A moment I’ve been anticipating for nearly a decade arrived today. Not only that, it also reaffirmed a faith I’ve had for 50 years. The moment came about 3:30 p.m. (CDT) when a criminal court jury in New York City convicted ex-President Donald Trump on 34 counts of falsifying business records in order to influence the 2016 election.
The moment may not last. Early indications are that things are about to get ugly and divisive again. But at least for the time being, it looks like the rule of law will prevail.
That’s important. The rule of law isn’t just a political talking point. And, with me, it’s one of those areas where the political gets personal and the personal gets political. Not only did I spend 15 years covering jury trials in Tennessee and Illinois, but in college and grad school, I studied English constitutional history. It gave me an odd combination of arcane theoretical knowledge and practical courthouse lore gathered from bailiffs, sheriff’s deputies and trial lawyers during noon recess or impromptu legal seminars over pitchers of beer.
(If you’ll permit me a brief sidebar, the best chili this side of heaven is served at Hoskins Drug Store across the street from the Anderson County Courthouse in Clinton, Tenn. It’s still there, and it’s worth the 10-mile side trip from I-75 if you’re passing through around lunchtime.)
So I was thrilled — and no, it’s not too strong a word — when the jury came back with guilty verdicts on all 34 counts in the indictment. The case will go up on appeal, and, to coin a phrase, it ain’t over till it’s over. But the jury did its job. And in so doing, it upheld an Anglo-American legal principle that dates back to the 1200s
So, at least for the moment, I’m feeling reasonably optimistic.
The immediate reaction from Trump’s political allies was about what I might have predicted. “Today is a shameful day in American history,” said US House Speaker Mike Johnson, R-La. “This was a purely political exercise, not a legal one.” Johnson, who fancies himself a constitutional lawyer, was somewhat circumspect (although as an officer of the court he might have been better advised to simply note the verdict can be appealed instead of trying, however tacitly, to delegitimize the state courts in New York). Rep. Elise Stefanik, R-NY, who is not a lawyer, openly went there, saying the verdict showed “how corrupt, rigged, and unAmerican the weaponized justice system has become under Joe Biden and Democrats”
In that Stefanik echoed Trump, who blasted what he called a “rigged trial by a conflicted judge who was corrupt.” Trump also thundered, in all-caps in a fund-raising email, “WE MUST MAKE JOE BIDEN REGRET EVER COMING AFTER US!”
Reaction from Democrats was more restrained. Michael Tyler, the comms director for President Biden’s re-election campaign, said. “In New York today, we saw that no one is above the law.” I thought Manhattan district attorney Alvin Bragg, went to the heart of the matter at a press conference shortly after the verdict was returned:
Twelve everyday jurors vowed to make a decision based on the evidence and the law and the evidence and the law alone. Their deliberations led them to a unanimous conclusion beyond a reasonable doubt that the defendant Donald J Trump is guilty. […] While this defendant might be unlike any other in American history, we arrived at this trial and ultimately today this verdict in the same manner as every other case.
And that’s where the political — or jurisprudential, to use a more accurate term — got to be personal with me. You see, 50 years ago, I was was writing my doctoral dissertation at the University of Tennessee — a real page-turner titled “The Idea of Limited Government in English History Plays During the Reign of Elizabeth I, 1558-1603.” Since I was an English major, I approached it as a literary theme. But my research led me to bedrock fundamentals like Magna Carta, the great charter of 1215 in which King John of England promised:
NO Freeman shall be taken or imprisoned, or be disseised of his Freehold [ousted from his land], or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.
I was reading that in 1973, with the Watergate hearings on the TV in the background. And I liked to joke that my dissertation was the only one in the Renaissance drama program with a news peg since President Nixon was up against the Law of the land (lex terrae in Magna Carta). And I thought of it again Thursday when Manhattan DA Bragg praised the “[t]welve everyday jurors” who returned the verdict in People of New York v. Donald John Trump.
Another news peg, 50 years later!
Among the plays that figured heavily in my dissertation were Shakespeare’s Henry IV and Henry V. A pivotal scene occurs when Prince Hal becomes king upon the death of his father, Henry IV. Throughout his father’s reign, Prince Hal has caroused at taverns with a group of common drunks and petty criminals, most prominently Sir John Falstaff, characterized (quite accurately by Wikipedia) as “corpulent, jolly and debauched” and consequently “very popular with audiences at the time, and for many years afterwards.”
The scene unfolds as Hal, newly elevated to the throne as King Henry V, walks across the stage with the Lord Chief Justice of England. Falstaff sees them, and Falstaff cries out:
FAL. God save thee, my sweet boy!
KING. My Lord Chief Justice, speak to that vain man.
CH. JUST. Have you your wits? Know you what ’tis you speak?
FAL. My King! my Jove! I speak to thee, my heart!
KING. I know thee not, old man: fall to thy prayers.
How ill white hairs become a fool and jester! (Hen. IV, Pt. 2, 5.5)
The moral of the story, to audiences in the last years of Queen Elizabeth, was clear. As king of England, Henry has now cast his lot with the Lord Chief Justice.
Another scene involving a king of England and a Chief Justice occurred a few years later, when King James I decided a “controversy of land” known to posterity as the Case of Prohibitions of 1607. Edward Coke, the Chief Justice of the Court of Common Pleas, overruled the king. In Coke’s Institutes, which came to be the basic law textbook for the next two centuries in England and America, he reported the conversation like this:
[…] it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England […] that the law was the golden met-wand [measuring rod] and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege [That the King ought not to be under any man but under God and the law.].
Bracton, aka 13th-century jurist Henry de Bracton, went on to explain, “The king must not be under man but under God and under the law, because the law makes the king… for there is no rex [king] where will rules rather than lex [law].” (Ellipsis in the original.) That dictum figured heavily in my dissertation, too, egregious pun in medieval dog Latin and all. England was emerging from feudal anarchy in the period I was writing about, and there was almost a palpable sense in the history plays that only the orderly processes of law, many of them harking back to Article 39 of Magna Carta, could ensure a peaceful succession to the throne.
Sound familiar? Today we don’t quip about lex and rex. Instead we talk about the peaceful transition of power. But it’s the same principle.
Flash forward from 1235 (or 1607) to Nov, 23, 2016, soon after Donald John Trump was elected president. In a New York Times interview he said, “As far as the, you know, potential conflict of interests, though, I mean I know that from the standpoint, the law is totally on my side, meaning, the president can’t have a conflict of interest.” Through all the word salad, it rang an alarm bell, and I saved it to a blog under the headline, “Rex and lex according to Trump and Henri de Bracton, De legibus & consuetudinibus Angliæ (ca. 1235).” I also saved a meme I shared on Facebook the next day quoting Trump — “The law’s totally on my side, the President can’t have a conflict of interest” — and Nixon — “When the President does it, that means that it is not illegal.”
(The Nixon quote came from a 1977 televised interview by British journalist Sir David Frost.)
Even before Trump took office, alarm bells were going off. “A country once defined by self-government has openly, clearly, enthusiastically delivered its fate into the hands of one man to do as he sees fit,” said commentator Andrew Sullivan, then of New York magazine, the day after the election.” Lex? Rex? “This is now Trump’s America,” said Sullivan. “He controls everything from here on forward. He has won this campaign in such a decisive fashion that he owes no one anything.” (He lost the popular vote, with 46.1 percent to Hillary Clinton’s 48.2 percent, but swept the electoral college 304-227.)
Sullivan said Trump was “a supremely talented demagogue who created an authoritarian cult with unapologetically neo-fascist rhetoric”; he predicted the “Supreme Court may well be shifted to the far right for more than a generation to come” and Trump “will have a docile, fawning Congress for at least four years. We will not have an administration so much as a [royal] court.”
Dahlia Lithwick, host of the legal affairs podcast Amicus, was equally prescient. Also on Nov. 9, 2016, she wrote in the online magazine Slate the “fate of the entire legal apparatus of government is in the balance.” She didn’t hold out much hope:
The asymmetry here was always plain. Trump was either going to win or he was going to dispute his loss and cash in. Clinton, for her part, was always going either to win and to be unable to govern or to lose and concede graciously. If one is unconstrained by consequences and unafraid of normalizing the intolerable, such choices become vastly easier.
For those of us who believe—as the Clintons do—in the basic tenets of constitutional democracy, in respect for the law, and the courts, and for neutral processes, Trump is the end of that line. These words that we use, due process and equality and justice have actual force and meaning. They are the tools and also the end product of the entire enterprise of democracy. They are the only bulwark against totalitarianism we know.
Such hope as she held out, Lithwick put in the legal profession:
Lawyers are by definition small-c conservative, incrementalist, and cautious. We don’t do revolution if a strongly worded footnote would suffice. We believe in facts. We believe in neutral rules and principles of fairness. We believe in judicial independence. We will be more apt than anyone to try to shift along in Trump’s America, doing our best. Hoping to make it a little more just for the weakest around the margins.
Again, I think Lithwick was prescient. Would it be going too far to say that’s what a jury in Manhattan did today? Shifted along, doing their best in Trump’s America? King John and Henry de Bracton wouldn’t recognize a modern trial jury, and I don’t want to push the analogy too far. But I’d say today’s verdict evened the score, and now it stands at Rex 1-Lex 1.
Links and Citations
Joan E Greve and Nick Robins-Early, “Trump conviction in hush-money case sparks sharply divergent reactions,” Guardian, May 31, 2024 https://www.theguardian.com/us-news/article/2024/may/30/trump-guilty-hush-money-republicans-democrats-reaction.
Dahlia Lithwick, “Will Trump’s Rule of Law Be Our Rule of Law?” Slate, Nov. 9, 2016 https://slate.com/news-and-politics/2016/11/trumps-threat-to-the-rule-of-law.html.
Hugo Lowell and Victoria Bekiempis, “Donald Trump found guilty of hush-money plot to influence 2016 election,” Guardian, May 31, 2024 https://www.theguardian.com/us-news/article/2024/may/30/trump-guilty-hush-money-republicans-democrats-reaction.
Andrew Sullivan, “The Republic Repeals Itself,” EARLY AND OFTEN, New York, Nov. 9, 2016 https://nymag.com/intelligencer/2016/11/andrew-sullivan-president-trump-and-the-end-of-the-republic.html?mid=twitter_nymag.
[Uplinked June 1, 2024]
Ordinary Time 