Monday, May 11, 2020

Part I

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The Rule of Law and the Christian Conscience: The Biblical Roots of the Rule of Law and the Demand for Justice

We arrive today on multiple fronts at the intersection of urgency and critical importance. We’re talking about issues of massive importance for the Christian worldview. Most importantly, we’re talking about the rule of law. Americans are probably familiar with the phrase. They have heard it and it sounds right. But Christians need to understand, indeed, all informed citizens need to understand why the rule of law is so important and why it is so precious. The rule of law, as a simply stated phrase means the rule of the law rather than something or someone else. It means the limitation upon political power. It means a defense against tyranny. If you do not have the rule of law, then you have the rule of a tyrant or you have anarchy. And from a Christian biblical perspective, the two bipolar disasters for humanity, politically speaking, are anarchy or tyranny.

The rule of law stands between both of those opposites because the rule of law indicates what Christians understand and that is that it is the law that is supreme, not a human ruler, no politician, no human power. The law stands supreme precisely because the law is pre-political, it exists before the institution of the law keeper. It exists before because the law is a function of God’s own character. God has created the cosmos and has embedded the knowledge of himself and the substance of his law in the entire created universe. Thus it is pre-political. You could say it is also for that matter pre-social. The rule of law is the acknowledgement that government does have a rightful responsibility, but that the government must also stand under the law.

Now, as you’re looking at a code of law, the statutes of law of any given nation or any given locality, the reality is those laws take the form of words, proposition, sentences, statutes, yes, of course. But behind those laws stand the law, the law that is imprinted on the human heart as the Scripture tells us. The law that is a revelation of God’s own character. The law that is what human laws must correspond to, not vice versa. The rule of law is thus one of the most precious and indeed, sadly rare developments in human political history. Where you find the rule of law, you find the great achievement of a people, a society, a nation that is ruled on behalf of the people under the rule of law, not by the ruler, not by a tyrant, not by a prime minister or a president as a ruler, but rather by the law commonly binding all.

Now, the rule of law is a remarkable achievement that has actually only emerged rarely in human history. When you look at the history of the United States of America and much of Western Europe now emulated by many nations around the world, you see the reality of, or at least in most cases, the aspiration to the rule of law. But where you see aspirational nations, you see the fact that the rule of law can often be very fragile. And then you can look at outright tyrannies such as North Korea or China, and you can see where the rule of law just doesn’t exist.

Christians, especially in the United States need to understand that the rule of law has very deep theological roots and indeed one of the most important statements of the rule of law actually came from a Presbyterian minister in the 17th century by the name of Samuel Rutherford. Samuel Rutherford wrote a great work published in 1644 entitled Lex, Rex. The subtitle: “The Law and the Prince.” Lex, Rex as a title means “the law is king” and that was treasonous language when uttered in 1644 by a Scottish Presbyterian minister because the Roman Catholic king of England, Charles I, was asserting absolute divine right of kings in order for the king to be an absolute tyrant.

The argument of Charles I is that the law was subservient to the king, the king was not subservient to the law. Lex, Rex was Samuel Rutherford’s treatise against the king, and it led to the fact that he was eventually sentenced to death. He died of natural causes before the sentence could be carried out and his book was burned. The burning of his book, Lex, Rex was actually one of the last legal book burnings at Oxford University in all of English history. Sadly, most Americans as well as citizens in the United Kingdom are unaware of the contribution of Samuel Rutherford, but Christians, especially the Christians to whom I’m speaking, should be very mindful of the fact that the rule of law was vociferously and eloquently defended by Samuel Rutherford when his own life was very much on the line, as was his beloved Scotland.

Another important issue to recognize is that even as I’m holding my copy of Lex, Rex by Samuel Rutherford in my hand, even as I have turned to page 72 of this edition, you will find that Samuel Rutherford is arguing explicitly from holy Scripture. He is making a biblical argument.

The book takes the form of dozens of questions with answers concerning law, politics, the king, and at question 18 Rutherford asks, “What is the law of the king and his power?” His answer comes most importantly from 1 Samuel 8:11. “This will be the manner of the king who shall reign over you.” Rutherford goes on to say that there is no divine right of kings to be a tyrant, rather the responsibility of the king is to rule justly according to the law of God in so far as the king is given authority. Samuel Rutherford was one of the first writing in the English speaking tradition to make a very clear distinction between the kingdom over which the king is king, and the kingdom over which the king is not king. That means that the king is justly king over the state, but the king is not king over the church, he cannot make claim upon his subjects’ souls.

In the United States the rule of law comes down to our constitutional form of government. The US Constitution is itself a compact or a covenant related to the rule of law, and even as we have a separation of powers and affirmations of due process and enumerated rights and responsibilities, it all comes down to the fact that every single citizen of the United States is mutually obligated by the law of the land. That includes members of Congress. That includes those who have no political station whatsoever. It includes the rich, it includes the poor. It includes everyone regardless of ethnic or racial identity. It includes the president of the United States, and it includes the prisoner in the state penitentiary.

The rule of law as understood in the United States has other important precepts as well. For one thing, there can be no secret laws. That’s right. There can be no secret laws. You can’t be arrested for something that is a law not on the books. It has to be a law duly passed by the legislature and enacted according to the political process. It has to be publicly accessible. It has to be published. It cannot be secret. There can be no secret courts when it comes to American citizens. There can be no secret legal process in this sense.

In most cases of the most significant criminal law, there is also the principle of mens rea—that’s Latin for the fact that there must be some kind of evil intent. It’s legally important whether or not someone intended to break the law, what someone’s intention was. That’s the reason why we make a distinction in the law between say manslaughter, which is not premeditated and premeditated murder or homicide. Three principles made very clear in the United States Constitution are that all of the laws, that includes a criminal law, any law that might lead to say an arrest must have been publicly promulgated, it must be equally enforced, and independently adjudicated. Those are all three very important principles. All of them are required for the rule of law.

Part II

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The Death of Ahmaud Arbery: Big Questions about the Rule of Law and the Death of a Young Black Man in Georgia

So why are we talking about these issues today? It would probably be surprising to Samuel Rutherford to know that his book written in 1644 was cited in May of 2020 on The Briefing. Why? The reason is the intersection of three massively important headlines just over the last several days. The first has to do with the arrest Thursday night in Georgia of two men who have now been charged with felony murder. As the Wall Street Journal reports, “Two white men have been arrested and charged with murder and aggravated assault and the fatal shooting of Ahmaud Arbery, a 25-year-old black man in Southern Georgia. The Georgia Bureau of investigation took Gregory McMichael, 64, and his son Travis McMichael, 34, into custody Thursday evening according to a statement from the statewide law enforcement agency”—that is the GBI, the Georgia Bureau of Investigation.

The Journal continued, “The arrests came after a video showing the two men’s February 23 encounter with Mr. Arbery circulated on social media and sparked a national outcry.” The next sentence, “The two men had said Mr. Arbery, who was shot and killed outside the city of Brunswick in Glynn County, Georgia, resembled a suspected burglar according to a police report.”

Now this is a story that has rightfully exploded all over the media and the public consciousness in this country. Some of the issues that come immediately to the fore in this article is why in the world a jogging young man, a black young man, was shot by two white men, why this came to pass and why it took 74 days between the shooting and an eventual arrest. The story is one of those convoluted and complicated tales, but it’s also one of those historical occurrences that reminds us of the precious nature of the rule of law and just how horrifying it is when the rule of law is violated.

As CNN asked in a headline story that was published on the 10th of May, the question is this: “Was Ahmaud Arbery killed for jogging while black?” That’s a huge question in this case because you have two armed white men who shot and killed an unarmed young black man, and you also have that 74-day gap between when the event took place and when an arrest was made, in this case two arrests. What is the big issue here? Well, the issue is that in order to get these arrests in Georgia, it took three different district attorneys, three different DAs. And there is evidence that there was at least some personal knowledge between some of the originating law enforcement officers on the case and a district attorney of at least one of the two who were arrested for the crime, the father or the son. In this case there are reports that the father had been some kind of investigator with some kind of official status with law enforcement in that area at some time, but not now.

Another big issue in this case is the reality that the arrest came only after a huge conflagration of public controversy with the release of a video of all things of the event that was taken by a third party. Once that reached social media and the nation’s media attention, it immediately caught the conviction and the conscience of the entire nation, and that brought enormous pressure upon not only law enforcement but the prosecutorial powers there in Southeast Georgia, and it also raises a host of questions. Why did it take 74 days to have these two men arrested? Why did they even try to stop, much less to detain and then shoot Ahmaud Arbery? Why did it take three different district attorneys and most importantly, why did it take the catalyst of a publicly released video, which also by the way has to be explained, in order for these arrest to take place, at least as it appears in the timing?

And the State of Georgia itself seems to affirm that these huge questions have to be answered and aren’t going to be answered entirely within Georgia. This was signaled on Sunday when the Attorney General of the state, Chris Carr called upon the United States Department of Justice to conduct an investigation into the entire process.

Speaking of the rule of law, what are the big issues here? Well, for one thing, you had an unarmed African-American young man who was jogging through the neighborhood, video showed him looking at a construction site, but doing nothing at the construction site that would have amounted to a crime other than perhaps trespassing. That’s not even really germane here, but we are told over the course of some time prior to this event, there had been some burglaries in the area. The original story told by the McMichaels was that they had tried to detain Ahmaud Arbery precisely because they believed they had probable cause that he was a suspect and they were going to hold him for authorities.

But there are very important issues here for us to understand. Let’s go back to the fact that the rule of law is our first consideration. The rule of law is the principle of justice. What is a citizen’s arrest? Well, in a nation under the rule of law in most jurisdictions there is some power for individual citizens who are not law enforcement officials to arrest or detain someone until the police or law enforcement can get there if two things and two very important things have taken place. For one thing, they in most cases have to observe the crime in process, and secondly they are not to start a confrontation that can lead to violence. One of the most important principles of the rule of law is the fact that if a citizen, an ordinary citizen who is not a law enforcement official, attempts to make an arrest and does so wrongfully or anything wrong takes place, then there is no coverage of liability for a citizen even though there would be coverage for liability when it comes to an officer of the peace, a law enforcement official. The citizen will bear the responsibility. And in this case you’re talking about a matter of life and death.

You’re also talking about something that was captured at least in part on video. Some of the issues that arise in this case have to do with the fact that the two men who are now arrested for murder and aggravated assault, they did not see any crime undertaken by Ahmaud Arbery or anyone else, and they most importantly did start a confrontation that eventually led to the death of an unarmed citizen. In general in the United States, there is no provision whatsoever for individual citizens who are not law enforcement officials to have anything to do with anything that might be considered a citizen’s arrest that includes the use of deadly force.

This demonstrates another major feature of the rule of law and that is a distinction between self-defense and an initiation of action against another that is not technically or actually in self-defense. A former United States Attorney in Macon, Georgia, Michael Moore said that under the Georgia code, a citizen can use force if they fear for their life, but they cannot create a confrontation themselves and then claim self-defense after harming someone, especially if they did not witness a crime taking place. One of the most important principles of the rule of law is rightful authority. If someone’s to make an arrest in almost every single case, it needs to be someone with arresting power, a law enforcement official, a law enforcement official acting on just cause and on rightful authority. We can summarize this issue in the law very easily by saying that it is a precious, important right for every single American not to fall victim of two men in a pickup truck who simply decide that we look like someone who might be a suspect and then start a confrontation that leads to our death.

Is race an issue in this case? Well, it’s hard to argue at this point that it is not. That is certainly the case made by Ahmaud Arbery’s parents and his family members and members of the community, not only the African-American community there in Glynn County, Georgia, not only in the state of Georgia, but across the nation. And of course this story now has international implications. But this is another point at which we need to understand the importance of the rule of law. The Attorney General in Georgia on Sunday announced just the right thing, that is asking the United States government through the Department of Justice to conduct an investigation, as the Department of Justice is uniquely equipped to do, to get to the bottom of all of these issues. The state of Georgia will bear now the legal responsibility for the prosecution of these crimes, for the fact that these two individuals have a right to their day in court and they will likely face these charges in court and that will be through, first of all, the state court system there in Georgia.

Even though it took 74 days, there has now been an arrest and the prosecutor is engaged. But there are other issues here, and this is where the rule of law helps us to understand the right thing to do here is exactly what the attorney general in Georgia did, ask the federal authorities to conduct an investigation that would include the Justice Department Civil Rights Division, its Criminal Justice Division. This is exactly what the rule of law looks like.

It was Martin Luther King Jr. himself who said that justice delayed is justice denied. That’s a very important principle, and when Martin Luther King Jr. cited that principle, he was doing so on the basis of the long history of the rule of law. And the rule of law has a way through the very process the Attorney General in Georgia has invoked of using the United States Department of Justice to answer the question, why the delay?

And of course it simply has to be conceited that this is over against the background of the fact that throughout much of American history there has been a danger of young black men being wrongfully detained and indeed lynched in extra judicial violence. What does extra judicial mean? It means outside the legal process, outside the courts. There is no honest person looking at American history who does not concede that that was a pattern that is simply a blight upon the nation’s history and it is in this case and in all other cases an impetus to make certain that justice is done. That’s why we have a Department of Justice. That’s why we have a justice system. And now every single American has to depend upon our justice system doing what it is assigned responsibility to do, and that is apply the rule of law justly.

There’s another pastoral issue that Christians should certainly understand and that is a grieving community and in particular two grieving parents and a grieving family. If we don’t know anything else about this case—and we do know much else about this case and we need to know much more—the reality is we do know that there is a family grieving the death of a 25-year-old young man. And regardless of any other consideration, our prayer must be with that family and with that community—our prayer and our concern and our common call for justice.

Part III

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Michael Flynn and the FBI: The Rule of Law in Both Prosecution and the Protection of Rights

But there are two other massive headline stories of worldview consequence on the very same issue, if we understand it rightly, on the rule of law. For example, Friday’s edition of the Wall Street Journal had on the front page, first of all, above the fold, “U.S. Moves to Drop Lying Case Against Former Trump Advisor.” That would be former general Michael Flynn who served briefly as the National Security Advisor to president Donald Trump. And then under the fold, the headline, “High Court Tosses Out Bridgegate Convictions.” What’s going on in these two stories? Well, they are different but the theme is still the same: the rule of law.

In the case of Michael Flynn, the headline story begins this way: “The Justice Department moved to drop its case against Michael Flynn in a major reversal more than two years after the former National Security Advisor pleaded guilty to lying to the FBI.” Now already, if you don’t know anything, if you didn’t even follow that story before, you ought to be very interested just with those words. The story continues, “In a motion to dismiss, the Justice Department said on Thursday it didn’t believe prosecutors could prove the case against Mr. Flynn and sided with Mr. Flynn’s defense team, which has argued that officials of the Federal Bureau of Investigation tried to set him up in a 2017 interview.”

“The government has concluded,” said the Justice Department, “that the interview of Mr. Flynn was untethered to and unjustified by the FBI’s Counter-intelligence Investigation into Mr. Flynn.” Well, what in the world is going on here? In the very first paragraph, we’re told that here is a former major national political and military figure who had admitted to felony counts of lying to the FBI. He actually pleaded guilty to them twice, but now the Justice Department is moving to dismiss the charges. How can that be? Well, it has to do with the fact that an internal Justice Department investigation came to the conclusion—and by the way, with very embarrassing documents leaked—that at least in some sense the federal agents misrepresented their conversation to the former National Security Advisor. They presented themselves as government colleagues, not as investigators contemplating bringing criminal charges. And they also may have set what is known as a perjury trap. That is an effort not so much to arrest someone on the originating cause, but rather to set a trap that could lead to the crime of perjury.

Here’s something very important: the rule of law means that no American citizen should ever be caught in a perjury trap. The Justice Department principles are that such a perjury charge can only be brought if the original investigation turns out to have been justified. The shorthand here is that the Justice Department investigation said that this investigation was not valid at that point, and thus there was actually no justifiable charge of criminal perjury.

Once again, we go back to the rule of law. Whether you’re Democrat or Republican, conservative or liberal, your constitutional rights depend upon the fact that you cannot be caught in a trap without a legitimate investigation. And once again, we ask the question, “Is perjury wrong? Is lying wrong?” Of course it is wrong. Should it be a felony to lie to a federal agent in virtually any situation? The answer should be yes. But not if you are being set up, and that is the actual issue at stake here.

But the rule of law in this case means also that this move by the Justice Department now goes to a federal judge hearing the case. Once again, the rule of law has its rules, and those rules are intended for the protection of all American citizens.

Part IV

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Not Every Corrupt Act Is a Crime? A Unanimous Supreme Court Upholds the Rule of Law

The second story here, the Bridgegate convictions has to do with the fact that the Supreme Court of the United States last week unanimously, that’s crucially important, unanimously threw out the convictions of several New Jersey government officials for having taken political retribution against enemies by stopping traffic, even though they actually did this. And as the nation’s high court said it was wrong, it was scandalous, it was evil. To use the political shorthand, it was corrupt.

But Justice Elena Kagan writing the majority opinion, and remember this is a majority that was unanimous for all nine justices, wrote a very important principle. “Not every corrupt act by state or local officials is a federal crime.” That goes back to the rule of law. There actually have to be laws. You have to have broken a law. The law does not criminalize everything that is wrong. It doesn’t even contemplate everything that is corrupt. As every parent, citizen, voter, everyone in the United States must recognize, the law doesn’t cover every wrong deed. It doesn’t even cover every sin. The law covers what it covers.

Should what those officials in New Jersey did, there’s no doubt they did it, should it be a crime? Well, if it should be a crime, and I’m not even going to argue that case here, then the legislature in New Jersey has the opportunity to write it into the law and make it a crime. But another principle of the rule of law is you can’t go back and apply that after the law’s written to actions taken before the law was passed. Once again, the rule of law is crucially important.

One final issue onto these two stories, both of them on the front page of most American newspapers over the weekend. In America’s polarized culture, there all kinds of websites and media sources arguing that the Justice Department has now been completely politicized and is acting unjustly or that the Justice Department has finally served justice, that the Supreme Court ruled rationally or that the Supreme Court didn’t, and in most cases, those reports come down to whether or not you side with the defendants politically. That should not be a consideration in the rule of law. Sadly, what you think about some of these cases may come down to the media source to which you’re paying attention. It shouldn’t be that way.

But you really are looking at a massive divide in America on these issues coming down to the mainstream media. The editorial pages of the New York Times and the Wall Street Journal, especially in the case of Michael Flynn, have taken absolutely opposite positions. Those are two of the most influential newspapers in the United States. They’re the mainstream media by any definition. That tells you just how deep the political crisis is in the United States at this time.

Even now, especially now, Christians need to remember that the rule of law is an achievement. It’s an achievement we need to strengthen, never to weaken. Christians must understand that, if no one else does.