The Briefing, Albert Mohler

Wednesday, April 5, 2023

It’s Wednesday, April 5, 2023.

I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part I

A Dark Day in American History, But What Does it Mean? Former President Donald J. Trump Arraigned in New York Court on 34 Felony Charges

We knew it was coming for several days, but still yesterday came as a shock to the American body politic and to the American moral conscience. What we saw yesterday was in the name of justice, but at the very same time we understood it bearing the weight of history. You had a former President of the United States, as the British would say, “sitting in the dock.” That has never happened before. It’s unprecedented in American history and it’s not unprecedented because there have not been opportunities previously to indict American presidents on criminal charges or former presidents, but because in this country the fear of using the legal system as a matter of political retribution and just thinking about the symbolic nature of an American president being the subject of a criminal trial, all of this had put a significant set of breaks on the American political and legal system in such a way that this just hasn’t happened before, but now it has.

And as yesterday unfolded with all the helicopters in the air, with all the reporters, there at the courthouse, although very few actually in the courtroom with video about the president getting into the building, going down a corridor and then the still photographs of the former president sitting in the courtroom, all of this still probably hasn’t settled in terms of the enormity of the issues involved for the American people.

And before we go further into that, I just want to comment on the fact that our current saturation with news, or at least what is called news, and when you look for instance at all the cable news networks and now also of course digitized on the internet and all the rest, you come to understand that those networks have a commercial interest in first of all keeping you interested and thus making the story absolutely salacious. But beyond that, they also have to keep on talking and as you look back to yesterday, let’s just say an awful lot of what they talked about turns out to be nonsense.

But the bottom line is this, was yesterday’s arraignment of the former President of the United States, Donald J. Trump, was that a big story? Indeed, it was. It’s one of those events in American history that will long be remembered and just as long debated. And in order to understand that we just need to step back for a moment and consider what did happen and what it means.

First of all, a criminal indictment is something that is handed down in that New York system, and you see this across the United States, by a grand jury. That’s a jury that sits for a matter of time and hears the prosecution bring the best case about bringing criminal charges. The grand jury either approves or fails to approve those charges, and if the prosecutor goes to the grand jury with proposed charges and the grand jury approves, then an indictment is handed down. Following that comes arrest and arraignment and the entire legal process eventually culminating in a trial.

Now until yesterday, we did not know what the charges would be. The indictment was sealed and the former president and his attorneys received the actual indictment with all the charges listed just a brief time before it was released to the public and the former president appeared in a courtroom. But if Americans were paying close attention, there were some really interesting developments and revelations yesterday. Not a big revelation in the sense that the prosecutor was bringing new charges or new evidence that no one had imagined.

The District Attorney, Alvin Bragg, who had run on a campaign to indict Donald Trump fulfilling that promise, so to speak, he showed up in the courtroom himself, but the indictment brought only really one new dimension and that was a tax dimension. Otherwise, this was exactly what was expected. But there were 34 felony counts that were charged against the President of the United States, 34.

Now, how does that happen? Well, it is because that represents not 34 separate crimes taking place in a different context and unrelated, but a series of acts in which every single part of the transaction, 34 turned out to be the magic number, is alleged as a specific crime, as a felony, and the grand jury handed it down that way. What happens now is going to be at the disposition of the judge and eventually at the disposition of a jury.

The judge in this case is New York Judge Juan Merchan and he, by the way, presided over the trial of the Trump organization that ended just a matter of months ago. But the big story here is that there are plenty of motions for the Trump defense team to file. There are plenty of twists and turns in this story, and even though at this point it appears that this case will eventually go to trial and eventually will go to a jury, that’s not an assured thing.

Responding to the charges yesterday, the former president pled not guilty to all 34 charges, and again, how the number 34? Phillip Bump at the Washington Post actually explained this more succinctly I think than anyone else. He said this, “The 34 charges center on how payments to attorney Michael Cohen were recorded at 34 different times.” So 34 different recordings of a transaction, every one of those alleged to be a felony crime, 34 counts in the indictment. That’s how the magic number of 34 was determined.

Now, another question is, would the number 34 be greater than the number one? And the answer to that is yes. The reason a prosecutor would stack up all of these indicted crimes is in order to build a cumulative case and of course, if found guilty on all of these charges, then the sentencing would accumulate. But there are a lot of twists and turns in this story and it’s recognized even by the former president’s enemies that Alvin Bragg did not play a very strong hand yesterday in that New York courtroom. CNN reported it this way saying that the prosecutor had stitched together these 34 counts in order to try to add up misdemeanors into what would be felonies in order to overcome a statute of limitations. If that’s complex, that’s a part of the problem here.

Ruth Marcus is a basically liberal columnist for the Washington Post. The headline on her piece is this, “The Trump indictment is a dangerous leap on the highest of wires.” She opens her column this way, “As a presidential candidate in 2016, frantic to keep evidence of his extra marital affairs secret, Donald Trump made extensive efforts to buy the silence of the women involved. There’s never been much doubt about that,” she writes. “The behavior of the candidate and his allies was a corrupt effort to keep voters from learning the truth about Trump.”

She then continues, however, “The hard question is whether those efforts also violated the criminal law, specifically now that a New York grand jury has indicted him on 34 felony counts, whether they violated the laws of the state of New York.” She then says this. “On that front, the indictment unsealed on Tuesday is disturbingly unilluminating and the theory on which it rests is debatable at best, unnervingly flimsy at worst.”

Now, I cite that in particular strategically from a liberal source in order to say that the integrity and the reputation of the United States of America is at stake when you have a former President of the United States facing criminal charges, and so if a former president or for that matter, a sitting president, is to be subjected to criminal charges, they had better be big, they had better be clear and it better not take a team of attorneys just to try to explain how the theory is stitched together.

Furthermore, it’s daunting made me even depressing to recognize how long this process may take. The former president’s not expected to be back in the New York courtroom until the first week of December for a pre-trial hearing, and prosecutors are pressing the judge to set a date for the trial as early as January. Trump’s team is pressing back saying, January of 2024 is too fast. Well, in any event, we’re looking at a very long time, which means a very long trial for the entire nation.

Part II

Lord, Please Save Us From Ourselves: The Dangerous Political Precedent Set in That Manhattan Court Today

There will be a lot more to say about this, but I want to look at some of the deeper meanings in what took place yesterday in New York, the arraignment of a former President of the United States, and let’s face it now officially charged with criminal offenses that marks a day that will weigh heavily on the American mind, on the American heart and on American history. There was no live feed from that courtroom in New York, but there were images and those arresting images have now been seen by untold millions, not only in the United States but also around the world, a former US president sitting as a defendant in a criminal courtroom. That’s something the world as well as Americans has now seen.

It’s not as if such charges against a current or former president have been historically unthinkable. There is no doubt that Richard M. Nixon was implicated in crimes ranging from obstruction of justice to likely tampering with evidence, and those might be just the tip of the iceberg. Most historians believe those charges might be only the starting point of prosecuting Richard Nixon’s crimes. His pardon by President Gerald R. Ford circumvented the entire process. President Ford believed the pardon was necessary for the nation’s healing and also for America’s stature in world opinion. Ford paid a heavy price for that decision, of course, losing the 1976 presidential election to Jimmy Carter who had promised, “I will never tell a lie.” That turned out to be a rather unsustainable promise for any American president to make.

A generation later it would be President Bill Clinton, who by his own sexual misbehavior made himself central to a massive criminal investigation. There was more to it. There were also financial dimensions, but let’s face it, what Americans are going to remember is the sex part. If he did not commit the crime of perjury, it was simply by using his considerable legal skills as an attorney and former law professor to twist the truth. He said famously, “I did not have sexual relations with that woman.” But he did of course, and he later had to admit it.

One of the famous lessons of the Watergate scandal is that for those in high office, the coverup is often worse than the crime, at least in terms of making a criminal case. After his pardon, in a lengthy interview, Richard M. Nixon made the point that the crimes involved in the actual Watergate break-in paled over against the obstruction of justice and the criminal conspiracy to try to cover it up. That’s just the way sin works. And those coverups go way back in presidential history. Skipping all the way to the 20th century, those scandals would include Warren Harding’s Teapot Dome scandal, and John F. Kennedy’s sexual trysts.

Christians are often hard-pressed as we try to think faithfully through these issues, but there are at least some clear lessons that believers have learned through the long unfolding of history. Here are some of those lessons.

Here are at least some things we ought to think about. Number one, character does matter. Now, character is not the only criterion, but it certainly is a primary consideration. Christians have to begin with a clear biblical truth that no sinful human being has a perfect character, but even as we grade presidents on something of a curve, some stand out as particularly lacking in character. Donald J. Trump is certainly one of those presidents.

But stop for a moment and then do this honest thought experiment. Ask yourself who among the 45 men who have served as president might be or might have been indicted for paying a woman hush money to keep silent about a sexual affair. We have to admit that list could be rather long. Recent revelations about Warren Harding and his mistress are simply too explicit to detail here, I’m not going to talk about them any further, but all this does remind us by the way that you can be almost a century dead and the scandal will still have unfolding new chapters. As you look at this, you recognize that it’s not just Warren Harding, it is a number of others. You have also John F. Kennedy, Bill Clinton, Franklin Delano Roosevelt, yes, even Roosevelt. The list goes on.

The Augustinian tradition in Christian theology serves to underline the fact that sin corrupts, sin blinds, sin deceives, and sin drives history. The famous British theorist, Lord Acton, delivered a very Augustinian thought when he summarized one of the key conservative lessons of history in his very oft-quoted statement, “Power tends to corrupt and absolute power corrupts absolutely.” That observation I would add, is absolutely true.

Now, character, we have to realize is not limited to the so-called pelvic issues. They make the headlines, they’re salacious news, but they certainly matter, and one revelation of how much they matter is the lengths to which those involved in sexual sin will go to color and to camouflage their sin. That we just need to note as Christians is what got Donald Trump to that Manhattan courtroom yesterday.

But there’s a second consideration. There are multiple considerations. Secondly, moral responsibility applies everywhere we look, and that means that moral responsibility question also attaches to New York’s district attorney, who now bears the responsibility of bringing not only an indictment but a credible criminal prosecution against a former American president. And credible in this case means not only that the charges stick, but credible means that the charges turn out to be legitimate and legitimately weighty. That’s a big burden to bear. Alvin Bragg has to prove his criminal case and then he has to prove that his actions make sense in the long view of history. Frankly, both of those challenges are going to be formidable.

Third, as another consideration in our political system, especially with Donald Trump already a declared candidate for the Republican nomination in 2024, well, that just means that everything is political everywhere and all the time. Now, I will put my cards on the table. I do not want Donald J. Trump to be the 2024 Republican nominee. There is simply too much baggage and too much Donald J. Trump. A statesman would realize that fact and make way for someone else to lead. That does not appear to be likely as a development. There may be a number of other challenges and may be other charges that President Trump will face, but Alvin Bragg did not play a strong hand in New York yesterday, and even Trump’s enemies know it. Still, it remains a national embarrassment, a huge national embarrassment.

Fourth, and most importantly, let’s just think about it this way. This is a time for Christians to think deeply and honestly about the moral issues presented to us in this context, in this case, and in these days, we must pray for our nation. We need to pray for all who are entrusted with the responsibility to lead, to judge, to serve in the midst of this maelstrom.

May God give us all wisdom to know how, when and what to speak, may guide parents to explain these events to their children. May God grant us wisdom and mercy as we seek to do right, speak wisely and live faithfully through these days. Now, let’s pray this. May God bless America and protect us from our enemies, foreign and domestic, and Lord, please save us from ourselves.

Part III

A Precedent-Shattering Election: Wisconsin’s Supreme Court Flips With Huge Implications for the Future of American Politics

But next we need to turn to another massive story, and this one did not get much attention, although it deserves a great deal of attention. Had yesterday not marked the first time a president or former president of the United States had faced criminal charges in a courtroom, it would be remembered for a courtroom, but in this case the courtroom would be the chambers of the Supreme Court of the state of Wisconsin because in a special runoff election in Wisconsin yesterday, the very future of that court was put on the line and it is now moving in a liberal direction.

The runoff yesterday was for a seat that opened up on the Wisconsin Supreme Court because of the retirement of a conservative justice after serving two tenure terms on the bench. That retirement is understandable, but it really has set up a massive battle in the state of Wisconsin and that battle was won by the liberal or progressive side, and that’s going to come with long-term consequences. Christians need to understand there are huge worldview dimensions here.

First of all, we’re talking about the courts. We’re talking about the law. We are talking about the fact that in Wisconsin there has been a conservative majority on that state Supreme Court and it has led to tangible effects. It has also led to a great ambition on the part of liberals to regain the court, and that’s apparently what they did yesterday. But we also need to understand how they won this victory and at what cost it came and what the future is likely to mean for Wisconsin, and we also need to understand the impact is not just going to be in Wisconsin. This can ricochet very quickly all the way to the United States Congress.

The battle in this runoff was not just between a conservative judge and a liberal judge, although it was that and the liberal one, it’s also between two different ways of understanding and reading the law and the constitution. But it’s also about two different visions of what it means to be a judge, and if anything, we have arrived in a brave new world when it comes to judicial elections in Wisconsin and we need to be honest and say this story isn’t going to stay in Wisconsin.

What made this particular runoff election so important is that the winning candidate, Janet Protasiewicz, who is a liberal Milwaukee County judge, she was very clear in campaigning about her positions on the contentious issues that would come before the court. She was abundantly, repeatedly, absolutely clear about her support for what she calls a woman’s reproductive rights to health, what she clearly acknowledged was a right to abortion.

She clearly believes that pro-life restrictions there in Wisconsin do not meet constitutional muster, or at least she’s very clear that she would strike them down. And when it comes to other issues such as the setting of congressional districts by the legislature there in Wisconsin for federal representation in the House of Representatives, yes, amazingly we’ve returned that issue already this week, the fact is that having a liberal majority on this court could lead very quickly to a redrawn political map, which just might be to Democratic advantage.

Now, we need to recognize that this is a precedent shattering election there. Is precedent shattering in a number of ways. First of all, money. There was an unprecedented amount of money thrown into this judicial election again, for a justice seat on the Supreme Court of the state of Wisconsin. How much money? Well, at the very least, documentation of $30 million worth of spending.

That’s just without precedent in such an election, but it points to a pattern, we need to note, these elections are becoming more and more expensive and one of the main drivers of that expense is outside money. In this case, it means outside from Wisconsin money and that means money that effectively was seeking to buy a Supreme Court seat, and the majority of that money was coming from liberal and pro-abortion sources, and they basically did effectively win the seat yesterday.

As of last night, liberals all over the country were celebrating this win, but Patrick Marley writing for the Washington Post made this remark, “Liberals claim control of Wisconsin’s high court in an election, Tuesday, giving them a one vote majority on a body that in coming years will likely consider the state’s abortion ban, its gerrymandered legislative districts and its voting rules for the 2024 presidential election.” Listen to the next paragraph. “Milwaukee County, Judge Janet Protasiewicz’s victory over former Justice Daniel Kelly will end 15 years of conservative control of the Wisconsin Supreme Court.”

Here’s the key sentence, “She could face ethical questions when the court takes up politically charged cases because she campaigned heavily on abortion rights and she also repeatedly ‘called the state’s election maps rigged.'” So you’re talking about a massive amount of money. By the way, the Washington Post raises 30 million to $40 million from candidates, political parties and independent groups. The Washington Post went on to declare this election, “The most expensive judicial contest in U.S. history. It is more,” said the paper, “than quadrupled the amount spent in Wisconsin’s 2020 State Supreme Court race.”

Is this a sign to the future? There’s every reason to believe it is for those two reasons. Outside money, massive outside money. Why? Because the Supreme Courts are so important and then the ideological lineup for these races. Now, you might say that any informed voter would simply know looking at the judicial background and the writings and the political positions taken by a judicial candidate, you might be able to draw some conclusion about where they would go.

That’s a lot of the speculation that takes place when a president makes a judicial or for that matter, a Supreme Court nomination. People say, well, we can look at previous decisions. We can look at arguments people made in the past, but the general decorum officially recognized as a matter of judicial ethics is that judges did not make comments on how they would rule on future cases because they would be effectively just turning the judiciary into a third highly politicized branch of government. That’s exactly what has taken place in Wisconsin.

Now, what you have in Wisconsin is judges running as if they are legislators, and Janet Protasiewicz, well, she bears most of the responsibility for this. But she is likely now to have set of precedent that other judicial candidates will follow. To put it bluntly, she got away with it, at least to this point, and it is likely that others will try the very same thing. But you’ll notice this is coming most importantly right now from the liberal or progressive direction. We need to ask the question, why? And it is because of the salience of the abortion issue. There is no doubt that a lot of that outside money and a lot of the energy behind the campaign for this liberal justice, Janet Protasiewicz, is her support for abortion and her declared support for abortion. It’s a reminder to us that the fight for the dignity and sanctity of unborn life certainly wasn’t over with the Dobbs decision.

As a matter of fact, it has largely energized pro-abortion dimensions and pro-abortion forces in this country. That should have been expected. This is the way politics works. It was Roe v. Wade that energized the pro-life movement. The long-term test for the pro-life movement is not what took place between Roe and Dobbs, but what takes place after Dobbs reversed Roe, that’s where we’re on the line and our credibility is very much in question. If we don’t stay with the fight for life, you have to ask whether we really meant it when we were making those arguments, at least as a movement for a generation and more.

One final note in all of this candidate, Janet Protasiewicz, which said that she was not stating her positions on these issues. Rather she was articulating her values and anyone who’s been around for several decades knows that’s loaded language. First of all, it’s code. Values here means moral judgment.

But back during the 1960s and especially in the 1970s, the idea of moral relativism and an individualized morality came very clear when the language of morality and right and wrong was exchanged for the language of values. What do you value? Do you value life or do you value abortion? Do you value, say, traditional morality or do you value the sexual revolution?

Now, the limitations of value language should be very clear to Christians. We cannot simply retreat to the use of a term like values when we know what is at stake is right and wrong as objective truths. But here’s perhaps a key for us as we think about judicial races in the future. When a candidate comes along speaking of her or his hold on liberal values, we have to understand that above all what they value is that judicial or supreme court seat they are seeking. They value that. That’s for sure.

Perhaps the saddest dimension of this development in Wisconsin is that it is sure to spread as a contagion. By the way, the election of judges and justices by the electorate that was set up as a check on the power of the legislator or a governor, the legislative and executive branches to control the judiciary. The judiciary was supposed to be an independent third branch, but if these judicial and justice elections are going to be turned into just another political circus, then the courts are going to be turned into just another legislature, and that is a great loss not only for Wisconsin but for our entire constitutional system.

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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