Rex or Lex?

In 1603, the great Elizabethan Sir Walter Raleigh was convicted of high treason in a trial in Winchester, England. He was condemned to be hanged almost but not quite to death, his heart ripped out of his chest, his genitals severed and fed to the fire while he was still alive, and then his corpse quartered and sent to different zip codes around the kingdom. Those who tried him knew, and we know, that the treason charges were trumped up, that he was not permitted to confront his accuser (there was only one), that he was denied the benefit of an attorney, and that those who condemned him violated the British law that required two witnesses to come forward in a treason trial. One historian has said that Raleigh’s trial was worthy of the Spanish Inquisition, except that even in the Spanish Inquisition he would have received some genuine due process.

The new King of England, James VI of Scotland, now James I of England, wanted Raleigh dead. The reasons for this are complicated, but suffice it to say that Raleigh, who had been one of Queen Elizabeth’s four great favorites, represented everything that James despised and detested. James was afraid of nearly everything, and he was particularly afraid of this dashing, fabled, ambitious, powerful, and supremely confident courtier left over from the last regime. He knew that Raleigh was not enthusiastic about his kingship and that the great soldier, poet, historian and explorer had friends who were even less enthusiastic. That seems to have been enough.

King James believed, and he caused his Attorney General Edward Coke to argue, that rex is lex. That the king is the law, that whatever the king decides, no matter how arbitrary, has the force of law. In the end, Raleigh was beheaded (it took two strokes) rather than hanged, castrated, and disemboweled. His body was buried in the chapel of St. Margaret’s Church, Westminster, not far from where he was executed on October 29, 1618, but his severed head—if you can imagine this—was given to his wife Bess. She kept it in a red leather bag for the rest of her life. What may be that bag has recently been discovered in England.

If Raleigh were tried today in Britain or the United States, he would be acquitted. Not only would he have the benefit of an attorney—or a team of them—but the rules of procedure would be followed scrupulously, and he certainly would be permitted to face his accusers. There is enough reasonable doubt in his case to sail an Elizabethan ship through. In fact, Raleigh was tried in one of the last moments in British history when a tyrannical king could send a man to his death merely because he distrusted him, or felt threatened by him. By the time the Stuarts were shunted away from the English throne in 1688—the Glorious Rebellion—the idea that the monarch was the law, or was above the law, was permanently discredited.

Sir Walter Raleigh may have named Virginia back in 1584 for the Virgin Queen Elizabeth I, but he never stepped foot in North America, and by the time the United States was born in 1776, the idea that the king could behave in an arbitrary manner was cited by Jefferson as a justification for armed rebellion, for the American Revolution. Four years later, in his draft of a new Constitution for the Commonwealth of Massachusetts, John Adams famously wrote, we must “be a government of laws and not of men.”

Lex over rex, not rex over lex.

That’s the enlightenment standard. That’s the American standard. We like to think that’s how things work in America, but we all know that power, money, race, celebrity, and public office distort the process considerably. If John Adams’ great principle invariably worked, O.J. Simpson would be in prison for murder and the Lakota protestor Leonard Peltier would be free.

A number of the 45 Presidents of the United States have committed crimes while in office, but none has ever been successfully impeached. Richard Nixon was named as an unindicted co-conspirator for committing crimes that would have landed him in prison had he not been the President of the United States. Nixon famously said, in an interview with David Frost in 1976, “If the President Does It, That Means It’s Not Illegal.” People rightly responded to that wild and self-serving claim with outrage, but Nixon was speaking the de facto truth if not the truth de jure. A few examples will serve.

Some people believe that Nixon and his National Security Adviser Henry Kissinger should have been tried for war crimes for continuing the Vietnam War after admitting to each other in 1969 that the war could not be won. Kissinger’s best advice was to carry on the war for a decent interval, a couple of more years, then declare victory, and withdraw. Not only did Nixon and Kissinger wage war in Cambodia illegally during that period, but their cynical purpose—Nixon said he did not want to be the first American president to lose a war—cost 22,000 American lives and hundreds of thousands of Vietnamese lives. So, there you have a crime against humanity, if not perhaps a century code crime that could be prosecuted in an American court of law.

President Reagan waged a secret war against Nicaragua in direct violation of a Congressional law forbidding just that, meanwhile trading arms for hostages—a thing he said he would never, ever do—to pay for it. He eventually accepted responsibility for his actions, while claiming that it was all pretty fuzzy in his mind, and the country decided it didn’t have the heart to impeach him, though from a strict constitutional point of view he richly deserved it. Several of his aides went to prison, including Oliver North, who became a hero of the right for committing felonies against the government of the country he said he loved.

President Clinton lied under oath during his deposition in the Paula Jones sexual harassment case. He was impeached by the House of Representatives but not convicted by the Senate. He lost his law license and paid gigantic fines, but his presidential approval ratings actually went up and he left office all smiles in 2001.

And here we are now, in the midst of a deepening scandal involving illegal campaign contributions, obstruction of justice, money laundering, bank fraud, witness tampering, illegal foreign contributions to inaugural ceremonies, violation of the Logan Act, and probably more. President Trump has already been accused by the Southern District of New York (a key branch of the Justice Department) of ordering a payoff to a porn star, which is not only sleazy but a violation of federal campaign finance laws. Were he not President, Individual #1 would have been indicted and tried or that crime.

But here’s the rub. We say that no man is above the law, that we are a nation of laws and not men, but we all know that is not really true. All the Presidents who have committed high crimes in office have gotten away with it, with the possible exception of Richard Nixon. It seems to me that the Mueller Report, regional offices of the Justice Department, and the myriad of Congressional investigations will prove to anyone with a shred of objectivity, that Donald Trump and his nearest associates have committed a large number of unmistakable, unambiguous crimes, some of them grave (like obstruction of justice). While some of Trump’s associates will go to prison, some are already there, the President will survive all of this and finish out his term. Trump supporters are already making such arguments as: sure, in some technical sense, he may have violated federal campaign finance laws, but come on that’s the stuff of fines not prison time; and, if you look at the firing of Attorney General James Comey or the pardon dangling or Trump’s attempt to get acting Attorney General Mathew Whitaker to interfere in the Southern District of New York from just the right angle, these can be explained as what the head of the government can legitimately do when his enemies have infiltrated our legal institutions to engage in a judicial coup d’etat. When those defenses break down, there is always: ok, there have been some missteps, but you’re really going to impeach him over this!?

And when all else fails—you are going to hear this from sea to shining sea—but ultimate defense will be: well, at least he ain’t Hillary.

So, the tradition of rex is lex is not quite over yet, even in this our happy republic.

Back to Raleigh for a moment. Thomas Jefferson understood Walter Raleigh’s importance in the history of the English colonies in the New World, particularly Virginia. Traveling in England with John Adams in 1786, Jefferson saw a painting of Raleigh in Birmingham. Jefferson asked Adams or perhaps his aide Colonel Smith to obtain a copy of the painting for him. It took a while, but eventually Jefferson got his likeness of Raleigh. You can see it even now in the parlor at Monticello, along with some of the other explorers of the New World. Jefferson wrote about Raleigh in Notes on the State of Virginia, and he owned a copy of Raleigh’s essays and also his monumental History of the World, written on death row in the Tower of London after he was sentenced to death but before the final stroke came 15 years later.

King James may have chopped off Raleigh’s head, but not before he wrote some of the greatest prose of the English Renaissance.

I’m Clay Jenkinson, hoping we once again become a nation of laws and not men.

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