The constitutional republic of the United States of America has just formally entered an existential crisis as serious as the breakdown of civil society which brought about its civil war of 1861-1865.
With the criminal indictment of Donald J. Trump by a politician affiliated with the Democrat Party, one faction of the American elite has abandoned government of the people, by the people and for the people. Such authentic democracy, as once honored by Abraham Lincoln during a brutal civil war, has been replaced with factional criminalizing political rivals to prevent them from winning office.
This process of faction warring against faction, where no prisoners are taken and no mercy shown, is the very evil Madison described in his Federalist Paper No. 10 as the greatest danger which could ever threaten democratic systems.
As Sir John Glubb observed, the normal lifespan of a ruling dynasty or a powerful country, over the course of human history, has been about 250 years (The Fate of Empires and the Search for Survival, 1978).
This year, 2023, is the 247th year of the United States as an independent, constitutional republic. Has the time come for the evil of factionalism to bring an end to our republic?
In September 1796, the first American president, George Washington, wrote an open letter to the American people as he left the presidency having served two terms in office. In his letter, he foresaw the very systemic factional dysfunctions now polarizing Americans and warned of the serious danger to the republic to be brought about by any degradation of the civic order into such mean-spirited and self-seeking contestations of interest and power.
Washington wrote that avoiding such factionalism would be “all important to the permanency of your felicity as a people.”
Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally. This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form, it is seen in its greatest rankness and is truly their worst enemy. The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later, the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty. Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it. It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection.
Washington named the deadly disease which might destroy the republic:
All obstructions to the execution of the laws, all combinations and associations under whatever plausible character with the real design to direct, control, counteract or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle and of fatal tendency. They serve to organize faction; to give it an artificial and extraordinary force; to put in the place of the delegated will of the nation the will of a party, often a small, but artful and enterprising minority of the community; and according to the alternate triumphs of different parties, to make the public administration the mirror of the ill concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common councils and modified by mutual interests. However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines by which cunning, ambitious and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.
In harmony with Washington’s warning, the Caux Round Table Principles for Government require, as a norm of social justice, that:
Holders of public office are accountable for their conduct while in office. They are subject to removal for malfeasance, misfeasance or abuse of office. The burden of proof that no malfeasance, misfeasance or abuse of office has occurred lies with the officeholder.
The state is the servant and agent of higher ends. It is subordinate to society. Public power is to be exercised within a framework of moral responsibility for the welfare of others. Governments that abuse their trust shall lose their authority and may be removed from office.
Public office is not to be used for personal advantage, financial gain or as a prerogative manipulated by arbitrary personal desire. Corruption – financial, political and moral – is inconsistent with stewardship of public interests. Only the rule of law is consistent with a principled approach to use of public power.
The rule of law shall be honored and sustained, supported by honest and impartial tribunals and legislative checks and balances.
When the criminal law is invoked (abused?) to single out a political rival for mean reasons of personal fear or ambition, justice collapses and civil strife begins, where “the strong do what they can and the weak suffer what they must.”
U.S. Supreme Court Justice Oliver Wendell Holmes wrote in an opinion that “a page of history is worth a volume of logic.”
What history can teach us of the dangers now facing the American people?
The collapse of the Roman Republic.
How fitting, I suppose, that the indictment of Donald Trump came in the month of March, when the final years of the Roman Republic began on the Ides of March 44 BC with the assassination of Julius Caesar, like Trump a man of outsized ego and ambition.
In his play Julius Caesar, Shakespeare well put the consequences of that death for the Roman people. He has Antony say:
Over thy wounds now do I prophesy …
A curse shall light upon the limbs of men.
Domestic fury and fierce civil strife
Shall cumber all the parts of Italy.
Blood and destruction shall be so in use,
And dreadful objects so familiar,
That mothers shall but smile when they behold
Their infants quartered with the hands of war,
All pity choked with custom of fell deeds,
And Caesar’s spirit, ranging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch’s voice
Cry “Havoc!” and let slip the dogs of war,
That this foul deed shall smell above the earth
With carrion men, groaning for burial.
What has gone wrong with the American people? In a word, the loss of moral rectitude.
In his farewell letter to the American people, Washington would say: “It is substantially true that virtue or morality is a necessary spring of popular government.”
There is a precedent for Washington’s admonition in the collapse of the Roman Republic.
Some years ago now, I was reading Cicero’s letters to his friend Atticus, who was then on a business trip to Greece. In a letter of June, 59 BC, Cicero described the politics of Rome, then dominated by the first triumvirate – a junta of Crassus (money), Pompey (soldiers) and Caesar (brains). Cicero wrote that the Roman elite was petulant. When Caesar entered the theater, no one clapped. When a playwright inserted a pun on Pompey’s name into a performance, there were 12 standing ovations from the audience. Young Claudio was running around spreading inside stories of juries being bribed and other abuses of power.
Then Cicero concluded: “These things, while they make us glad that our judgments are still free, make us the more sad because we see that our virtue is in chains – nos virtutem adligata est.
From that loss of virtue, there was no recovery. History was a straight line of factionalism and bloodshed down to 27 BC, when the Roman Empire was put in place by Octavian, Caesar’s great-nephew and adopted son. The strong had done what they could and the weak would henceforth suffer as they must.
The indictment brought on Tuesday April 4, 2023 against Donald Trump by the New York County district attorney states that his alleged crime was to, 34 times, make a false entry in the business records of an enterprise with respect to an invoice from an attorney.
The indictment further alleges that Donald Trump himself personally “made and caused” such entry with the intent to “commit another crime.” No other crime or criminal statue is mentioned in the indictment.
Nor does the indictment state why the entry for payment of an invoice from an attorney was false. There is no recitation of why the services being paid for by Trump were not legal in form or substance.
Such an indictment, on its face, seems arbitrary and capricious. Under the rule of law, any government action or decision which is arbitrary or capricious is usually thought to be, per se, irrational and so illegal. The Administrative Procedure Act instructs courts to “hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”
A U.S. district court in Arizona has ruled that the U.S. Department of Justice’s narrow interpretation of the requirements for a criminal misdemeanor under the Endangered Species Act went beyond unreviewable prosecutorial discretion and its policy was arbitrary and capricious and in violation of the Administrative Procedure Act (WildEarth Guardians v. U.S. Department of Justice, U.S. District Court Arizona, June 27, 2017).
In this regard of selective prosecution based on arbitrary and capricious prejudice, consider similar conduct by Hillary Clinton. Several months before Donald Trump made payment of such invoices from an attorney in 2017, Hillary Clinton, then a candidate running against Donald Trump for the office of president of the United States, did seemingly authorize her campaign to pay invoices received from the campaign’s attorneys for their work in procuring a false and defamatory statement (the Steele dossier), which was leaked to the public, accusing Donald Trump of serving as an agent of or as an accomplice conspiring with the Russian government. This false statement was procured by the Clinton campaign in order to work a fraud on the American people that would influence the outcome of the 2016 presidential election.
There has been no indictment of Hillary Clinton or anyone associated with her campaign for making a false bookkeeping entry to hide the origin of the creation and dissemination of that false and defamatory disinformation designed to manipulate an election outcome.