“The safety of the people shall be the highest law.” – Cicero, On the Laws
Abstract: From the beginning of his sordid presidency, Donald J. Trump has shown willful indifference to the security and justice of the United States, including unwillingness to find relevant fault with Russia’s Vladimir Putin, to separate himself from baseless conspiracy theories and to reject violent white supremacists. But this outgoing President’s most glaring dereliction has been his atavistic rejection of logic and science amid an ever-worsening disease pandemic. Now, in the fitfully closing days of his administration, a rancorous Trump is likely preparing to issue pardons to assorted faithful collaborators/subordinates; he has also made an unprecedented bid to overturn properly-garnered election results.
Among Trump’s most shameless collaborative wrongdoers, retired US Army Lt. General Michael Flynn leads a grassroots movement urging the President to “suspend the US Constitution” and “declare martial law.” To date, there has been no recognizable presidential rejection of this overt call for sedition. Taking these incontrovertible facts as analytic starting point, the following article calls for correspondingly refined legal vigilance in the United States, including augmentation of ordinary codifications and court rulings with America’s “Higher Law.” Known by the Founding Fathers as “Natural Law,” these primary legal principles and norms can never be correctly subordinated, minimized or disregarded in toto. This means, inter alia, that informed legal opposition to ongoing and potential Trump derelictions or pardons should competently recall the “Higher Law” basis of all US law, and prepare to draw suitably upon this foundation for any gainful jurisprudential enhancements. More specifically, it means looking beyond the more obvious and explicit criminalization of presidential misconduct that applies in this particular case to certain more abstract, but still valid principles of justice.
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 possessions….
In 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.”
Louis René Beres (Ph.D., Princeton, 1971) is Professor Emeritus of Political Science and International Law at Purdue. He is the author of twelve major books and several hundred journal articles in the field. Professor Beres’ writings appear in many leading newspapers and magazines, including The Atlantic, The Hill, U.S. News & World Report, The National Interest, The Jerusalem Post, The New York Times and Oxford University Press. In Israel, where his latest writings were published by the BESA Center for Strategic Studies, the Institute for Policy and Strategy and the Institute for National Security Studies, he was Chair of Project Daniel (PM Sharon, 2003). Dr. Beres’ strategy-centered publications have been published in such places as The Bulletin of the Atomic Scientists; JURIST; Special Warfare (Pentagon); Infinity Journal (Israel); The Strategy Bridge; The War Room (USA War College); Modern War Institute (West Point); The Harvard National Security Journal (Harvard Law School); Modern Diplomacy; Yale Global Online; The International Journal of Intelligence and Counterintelligence, Parameters: Journal of the U.S. Army War College, The Brown Journal of World Affairs, Israel Defense (Tel Aviv); World Politics (Princeton); International Security (Harvard) and the Israel Journal of Foreign Affairs. Professor Louis René Beres was born in Zürich, Switzerland, at the end of World War II.
Suggested citation: Louis René Beres, Presidential Crimes and Pardons: Donald J. Trump and America’s “Higher Law”, JURIST – Academic Commentary, December 15, 2020, https://www.jurist.org/commentary/2020/12/louis-rene-beres-presidential-crimes-and-pardons/.
This article was prepared for publication by Akshita Tiwary, JURIST’s Staff Editor. Please direct any questions or comments to her at commentary@jurist.org
