Tuesday, November 26, 2024

Part I

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The Electorate Was the Jury: Special Counsel Drops Cases Against the President-Elect

In the United States, one of the great achievements we prize is known as the rule of law. This is reflected in our legal system and our constitutional order that says that no one is above the law and the law should apply equally to everyone. We need to understand that both of those propositions are fairly rare in human history. To have them combined is a unique achievement. The rule of law, as we know it in the United States, did not historically begin here. There’s a sense in which it began even in the Classical Age, particularly in some of the legal principles that were even recognized by the Roman Empire. But then you fast-forward through the medieval era, and it’s not that nothing happened during that time, that’s a slander against that millennium of time, and there was also a good deal of legal thought during that time, but it was basically reflecting upon what was already asserted.

In more recent centuries, there were new assertions, a new tradition in the law that was based upon that classical tradition, and this emerged most importantly in the English-speaking world as the tradition of English common law. And when the colonies rebelled against Great Britain in 1776, they rebelled against the crown, they did not rebel against the moral order. They also did not rebel against that tradition of common law. And so you come to the United States of America, you come to our own constitution, you come to American legal and judicial and legislative history, and what you have is the rule of law worked out in a way that is based upon that very clear foundation in English common law, and that of course having roots in classical Rome. And so it’s a very important legal tradition and it’s very important to watch how it works.

When you look at that common law tradition and you look at the principles behind that tradition, of everyone coming under the law and having equal standing under the law, you also understand that in every legal tradition there are some tricky questions you have to figure out. And that’s why it was very important when in recent times the Supreme Court of the United States ruled that an incumbent President of the United States can be prosecuted for federal crimes only in the rarest of circumstances. And of course, that relates to the incoming President-Elect of the United States soon to be president again, Donald Trump, who was facing two very substantial federal investigations leading to federal prosecutions, both of them overseen by an individual named Jack Smith who was assigned the task of being a special prosecutor, legally identified as special counsel to the Department of Justice.

But now, just yesterday, Jack Smith announced that both of his investigations were coming to an end. One having to do with classified documents, the other with what was alleged to be election interference, the point is that both of them have now come to an end, and this will require action by US District Court Judge Tanya S. Chutkan, who’s going to have to decide what to do with these investigations. In all likelihood, she is going to bring the prosecutions to a formal stop, but Smith’s motion is basically to put an official pause on these prosecutions until such time as President Trump would complete his second term in office.

Now, not just looking at the legal issues here, looking at the larger constitutional, political, moral and cultural issues here, let’s just understand that what is really coming to light here is the fact that President Trump said during the campaign, his most recent campaign which led to his election or rather overwhelming election in the electoral college and by voters even in the popular vote, what President Trump said at the time as he was running for office and as these prosecutions are moving forward, he said that the ultimate jury would and should be the citizens of the United States voting in the election.

And what you now see is this special counsel requesting an end, at least at this point in time in history, to the prosecutions against the former president, the President-Elect, about to be president again. What you see is a formal process, but it is just coming after the voters of the United States did have the opportunity to express their verdict in these cases, and the verdict was pretty clear as represented in the election. So what does this mean for the rule of law? Well, I think we need to step back and understand something, and that is that when you look at these unprecedented charges against, in the case of Donald Trump, a former President of the United States, you are looking at what is impossible to separate as you think about the legal and the political, and that’s a big problem. The rule of law is supposed to be a process whereby the law and politics are to the greatest degree possible, separated.

When you have politics so directly involved, the rule of law becomes very, very difficult. And quite frankly, the same divisions you see in the politics is going to show up in the legal question as well. And that’s a huge problem. It’s a huge problem for the United States of America, it’s a huge problem for the rule of law. Now, with Jack Smith requesting that the court basically bring these investigations, these prosecutions to a halt, what you have is going to split America right down the middle, or close to right down the middle. Again, people on the Left are going to say, “Look, the rule of law hasn’t worked here because every single individual should be equally accountable at the bar of justice.” And so they’re going to be making that argument, you can pretty much count on so many of the major newspapers making this kind of argument, mainstream media, liberal commentators making this kind of argument, and you can also understand that there’s a certain amount of traction to that argument. I think it’s intellectually dishonest to say there’s no traction there.

But that other principle of the common law, and of equal protection under the law also comes into effect, and that is that every citizen is to be treated like every other citizen. Now, that’s where things get really complicated when the citizen happens to be a President of the United States, or in this case a former president subject to prosecution for actions he undertook while he was in office, or in the immediate time after he left office, in which quite frankly there is a period of transition. The point is, that President Trump was able basically to make the argument that no Americans ever been tried for these crimes under these circumstances before. So supporting the rule of law also means that there’s a lot of credence on the part of those who say, “Look, Donald Trump was never going to be able to get a fair trial. He was facing an unfair political process that was undertaken at least in part for political purposes by his political enemies.”

Okay. I think at this point it is probably fair to say that more Americans saw the second issue as more important than the first issue. And some saw the first issue as more important than the second issue, and that’s going to be the great political and cultural divide. But when you think about the rule of law, we do understand that there are certain circumstances in which there are certain people who are not to be prosecuted for actions undertaken because of their office. And in English common law, who would that be? First of all, that first of all would be the king. Now, before the court of God’s justice, a king is going to be on an equal plane with a peasant. But the fact is that in the operation of the rule of law, in the order of nations, monarchs, kings have to make decisions that under some circumstances would expose a common citizen to prosecution. But he’s not prosecuted because he’s the king. Is that right or is that wrong?

Well, in the sense of everyone being equal before the law, you could say that’s wrong. But in the other sense, because the king’s going to have to take actions on behalf of the kingdom that may be required in extremists and the king must do things that others can’t do simply because of the office he holds, well, that’s the argument that is basically won in legal history. But of course, we don’t have a crown, we don’t have a hereditary monarch, we have an elected President of the United States. But that president serves simultaneously in our order as both head of government and head of state. And so those issues that pertain to a king actually loom somewhat larger with the American presidency, not just because of the size and stature of the United States and the power of the United States, the responsibility of the United States around the world, but also because in the United States, the president is both head of state and head of government.

In Britain, the monarch is the head of state, but the prime minister is the head of government. In our system, that is combined into one. But there’s another difference when it comes to say English common law, and that is that monarchs aren’t up for election, but American presidents are. And that turned out to be the strength of the case made by Donald Trump. He simply said, “Okay, let the nation be the jurors in this case, and if they do not want me to serve as president, they can say so, and if they do, they can say so,” and as you know, he won the election. And he won the election not only in the electoral college but also in the popular vote. And so you can understand why the president and his defenders were in a position to say the jurors in this case have spoken.

Now immediately you’re going to have some people say, “Look, this is the failure of the rule of law.” And they may even blame the Supreme Court, but what else could the Supreme Court have done? When you consider what is assigned to the office of President of the United States, if presidents could be prosecuted for actions that a common citizen might be prosecuted for, and that’s the rule, then presidents are going to be immobilized from taking action. And we just need to recognize that in a fallen world, whether that president is a Democrat or a Republican, the likelihood is that they have in some sense broken some law or statute because it was simply made absolutely necessary by some executive action, some of which of course we’re never going to know about.

Now also in accordance with our rule of law, there are different sometimes overlapping and sometimes completely independent jurisdictions. And that’s just to remind ourselves that the state of Georgia still has an independent prosecutorial action against the former president, but it is extremely unlikely that case, which is about election interference, that that one’s going to go forward either, and at least a large part of that responsibility is going to fall to the prosecutor in that case who, let’s just say, to remind ourselves, has her own list of problems. So put this in the larger context and it is a reminder of how important and how precious to us is the rule of law. But it is also a reminder to us that the rule of law has certain limits and the presidency turns out at least in some sense to be one of those limits. And that is because the presidency itself is invested with awesome responsibility and awesome power, much of which is simply outside the reach of say, a criminal jury.

But that is not to say it is outside the reach, on the one hand, of voters who in the case of Donald Trump did have to make a decision, and by the way, I would go on to say quite self-consciously they had to make the decision, as to whether or not Donald Trump belonged in the Oval Office. As you know, the American people said yes.

Now I think there are at least a couple of big lessons that we all need to learn here. And one of them is that the rule of law is premised upon a Christian understanding. It’s a Christian understanding that begins, say for example, in a very clear understanding of the fact that there’s an objective right and an objective wrong and that the government has a responsibility, as Paul says in Romans chapter 13, that the state does not bear the power of the sword in vain. There is a responsibility God has given to government for our good, and one of those roles is to restrain injustice, to restrain evil.

And that means through the development, based on a Christian worldview of an understanding of how, for example, a trial should take place. And in the United States a trial and the larger legal process when it comes to criminal law is an adversary process. And that may sound negative, but it is actually a tremendous achievement. That adversary process means that there is a prosecutor, but there is also a defense attorney assigned to the case. And that means that both sides have the opportunity, indeed the responsibility, to make their case concerning guilt or innocence and any number of mitigating factors, both of those adversaries in court. The prosecution and the defense have the responsibility to present their respective cases and then to present that to the jury. In a totalitarian regime, all you have is the prosecutor. And in a situation in which you have absolute moral relativism headed into anarchy, you have nothing but defense. In our system, you have both. And let’s just remind ourselves that is an achievement.

But the rule of law can be perverted by political motivations to political ends, or at least that kind of perversion can be attempted. And the closer you get to politics and the closer you get to a volatile political situation related to, say, a person who is very engaged in politics, not to mention a president or former President of the United States, the more it is going to look like a political action rather than a legal action independent of political considerations. Let’s just state the obvious. There are things a president can do for which a president needs to bear full responsibility and frankly the possibility of legal action. But that has to be after he leaves office because there is a constitutional mechanism for removing a president from office. And that is a proper constitutional question.

Or to put it another way, if the president undertakes a violent act or a violent crime, congress has due authorization to act, and quite frankly, once he’s removed from office, he should be prosecuted to the fullest extent of the law. But we have to draw a distinction between that and a president ordering military action for which there may be unintended civilian casualties. We do not want American presidents arrested or prosecuted for that. And in any event, the reach of human law can only go so far. For one thing, when it comes to criminal prosecutions, it stops at the grave. And this means that if we had, say, total legal omniscience, we would no doubt see that an awful lot of guilty people are getting off. An awful lot of crimes that could lead to arrests don’t. An awful lot of criminals get away with their crimes. That’s the cost we pay, number one, for not being legally omniscient, but it’s also the price we pay when it comes to operating under a rule of law, which means in some cases you do have the guilty found innocent, or the guilty not even prosecuted.

In the political sphere, secondly, what we now face is the reality of what is known as lawfare that’s taking warfare and replacing war with law. It is war by other means. And that’s exactly what we see undertaken, and at least in part quite visibly when it came to the former president and the prosecutions against him, they were brought at least in part by people who clearly had a political animus against the former president, and quite frankly, were trapped in their own statements about that political animus, which made their prosecution’s tainted from the beginning.

And when to take the federal cases, you had someone who was his opponent in a national election in 2020, that would be Joe Biden, now President Joe Biden, when you had the Biden administration in control of the legal process, and that includes the Department of Justice, yes, there are some buffers between the White House and the Department of Justice, at least usually there are. The reality is that you could not get around the fact that it would be the Biden administration that would have brought this kind of prosecution. And in the end, the voters made their decision on November the 5th, and thus these issues are concluded. Now as to future issues, well, I have no ability to predict those. But I’ll predict the Left is not finished with lawfare and Donald Trump is not finished being Donald Trump.

Part II

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Did Voters Give Trump a Mandate? A Look at History and Media Bias

Well, okay, as Christians, we’re really concerned with the truth. We’re really concerned about consistency. We should be properly concerned about all these things all the time. And quite honestly, even as we know, it is easy not to see inconsistencies in our own lives and our own thought. That’s why we need, for instance, other Christians to speak into our lives, to identify where we might be inconsistent. At times, we have to apply that same standard outside ourselves, and I’m speaking here about the mainstream media. And in particular about the elite liberal media. And I want to point to one glaring example. And it’s not just to say, “There they go again,” although there’s partly that behind why I am talking about it today, but it’s also in order just to say, “It’s important that we know where people are.” Sometimes they show us where they are, and when they show us where they are, well, let’s just take them at their word.

In this case, I’m talking about the New York Times. Headline, “No Matter How It’s Counted, Trump’s Win Wasn’t a ‘Landslide,'”Landslide put in quotation marks. Okay, you understand why they’re saying this? The president elect has been very loud about his mandate, he’s been very loud about the size and the scale of his election, and Donald Trump tends to exaggerate, and he has enjoyed exaggerating in this case. But he has a very legitimate beef against the mainstream media, and at least in part, they’re each playing their role here. And I just want to point to the fact that the New York Times ran this article largely in response to the president-elect and to his followers saying, “No Matter How It’s Counted, Trump’s Win Wasn’t a ‘Landslide'”.

And so this article goes on, half page in print, trying to demonstrate why Donald Trump’s win, which was by several million votes, but about 1.5% of the electorate that it wasn’t a landslide, it thus doesn’t lend itself to a massive mandate, and thus the president elect needs to stop talking in grandiose about his win and come to terms with political reality. Well, I want to point to a different reality. And curiosity led me to decide I would go into the morgue and no, I don’t mean with human bodies, I mean the media morgue. That’s what it’s referred to. Those are the old stories published by American major newspapers. And in a digital age, you can get to just about any of them, and the New York Times deserves credit for making virtually all of that searchable. So thank you very much. If you go back, what do you find?

Well, you find, for example, in the year 1992 that when Bill Clinton won with only 43% of the electorate, remember there were three major candidates. There was a Republican candidate that was the incumbent president, George H.W. Bush, there was the Democratic candidate, Arkansas Governor Bill Clinton, and there was a third party candidate, H. Ross Perot. And even though third party candidate stood no chance in the election, well, the numbers tell you the story, Bill Clinton won with 43% of the vote. He had a plurality, he did not have a majority. But you know what most in the mainstream media said? They said he had a mandate. I pulled up from the morgue of the New York Times, an edition, November 4, 1992, in which the year the New York Times referred to Bill Clinton’s mandate as “monumental.” A monumental mandate. Remember, that’s 43% of the vote.

Now, that was winning, because George H.W. Bush, the incumbent president, received less than that. But nonetheless, 43% translated in 1992 into a mandate. Well, I think you get the point. By the way, to give the New York Times a bit of credit retrospectively, the headline in the article, their editorial was actually a “monumental, fragile mandate.” They did argue that Bill Clinton’s mandate was first of all a mandate, and they went on to call it monumental, but then they wanted to say it’s fragile. And by fragile they meant he could blow it, which eventually he did.

Later that same month on November the 22nd of 1992, the Los Angeles Times ran an article with the headline, “Clinton Has Mandate. Either Use It or Lose It.” Again, Bill Clinton had a mandate with 43%. You can understand why Donald Trump’s a little frustrated when the mainstream media try to argue he doesn’t have a mandate. Right now, I think you could say Donald Trump feels a mandate to prove he has a mandate.

Part III

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A Getaway Car and a 13-Year-Old Perpetrator: What a High Speed Chase of an Underage Driver Reveals about the Rule of Law

But finally, speaking about things legal and judicial, I want to point to a headline recently in the Los Angeles Times when I was recently just last week in Southern California, here’s the headline, “13-Year-Old Takes Family Car and Leads Police on Chase.” Andrew J. Campa is the year in this case, “He might not be old enough to play the game Grand Theft Auto V, but that didn’t stop a 13-year-old from taking his parents’ car and leading South Pasadena Police on a brief chase before pulling over, authorities said.” The crime story continues, “According to police, the driver of an older model, blue Toyota Corolla committed a pair of moving violations around 2:55 A.M. Tuesday, triggering a traffic stop. But instead of stopping,” I’m reading here from the article, “the driver raced away from the officer hitting speeds of 65 miles an hour.”

The article goes on to tell us that the chase stopped in Highland Park, California about a mile and a half from where the chase began, “Officers discovered the driver was a teenager,” remember, I’ll just say again, 13, “Who had taken his parents’ vehicle without permission. He also had a thirteen-year-old passenger with him, his mutually apprehended co-conspirator.” We are then told, “Police contacted the parents of both teens who picked up their children, the driver and one of his parents were cited for reckless evading. They’re going to face the Los Angeles County Probation Citation Diversion Program in days ahead. South Pasadena Police,” according to the Los Angeles Times, “Did not immediately respond to a request for comment.” They’re going to let the facts in this case speak for themselves.

A thirteen-year-old with another thirteen-year-old arrested at 2:55 A.M. in a car stolen from one of the parents, or at least used without parental permission. Notice the legal issues involved in this. And just as we think about the rule of law, here we have the rule of law in its presence and in its limitations. Okay, we see the rule of law in the fact that the thirteen-year-old who was driving without permission at 2:55 A.M., had committed two moving violations and was fleeing police. The rule of law explains why it was important that he be apprehended and that he faced the court of justice. But the rule of law also explains that when you have a thirteen-year-old perpetrator like this, who after all had access to a car like that, and he’s apprehended, not only was the child arrested, but a parent was arrested with him, even though the parent wasn’t in the car.

And ultimately the story tells us this is going to be adjudicated by the Los Angeles County Probation Citation Diversion Program, evidently in Los Angeles it takes all those words, but I’ll just say as a former thirteen-year-old, that that is not the bar of justice I would fear. It would be a very different bar of justice. And the 2:55 A.M. is not incidental to this. Let’s just say there wasn’t enough parental supervision either. So here we see the operation of the rule of law, but we also see its limitations. The limitations come when this court simply can’t parent that child, but someone better.