Steven Calabresi is a law professor at Northwestern and a director of the Federalist Society. He writes at the Volokh Conspiracy blog that it’s not Trump who’s a threat to democracy, it’s the criminalization of political differences.
Since I was a sophomore in Yale College, in 1976, I have studied the process by which democracies die and get turned into dictatorships. One of the key causes of the death of democracy is the criminalization of political disagreements. While politicians love to be able to cast their opponents as being not merely wrongheaded but also crooks, this is a temptation that must be avoided. The jailing of people who one cannot beat in a free and fair election subverts democracy and has led to dictatorship in many democracies.
It has only been 231 years since the French Revolution’s Reign of Terror ultimately sent 50,000 people to the guillotine including former King Louis XVI and his wife Marie Antoinette. This situation led inevitably to a Napoleonic dictatorship. Americans must resist at all costs traveling down this very same dangerous path.
In his State of the Union address last night President Biden cast himself as the defender of democracy who would jail former President Donald Trump.
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the Biden Administration is currently criminally prosecuting Donald Trump for offenses that would lead to Trump’s imprisonment where he could easily be murdered by fellow inmates. Trump has thus likened himself, quite reasonably, to Alexei Navalny, the opponent of Russian President Vladimir Putin who was recently murdered in jail where he was held for the crime of running against Putin when he is up for re-election. Even more offensively, Trump is being prosecuted by an unconstitutionally appointed Special Counsel instead of by a Senate-confirmed U.S. Attorney who has been designated to be a federal Special Counsel. The reasons why this is unconstitutional are spelled out in meticulous detail in a law review article by me and Professor Gary Lawson, Why Robert Mueller’s Appointment Was Unlawful? 95 Notre Dame University Law Review 87 (2019). We have made these same arguments as well in numerous amicus briefs about Jack Smith’s illegal appointment as Special Counsel, which we have been filing in 2023 and 2024 in the U.S. Supreme Court, in the U.S. Court of Appeals for the D.C. Circuit, and in the Florida District Court before which Trump is being prosecuted by Jack Smith.
If President Biden was really serious about being a friend of democracy, he should also call out New York State Attorney General Letitia James for her highway robbery civil lawsuit for $450 million in civil fraud fines and penalties, which just happens to drain Donald Trump of all of his cash just when the national presidential election is getting started, and he needs money. This is a vile abuse of the legal system, which poses a direct threat to democracy.
On top of all of this, there is the fact that Donald Trump has not even been charged with inciting a riot under the Insurrection Act, the penalty for which includes disqualification from holding office, and the "crime" of which he is most plausibly guilty. Instead, the Biden Administration waited nearly two years to prosecute Trump for his behavior on January 6, 2001 finally filing dubious indictments and almost guaranteeing that any criminal trials would occur in the middle of the presidential election, as is now happening…..[More]
In 200, when the Left, aided by a Special Counsel, were trying to put Scooter Libby in jail, Kevin Drum was asking at the Washington Monthly’s blog
CRIMINALIZING POLITICS….Is the indictment of Scooter Libby an example of “criminalizing politics”? Who invented that phrase, anyway?
The source of this, as I seem to recall emailing him after some crafty searching, was
Lt. Col. Oliver North, who said the following in his opening statement to Congress during the Iran-Contra affair:
It is also difficult to comprehend that my work at the NSC — all of which was approved and carried out in the best interests of our country — has led to two massive parallel investigations staffed by more than 200 people.
It is mind-boggling to me that one of those investigations is criminal and that you have attempted to criminalize policy differences between co-equal branches of government and the executive’s conduct of foreign affairs.
In 2019, when Ilhan Omar was badgering then 71 year old Elliott Abrams about something that El Salvadorans did during the Reagan Administration, I wrote that
The Deep State resistance to Trump has been turning political differences into crimes with "process" violations, and Abrams has been through this before.
DROP! Someone had thrown a ball at my chest … I sat up, shaken, startled awake … . A dream, probably. Or maybe just a small heart attack."
Elliott Abrams was only 43 last fall [1991] when he was rushed to the hospital from special prosecutor Lawrence Walsh’s office in Walsh’s official limousine. (Walsh was worried about his image. An earlier victim had attempted suicide.) The doctor said the symptoms seemed to be caused by "this pressure you are under." Abrams was indeed under pressure. He and his lawyers were negotiating the final details of what was to be a much-gloated-over guilty plea: to two charges that he had "withheld information'' about the Contra support network when testifying before Congress as a Reagan Administration official back in 1986.
Abrams passes over this incident relatively quickly in his clear and forceful journal of the few weeks in which Walsh suddenly reactivated his case after years of silence and in effect bastinadoed a settlement out of him. He is also perhaps more discreet than it appears at first sight about the impact of the ordeal on his wife and three small children, although their presence is constant in the narrative. He prefers discussing the legal and political implications. And these are indeed profound and disturbing.
Yet that poor fluttering heart cries out for attention. Like the forgotten moment in Spiro Agnew’s very different memoir, Go Quietly … or Else, when his wife, informed of his decision to accept a nolo plea, faints dead away, it is a reminder that democratic politics is not just a spectator sport. At times, it is literally more than flesh and blood can bear.
The distinguished moral philosophers who edit The New Republic, in the first of what will certainly be many savage notices Abrams will receive, have been harrumphing because his publisher’s blurb draws a parallel with Darkness at Noon, Arthur Koestler’s novel about how the Old Bolsheviks were induced to confess during Stalin’s Purge Trials.
But the analogy, which was scrupulously qualified, is eminently reasonable.
Like Stalin’s prosecutor, Walsh was able to make headway with Abrams only when he stopped trying to prove that the Reagan Administration had really conspired to evade the vague and varying congressional restrictions on helping the Contras. (The pathetic truth was that the Administration had been so eager to please that Abrams even remembers an internal debate on whether wristwatches could be counted as "humanitarian aid," which at that point was permitted.) Instead, Walsh focused on a surreal logical point: Had Administration officials like Abrams in effect shaped their testimony to Congress to emphasize some things and downplay others?
Of course, Abrams had. Isn’t that what politics is all about? It had never occurred to him that it was against the law. In fact, it’s not against the law — if you are a member of Congress. The Speech and Debate Clause of the U.S. Constitution specifically grants the legislative branch absolute protection against such charges, even in the case of outright lies. This is because of the obvious danger that to do otherwise would lead to the criminalizing of political differences. [ More]
Now, when I say we at VDARE.com have been familiar with the criminalization of politics for a long time, it was previously as journalists and spectators.
However, with Letitia James’s lawfare against us — subpoenas, investigations, huge lawyer fees, et cetera — it’s becoming much more personal. She is not, so far, trying to put any of us in jail, but she might. And if you're interested in fighting this kind of thing, you can donate to VDARE.com here.
