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PRESIDENTIAL CRIMES AND PARDONS
by
LOUIS RENÉ BERES
___________________________
Louis
René Beres is Emeritus Professor of Political Science
and International Law (Purdue University). He is author of many
books and articles dealing with international politics. His
columns have appeared in the New York Times, Washington
Post, The Jerusalem Post and OUPblog
(Oxford University Press). This essay first appeared in
www.jurist.org
The
safety of the people shall be the highest law.
Cicero, On the Laws
While
President Donald J. Trump’s assorted lawyers labor to
extricate their refractory client and unspecified subordinates
from a variety of accumulating legal charges – ones ranging
from illegal personal profit-taking to ignoring, underestimating
or manipulating Covid-19 dangers – the other or remediating
side has generally counted only upon codified sources of pertinent
law. Though seeking different outcomes, both side’s legal
efforts have been rooted in more-or-less parallel codifications.
In this connection, “anti-Trump” or pro-justice
legal efforts could now draw purposefully upon certain alternate
sources not available or apparent to this President’s
determinedly dissembling counselors.
Further
explanations are needed. These generally overlooked and neglected
legal sources comprise the Natural Law of authoritative jurisprudence.
With regard to specific context of the United States Constitution,
we are here describing the so-called “Higher Law.”
Accordingly, going forward, suitable legal responses to continuous
Trump deviations and wrongdoings could benefit from a more
informed acquaintance with this Basic Law.
Where to
begin? Apropos of Trump-related legal derelictions currently
before this beleaguered nation, it is time to more expressly
acknowledge certain core philosophic and jurisprudential underpinnings
of the United States. These widely neglected but potentially
still-significant “peremptory” foundations lie
in the Higher Law, perpetual and immutable rules that apply,
by definition, to all peoples and for all time. Though generally
unfamiliar to the current generation of American political
leaders, these always overriding precepts were already well-known
to and respected by the nation’s Founders, especially
Jefferson, Franklin, Madison, Hamilton and Jay.
Most importantly,
such vital precepts could sometime help to protect imperiled
Americans from various future presidentially-inflicted harms.
Several
necessary definitions and clarifications should now come to
mind. We may learn from the celebrated jurist A.P. d’
Entreves’ classic text on Natural Law: “The Natural
Law (Higher Law) is absolutely binding, and overrules all
other laws.” For the United States, this principle has
always represented more than just “any principle.”
Unassailably, it is one of the most enduring and canonic premises
of the American nation’s legal bedrock.
Expressed,
among other places, in both the US Declaration of Independence
and the US Constitution, the Higher Law rests upon
a willing acceptance of right and justice for their own sake,
unmistakably, and in absolutely all identifiable matters.
For the
United States before Donald J. Trump, before this defiling
President’s self-serving manipulations of law and before
his destabilizing “America First,” considerations
of right and justice were generally less determinedly instrumental.
Such principled considerations, as famed 18th century jurist
William Blackstone declared, represented nothing less than
“the eternal, immutable laws of good and evil, to which
the creator himself in all his dispensations conforms; and
which he has enabled human reason to discover so far as they
are necessary for the conduct of human actions.”
There is
much more to consider. Thomas Jefferson was a conspicuously
learned US President, erudite at a time when laborious study
was vastly more difficult than it is today. When Jefferson
– without any benefits of electric light, air conditioning,
central heating, computers or even a manual typewriter –
set to work on his Declaration, he drew productively upon
Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui,
and (most prominently) John Locke (Second Treatise of
Government). Asserting the right of revolution whenever
government becomes destructive of “certain unalienable
rights,” the Declaration of Independence posits
a discernible natural order in the world, one whose irreducible
laws are immutably external to human will and that remain
discoverable for all time via staunchly determined applications
of human Reason.
In these
matters, history deserves an evident pride of place. By the
eighteenth century, the Age of Reason, God had allegedly “withdrawn”
from any immediate philosophical/legal responsibilities for
humankind, but was still acknowledged as Final Cause or Prime
Mover of the universe. Then, in law, “nature”
remained relevant as a convenient and aptly secular substitute
for divinity.
In the specifically
Deist view embraced by America’s Founders, Nature or
Reason replaced God as the ultimate and immutable source of
lawful judgment. This view was never retracted; though inconspicuous,
it remains determinable, valid and binding.
Unsurprisingly,
during that Age of Reason, the influence of Isaac Newton’s
Principia (first published in 1686) was tangible
and palpable. In essence, all of creation could now be taken
as a recognizable expression of divine will. Reciprocally,
however, the only way to ever truly “know” this
original will of God was to first discover the underlying
and eternal Law of Nature.
In short,
Locke and Jefferson – both well familiar with Newton
– had deified nature and “denatured” God.
Nonetheless,
for jurisprudential purposes, a still greater precision was
required. One question demanded an immediate answer: “What
exactly constituted this so-called “Law of Nature,”
a law accepted in the Declaration and Constitution
as a continuously binding set of obligatory norms. Above all,
as Jefferson could draw effortlessly from John Locke, such
law was an always- necessary source of Reason. More exactly,
according to Locke’s Second Treatise:
The state
of nature has a law to govern it, which obliges everyone:
and reason, which is that law, teaches all mankind, who
will but consult it, that being all equal and independent,
no one ought to harm another in his life, health, liberty,
or possession . . .
n transgressing
the law of nature, the offender declares himself to live
by another rule than that of reason and common equity, which
is that measure God has set to the actions of men . . .
A
criminal, who having renounced reason, the common rule and
measure God hath given to mankind, hath, by the unjust violence
and slaughter he hath committed on one, declared war against
all mankind.
As Reason
can be the only sure guide to what God has granted to humankind,
it must inevitably become the only reliable foundation of
all true law. This key conviction runs continuously from ancient
times, especially from traditional Jewish Law, to the present
law-violating “Trumpian moment.” The evident roots
of such prospectively lethal derelictions lie in a broadly
cast presidential indifference to Reason. What else ought
we expect from a president who openly prefers “attitude”
to “preparation,” whose expressed recollections
of the 18th century Revolutionary War was a conflict in which
American insurgents “successfully captured all of the
area airports,” and whose original therapy for Covid-19
was individual injections of household disinfectants like
Lysol?
There is
more. Among many other venerable sources, the Fragments
of Heraclitus attest to the antiquity and authoritativeness
of a Higher Law: “For all human laws are nourished by
one, which is divine. For it governs as far as it will, and
is sufficient for all, and more than enough.” Such Heraclitean
dicta, offered somewhere around 500 B.C.E., entered
easily into later Stoic philosophy and described a universal
and expectedly rational body of human law. Hard as it may
be to imagine amid American politics in 2020, this impressive
corpus was well familiar to many of the Founding Fathers.
Those people
actually read books . . . serious and intellectually challenging
books.
In 442 B.C.E.,
in his Antigone, Sophocles clarified the idea of
law as an act of discovery, thereby challenging any presumed
superiority of human rule-making. Exploring the inevitable
conflict between claims of the state and those of individual
conscience, this classic challenge has since been taken to
represent and underscore the incontestable supremacy of Higher
Law over man-made law. Later, in the nineteenth century, American
Transcendentalist philosopher Henry David Thoreau, noting
that men live with “too passive a regard for the moral
laws,” cited directly to Antigone as a useful
example of “civil disobedience.” Still later,
here in the United States, the derivative legal and ethical
conclusions of Antigone were learned and embraced
by Martin Luther King.
Though too
little understood or acknowledged, the authority of Natural
Law has a well-defined history in American society and American
politics. Prima facie, it is not “merely”
a pompous invention of interested philosophers or ethereal
university professors. As it may now be expressed in lay-person
parlance, Natural Law actually “has legs.”
Again, we
may return to Plato and Aristotle. Building upon Plato’s
theory of Ideas, which sought to elevate “nature”
from the distressingly transient sphere of contingent facts
to the “higher” realm of immutable archetypes
or Forms, Aristotle advanced in Ethics the derivative
concept of “natural justice.” Quoting the Antigone,
he argued (and in a juridical posture of perpetual significance)
“an unjust law is not a law.” This irreducible
position of justice stands in markedly stark contrast to narrowly
instrumental opinion of the Sophists – i.e., that justice
is never more than an expression of de facto supremacy,
or only what Thrasymachus describes “realistically”
in Plato’s Republic as “the interest
of the stronger.”
Were he
somehow made aware of such scholarly origins and jurisprudential
underpinnings, US President Donald J. Trump would likely judge
himself to be among contemporary “Sophists.” This
clarifying acknowledgment would be uttered unashamedly by
Mr. Trump, plausibly even with an unmitigated pride.
Similarly,
apropos of President Donald J. Trump’s legally disjointed
presidency, this Sophistic brand of Realpolitik has now become
the openly embraced foundation of U.S. foreign policy. Left
unmodified by the timeless and universal principles of a Higher
Law, the deleterious consequences of such a view for this
nation and for the wider world are easy to predict. These
consequences include tangible US declensions into catastrophic
war, potentially even a nuclear war.
Again and
again, history can be instructive. The Stoics, whose legal
philosophies arose on the threshold of the Greek and Roman
worlds, regarded Nature itself as humankind’s supreme
legislator. Applying Platonic and Aristotelian thought to
a then-hopefully emerging cosmopolis, they defined this nascent
order as one wherein humankind, by means of its seemingly
well-established capacity to reason, can commune directly
with the gods.
As this
definition required further expansion of Plato’s and
Aristotle’s developing notions of universalism, the
Stoics consciously articulated a further division between
lex aeterna, ius naturale and ius humanum.
Lex
aeterna is the law of reason of the cosmos, the logos
which rules the universe. As an emanation of cosmic reason,
human reason, it is assumed, rules the lives of men (and women).
It follows that natural law partakes of eternal law, though
it has a more limited range of application. Unlike the more
elitist conception of Plato (and, to a certain extent, even
Aristotle), the Stoic idea of an innate “right reason”
presumed no meaningful divisions between peoples. Instead,
in linking all persons with the interrelated cosmic order,
it established the essential foundations for an authentic
and indispensable universality or “oneness.”
In De
Republica, Cicero defined the state as a “coming
together of a considerable number of men who are united by
a common agreement about law and rights and by the desire
to participate in mutual advantages.” This definition
shed a useful light on the problems surrounding positivist
jurisprudence, a legal philosophy that values any state’s
edicts as intrinsically just and therefore obligatory. In
a suitably famous passage of De Republica, one well
known to Jefferson and to other Founders, Cicero set forth
the still classic articulation of Natural Law:
True
law is right reason, harmonious with nature, diffused among
all, constant, eternal; a law which calls to duty by its commands
and restrains from evil by its prohibitions . . . It is a
sacred obligation not to attempt to legislate in contradiction
to this law; nor may it be derogated from nor abrogated. Indeed,
by neither the Senate nor the people can we be released from
this law; nor does it require any but oneself to be its expositor
or interpreter. Nor is it one law at Rome and another at Athens;
one now and another at a late time; but one eternal and unchangeable
law binding all nations through all time . . .
But what
is to be done when positive law (which now includes US Constitutional
and statutory law) is at variance with “true law”?
The Romans had a remedy in such challenging circumstances.
They simply incorporated into their various statutes a contingency
clause that man-made law could never abrogate those obligations
that are inherently right or presumptively sacred.
On several
occasions, Cicero and others meaningfully invoked this clause,
or jus, against one particular statute or another.
In this way, the written law of the moment, never more than
an artifact of the extant civic community, remained correctly
subject to “right reason.” Plausibly, similar
invocations could prove sensible in the present US legal struggle
against Donald J. Trump’s multiple derelictions.
But back
to the classical legal foundations of our present moment.
St. Augustine reaffirmed that temporal law must always conform
to the unchangeable eternal law, which he had earlier defined
as “the reason or will of God (ratio divina vel
voluntas Dei).” Aquinas continued this tradition
of denying the status of law to prescriptions that were inherently
unjust (lex iniusta non est lex). “Human law,”
he wrote in the Summae, “has the quality of law only
insofar as it proceeds according to right reason; and in this
respect it is clear that it derives from the eternal law.
Insofar as it deviates from reason it is called an unjust
law, and has the quality not of law, but of violence.”
Again, such
classical legal commentaries could prove gainful to current
and still-expanding legal challenges to Donald J. Trump.
The concept
of a Higher Law, later to figure importantly in the early
legal development of the United States, was integrated into
medieval jurisprudential thought. In John of Salisbury’s
Policraticus, we learn: “There are certain
precepts of the law which have perpetual necessity, having
the force of law among all nations and which absolutely cannot
be broken.” Recognizing the idea that all political
authority must be intrinsically limited, John noted that the
prince “may not lawfully have any will of his own apart
from that which the law or equity enjoins, or the calculation
of the common interest requires.”
“
. . . or the calculation of the common interest requires.”
Viewed against the backdrop of the current US President –
now, correctly analogous to the medieval “prince”
discussed by John of Salisbury – such “perpetual
law” must necessarily prohibit any presidential placement
of personal interest over the discernibly “common interest”
of the United States. Natural Law, inter alia, still
exists to frustrate political injustice, a vital function
that failed to become materially relevant to Trump’s
earlier impeachment trial in the US Senate.
In the seventeenth
and eighteenth centuries, Natural Law doctrine was reaffirmed
and secularized by Grotius, the “father” of all
modern international law. Reviving the Ciceronian idea of
Natural Law and its underlying optimism about human nature,
Grotius is credited with liberating this idea from any once-remaining
dependence on ecclesiastical or Papal interpretation. Building
upon the prior speculations of the Dominican Francisco de
Vitoria, who had proclaimed a natural community of humankind
and on the universal validity of human rights, Grotius fashioned
a conceptual “bridge” from the Christian Commonwealth
of the Middle Ages to a new interstate society.
In this
connection, Grotius strengthened the idea of a universally
valid Natural Law, a system of norms transcending in obligation
all human law, including the cumulative positive law of any
single sovereign state. This is an idea that lies at the conceptual
heart of all US law, but it also entirely alien to the understanding
or capable vision of US President Trump.
There is
more. Unlike Machiavelli and Hobbes, Grotius did not consciously
reduce law to any presumed will of a prince or a separate
state. Rather, while recognizing such will as a properly constitutive
element within the much wider international legal order, he
had also understood that the binding quality of human edicts
must always be derived from a larger totality of “natural”
imperatives. Accordingly, he proceeded to reject raison
d’etat as a “just cause” for war, a
purposeful rejection that long since ceased to resonate in
Donald Trump’s personal ideas of presidential governance.
This brings
us directly to the conveyance of Natural Law ideas into American
political theory, a key transmittal that was preeminently
the work of John Locke’s Second Treatise on Civil
Government (1690). The Declaration-specified American
“duty” to revolt whenever governments commit “a
long train of abuses and usurpations” flows largely
from Locke’s seminal notion that civil authority can
never extend beyond securing humankind’s natural rights.
Regarding current legal struggles between Donald J. Trump
and all American sources of faithful law enforcement, the
motto that Jefferson chose for his own seal was: “Rebellion
to Tyrants is Obedience to God.”
The right
to pursue happiness, which Jefferson drew largely from Burlamaqui’s
incorporation into natural law, had nothing to do with today’s
shallow presidential celebrations of raw commerce, belligerent
nationalism or exaggerated materialism. Not at all. In any
event, by literally any discernible standards of judgment,
the United States has likely never been a more unhappy society
than it is today.
Though happiness
was viewed by Thomas Jefferson (in plausible deference to
Pufendorf and Locke) as a welcome condition to be achieved
as the plausible result of humankind’s presumed commitment
to reason, left unspecified were any corresponding or corollary
presidential obligations.
Above all
else, the Declaration of Independence implemented
a fundamental social contract that sets limits on the power
of any government. Its central purpose, therefore, was to
better articulate a set of universally valid constraints upon
all secular political authority. Moreover, as justice, which
is necessarily based on natural law, binds all human society,
the particular rights described by the Declaration of
Independence can never be reserved only to Americans.
When Trump-Era US foreign policies violate core elements of
international human rights law, including the authoritative
law of war or law of armed conflict, there are simultaneously
created various relevant issues of US “command responsibility.”
It’s
not complicated. By ready and verifiable deduction, natural
rights must extend to all human societies, and can never be
rendered subject to any abrogation by positive law. Today,
of course, this general applicability of an immutable imperative
to “do justice” is still ignored by an American
President who remains openly disinterested in human rights,
most notably on matters regarding immigration to the United
States and the related granting of refugee or asylum status.
Notably, such expectations of international law are binding
upon the United States prima facie, both by virtue
of the ubiquitous and universal Natural Law, but also in consequence
of the US Constitution (especially Art. VI, the “Supremacy
Clause”) and various leading US Supreme Court decisions
(especially the Pacquete Habana, 1900).
The compelling
theory of a Higher Law, which should have had a designated
place in any current legal assessments of President Donald
J. Trump, is based on clarity, self-evidence and coherence.
Its express legal validity can never be shaken by any presumed
presidential imperatives of geopolitics or “America
First.” As noted by Swiss scholar Emmerich de Vattel
in the 1758 edition of The Law of Nations (a work
in which several American fathers of independence discovered
important and usable maxims of political liberty): “No
agreement can bind, or even authorize, a man to violate the
natural law.”
Prudently,
Vattel cautioned that only a strict obedience to higher legal
obligations can produce a virtuous and thereby safe and prosperous
state: “One would have to be very ignorant of political
affairs not to perceive how much more capable a virtuous Nation
is of forming a happy, peaceful, flourishing and secure state,
respected by its neighbors and formidable to its enemies.”
Earlier, when still going forward with imperative impeachment
proceedings, Vattel’s wisdom could have had a distinctly
proper and utilitarian place. At a minimum, it could have
stood as an unchallengeable corrective to the manifestly unjust
imperatives of Trump’s” America First.”
In the end,
Higher Law expectations of the American political tradition
can never be self-enforcing. Instead, defied again and again
by transient political elites, these expectations can only
be sustained where individual citizens would first prepare
to act (as does Antigone before Creon) according to conscience.
“Why has every man a conscience,” asks Thoreau
in his foundational American essay on Civil Disobedience:
I
think that we should be men first, and subjects afterwards.
It is not desirable to cultivate a respect for the law, so
much as for the right. The only obligation which I have a
right to assume is to do at any time what I think right. It
is truly enough said that a corporation has no conscience;
but a corporation of conscientious men is a corporation with
a conscience.
Where are
such “conscientious men” (and of course women)
to be found? Certainly not, says Thoreau insightfully, among
the “commonly esteemed good citizens.” These mass
men and women serve the state “not as men mainly, but
as machines, with their bodies.”
Placing
themselves “on a level with wood and earth and stones,”
these creations of the “mass” (the Danish philosopher
Soren Kierkegaard would have preferred the term “crowd;”
the German philosopher Friedrich Nietzsche the “herd”)
are incapable of making essential moral or legal distinctions.
This incapacity is easily enough recognized today, where so
many United States Senators remained unwilling to acknowledge
the brutally stark differences between grievous presidential
wrongdoing and legally correct presidential behavior.
Could the
United States still create the conditions for a conscientious
“corporation” though the enhanced education of
an informed citizenry? From Rousseau to the present, this
has been the preferred path of virtually all democratic theory.
Rousseau believed that law and liberty could best exist in
a city-state of properly educated voters like Geneva.
Accordingly,
he stipulates in Book III of the Social Contract:
First,
a very small state where the people can be readily got together
and where each citizen can with ease know all the rest; secondly,
great simplicity of manners, to prevent business from multiplying
and raising thorny problems; next, a large measure of equality
in rank and fortune, without which equality of rights and
authority cannot long subsist; lastly, little or no luxury
– for luxury either comes of riches or makes them necessary.
But the
contemporary United States is not at all like Geneva; Rousseau’s
cherished idea that a majority (even under very specified
conditions) can be trusted with what is best for “The
People” is too-often mistaken. Now, the dangers of the
“general will” have been made manifest not only
in the exploits of Robespierre and Napoleon, but also in the
rapidly dissembling presidency of Donald J. Trump.
How to conclude?
Rousseau’s deification of The People points unerringly
toward the opposite of our own American Higher Law tradition.
The Genevan made “The People” sovereign; for us,
at least ultimately, sovereignty must come to reside in The
Citizen. Earlier, as Thoreau had understood, apathy, complacency,
passivity and moral cowardice are the inevitable qualities
found in the “mass” of men and women. True hope,
therefore, can lie only in those residually still-thoughtful
individuals whose primary allegiance is directed toward properly
overriding and universal laws; that is, not in the presumptive
“good citizen,” but rather in the indispensable
“wise minority.”
It is time
to finally inquire: What is the real task of this body of
enlightened persons, one which could in fact represent a true
and distinct majority in formation? Thoreau speaks truthfully
of civil disobedience, one still possible act of “counter-friction.”
Now, closing an era dominated by a consistently law-violating
American President, such harms could still include the onset
of a catastrophic war – Thoreau would urge, as he once
did about still-earlier policy deformations (see Civil Disobedience):
“Let your life be a counter-friction to stop the machine.
What I have to do is to see, at any rate, that I do not lend
myself to the wrong which I condemn.”
To this
point, most visibly at partisan political levels, Thoreau’s
earlier wisdom has fallen on to-many variously deaf political
ears. At the same time, we have seen a growing number of law-supporting
individuals and institutions stand up to an otherwise intolerable
administration of systematic law violation.
This essay
has explored certain oft-disregarded jurisprudential remedies
to the still-injurious Trump Presidency. For authoritative
reference, law enforcing efforts directed against continuing
law violations of this President could more generally avail
themselves of pertinent Higher Law arguments. Such a potentially
augmented path is suggested here because: (1) the Constitution
of the United States is indisputably and perpetually constructed
upon core principles of Natural Law/Higher Law; and (2) these
antecedent and overriding legal principles are ultimately
binding upon all citizens and government officials.
To most
suitably fashion such indispensable strategies, careful attention
ought to be paid not only to various applicable statutory
and Constitutional expectations, but also to everlasting Higher
Law traditions of the United States. While less explicit and
thereby harder to identify and operationalize, these utterly
core traditions are in no way inferior to what has previously
been codified. Accordingly, they should never be ridiculed,
minimized or disregarded.
Though ignored
in the soon-to-be-completed Trump presidency, certain basic
and immutable elements of the Western Higher Law tradition
should still figure importantly in future efforts to protect
the United States from a similarly catastrophic American leadership.
Such jurisprudence-based efforts at citizen protection would
be not only justifiable, but indispensable. As Roman statesman
Cicero explained famously more than 2000 years ago, “The
safety of the people shall be the highest law.”
by
Louis René Beres:
Pandemic
As Opportunity
Are
Terrorists Abnormal?
War,
Politics and the Planet Earth
Intellect
& Politics: Trumpian Opposites
Emptiness
& Consciousness: Unseen Limits of American Mind
Trump
and the Destruction of the American Mind
Empathy
& Intelligence
The
Crowd Is Untruth
In
Praise of Folly: Trump Presidency
Repairing
the World at Its Source
Emptiness
and Consciousness
Nuclear
Deterrence Conflict
Trump's
Anti-Intellectualism
Lawless
Retreat
Trump
- Triumph of Anti-Reason
In
the Absence of Wise Councel
Futile
Goal of Winning Wars
Money
& Politics: A Look Behind the News
Trump's
War Against the Intellect
America
Becomes What Its Founding Fathers Feared
Victory
as Vanishing Point in the Age of Terror
Against
a Nuclear-Free World
The
Politics of Pre-emption
Crowds,
Belonging and Victory Over Death
The
Tip of the Jihadist Iceberg
Fixing the World
When
Science May Not Be Enough
Facing
future Wars
America's
Senseless Wars
Is
There a Genocide Gene?
Slow
Death of America
To
Fix a Broken Planet
Our
Fractured Union
Affirming
Life in the Age of Atrocity
War,
Truth and the Shadows of Meaning
Occupy
Wall Street
What
Is Important?
Social
Network Anxiety
Disappearance
of the Philosopher Kings
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