President Donald Trump was and is a clear and present danger to liberal democracy, say Democrats. Trump broke laws against conspiracy and fraud in an effort to steal the 2020 election and should go to prison, they add. Trump also violated longstanding democratic norms, including against the peaceful transfer of power, they say, by instigating a riot at the Capitol. The bottom line for Democrats is that nobody is above the law, and it would be far worse not to prosecute Trump than to prosecute him.
But the riot at the Capitol building was largely due to security failures, and Trump’s election denialism and manipulations, while bad, were not qualitatively different from the behaviours of Hillary Clinton, Stacey Abrams , and former Democratic National Committee Chairperson Debbie Wasserman Schultz. There would have been no Jan. 6 riot had Congressional leaders not denied National Guard troops to Capitol Police, according to its former chief, Steven Sund. Rep. Nancy Pelosi denied Sund the chance to testify during the Democrats’ Jan. 6 investigation.
The latest indictment against Trump from the state of Georgia effectively criminalizes acts like demanding a recount, despite the fact that it is routine for both Democrats and Republicans to question election results. Democrats like Kamala Harris have repeatedly doubted the reliability of voting machines. Democrats have also directly challenged election results, notably in 2016, when liberal commentators , legal scholars , and protestors proposed subverting the electoral college vote to prevent Trump’s victory.
Clinton repeatedly said the 2016 election was “stolen” from her and used the Russiagate hoax to claim that Trump was an illegitimate president. Abrams went further, refusing to concede and filing a lawsuit, which she ultimately lost. And according to Democratic National Convention Chair Donna Brazile, Clinton and Debbie Wasserman Schultz “ rigged ” the 2016 Democratic Primary against Bernie Sanders. Brazile alleged that Clinton controlled the DNC’s strategy and funds before becoming the nominee, allowing her campaign to stack the deck against Sanders.
It’s true that Trump went further than Clinton and even Abrams in his election denialism and that the context was more significant than the Democratic primary between Clinton and Sanders. Abrams and Clinton did not try to overturn election results, as prosecutors alleged Trump did. But the difference between Trump and the Democrats, and the general and primary elections, are of degree, not kind. Subversion is subversion, and the other team’s subversion always seems worse. As for “democratic norms,” it’s hard to think of a greater violation of them than trying to incarcerate your political opponent right before a presidential election.
At the heart of the federal prosecution of Trump is his state of mind and his “knowingly false” comments about election fraud. But even if Trump’s statements were untrue, they are protected speech under the First Amendment and precedents set by the Supreme Court. And is it really so hard to imagine that Trump, America’s most famous megalomaniac, actually believed he had won? Of course, it isn’t.
Trump’s alleged mishandling of classified documents also appears to be a difference in degree, not kind, from Biden’s own mishandling of classified documents. The Democrats’ oft-stated distinction between the two is that Biden co-operated with investigators and Trump didn’t. That may be the case. But is the difference really enough to merit prosecution of Trump over Biden? Or could the different behaviours simply just reflect Trump’s belief that he was right and the federal investigators wrong?
As president, Trump could have simply declassified the documents in his possession. He didn’t, so his conduct was illegal, but only on something approaching a technicality. By contrast, former CIA director and retired general David Petraeus engaged in a serious crime and put national security at risk when he leaked highly classified documents to his lover and biographer — documents that included the identities of undercover officers, intelligence capabilities, and war-fighting strategies. A judge gave Petraeus a token fine and probation, and nobody pursued it further.
Not to worry, say Democrats, because our judicial system and Trump’s federal judge are fair. During the first hearing for the case, Judge Tanya Chutkan affirmed that “Trump, like every American, has a First Amendment right to free speech.” Chutkan said she did not want her protective order against Trump’s public communications “to be overinclusive.”
And yet just seconds after acknowledging Trump’s First Amendment rights, Chutkan announced that she would be taking them away. “The fact that he’s running a political campaign has to yield to the orderly administration of justice,” she said. “If that means he can’t say exactly what he wants to say about witnesses in this case, that’s how it has to be.”
The claim by some Democrats that Trump must be prosecuted because nobody is above the law is belied by the reality that Democrats have spent the last 20 years demanding fewer prosecutions of a wide assortment of crimes, including violent assaults, and Democratic District Attorneys of New York, Oakland, and San Francisco have indeed pursued fewer of them. As anyone who understands the legal system knows, the vast majority of crimes aren’t even prosecuted.
For politicians who live in glass houses, Democrats are throwing a lot of stones. We have gone from Democrats claiming Biden never spoke to his son about business to Democrats claiming the president never accepted money directly but did indeed participate in business calls and business dinners with his son’s clients. Democrats assure us that they only talked about non-business things, but all of these clients depended on some influence or action from the president.
And, as far as laws and norms go, it’s notable that Merrick Garland, Biden’s Attorney General, last week violated the law by appointing David Weiss as Special Counsel to investigate Hunter Biden. The law requires that Special Counsels come from outside of government; Weiss worked in the Justice Department.
It’s hard not to see this ending with the continuing degradation, if not ultimate destruction, of our liberal democratic system and the norms upon which it depends. Already, some are calling for retribution. “I hesitate to suggest escalating,” wrote New York Post columnist Miranda Devine yesterday. “But surely it’s appropriate for prosecutors in red states to start filing RICO charges against Joe Biden in any valid jurisdiction.”
While Trump no doubt deserves much of the blame for this situation, liberal Democrats are making it worse through their prosecution of Trump. Their actions verge dangerously close to criminalizing political opposition and threaten to shatter the legitimacy of our democratic institutions. And anyone who pays attention to the polls knows that, with every new prosecution of Trump, the likelihood of him winning the nomination grows.
All of which raises the question: if prosecuting Trump pushes America closer to losing our liberal democratic system of government, why are liberals and Democrats pursuing it? And what can people who still believe in liberal democracy do to save it?
The January 6 Disinformation Campaign
While there are many reasons that liberals and Democrats want to get rid of Trump, the main one today is that they believe he attempted to overthrow the government on Jan. 6, 2021. And while the Department of Justice is not technically indicting Trump for inciting the Capitol riot, there is little doubt that the events of that day inform the case against Trump. After all, the idea of the riot as an “unprecedented assault on the seat of American democracy” was key to Special Counsel Jack Smith’s announcement of the charges.
Judge Chutkan, too, views Jan. 6 as an attempted coup. “Every day we’re hearing about reports of anti-democratic factions of people plotting violence, the potential threat of violence, in 2024,” she said in 2021 while sentencing a rioter to prison. “It has to be made clear that trying to violently overthrow the government, trying to stop the peaceful transition of power, and assaulting law enforcement officers in that effort is going to be met with absolutely certain punishment.”
But the reality of what happened that day is complicated by the fact that the FBI and other law enforcement agencies, including the Washington D.C. Metropolitan Police, may have had hundreds of undercover agents and informants stationed throughout the crowd acting like Trump supporters. According to one Jan. 6 witness, there were 100-200 Secret Service agents alone at the Capitol before and during the breach of the police barriers.
And last week, former Capitol Police Chief Steven Sund came forward with damning new information that suggests a massive security failure. According to Sund, those answering to then-Speaker of the House Nancy Pelosi and Senate Majority Leader Mitch McConnell deliberately decided not to deploy National Guard troops to help with security and crowd control, thus exacerbating the riot.
Sund told Tucker Carlson that Pelosi and McConnell rejected his requests for backup from National Guard troops. “On January 4th, what does (former acting Defense Secretary Chris Miller) do?” asked Sund. “He puts out a memo restricting the National Guard from carrying the various weapons, any weapons, any civil disobedience equipment that would be utilized for the very demonstrations or violence that he sees coming.”
Sund said there was also a deliberate withdrawal of military and intelligence agency support in the days and hours leading up to Jan. 6, and the Government Accountability Office (GAO) supports some of Sund’s claims. It concluded that the Federal Bureau of Investigation was aware that multiple terrorists would attend the Jan. 6 riot, yet they failed to inform Sund.
Continued Sund, “I’ve done many national special security events, and this was handled differently. No intelligence, no (joint intelligence briefing), no coordination, no discussion in advance … It’s almost like they wanted … the intelligence to be watered down for some reason.”
The communications and intelligence breakdown was not just occurring with a few people but from every military and security agency, including the National Guard. Said Sund, “you’re describing a systematic denial of intelligence and then of support, defense, through a whole bunch of different agencies, a whole bunch of different people, all reaching the same baffling conclusion that we’re not going to protect the Capitol.”
In other words, Jan. 6 was a riot perpetuated by the calculated withdrawal and denial of security — it was not an attempt to violently overthrow the government. A coup, by contrast, would have meant that Trump seized control of the military, suspended the Constitution, abolished Congress, dissolved the Supreme Court, and shut down all independent news media.
Instead, something closer to the opposite occurred. Informants within U.S. security and military intelligence organizations may have helped instigate the Jan. 6 riot, while the heads of those organizations withdrew security in a way that appeared intentionally designed to encourage the riot and the perception of an insurrection. And the news media participated in the disinformation campaign, with senior members of Congress and journalists claiming en masse that Trump had tried to overthrow the government like a Latin American dictator.
Part of what’s driving the Democrats to undermine liberal democracy remains their fear that Trump will withdraw the U.S. from NATO and stop providing protection to the Western Alliance. But it’s not obvious that Trump’s anti-NATO rhetoric ever amounted to anything more than an effort to get Germany and Japan to contribute more to their defence. And there’s plainly something deeper and more emotional behind the desire to incarcerate Trump.
That something is Democrats’ fear and loathing of Trump and his supporters, who Hillary Clinton famously referred to as “deplorables.” American elites, who are today disproportionately Democrats, believe Trump’s working-class supporters are racist, fascistic, and crude. And the reason they are willing to destroy liberal democracy is so they can avoid ever being ruled by them again.
In Defense of Liberal Democracy
In seeking to defeat Trump, Democrats have become everything they once feared: authoritarian, anti-democratic, and illiberal. Consider Judge Chutkan. Her mind is clearly made up. In 2021, she denied Trump’s executive privilege protections against House Democrats’ Jan. 6 Select Committee and forced Trump to produce months of records to the committee. At a sentencing hearing for a Jan. 6 protester last October, Chutkan lamented that Trump “remains free to this day.”
As for the Jan. 6 Capitol riot, Chutkan wrote , it “was nothing less than an attempt to violently overthrow the government.” No other judge has sentenced more Jan. 6 defendants to prison than Chutkan, who exceeded the prosecutors’ recommendations in multiple Jan. 6 sentencing cases and has ruled against the defendant in all ten of the Trump-related cases she’s overseen.
That Chutkan is now permitted to preside over Trump’s criminal case shows that the prosecution of Trump for his attempt to challenge the 2020 election results is more of a political act than a legal one. Those of us who do not support Donald Trump should hope that the judge is either recused or that an appeal is successful. If the case proceeds with a clear bias in place, it will do far more damage to our constitutional republic than Trump’s words ever did. And it will probably make Trump even more popular in the process.
Elections convey legitimacy when they can be criticized, doubted, and protested. The existential threat to our political system does not come from Trump’s claims that the 2020 election was stolen; it comes from Democrats’ strident efforts to subvert what should be a politically neutral justice system. Rather than conduct real investigations into the security failure that occurred on Jan. 6, Democrats have opted to prosecute and demonize the rioters and trespassers. The ultimate goal of this effort is to imprison Trump, their main political challenger. If they succeed, it will seriously jeopardize the free speech and due process rights that hold U.S. democracy together and make political opposition possible.
In prosecuting Trump, Democrats risk creating a never-ending cycle of retribution that exists in less stable and less democratic nations like Brazil. The behaviour of Democrats is not very different from the Republicans’ propaganda campaign after 9/11 to contrive a false connection between Saddam Hussein and Osama bin Laden, and then use it to drive the country into a reckless and unnecessary war in Iraq. Both are cases of opportunistically leveraging a national emergency to achieve unrelated political objectives.
The downward spiral has already begun. As if on cue, Trump announced Tuesday he would, as president, appoint a Special Counsel to investigate President Joe Biden’s criminal corruption. “I believe we have a compromised President,” said Trump. “He was bribed, and now he’s being blackmailed. He’s a Manchurian Candidate… Justice will be done.”
Now is the time for people of all political persuasions to speak up for liberal democracy in the same way we have for free speech over the last nine months, as we learned about the existence of the Censorship Industrial Complex. This starts with demanding serious reflection on the path we embark upon when we normalize the prosecution of political enemies. We need to directly challenge liberals to consider this political persecution’s potential consequences.
The good news is that, to some extent, this is starting to happen. Harvey Silverglate, a civil rights attorney and co-founder of the Foundation for Individual Rights and Expression (FIRE), is representing one of Trump’s alleged co-conspirators, his lawyer John Eastman. Silverglate told NBC Boston that he vehemently opposes Trump. “I wouldn’t vote for Trump if I was being tortured,” Silverglate said.
And yet Silverglate considers the indictment against Trump to be a clear case of “candidate suppression.” Said Silverglate, “The timing is appallingly bad judgment, and I believe done in bad faith to keep (Trump) from being the Republican nominee for president.”
In the end, future historians may agree that Trump was a clear and present danger to liberal democracy, but only because Democrats made him one. The Democrats’ effort to prosecute Trump for crimes that Republicans could one day prosecute Democrats for risks turning our independent criminal justice system into an extension of our partisan political one. Trump’s refusal to concede the 2020 election did violate longstanding democratic norms, but that fell short of the destruction Democrats are wreaking on democracy by prosecuting their political enemies.
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