working in the public sector?
The course might not seem so simple in Trump’s America right now. Post-election and officials are being sacked and replaced for not doing Trump’s bidding. Others are resigning in the face of outrageous demands and a disregard for long-held conventions.
Norms and traditions were thrown out the window by Trump long before he lost this election. He flouted them before he became president – before he even officially declared his candidacy for the 2016 campaign.
So, working in government for Trump was never going to be a ‘normal’ experience. The fact he has turned over so many advisers and senior officials during his tenure is testament to that.
While there has never been anything like a Trump in Australian politics, some parallels can be drawn where elected officials here have attempted to politicise public sector administrators.
Barnaby Joyce did exactly that in October 2014 when, as agriculture minister, his advisers sought to change Hansard transcripts to remove false statements made in parliament.
His department’s secretary Paul Grimes stood up to and the minister’s office over the issue and later wrote to Joyce saying he no longer had confidence in his capacity to resolve matters relating to integrity with him (Joyce).
Grimes was sacked in March 2015 and footage subsequently aired on TV’s The Project showed Joyce bragging about how he had wrested power from the bureaucrats.
“I found out one of the only ways I could deal with them when I was minister was I invited the head of the department up, brought him into my office and sacked him, just to remind him where the authority starts from,” Joyce said.
“Then I got a lot more sense out of the rest of them. They were great.”
More recently, Warwick Smith resigned from the National Foundation for Australia-China Relations, a body created by the Morrison government aimed at ‘strengthening’ the relationship between the two countries.
Smith, who himself was a former government minister, soon became very concerned the board was being stacked with people of an anti-Chinese political persuasion, so he stepped down.
He did so firing off a resignation letter to Morrison that described the foundation’s start as ‘tortured and unspectacular’ and raising concerns over the structure and independence of the body.
And it’s not just federally where attempts are made to politicise the public sector (think Campbell Newman’s Queensland for a start).
The threat to public sector independence can sometimes be very real. And it can get extremely personal.
So what do public sector officials do when confronted with a government led by those who would cast aside proven traditions, conventions and norms – and even flirt with breaking rules and regulations, if not actual laws?
Speaking recently to The Mandarin, former New South Wales Supreme Court Judge Michael Pembroke gave a simple answer to that question:
“You resign,” he said, while acknowledging that it’s not always easy to do so.”
Public policy professor and former WA premier Geoff Gallop offers this insight:
“Warnings about ‘conventions’ rather than ‘laws’ may not go down well with the minister hungry to ‘get things done’. The distinction may be hazy and not tested beyond what we now call ‘the pub test’,” he said.
“Events may get out of control and ministers and public servants may find themselves appearing in an inquiry where the ‘Nuremberg Defence’ of ‘I was only following orders’ won’t be enough – or, indeed, relevant at all. The motto of such inquiries inevitably becomes ‘Surely we can do better’.”
Gallop says public servants should become fully briefed on any accountability and anti-corruption agencies in their jurisdictions and learn what they have determined about good and bad/right and wrong in the various cases they have investigated.
“The ‘I wasn’t aware’ defence won’t work anymore,” he said.
“Being aware is now part of the job. Just to add to the complications is the worrying observation that while a particular practice may have never been subject to independent scrutiny for its acceptability, it may do so in the future.
“The public interest is forever being developed, as we see today when it comes to ministerial offices and what happens in them.”
This very dilemma will be the subject of an ongoing series of articles this week in Mandarin Premium. We will present a number of interviews, with advice and experiences from those who have been there (much more to come from Dr Gallop), those who are there now, and those whose profession it is to expertly observe.
Because, while Australia’s public sector hasn’t yet seen anything like what is currently going in the US, nothing can ever be certain again this dramatically changing world.