Prosecuting the man who would be king: Opinion

This time of the year I’m not much inspired by fireworks and flag waving. 

I find myself drawn to the critical years (1770-1790) in American history to reflect upon the courage and vision of a generation that took on a tyrannical king and the greatest military machine in the world.   Their grievances were rooted in Magna Carta (1215), the first truly representative document establishing the rights of a free citizenry against another tyrant, King John, including the rights to due process of law and jury trial. 

Jefferson cited denial of those rights to King George III in the Declaration of Independence.

At great sacrifice and against all odds the Founders threw off the shackles of dependency on a king to form a democratic republic – a more “perfect union” – from the ashes of thirteen independent and diverse colonies that had fought under one banner, seeking “liberty and justice for all,” creating the Constitution of the United States of America, which remains the model for freedom-loving people around the world.  On the 800th Anniversary of Magna Carta, we celebrated the occasion by visiting the dedicated exhibit “Law, Liberty, Legacy” at the British Museum. Copies of our Declaration and Constitution were on full display.

Left to fend for themselves on a new frontier, the first Americans made many mistakes, and we were bound to make many more.  But with each step backwards, stumbling upon our own prejudices and short-sightedness, we seemingly marched with a creative force behind us.  In the midst of so many challenges, Martin Luther King, Jr., preached to the Southern Christian Leadership Conference on August 16, 1967, “the arc of the moral universe is long but it bends toward justice,” and reminded us of the challenges ahead,“be not deceived, God is not lost, whatsoever a man soweth, that shall he also reap.”

The other day, I was thinking about a man who would make himself king.  So I revisited a story by Rudyard Kipling, published in 1888, The Man Who Would Be King. Better known for Kim and Jungle Book stories, I encountered Kipling’s story in the 1975 film version adapted for the big screen by acclaimed director and actor, John Huston, who recruited a group of talented young actors, Sean Connery, Michael Caine and Christopher Plummer.  An entertaining flick, I read Kipling’s original many years later.

The Man Who Would be King might be seen as metaphor for the perils of 19th Century British imperialism or as straightforward warning about the dangers lurking for unscrupulous “kings” of one sort or another.  It might resonate today as a warning: those who seek to obtain and expand power for personal profit and self-aggrandizement at any cost are dangerous characters.  If you aren’t familiar with The Man Who Would Be King, here’s a capsule of why it might be a parallel to consider for our times.

The narrator, a journalist (Kipling’s alter ego), while traveling in British-controlled India, meets two sketchy Army veterans, Daniel Dravot and his sidekick, Peachy Carnehan.  The nameless narrator is privy to their plan to exploit a backward people in semi-mythical Kifiristan, setting themselves up for a luxurious life with reputedly beautiful women, servants, and all.  After their trek through the remote Himalayas, Daniel and Peachy reach their destination, and by providing the Kifiristanis with modern rifles and in teaching British military tactics, the people believe Dravot is a god sent to help them prevail over their enemies.  In their ignorance, they make the power-hungry Dravot their king.   But the honeymoon is over when Dravot takes one of the local beauties for his wife to solidify his position. When she bites him at the wedding feast, leaders see Dravot bleeding, and realize he is mortal like the rest of us.  Dravot’s lies have been uncovered and he is seen for what he really is.  A fraud.  Dravot is summarily tried and then tossed from a suspension bridge into oblivion.  The common folk who supported Dravot have rid themselves of a treacherous scoundrel.  Peachy survives torture only to return to India where he relates the tale of woe.  Peachy ends his days in an asylum for the insane.

Donald Trump has been skating on thin ice for a long time.  As one jurist put it,  “Those who skate on thin ice can hardly expect to find a sign which will denote the precise spot where they may fall.“  The wheels of justice have a way of following the ox to the crack in the ice.

In a speech to CPAC on March 6, 2023, Donald Trump made his opening argument for 2024 to his supporters in another classic display of demagoguery and contempt for the rule of law.  Self-appointed “warrior for justice,” Trump declared, “I am your retribution,” a warning to those he claims have “wronged” him in the past, including many whose lives and families have already suffered or been endangered by his rhetoric.  Along with the 580 convicted insurrectionists and rioters who followed his lead and seized the Capitol Building on January 6, 2020, Trump’s lies about election fraud and “unfair” treatment by prosecutors, juries, and judges, some sort of revenge – pardons for everyone? – seems justified.   As someone who has felt rejected and persecuted since childhood, he developed his own sociopathic behaviors; trained in boarding school to bully, to never admit wrongdoing, to never apologize, no wonder his refrain in the face of mounting evidence of culpability in multiple cases is steadfast denial, “I’ve done nothing wrong.”  He reminds me of a couple of the Death Row inmates I represented, who, despite mountains of evidence against them, have the same mind set acquired from an abusive childhood, solidified in adolescent institutionalization, and perfected in adult prison. 

We’ve heard quite a lot about how “unprecedented” it is for a former President to be charged with serious crimes.  True.  Sort of.  President Richard M. Nixon was a whisker’s breadth from impeachment and indictment for conspiracy, burglary, obstructing justice, and other serious offenses while in office.  Many of his collaborators in the White House and the Department of Justice involved in the Watergate break-in and cover up were convicted by juries and sent to prison.  But for his prudent resignation in August 1974 – not long after the Supreme Court unanimously denied his “Executive Privilege” claims – and Gerald Ford’s pardon, Nixon’s debacle would have further entangled an already deeply divided nation.  Nixon departed with a semblance of dignity.  Not Donald Trump. 

Then there’s Aaron Burr.  Second vote-getter and former Vice-President to President Thomas Jefferson in 1800, Burr was charged with treason three years after leaving office.  He was not exempt from criminal prosecution because he had once served as the second highest executive officer in the land.  Chief Justice John Marshall, who was George Washington’s aide during the Revolutionary War and his first biographer, presided at Burr’s trial.  In 1807, after a number of favorable rulings, a jury of Burr’s peers acquitted him of conspiring to overthrow the established government, seize American lands, and other nefarious crimes.   

Those entrusted with enforcing the law often have the unenviable task – duty – to uphold the rule of law.  Justice must run its course for those who cross over lawful lines, regardless of convenience, or political or financial status.  Donald Trump will receive the same constitutional “trial rights” as Aaron Burr and everyone else charged with a crime in this country.  Chief Justice Marshall wrote some twenty years after ratification, that the rights of a free people had been secured “for ages to come . . ., designed to approach immortality as nearly as human institutions can approach it.”

The rule of law was at the heart of the document securing our fundamental “rights” and remain as a bulwark against tyranny. 

In my view, far too many people take our “trial rights” in criminal cases for granted.  Before Burr killed Alexander Hamilton in an illegal duel in 1804, twelve years earlier Hamilton opposed James Madison’s explicit “Bill of Rights,” arguing that the Constitution of 1787 didn’t need to be amended because everyone knew what their fundamental “rights” were about.  But ten of the twelve States saw the wisdom of Madison’s reasoning and ratified the first ten amendments in 1791.

I’d wager that many of the 580 persons convicted of crimes committed on January 6, 2020, learned the hard way that there are limitations on what they thought “freedom” meant.   We live in an ordered democracy, a republic of laws, and “freedom” is not absolute. Those who break the law must be held accountable.  And that is where prosecutors hold the trump card: their authority to exercise discretion to decide when to file criminal charges, who should be charged, and with what crimes, is firmly established.  If the accused can demonstrate that prosecutors are filing out of “vindictiveness,” a judge may find grounds for dismissal, but that argument is about as successful as claiming that every prosecutor is on a “witch hunt.”  The evidence will out.

To my mind, Donald Trump is the prototype for The Man Who Would Be King.  A civil jury found that he raped a woman he ridiculously claimed wasn’t “my type,” he’s charged with tax fraud in New York – a jury convicted his company of tax fraud – and now in federal court in Florida he’s charged with obstruction of justice and other felonies related to his intentional removal and unlawful retention of hundreds of top-secret documents.  Heard on a recording – “this is off the record” – at his Bedminster golf club in New Jersey boasting of national security secrets in his possession, which he admits he cannot declassify, the only thing that remains to be explained is his motive for taking and purposefully concealing national security secrets.  His intent to conceal and obstruct is almost as clear as it is in the recorded conversation with Brad Raffensperger, Secretary of State for Georgia.   Indeed, the most damning cases may come from grand jury investigations for solicitation of an election official to commit fraud in Georgia, and for his part in the assault on Capitol where five people died and many more were stunned in disbelief that such disrespect for the lawful transition of power could occur in America. 

We know juries don’t always get it right, but more often than not, they do.  Each time twelve people are drawn from all walks of life, experience, race, ethnicity, and political persuasion, and are convened to decide the truth of charges brought by prosecutors, we are reminded that our democracy works; the same rules of evidence apply in every case and the same trial rights inure to the benefit of every defendant.  The rule of law protects the innocent, as well as pretenders and false prophets -- even the man who would be a king.   As several professional golfers invited to play golf with Donald Trump attest, he cheats (big surprise) like Auric Goldfinger.  But no one gets to set their own rules in a court of law.

My prayer for this country is that – warts and all – we will continue to “approach immortality as nearly as human institutions can approach it” by abiding the rule of law with the same spirit we did 247 years ago, seeking to fulfill the dream “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  I trust with due process of law, American history will record that the man who fashioned himself a king above the law found out that he was not.

This article originally appeared on Visalia Times-Delta: Prosecuting the man who would be king: Opinion