An American Tragedy

Yesterday’s decision of a jury in New York City to find Donald Trump guilty of 34 counts of falsifying business records with the intent of covering up a crime puts before the American people this question: how much do they want their constitutional republic to survive?

One notable and now relevant historic precedent was the factional self-destruction of the Roman Republic.

A second relevant and most notable precedent was Maximilien Robespierre’s terror during the French Revolution to cleanse France of “enemies of the people.”  The law which established the tribunals seeking out those “enemies of the people” and killing them was the Law of 22 Prairial (10 June 1794)

That law legalized the following procedures:

The Revolutionary Tribunal is instituted to punish the enemies of the people.

The enemies of the people are those who seek to destroy public liberty, either by force or by cunning.

The following are deemed enemies of the people: those who … have sought to disparage or dissolve the National Convention and the revolutionary and republican government of which it is the center.

Those who have deceived the people or the representatives of the people in order to lead them into undertakings contrary to the interests of liberty.

Those who have sought to inspire discouragement.

Those who have disseminated false news in order to divide or disturb the people.

Those who have sought to mislead opinion and to prevent the instruction of the people, to deprave morals and to corrupt the public conscience, to impair the energy and the purity of revolutionary and republican principles or to impede the progress thereof, either by counterrevolutionary or insidious writings or by any other machination.

The penalty provided for all offenses under the jurisdiction of the Revolutionary Tribunal is death.

The proof necessary to convict enemies of the people comprises every kind of evidence, whether material or moral, oral or written, which can naturally secure the approval of every just and reasonable mind; the rule of judgments is the conscience of the jurors, enlightened by love of the Patrie; their aim, the triumph of the Republic and the ruin of its enemies.

If either material or moral proofs exist, apart from the attested proof, there shall be no further hearing of witnesses, unless such formality appears necessary, either to discover accomplices or for other important considerations of public interest.

The law provides sworn patriots as council for calumniated patriots; it does not grant them to conspirators.

We should note in this law that those accused had no right of defense.  If there was evidence against them, they could not contravene it with counterevidence of their own. And no legal counsel could assist them.

More importantly, the standard for conviction was whatever the jurors might believe, no matter how false such beliefs were or how prejudiced the jurors were.

In the criminal proceeding against Donald Trump and in line with the Law of 22 Prairial, the judge left it to the conscience of the jury to find a crime.  His jury instructions encouraged them to indulge in speculation and prejudice.

Nor, during the trial, did the judge permit Trump to have effective assistance of counsel.  The judge even refused to let the jury hear germane and material testimony from an expert witness that no crime had been committed under federal election laws.

Trump’s trial, in other words, was a diluted measure of French revolutionary terror seeking to destroy an “enemy of the people.”  The revolutionary faction on the hunt for its enemies being the Democrats in the White House desperate to crush through state repression those whom they fear as “counter-revolutionary” activists.

Fear of such opposition to the moral hegemony asserted by the Democrats has been given the name of “Trump Derangement Syndrome,” a kind of elite psychosis.

Looking back, we might even say that Robespierre, Saint Just and other Jacobins also were under the influence of some derangement of mind and heart.

The dynamic of breaking the law in order to defend the law was presciently described by James Madison in his 10th Federalist Paper on factionalism.

Madison considered any propensity for the “violence of faction” to be a “dangerous vice.”  He reasoned:

“The instability, injustice and confusion introduced into the public councils have, in truth, been the moral diseases under which popular governments have everywhere perished.” …

“The latent causes of faction are thus sown in the nature of man and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society.  A zeal for different opinions concerning religion, concerning government and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.” …

“It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good.  Enlightened statesmen will not always be at the helm.”

John Locke, in his 1690 second treatise concerning civil government, had previously rendered an opinion as to abuse of lawful authority as we have seen accomplished in the criminal trial of Donald Trump.

According to Locke, the purpose of civil government is to protect us from “the corruption and viciousness of degenerate men.”  Thus, a government may be directed to no other end but the peace, safety and public good of the people”.

Locke proposed that all power is given to public officials as a trust and that whenever that trust is manifestly neglected or opposed, the powers which have been given in such trust must be forfeited and returned to the people.  A public trust may never be used to further personal ambitions.  Making use of power not for the good of those who are under it, but for one’s own private, separate advantage, is tyranny.  “Wherever law ends, tyranny begins,” he said.

Locke insisted that whenever rulers “make themselves or any part of the community, masters or arbitrary disposers of the lives, liberties or fortunes of the people,” they forfeit their trust and lose their authority.  They, thus, “put themselves into a state of war with the people.”

“Great mistakes in the ruling part, many wrong and inconvenient laws and all the slips of human frailty will be born by the people without mutiny or murmur.  But if a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people and they cannot but feel what they lie under and see whither they are going; it is not to be wondered, that they should then rouze themselves and endeavour to put the rule into such hands which may secure to them the ends for which government was at first erected.” (Sec 225)

“The end of government is the good of mankind and which is best for mankind, that the people should be always exposed to the boundless will of tyranny or that the rulers should be sometimes liable to be opposed, when they grow exorbitant in the use of their power and employ it for the destruction and not the preservation of the properties of their people?” (Sec 229)

“Here, it is like, the common question will be made, who shall be judge, whether the prince or legislative act contrary to their trust? … To this I reply, the people shall be judge; for who shall be judge whether his trustee or deputy acts well and according to the trust reposed in him, but he who deputes him and must, by having deputed him, have still a power to discard him, when he fails in his trust?” (Sec. 240)

With the conviction of Donald Trump, no matter how the case finally comes out after appeal courts have considered its lawfulness and fairness, the American people now face a watershed November election in their political history: will this abuse of power by the Democrats be ratified by the people or will the Democrats be found to have forfeited their public trust?

At stake for the American is nothing less than the rule of law and their constitutional order.

The Caux Round Table Principles for Government accept the righteousness of the rule of law, looking at precedents in different wisdom traditions – Ezekiel 34 in the Old Testament, Cicero, the Buddha’s middle way, Qur’anic guidance in keeping one’s trusts (Amanah) and serving as God’s steward (Khalifa), Mencius on the right of revolution, Confucius on the need for virtue (te).

Our principles include the following:

Public power is held in trust for the community.

Power brings responsibility.  Power is a necessary moral circumstance in that it binds the actions of one to the welfare of others.

Therefore, the power given by public office is held in trust for the benefit of the community and its citizens.  Officials are custodians only of the powers they hold.  They have no personal entitlement to office or the prerogatives thereof.

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.

Justice shall be provided.

The civic order and its instrumentalities shall be impartial among citizens without regard to condition, origin, sex or other fundamental, inherent attributes.  Yet, the civic order shall distinguish among citizens according to merit and desert where rights, benefits or privileges are best allocated according to effort and achievement, rather than as birthrights.

The civic order shall provide speedy, impartial and fair redress of grievances against the state, its instruments, other citizens and aliens.

The rule of law shall be honored and sustained, supported by honest and impartial tribunals and legislative checks and balances.