It is possible Roger Stone, Michael Flynn, John Eastman, Alex Jones, Allen Weisselberg and two Trumps have no idea who John Lilburne was. But they owe a large debt to this Englishman who died in 1657.
Trump aides, advisers, and defenders Stone, Flynn, Eastman, Jones and Weisselberg have “taken the Fifth” when summoned to testify on this or that issue involving our most recent former President.
Indeed, DJ Jr., the son of the aforesaid former president, reportedly has done it more than 500 times, as did Weisselberg, the former Trump organization chief financial officer, when summoned to talk about the elder Trump’s reputed manipulation of property values to get loans.
And so, for that matter, has the Big Guy himself. More than thirty years ago when he was carrying on with Marla Maples and his then-wife, Ivana, was divorcing him, DJT was asked about 100 questions about faithful marriage and reportedly pleaded the Fifth Amendment 97 times. The questions came from his soon to be ex-wife’s lawyer who wanted him to explain his reported dalliances with other women.
But he must have had an epiphany sometime in the next twenty-or so years when he he told a crowd of followers during his campaign, “You see the mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”
How does John Lilburne enter this unsavory set of circumstances?
Isaac Amon’s article for The Journal of the Missouri Bar a while ago tell us that John Lilburne was an English pamphleteer who was arrested in 1637 for writing things the king and his Star Chamber Court did not like and he was badly punished for it.
The Star Chamber?
It was the court of inquisition in England that was above the common law and answered only to the King. Those brought before it were ordered to take “the ex officio oath” that promised they would admit charges against them—-before knowing what the charges were.
John Lilburne was arrested in 1637 for printing and circulating unlicensed books. When he was taken before the Court of the Star Chamber and asked how he pleaded, Lilburne refused to respond until he knew the charges against him and argued that he was not bound to incriminate himself. He maintained the oath was “against the law of God and the law of the land.” He also demanded the right to confront his accusers.
That defiance earned him a sentence in February of 1638 of a £500 fine, imprisonment at the Fleet Street Prison, and to be whipped and pilloried until he obeyed the court. In April he was taken from his cell, his hands were tied to the rear of an oxcart that pulled him through the streets, as he was flogged with a three-tailed whip before he was locked in a stooped position in the pillory. Even then he spoke loudly against those who sought to silence him—until he was gagged. He was taken back to prison where, despite his situation, he was able to write a pamphlet describing the cruelty of his punishment and another encouraging a separation of the English government fronm the Church of England.
Eventually he was released but he continued to stand for his contention
Lilburne was called “Freeborn John” by his supporters for his contention that citizens have “freeborn rights” that include the right to hear charges against them, to face their accusers, and to refuse to say something that might incriminate themselves.
He was a soldier in the first English Civil War as a “Roundhead,” the Parliamentarians who fought against the Royalists to determine the type of government England would have and to seek religious feedom. He left the army after rejecting the Presbyterian Solemn League and Covenant, an agreement in which the Scots agreed to help the Parliamentarians if England, Scotland, and Ireland would unite afterwards under a parliamentary-presbyterian system.
Lilburne maintained the covenant was, in effect, an agreement to preserve the religion of Scotland and was therefore a restriction on general freedom of religion. He had no problem with the Scots being Presbyterians but he wanted no part of an agreement that bound others to that faith.
In the end, the Civil Wars of England united England, Scotland and Ireland into the United Kingdom, ended the monopoly on worship and government control held by the Church of England, protected the reform movement in Scotland, and cleared the way for the Protestantism to become established in Ireland, leading to political control under the Anglican Church of Ireland, a situation that led to “The Troubles” or the Northern Ireland conflict, a thirty-year sectarian conflict between Protestant loyalists and Catholic nationalists from 1968-1998. That’s a discussion for another day, perhaps.
John Lilburne was imprisoned again in 1645 for criticizing members of Parliament for living well at a time when English soldiers were poorly treated. While in prison he penned An Agreement of the People for a Firm and Present Peace Upon Grounds of Common Right.
Lilburne’s political activism saw him in and out of prison and even banished from England for a time. In 1657, while visiting his wife (who was expecting their tenth child) on temporary release from prison, he died.
More than three centuries after his death, James Madison, who was influenced by Lilburne’s story, wrote as part of the Bill of Rights, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Fifth Amendment and the other nine statements of OUR “freeborn rights” were adopted in 1791.
In 1966, United States Supreme Court Chief Justice Earl Warren specifically mentioned Lilburne in writing the majority opinion for Miranda v. Arizona that police must tell suspects that they have the freeborn right to remain silent in the face of accusations against them.
A few days ago we watched Michael Flynn refuse to answer questions from a Republican member of the January 6 Committee, saying only, “Take the Fifth, “Fifth,” and “The Fifth” in responding to three questions.
A man almost four centuries ago endured imprisonment, whipping, the pillory, and even banishment from his country to give him that right.
But here’s the deal: While it is easy to think those who “plead the Fifth” are therefore hiding their guilt, there is far more to the plea than that. This amendment stands between us and Lilburne’s Star Chamber Court. All of us—you, me, them—are not forced to say something that others might consider an admission of guilt before any charges are filed. This amendment keeps the government from considering you guilty unless you can prove yourself NOT guilty. This amendment protects our sacred concept that a citizen, no matter how reprehensible we might consider their behavior, is innocent until proven guilty.
We doubt that Mr. Flynn or any of the others we mentioned at the beginning of this piece know about or care about what John Lilburne went through to protect them.
But all of us should care—-because we Americans all have freeborn rights.
(image credit: Library of Congress)