The indictment of Donald Trump brings into sharp focus two great constitutional principles. Great in that they are foundational — without them, whatever edifice one may build above is compromised and will sooner or later collapse.
The first of these principles is that voiced now by the legion enemies of Donald Trump. It had been voiced earlier by the legion enemies of Hillary Clinton and today by the legion enemies of Joe Biden. It is the idea, traced quite properly by Fortescue back to Biblical law, that everyone, even the king, is answerable to the law of God. The English Common Law tradition, also quite properly, sees itself as sanctioned by God’s law and assented to willingly by the people to bring peaceable governance to the nation. Thus, Magna Carta and the Petition of Right, establishing constitutional limits to royal power, and explicitly restricting the king’s power. All are under the law.
Presidents in office have an immunity from prosecution as did kings. But presidents have so only while in office, and once outside it, whether by conviction on articles of impeachment or simply at the end of their elected term, those immunities disappear.
The public grasps the unfairness of a two-tiered legal system. If, for the same action forbidden by law, some people go to prison while others enjoy their liberty, corruption has taken hold. The stench of this corruption is what gave power to the cry of “drain the swamp!” — the apprehension of tens of millions of Americans that powerful elites at the center of American government held one law for themselves and an entirely different one for those they called deplorables and clingers, whom those elites thought (and still think) need to be put in their place by their betters.
Those same elites have their own way of looking at things, and believe, or at least say they believe, the same principle that commands nearly everyone’s assent. The endless impeachment campaigns that marked the whole of the Trump presidency were constantly defended by trumpeting this entirely correct principle — even the president is answerable to law. There must not be two systems of law. Or, in the words of the Good Book, “There shall be one law for you and for the stranger who comes to live with you.” Even the one who has come as a stranger, and lacks connections and power, is equal to the most noble and powerful before the law.
But this principle of one law does not stand alone. Just as the one law of the Bible was familiar to all — as Deuteronomy had commanded, “You shall teach them (the laws) to your children and you shall speak of them…” — so, too, the law to which all are answerable is law known and public. If law can be concocted at will, tailored to fit the political aims of those in seats of power, then its equal protection is meaningless. How can a person avoid doing something they couldn’t know was illegal? Thus, the idea of Common Law — the law people know and accept willingly upon themselves.
While both we and Britain accept constitutionally that statues can be added that will likewise command the citizens’ compliance, there is an instinctive revulsion to laws that are so complex that only those with specialized knowledge even know of their existence. There is even greater revulsion at seeing those laws used to silence unfavored political actors by criminalizing their political differences.
Writing about the great constitutional landmark of the passing of the Petition of Right during the rule of the first King Charles, Winston Churchill said:
We reach here, amid much confusion, the main foundation of English freedom. The right of the Executive Government to imprison a man, high or low, for reasons of State was denied; and that denial, made good in painful struggles, constitutes the charter of every self-respecting man of any time in any land. Trial by jury of equals, only for offences known to the law, if maintained, makes the difference between bond and free.
“Only for offences known to the law” — that phrase echoed in my mind as I heard the masters of network news refer again and again to the mysterious legal theory that somehow lies behind the indictment of Trump. Even these glib partisans, who years ago abandoned the ideal of objective journalism under the Trump Exception, could not avoid sounding troubled about this unprecedented prosecution. Paying hush money is no crime (though blackmail and extortion are). Deliberately accounting for such a payment on the books as a legal expense is at worst a misdemeanor, not the felony with which Trump is being charged. What is the theory, even these masters of information muse, by which the statute of limitations is avoided and by which a local official undertakes a federal prosecution?
Muse they well might. Perhaps there is a theory. And the implication being, perhaps, that we all should have known in advance to guide our conduct by a theory that even now is not known to ardent supporters of most everything anti-Trump.
The talking heads speculated with grave concern over the difficulties the prosecutor might have in connecting this misdemeanor to a federal felony offense, since Trump is not charged with any such offense. Perhaps, these tribunes of truth mused, it is in connection with some New York statute, a statute that was not obvious to anyone of the network commentators, none of them particularly well-inclined towards Trump.
“Only for offences known to law.” Without this principle, we do not have freedom. That is what is at stake. Even Trump’s enemies within the Republican Party, and there are many, have largely united in defense of this principle, even as very many of them will work very hard to support someone else for the 2024 nomination.
Politics is politics. Let the people decide by their vote.
Making political difference a felony undermines democracy for everyone. Hold to the principles that make constitutional government real. Hold in fierce contempt those who would demean our law and our democracy by inventing law to destroy their political opponents.