Monday, April 29, 2024

Part I

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No Immunity? Some Immunity? Total Immunity? The Big Constitutional Questions Being Raised at the Trump Trials Before SCOTUS

Over the course of the last several days, so many of the nation’s headlines have been directed towards two courtrooms. One of them is the most august courtroom in the United States, that is the Supreme Court of the United States, and the big case of conversation last week had to do with the case being made by the former president of the United States, Donald Trump, that criminal charges against him having to do with incidents related to January 6th, 2021, that those charges should be dropped because of what President Trump and his legal team are claiming is largely total immunity, nearly total immunity for the President of the United States in terms of the discharge of his office.

But the actual argument being made by the Trump team is almost unconditional, and that is that the President during the period he is in office can commit no criminal acts. Now, those precise words weren’t used, but that is the form of the argument that now has become very much associated with the former president and thus you’re looking at a real conflict here between the left and the right in the United States over this question. But at least many on the Supreme Court, and in particular several of the conservative justices on the Supreme Court seemed to understand quite clearly that it wasn’t just that this case had to do with former President Donald Trump, but rather that it had to do with the president, our constitutional order, the presidency, and just how a president can be able to work in office with the executive branch being one of three independent co-equal branches without threat of some kind of criminal or civil prosecution.

Now, I want to make clear that in the case of the former president, we really are talking about criminal charges being at stake. Most importantly because there has been a federal indictment, Prosecutor Jack Smith sought the charges and they were handed down in such a way that the former president is now facing federal felony criminal charges having to do with events related to January 6, 2021. Now, I mentioned criminal and civil, but the civil part has largely been answered by the Supreme Court of the United States. It did so in a case that goes back to 1982, so we’re talking about over 40 years ago, when the Supreme Court said that the president operating, and indeed it’s not just the president, but someone acting on the president’s behalf, on the outer perimeter of the president’s duties would not face the complication of civil lawsuits after the term of leaving office.

Now, that turns out to be just really important because otherwise the president can’t act, the executive branch effectively can’t act. If as soon as the president leaves office, there can be a slurry of lawsuits challenging the President’s actions when he was in office or frankly challenging the actions of someone who took action at the behest of the President of the United States, that would simply shut down the presidency, and the Supreme Court understood that in 1982. So the civil side’s been taken off, but the question of criminal charges, that really has not come before the nation’s highest court. Now, you might say that it should have, and indeed it assuredly would have, had there been a moving forward on a criminal indictment of president or former President Richard Nixon during the Watergate scandal. But because of the pardon from President Gerald R. Ford, there was no prosecution. So the question was never answered.

The question on the civil side answered about 10 years later, the question on the criminal side, well, this Supreme Court’s going to have to answer that question, or at the very least it certainly appears that this Supreme Court, in the year 2024, is not ready to say that this is not an issue. Now, this led to many people, particularly on the left appearing to be very surprised. So we’re going to be talking about two things. We’re going to have to talk about two courtrooms. I said the first one is the Supreme Court of the United States. The second of course is that courtroom in Manhattan where Trump is being tried on New York State charges having to do with so-called hush money in a case going back to 2016.

So let’s keep them separate. Let’s go back to the 2020 case. What’s most important here is the fact that this case was heard, at this level on this date, last week by the Supreme Court of the United States. Now, what is expected, given the way the oral arguments went, is that the majority on the Supreme Court is going to send this case back to the lower federal court level for reconsideration and a definition, a further definition of issues. Here’s what came up. This is really important in worldview perspective. Because, again, this just isn’t about former President Donald Trump. It is about him, but more importantly, it is about the presidency and it is about the Constitution. So this is a place in which you had the liberal and conservative justices basically acting as if it was almost two different kinds of cases.

The more liberal justices really did want to make this about President Trump, and you could say in a more minimal sense, they wanted to deal with it as a constitutional question. The conservatives were really doing the opposite. A couple of the conservatives appear to be open to more or less both arguments. But the important thing here is that the President of the United States has to have some kind of immunity from criminal prosecution, or he can’t do his job. Now, just think about this fact. You have nations such as France, Israel, not to mention a good many Latin American, Central American, South American countries in which you have had routinely people leave office and their successor arranges for them to be charged with crimes, and sometimes put in prison.

We’ve been seeing this in country after country. Brazil just in recent years has been one of those countries, and the current government in Brazil appears to want the former more conservative president of Brazil–Jair Bolsonaro–to be charged with criminal charges. But that should not be routine anywhere and it certainly can’t be routine in the United States or we’re not going to be able to have our constitutional form of government. But this gets to some issues which for Christians candidly or sometimes rather difficult to unpack and understand, even to speak about candidly. So let’s speak about them candidly. We’re in a fallen world, in a world of political realism, we have to face the fact that in some sense almost every president of the United States violates some criminal statute or criminal principle during the term that he is in office.

If that sounds like an exaggeration, let me just suggest to you that given the current complexity of the federal code, and given the challenges that come to a president, and this is nonpartisan, these are challenges that come to Democratic presidents, challenges that come to Republican presidents, and when it comes to many decisions presidents must make in some sense there are often questionable legalities about exactly the authority by which a president is acting. Now you can just think, for instance, go back to the 1960s, go back to the presidencies of John F. Kennedy and Lyndon Baines Johnson. Let’s just take those two for a moment.

Remember that John F. Kennedy had to admit a conspiracy against Fidel Castro that involved the so-called Bay of Pigs fiasco, and there was no doubt that there had been a sheltering of certain persons who by international law were harboring criminal intent, and that was an embarrassment to the Kennedy administration. At the same time, the majority of Americans thought, “Well, if it had worked, it would’ve been justified in terms of toppling the Castro regime in Cuba.” Then you look at other issues, and that includes the fact that it is now well documented that the CIA, on the instruction of the White House, was at least investigating, if not attempting to carry out assassination plots on Fidel Castro. For the fight of liberty and of democracy around the world, that was considered a justifiable act, but it had a questionable legal basis.

If you have a situation in which a former president, once he leaves office, can be indicted for such crimes, presidents are going to be immobilized from taking action, sometimes even action in the nation’s defense that on a bipartisan basis might not be total agreement, but there would be widespread understanding that this was something deemed to be necessary at the time. Now, by the time certain issues were worked out in the case of for instance, Osama bin Laden, that was during the Obama administration and there was no doubt this was carried out as a military mission. 

At the same time, you need to recognize there are international courts–this is one of the reasons why the United States did not recognize most of these international jurisdictions for good reason–there are international courts, that would just spend all their time indicting American political officials for acts that according to their own political understanding were illegal. This will be a way of limiting American power. This might be a way of neutralizing America’s defenses. Now just to be honest, the criminal code in the United States is very complex, and honestly, there are questions as to whether or not any president can get through any normal term in office without at least the risk of some pretty significant legal exposure. That’s not to say that the president in any sense of either party seeks to undermine the Constitution. It is to say that if we get into a political situation where successive administrations try to bring criminal charges against the administration or administrations that came before, we’re not going to be able to have our system of constitutional self-government continue.

Now, on the other hand, there were some pretty ludicrous examples given before the Supreme Court last week. So could the president order the assassination of just anyone? The answer to that has to be no. Could the president basically authorize a military coup in order to remain in office? Clearly the answer to that has to be no. But the question is how do you separate these issues? That’s where a very interesting argument emerged, largely driven by conservative justices at the Supreme Court arguing that we need a distinction between the president acting in his official capacity, and the president acting in his own personal interests. Now at this point, we need to recognize that in a fallen world, sometimes it’s hard to distinguish the two, but you know what? In moral and constitutional and in legal terms, we’re going to have to learn how to distinguish the two.

Now, in order to understand this challenge, let’s go back to that Supreme Court decision when it came to civil litigation against a former president, go back to 1982. In that decision, known as Nixon versus Fitzgerald back in 1982, the Supreme Court said former presidents are not susceptible to civil legal action, that is to lawsuits, on the basis of their official actions or their time in office. But it said it was defining this in terms of absolute immunity for acts within the, here was the term by the Supreme Court, “outer perimeter of presidential power.” So that means that’s a very expansive definition. You’re talking about the outer perimeter of presidential power.

But as you’re thinking about how this case is likely to proceed now, the Supreme Court case, it is likely not to accept the former president’s full argument. There did not appear to be any kind of major support on the Supreme Court for an argument of absolute immunity. The president of the United States cannot just brazenly carry out a criminal act and then argue he can’t be prosecuted for it. Now, that’s hard to imagine, but it’s at least possible that that could happen. But at the same time, if a former president is exposed to criminal liability for acts undertaken that were actually a part of his job, then you’re going to have presidents immobilized and the nation is going to be weakened for it. Our national defenses, our national intelligence, our posture in the world will be very significantly harmed.

So what’s most likely to happen? You go back to the Supreme Court, you go back to the oral arguments just days ago, you listen to the questions asked by the Supreme Court and some of the points made by them. You look at their responses to arguments made by attorneys for the Biden administration representing the U.S. government and for the former president representing his legal defense. What appears to be most likely is that the Supreme Court is going to say there’s a distinction between actions taken as a part of presidential responsibility. There just has to be a distinction between those actions and actions that are not justifiably defined as official responsibilities. I’m going to go on and say I think the consensus among close watchers of the Supreme Court is that the court’s not going to define the issue further but is going to remand or is going to send the case back to a lower federal court for further consideration.

Now, here’s what’s absolutely frustrating the liberals in the United States and absolutely frustrating the Biden campaign, and that is that means that the criminal prosecution of the former president is not likely to even really begin in terms of any public process before the 2024 presidential election. So there are people who are saying this is just conservative justices trying to protect the former president and his electoral prospects. Three of them after all were appointed by Donald Trump. But it’s far more significant to note that even the conservative justices did not appear to be ready to buy the entire Trump argument about total immunity. In the larger context of the Supreme Court’s responsibility in the future of American constitutional self-government, that is far more important. The rest of it’s simply going to have to wait.

Part II

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Immorality is Not Always Illegality: Complicated Nature of the Charges in Former President Trump’s Trial in New York

But now we have to shift from the Supreme Court of the United States and go to that courthouse in Manhattan, which evidently is very cold, the former president and his legal team are complaining about just how cold it is, and it’s frankly a very seedy courthouse. It’s not the place you expect to find a former President of the United States But Donald J. Trump, the former President of the United States, is facing a number of criminal charges, New York State felony charges, 35 of them in a case that’s often described as a hush money case. The prosecution in this case was driven by District Attorney Alvin Bragg. I’ve discussed him already. This is even in the eyes of most legal experts, this is a pretty flimsy case. It’s not flimsy because there aren’t giant moral issues here. I think this is where Christians need to think very carefully. There are horrifying moral issues here connected to the former president.

But here’s a situation. It’s in one sense a quandary of our constitutional system of government. There are things that are horribly immoral and are horribly wrong, horribly sinful, but they’re not horribly illegal, and in many cases, are not illegal at all. So you often hear the media in particular refer to this as a hush money trial. The accusation, at least in part, is that the former president or agents for the former president, paid off a former porn star so that she would not tell her story that would make the former president look bad in the context of the 2016 presidential election. So hush money is money you pay to someone in order to keep them quiet. Now, here’s the thing, if those were illegal acts, that would be another illegal act. But if the underlying behavior was not illegal in most jurisdictions, the act of paying so-called hush money is also not illegal.

So one of the problems here is that for Christians, we need to recognize, we have to make a distinction between those things that are immoral and illegal and those things that are merely immoral. Let’s face it, the underlying behavior with a porn star, it’s inexcusable, it’s horrifying in terms of sexual sin. Furthermore, it’s just a parable in itself in the former president’s case in which immoral behavior brings out even further complications, including the attempt to try to keep the thing quiet, to try to hide the story, or at least hide the story long enough that Donald Trump–then a presidential candidate–could get through the election. After all, you recall that he was elected president in 2016, and all this came to light only after that fact.

Testimony in the case in New York is given by David Pecker, who for years was the publisher, sometimes also in an editorial role with the National Inquirer, a tabloid newspaper that quite frankly has made its money by running this kind of story and now we find out it’s also in one sense made money by not running these stories. Americans are learning a new journalistic vocabulary here such as “catch and kill,” and that’s what happens when you buy a story or the rights to a news story, not in order to run it, but in order to kill it. Catch and kill means you take a damaging story, you pay off whoever either has written that story or is the source of that story or both, and you just kill it. You put it in the file and make sure it never sees the light of day.

Here’s another parable that Christians understand. When you have this underlying behavior that is so salacious and you have a public that is so interested and you have so many different people involved, it is very difficult to keep anything like this quiet. Most legal experts understand that the criminal case against the former president in that Manhattan courtroom, this particular set of criminal charges is probably the most flimsy, and yet it is in New York. As the former president and his legal team have made very clear, it is honestly difficult to find a jury in New York that is likely to be fair to the former president, but here in our constitutional system of government in a legal jurisdiction, you just have to impanel a jury according to our legal system, and you have to hope that that jury will fulfill its responsibility.

From the Christian worldview perspective, it’s also important for us to recognize that even as we have to make a distinction between the morality according to scripture of the underlying behavior, we also have to look at the actual legal charges. In this case, the charges have to do mostly with falsifying business records in an attempt to try to influence the 2016 election. Now, the former president’s legal team is basically saying none of those things is true. Even as they are basically accepting the fact that there was hush money paid, they’re saying, after all, it was perfectly legal. Even legal authorities on the left recognize that there’s a very high bar that the prosecution is going to have to meet in terms of these 35 felony charges there in New York State. Then you also have to understand the reason why there are 35 charges.

Prosecutors bring a lot of charges like that because they just have to have the hope that if the defendant is not convicted on all the charges, that the jury might decide just to kind of split the difference, in which case there would still be a felony criminal conviction against the former President of the United States. This is a very complicated situation. It’s a very ugly situation, and Americans have the right, American Christians in particular, to be absolutely offended that we find ourselves as a nation in this kind of embarrassing position. But we also as Christians need to step back and say, “Okay, we’ve got the issues of the 2024 election before us. We’ve got to keep that separate from a lot of the other issues being discussed. We have legal jurisdictions.”

Just last week, the Supreme Court of the United States, there are other federal courts involved in other cases related to the former president. Here you have a case, it’s New York. Of course, there are cases in Florida, there are cases elsewhere. We are only beginning this process. That’s the bad news. I’ll be honest, these things are very difficult to talk about. I felt nonetheless that my task was to try to unpack them and to try to speak to Christians as a Christian saying I think we need to separate these issues out. Here are the moral issues. Those don’t change. Quite frankly, you don’t need a jury on those issues because we have the Holy Scripture and scripture is very, very clear. But there are also legal issues, and those are not always the same issues, and frankly, they’re mixed motivations.

There are stronger cases, there are weaker cases. There are all kinds of complexities having to do with whether or not the government meets the burden of proof and argument and evidence necessary to reach a criminal conviction. All these things at this point are not at all clear. The issue before the Supreme Court, with the former President’s claim of near absolute immunity, that’s just a reminder of the fact that on this planet, there’s virtually nowhere where you have absolute immunity. But at the same time, we need to recognize that the last thing we want as a nation is a president who can’t preside, and simply can’t act. At some of the major turning points in American history, including points that led to the safety rather than the endangerment of the United States of America, actions were taken by presidents that had a dubious legal basis. Nonetheless, they were absolutely necessary, and many of them in the view of history have been affirmed as such.

Part III

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A Parable of the Importance of Following Legal Procedure: The Story Behind the Reversal of Harvey Weinstein’s New York Conviction

But while we’re talking about these related issues and how Christians should pay attention to these things and understand them, we have to go back to another New York courtroom last week where the state of New York’s highest court overturned Harvey Weinstein’s many convictions on rape and sexual assault and related issues. The now absolutely infamous and notorious former Hollywood mogul was found guilty on both sides of the country, in New York and in California, on repeated counts of sexual immorality that included the assaults upon several women and going on in terms of other sexual crimes. Now, here’s the important thing. The State of New York’s highest court reversed his convictions. Why? Why in the State of New York, why did the state’s highest court do that?

It did so because the presiding judge in the case allowed testimony from persons who charged Weinstein with specific acts that were not a part of the criminal indictment, and that is not appropriate. That is not within the bounds of legal procedure. According to the state’s highest court there, the Court of Appeals in New York, it likely prejudiced the jury against Weinstein. Here’s the thing, we know that Weinstein was guilty of many, many horrifying acts, and once again, it nevertheless comes down to the fact that the rule of law is the rule of law, and that means that both sides have to follow the procedures in the rule of law, and it means that the prosecution and the judge in that case, as the Court of Appeals there in New York, which is a very liberal state, it nonetheless came back and said, “Here’s the law. Guess what, judge, you have to follow it.”

Now in the State of New York, that doesn’t mean that all of this simply goes away. The State of New York has the right to begin the process all over again. Although in the case of this defendant now in his seventies who is still looking at convictions on similar charges in California, it’s not at all clear the State of New York will move forward. So in worldview terms, once again, we face the fact that immorality and illegality are not always exactly the same thing. Even when you have documented immorality, horrifying immorality, if there is the involvement of criminal charges, the prosecution has to follow the rules even in prosecuting the crime. Now, here’s the bad news about that. As was the case last week at the Court of Appeals in New York, this means that a very bad person may get a very big legal break.

But we as Christians understand that the rules are the rules. The rule of law in a fallen world is the very best we have in order to achieve as much justice as in a fallen world can be achieved. The moment we begin to say, “I want a more morally satisfying verdict, and I’ll break the rules to get there,” is the moment that we become a part of the problem, not a part of the solution. How’s that for a moral workout on a Monday?