Friday, April 19, 2019
The release of the Mueller report and the hard questions of justice: The challenges of seeking justice in a hyper-partisan age
Yesterday, Americans gained access to the so called Mueller report. It's the official report running to nearly 500 pages of the special investigation undertaken by special counsel, Robert S. Mueller III. Mueller, a former director of the FBI and a very well-known figure in Washington law enforcement circles, he released his report as the law requires to the Attorney General of the United States. Weeks ago, the Attorney General, William Barr, then released a summary to Congress and to the public of the findings of the special counsel's investigation.
The most important findings that the Attorney General had released weeks ago had to do with the fact that Mueller found no collusion, no coordination between the Trump administration and the illegal involvement of Russia in the 2016 presidential election. The interesting thing, the very unusual twist in the plot, was that the Attorney General also revealed that the Mueller investigation had not reached a conclusion as to whether or not the President of the United States was guilty of the crime of obstruction of justice.
Receiving the report and acting upon the evidence, the Attorney General indicated weeks ago that he did not believe that there was any legitimate ground to charge the President with the crime of obstruction of justice. It was that interesting twist in Mueller's report that led to many, especially Democrats, in the United States House of Representatives, but also in the Senate, to call not only for the release of the entire report, but to argue that the Attorney General had in some way misrepresented the report that had been submitted to him, as is required by law, by the special counsel.
The biggest worldview issue here is the sheer political nature of this entire conversation. Politics created the context, it provided the stage for the drama that is played out before our eyes. But we're also talking about politics in a hyper-partisan age. We're talking about the fact that everyone in politics looks to stories like this, or to the underlying issues, and tries to gauge almost immediately if this is to their party's political advantage or disadvantage.
That's why, going all the way back to the days just after the 2016 presidential election, Democratic leaders have seized upon the opportunity to accuse the President of wrongdoing, perhaps even illegal or criminal wrongdoing in order to remove him from office or to neutralize him politically.
At the same time, you have the fact that the President has often acted, in ways well documented within the report that was released yesterday, that break the mold of how presidents generally act. But it's also important to recognize that when you are looking at these issues, even when you are looking at the report, even when you are looking at the originating energy behind the investigation and the report, you're really looking at politics. And even as there are issues beyond politics here, there are never issues beneath politics. Politics is never outside the picture. It is the animating energy of this entire dynamic.
And there are some big issues here for Christians to consider. One of them is the fact that the very existence of this kind of special counsel is dangerous in a democracy. Because when you have this kind of investigation launched against a sitting president of the United States, it really inescapably becomes a battle that's political, a battle of the president's political opponents in the opposing party trying to use charges in order to either remove or discredit the president. It's a very political process when you name this kind of special counsel, you are setting in play a very dangerous set of events.
And the special counsel law was authorized by Congress after the failure of what had come before, which was an independent prosecutor law. Why was that law changed and the independent prosecutor became the special counsel? It's because just about every independent prosecutor went far beyond the charge given him by authorities. And they went on to find some kind of problem, even if they had to go outside the scope of their assignment in order to find it. You don't launch this kind of massive, multimillion dollar investigation, and we're really talking about potentially hundreds of millions of dollars, and come back and tell the American people we didn't find anything.
The special counsel replaced the independent prosecutor, but in essence, the special counsel law has really brought about the very same problem. You have, in a political situation, someone who is assigned to find if there was some kind of crime and to assign relative responsibility and to report back to the Attorney General, who is to report to the Congress concerning whether or not criminal charges should be filed. Or, when it comes to Congress, whether or not Congress should take remedial action, which could be all the way up and to the point of impeaching, and eventually removing a president of the United States from office.
But there's a counterbalancing concern here, and that is the fact that when you have a constitutional official as powerful as the president of the United States, or for that matter, you could generalize it to all of government, when you have governmental responsibility in the name of the people invested in the stewardship of individual human beings, they can't be above the law.
There are huge constitutional questions here, how and to what extent can a sitting president of the United States even be charged with a criminal offense? That's not an easily answered question. But what is known in the Constitution is that given sufficient concerns, defined in the Constitution as high crimes and misdemeanors, a president can be impeached by the House of Representatives, that's effectively an indictment that then kicks the question to the Senate where a trial takes place. And then the Senate decides whether or not a president is be removed.
There have been two presidents who have been impeached by the House of Representatives. The first was Andrew Johnson, who had been Vice President under Abraham Lincoln. The second was William Jefferson Clinton, better known as President Bill Clinton, in the last years of the 20th century. Both were impeached by the House of Representatives, but neither was convicted or removed from office by the United States Senate.
But let's take a closer look for a moment at the crime that is at the center of this question, the crime of obstruction of justice. What exactly is that? Well, it's known as a process crime. It's also a crime that is often used to convict persons in order to punish them when the underlying crime is beyond criminal prosecution. You often hear it described this way, it's not so much the crime, it's the cover up of the crime.
That was certainly the issue in the Watergate scandal, the controversy going back to President Richard M. Nixon. The underlying original crime was a break in at an office of the Democratic Party. But the cover up of the crime reached all the way into the inner sanctum of the White House, including the Oval Office. President Nixon resigned rather than to face impeachment and trial in the Senate. He would almost surely have been impeached, and he almost surely would have been removed by the United States Senate. He resigned because he knew he was guilty of the obstruction of justice. He probably did not order, nor even know about that break in the Democratic Party headquarters. But he was directly involved in covering up the crime.
The crime of the obstruction of justice is sometimes referred to by the language perverting the course of justice. It is interfering in a criminal investigation, or it is lying to federal investigators or prosecutors. It is doing something to destroy evidence, it is perverting the course of justice.
When the demands of justice meet the reality of justice: Why, in a political age, politics always dominates
The question that was raised in the Mueller report is whether or not the President of the United States, Donald Trump, is or was guilty of the obstruction of justice? But that raises another question, how exactly do you prove the obstruction of justice? Attorney General, William Barr, made the argument when he originally summarized the Mueller report. He made the argument that it's very difficult to construct the crime of the obstruction of justice if there is no underlying crime. That's a very interesting theory, and it comes down to this, it is very unlikely that someone is going to lie when they are actually innocent of a crime. And that comes down to the fact that if there wasn't a crime in the first place, it's unrealistic then to argue that somehow an individual, who wasn't guilty of the crime in the first place, has obstructed justice. That simply is one of those issues that begins to break down when you consider the burden that prosecutors have to bear in going in to reach an indictment to have a criminal charge brought and then to try that charge in court, reaching a conviction.
But there is yet another point to be made here and that's this, over time, just about every single individual could be found guilty of some kind of process crime. This is a huge issue because when you consider the vast power of a government like the government the United States, if that government had sufficient investigators, and if they were given a sufficient amount of time, if they had active surveillance upon just about every single American, the likelihood is, given the complexities and the vast nature of the federal code, just about every American could well be found guilty of a process crime. A crime of failing to fill out a form right, or of wrongly reporting something. Or have failing to preserve certain documents, or ... well, the list goes on.
Phillip K. Howard, a prominent legal analyst, actually suggests that Americans are probably committing unintentional criminal acts all the time. But in a political context, what is unintentional may actually become a matter of criminal prosecution. Or at least a matter of a legal charge, with enormous political potential.
In the Mueller report released yesterday, we find these words, "The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time," the report continues, "if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we were unable to reach that judgment."
Given historical review, it's likely to be that that single paragraph will bring the greatest scrutiny against the Mueller investigation because it is raising such a massively important issue and it is not deciding the issue. It is inconclusive, even after it has raised an issue as important as whether or not the President of the United States is guilty of the crime of obstruction of justice.
But Christians also need to look with great moral interest at one word in that first paragraph I read. "The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment." The word we need to note there is the word intent. The phrase is, "the President's actions and intent." That's because the crime of obstruction of justice requires corrupt intent. That's the legal term for evil intent. It requires knowing or at least being able to make a credible assessment of the individual's intentions at the time.
That's where the President's enemies, particularly the Democratic leaders in the House and the Senate, are going to find themselves in a very difficult position, trying to make the argument legally that the President is guilty of obstruction of justice. But here's where Christians also need to note, you are looking at two different dimensions, one is legal, and the other is political.
And the President's enemies are going to be pressing the argument every way they can on the political side. They are going to be using the language of legality and criminality, but their major intent is going to be to score points politically. But that's not just to accuse the President's opponents of being political, as this report indicates and well documents, the President and his administration are also political. And this is where Christians need to step back for a moment and recognize that there is grave, grave danger in trying to translate or transform a political dynamic into the criminal legal system. This is a very dangerous precedent. In the context of a representative democracy, this is political volatility, it is gasoline thrown upon a fire.
But the news cycled through last night and this morning demonstrates a political fact, and that is that the release of the Mueller report was a net win for the President of the United States. The fact that there was no criminal charge brought against the President of the United States and, in effect, the cause of the investigation being Russian involvement in the election, the fact that no member of the President's administration nor campaign was charged with a criminal act in that regard, it's a sufficient win for the President. It's going to frustrate the President's enemies, and as we have seen, it's going to lead to increased political volatility and here Christians need to recognize, that volatility is not likely to bring out the best in anyone in a hyper-partisan, hyper-politicized age.
Bigger than the headlines: The centrality of the cross and resurrection to Christian faith and hope
But next, we're going to turn from what the world thinks are the biggest headlines to the most important truths, most importantly the cross and resurrection of the Lord Jesus Christ. And we're also looking at the fact that at this time of the year, even people who are not Christians, especially in the lands where Christianity was once common, there's a great deal of attention to the celebration of what is called Easter and the commemoration of what is called Good Friday.
Evangelical Christians understand that every single Lord's day is actually a celebration of the physical bodily resurrection of the Lord Jesus Christ from the dead. It's not wrong on one Sunday of the year to especially commemorate the resurrection of Christ, but it's wrong to think that there is just one Sunday in the year when that truth becomes important to us.
The fact that Jesus Christ is risen is the only enduring hope for sinful humanity. But we are looking at the fact that when the world talks about Good Friday and talks about Easter, by the way, it should properly be understood as the celebration of the resurrection of the Lord Jesus Christ, the word “Easter” is actually not a biblical or a Christian word. But nonetheless, as we are looking at Good Friday and Easter, we understand that from time to time, headlines appear that demand our attention on these very questions, the questions of the cross and the empty tomb.
In recent months there have been headlines concerning the question as to whether or not Christ had to die for our sins. So for example, one of the most prominent feminist theologians on the modern scene published a book last year entitled, Creation and the Cross: The Mercy of God for a Planet in Peril. It got a good deal of attention then, it's getting some attention now precisely because as some have summarized her argument, "No one had to die for our sins."
In her new book, Elizabeth Johnson, who made her reputation as a feminist theologian arguing for inclusive God language, in her new book she argues that Christians have misconstrued, especially Christians in the West, have misconstrued the cross of Christ and the empty tomb, and have imported a Medieval feudalistic understanding of justice into our understanding of God and the death of Christ, and that has resulted in a gross theological deformity.
She accuses, most importantly, an 11th century Archbishop of Canterbury known as Anselm, in his book entitled Cur Deus Homo, or Why God Became Man, as having perverted the biblical simplicity about the message of the cross and the empty tomb, and instead arguing for a penal substitutionary understanding of the atonement that effectively, by her argument, turns God the Father into a monster, and Jesus into a victim who died for our sins.
What many in the media have picked up is the fact that there is an environmental or ecological aspect to Johnson's argument. She is arguing that this penal substitutionary understanding of the atonement has actually left out most of creation, and most importantly has left out animals, who she says are also included in God's redemptive work. She says that focusing upon Christ dying on the cross for our sins puts the planet at peril.
In an interview published last year, she criticized what she called the satisfaction theory of atonement by saying, "It's the idea that Jesus had to die a bloody and horrible death on the cross in order to save us from our sins. Because God was offended by our sins and had to receive satisfaction, had to get a pay back in order to forgive us, God's honor was at stake." When asked how this Medieval theologian came up with what she says is such a bad idea, she says he came up with it because “he lived in a feudal age in which honor was always at stake. And when a wrong was done against a greater, for instance a feudal lord, then the honor had to be resolved. Some kind of pay back had to be made. Some kind of satisfaction was required. Some kind of atonement had to be accomplished.” She said that Anselm came up with this from a feudal society.
But here's where Christians need to step back for a moment and understand something incredibly basic, there is a fundamental hatred of the cross of the Lord Jesus Christ, and there is a fundamental hatred of the empty tomb. Why? Because it's not Anselm who came up with this in a feudal society. The idea that God requires atonement, the idea that in his righteousness God cannot tolerate sin. The fact that there had to be atonement made for our sin, that is deeply offensive to a secular society. The fact that Christ died on the cross, shedding his blood as the sacrifice in our place, that's what it means when we talk about penal substitute, it was a punishment and he was our substitute, that runs against the pride and arrogance of a lost world. It is fundamentally offensive, right down to the fact that his atonement required the shedding of his blood, even unto death.
In her book, Creation and the Cross, Elizabeth Johnson argues that the basic problem with a substitutionary understanding of the cross is that it makes atonement necessary. But that raises a huge question, was it necessary? The Bible actually argues that it was. It wasn't a necessity forced upon God externally, it is the necessity of his own honor. And it is the outworking of his own mercy and love.
In Romans 3:23, we read, "For all have sinned and fall short of the glory of God and are justified by his grace as a gift through the redemption that is in Christ Jesus." Verse 25 says, "Whom God put forward as a propitiation by his blood, to be received by faith. This was," writes the Apostle Paul by the Holy Spirit, "this was to show God's righteousness because in his divine forbearance, he had passed over former sins. It was show his righteousness at the present time so that he might be just and the justifier of the one who has faith in Jesus."
Paul here describes the miracle of the atonement that Christ accomplished for us. It was the Father's will. He put forth the Son as a propitiation, we are told here, and he required the death of Christ on the cross for us for the forgiveness of our sins. He required the sacrifice, but he provides the sacrifice. "For God so loved the world," John writes, "that he gave his only begotten Son, that whosoever believes in him might not perish, but have everlasting life."
In this passage from Romans 3, we are told that the cross of the Lord Jesus Christ is the means whereby God the Father is demonstrated to be simultaneously just and the justifier of the one who has faith in Jesus. He is righteous, he never compromises his righteousness. He requires the full penalty for sin to be paid. But then he provides that satisfaction, he provides that penalty in his own sinless Son.
The modern world hates the very idea of a righteous God. It is offended by the truth that human beings are sinners. It rejects as totally horrific the idea that a death had to happen for the forgiveness of sins. And it dismisses historical biblical Christianity, it dismisses the Gospel of the Lord Jesus Christ as what one theologian of the 20th century called “bloody cross religion.”
But then in Hebrews 9:22, we read, "Indeed, under the law almost everything is purified with blood and without the shedding of blood, there is no forgiveness of sins." No forgiveness of sins without the shedding of blood.
But the modern world hates the idea of the empty tomb. It hates the central Christian truth claim that salvation and everlasting life come to us only because on the third day the Father raised Jesus Christ from the dead, physically, bodily, in space and in time and in history.
Just how important are the cross and resurrection? Well consider what the Apostle Paul wrote the Corinthians in 1 Corinthians 15. Beginning in verse 3, Paul writes, "For I delivered to you as of first importance what I also received, that Christ died for our sins in accordance with the scriptures, that he was buried, that he was raised on the third day in accordance with the scriptures."
The Apostle Paul says this is of first priority. If you don't know anything else, if you don't preach or teach anything else, if you don't tell lost sinners about anything else, tell them about the cross of the Lord Jesus Christ. Tell them about the empty tomb. Tell them that Jesus Christ died on the cross for our sins, in accordance with the Scriptures, and that God raised him from the dead according to the Scriptures.
Know this, one day no one is going to care about the Mueller report, no one's going to care about Washington D.C. or Rome. No one's going to care about Beijing or Paris. The headlines and the social media feeds will be no more. Indeed, even heaven and earth shall pass away. But what will not pass away is this most central truth, Jesus Christ, the same yesterday, today, and forever, the Christ who died for our sins and was raised by the power of God, the Christ who even now is ascended unto the Father and sits at his right hand, the very Jesus Christ who is going to return to claim his church and to judge the nations.
There's always the danger for Christians that we will be so interested in and consumed by the news that we will fail to exult and rejoice and rest in the greatest of all good news, the Gospel of Jesus Christ.
Then just consider the greatest headline news of all, He is risen! He is risen indeed.
Thanks for listening to The Briefing.
For more information, go to my website at albertmohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on the Southern Baptist Theological Seminary, go to SBTS.edu. For information on Boyce College, just go to boycecollege.com.
I'll meet you again on Monday for The Briefing.