Our Civic Leaders Are Not Above the Law

In the past couple weeks since Trump’s arrest, I’ve seen some reactions from his conservative supporters along these lines: “If they can go after Trump, they can also go after you”—which is the whole point of the rule of law.

Donald Trump was indicted on 34 counts of falsifying business records. He and his defenders claim the indictment is a “witch hunt” and is evidence that the justice system has become politicized.

Politicized justice is a real problem. In many countries, the courts are not independent and there are few checks and balances protecting their integrity. In such cases, courts become little more than rubber stamps for executive rule or, on the other end of the spectrum, for the tyranny of the majority.

Judicial independence is a cornerstone of the rule of law for a free society. Without it, newly empowered parties have a habit of prosecuting, imprisoning, and even executing former presidents and prime ministers on flimsy charges as political revenge. Officeholders will seek to stay in power by any means necessary to escape prosecution. Political life deteriorates into a soap opera of charismatic criminals rotating between prison and the presidency.

But that should not lead us to make the opposite mistake and grant all former presidents and officeholders immunity from any legal prosecution. Officeholders are human, like the rest of us, and just as prone to sin, corruption, and criminality. As Christians, we should know this better than anyone.

In fact, it is precisely because of their access to power and wealth that officeholders are likely to face even greater temptation and have more opportunity to commit crime. Unless we think they are somehow immune to such temptation, we should assume that some of our public officials are going to give in.

And they have often given in. Four recent governors of Illinois served time in prison for corruption—a small sample of at least 28 governors convicted of various crimes in American history. Hundreds—yes, hundreds—of senators and representatives have been accused of misconduct, and dozens have been convicted of criminal acts.

Presidents and their appointees are not immune. In the Ulysses Grant administration, the interior secretary, attorney general, secretary of the navy, and secretary of war—among many, many others—were all widely reported to have been corrupt. Over 100 lower officials in the Treasury Department were convicted of bribery in a massive conspiracy to help people avoid whiskey taxes. And that was only one of several scandals that plagued the Grant presidency.

In the Warren Harding administration, the interior secretary (again) was convicted of accepting a bribe to give an investor control of oil reserves in Wyoming. It was one of the biggest and most blatant corruption scandals in American history.

And, of course, president Richard Nixon obstructed justice and abused power in the Watergate scandal, crimes for which he would have been impeached and prosecuted had he not resigned and been pardoned.

Charles Colson, former chief counsel for Nixon, was also arrested for the part he played in the scandal. He later told a federal judge he had been “an arrogant, self-assured man in the ruthless exercise of power,” before coming to faith as an evangelical Christian. He learned how easy it is to rationalize illegal behavior when you’re in a position of power—and that even when civic leaders act with the best of intentions, “your means are as important as your ends.”

By contrast, Nixon still tried to justify his behavior after he left office: “When the president does it, that means it is not illegal.” In his view, presidents are, by definition, incapable of committing a crime when they claim their action is in defense of national security.

Nixon’s claim calls to mind Louis XIV, the absolutist king of France in the 17th century, who claimed “L’Etat, c’est moi,” or “I am the state”—a claim so famously villainous that George Lucas put a version of it into the mouth of soon-to-be Emperor Palpatine in Star Wars. Nixon, Louis, and Palpatine believed that the king was the law, such that whatever the king did was legal by virtue of the king being the one who did it.

At the same time as Louis, but across the English Channel, Scottish jurist and Presbyterian pastor Samuel Rutherford wrote a book with the title Lex Rex­ (“Law is King”), which countered the “divine right of kings” and became the bedrock for constitutionalism, the rule of law, and self-government.

Holding public officials accountable when they give in to the temptation to sin is essential. If we do not, we’ve sent a clear message that presidents and their appointees are above the law. Future presidents and presidential candidates will take note and act with impunity. That is why democracies around the world have indicted, prosecuted, and imprisoned heads of government for corruption.

That is why we have checks and balances, judicial independence, and, above all, the rule of law. Holding former presidents to the same standard as the rest of us is an important test of self-government.

I do not know if Trump is guilty of the crimes for which he was indicted last week—and neither do you. A grand jury of Manhattan citizens judged there was sufficient evidence to try the case in court, and Trump is entitled to due process before we rush to judge him in the court of public opinion. And as Christians, we should all hope for the truth to be revealed, for the truth always sets free (John 8:32).

The point is that investigating, indicting, and prosecuting a former president is not, on its face, proof of politicized justice. In fact, a willingness to hold former officeholders accountable is vital to sustaining our democracy.

It is reasonable to ask if the prosecution of Donald Trump is politically motivated. We can’t know for sure, but we can note that Trump is also under investigation in three other cases: for allegedly violating the Presidential Records Act by taking and storing classified records that belonged to the National Archives; for allegedly interfering in Georgia’s 2020 presidential election; and for his role in the events of January 6, 2021.

It is also relevant that the Trump Organization was convicted of criminal tax fraud and falsifying business records in December. And there is a growing list of Trump’s advisors, colleagues, and appointees charged or convicted of various crimes, including his personal lawyer and several top campaign officials.

Trump’s defenders may look at this list as proof that he is a victim of politicized justice. But the very breadth and diversity of legal challenges that Trump faces by several juries in different jurisdictions led by multiple prosecutors suggests that there is no overarching conspiracy.

The United States ranks 26th in the world for upholding in the rule of law and judicial independence, according to the World Justice Project, making it among the best. America’s justice system is so diffuse it would be extremely difficult to organize a conspiracy among the many different juries, prosecutors, and judges involved in all the legal cases against Trump and his associates.

The only common factor in these cases is Trump himself.

Paul D. Miller is a professor of the practice of international affairs at Georgetown University, a research fellow with the Ethics and Religious Liberty Commission, and a veteran of the war in Afghanistan. His most recent book is The Religion of American Greatness: What’s Wrong with Christian Nationalism.