Should the incumbent indeed win in November, the actions and policies of his administration may have substantive consequences for lawyers across different practice areas in the Australian marketplace, as well as having a broader impact on the administration of justice more generally.

Last week, Lawyers Weekly covered the prospective impact of a Joe Biden presidency upon Australian lawyers. Here, in the second of this two-part series, we explore what could happen should Mr Trump hold on to the White House for another four years.

Capital markets

Securities laws have not been a big focus for the Trump administration, Allen & Overy partner Mark Leemen muses.

“The US Securities and Exchange Commission has only been tangentially affected by the institutional chaos of the last three and a half years. While the [administration] made some moves towards rolling back the post-GFC regulation of the financial services industry, the final product was relatively modest,” he outlines.

“Enforcement appears to have been less aggressive under President Trump, however, the SEC has continued to pursue important cases. Despite installing a generally pro-business majority on the Supreme Court, the [court’s] most recent judgment on securities law liability represented a reversal of the recent trend towards curtailing the reach of anti-fraud liability in securities offerings.”

In short, in terms of capital markets regulation, there has been “little evidence of a radical shift in approach”, Mr Leemen surmises.

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“President Trump has taken an erratic approach to policy, so it’s hard to speculate about specific measures a second Trump administration would pursue,” he says.

“In any case, the question may be less what the [administration] does to securities laws and more what happens to American institutions in general.”

Climate change

If Mr Trump retains the presidency, Baker McKenzie global head of climate change Ilona Millar anticipates that the US will formally leave the Paris Agreement.

“While other signatories intend to continue fulfilling their obligations under the agreement, there can be no doubt that the absence of the United States will be a blow to a global cooperative approach to climate action and the world’s ability to meet its targets,” she says.

“Throughout the Trump presidency, we have seen a rolling back of funding and support for research into the causes and effects of climate change. We have also seen relaxation of rules that limited the emissions of greenhouse gases, and indeed, direct challenges to state-based laws with that effect.”

It is reasonable, Ms Miller continues, for lawyers to expect a continuation of these trends under a second Trump term.

“We should also expect to see activity from the private sector from those entities that perceive the need to change their business in response to climate risks,” she adds.

“Additionally, we should expect to see a greater focus on technologies that can both reduce emissions, and also, adapt to the changing conditions that result from climate heating. A key example is the renewed focus on carbon capture and storage, as well as the concerted efforts to develop a competitive hydrogen industry in Australia.”

The results of the upcoming American election, Ms Miller surmises, “will be a watershed moment for many reasons, including the fact that what the United States does on climate change in the next four years will impact everyone”.

“It is important to remember, however, that the elections in November are not just for the president, but for many other important offices. We have seen that determined states and cities can also take significant action to combat climate change,” she notes.

Data and privacy

The first four years of a Trump presidency, Dentons partner and regional head of white collar and government investigations Ben Allen reflects, have shown a general willingness to break with political norms as well as the politicisation of issues traditionally approached in a bipartisan way, he says.

“The approach to data privacy laws proves no exception, and the recent headlines concerning [TikTok] illuminate this fact well,” he advises.

“While US states have approached data privacy on a state-by-state basis, the recent announcement that the White House is looking to craft a consumer privacy protection policy that is the appropriate balance between privacy and prosperity suggests that Trump is looking for a legislative outcome that is not as robust as its European counterpart, the GDPR.

“For Australian practitioners, this means the need to be ready for new legislation out of the US if Trump is re-elected, which may require different responses than those currently required under the GDPR or Australian privacy legislation.”

Legal sovereignty

In a post-pandemic landscape, movement towards greater legal sovereignty is going to gather speed, following on from more favourable views on economic sovereignty that have emerged globally in recent years, according to KPMG International global head of legal services Stuart Fuller.

“If you look at what governments are doing – and this started before COVID-19, but has been accelerated [as a result of the pandemic] – they are becoming more focused on themselves than the regional or global environment they lived within, whether it be around immigration policy or tax policy. What we’ve seen over the last six months (and we think it’s going to accelerate) is legal sovereignty [by way of greater] localisation of laws to regulate the local economy, and regulate its interaction with the global economy,” he tells Lawyers Weekly.

A Trump re-election, Mr Fuller says, will result in a “likely continuation of the current policy platform”.

“For Australian lawyers, I think the situation is broadly similar [to the prospect of a Biden presidency] – we need to recognise the changes in the global ‘system’ and help our [clients understand] how changes in Australia’s role within this system impact the formation, operation and outlook of Australian markets – whether as a result of external market forces or shifts in Australian foreign policy, economic policy and regulation,” he submits.

“The time for a genuinely Australian-centric Australian lawyer [is] long behind us. If anything, a trend toward more insular policy and ‘legal sovereignty’ necessitates our legal community to adopt a broader aperture to the way that they help clients navigate commercial, legal and regulatory complexity.”

Broader legal professional concerns

There are also, Norton Rose Fulbright legal services executive Donald Betts Jr stresses, far-reaching prospective consequences for the rule of law.

Upon his securing of his party’s nomination and subsequent victory over Hillary Clinton, Mr Trump “divided the Republican party in three – ‘never Trump’ Republicans, the ‘confederate alt-right’ Republicans, and the ‘straddle the fence’ Republicans. This divide has also resulted in the division of the federal bureaucracy, specifically the Justice Department,” says Mr Betts, who, prior to his role at NRF, was a state senator and congressman in Kansas.

“If Trump is re-elected, law professionals will be faced with a president that will likely be [emboldened] to test the boundaries of presidential power with bad results in the likes of which the world has never seen,” Mr Betts argues.

“Anyone opposing Trump’s election if he wins, will have hell to pay, that includes members of the Republican [Party], and any foreign leader who dare to speak aloud of what they really think of the president.

“Lawyers abroad will need to get a handle on a re-elected Trump’s myriad of rules that may create uncertainty that will certainly require the court to interpret validity. As the Nixon administration brought to prominence, creating what would be known as secondary legislation and we denominate ‘regulations’ or ‘rules’ (the product of executive agencies, not Congress), and now considerably outstrips primary federal legislation as Americans’ source of legal obligation.

“As a lame duck, where both houses of [Congress] will likely to be controlled by the Democratic Party, a re-elected Trump will likely satisfy his political will, and not the rule of law, but law and order.

“This could mean an increase in business for lawyers across the spectrum, particularly in mediation, arbitration, litigation, criminal, and civil rights, in the likes of which the world has never seen.”