We
have a free speech problem in America. I have talked about it before. It starts
with the judiciary. See Seth Barrett Tillman, This Is What Is Wrong with the
American Judiciary, The New Reform
Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v. But the wider
legal community has embraced the same legal philosophy. They want you to shut
up, and if you don’t shut up, there is always punishment. Here is an example.
[First,] [t]he President resents
Jeff Sessions’s decision to recuse himself and says that he would not
have nominated an attorney general who intended to follow the recusal rules in
this case. [Second,] [the President] also doubts that he can trust Deputy
Attorney General Rod Rosenstein, because he was US Attorney in a city,
Baltimore, that is Democratic in its voting pattern. In neither case does the
[P]resident seem to appreciate, or be moved by, the conception of
professionalism, including independence and impartiality of judgment. And, of
course, Trump’s continued emphasis on the supreme importance
to him of loyal subordinates in the ranks of law enforcement will not serve him
well as prosecutors form a picture of him in evaluating evidence of
obstruction.[1]
Let’s
take these claims one at a time. “[T]he President resents Jeff Sessions’s
decision to recuse himself and says that he would not have nominated an
attorney general who intended to follow the recusal rules in this case.” First, Bob Bauer does not quote the President saying any such thing. What Bauer means is whatever the President said, this is what
his words really mean. The second thing to note is the event at issue is one
which happened in the past—it is not something which is happening now or is yet
to happen; rather, it relates to Trump’s opinion as to a past event and how,
hypothetically, he would have done it differently. So what is the problem? Trump, according to Bauer, resents Sessions’s decision. Is that view illegal? Is it a
threat or a promise to do something illegal in the future? Bauer’s view amounts
to this: the President holds the wrong opinion as to a past event.
Now
look at Bauer’s second claim: “[The President] also doubts that he can trust
Deputy Attorney General Rod Rosenstein because he was US Attorny in a city…that
is Democratic in its voting pattern.” Now maybe the President is wrong about
this, or maybe he is right. Let’s say the better view is (as Bauer suggests)
that the President’s view is the wrong view about DAG Rosenstein. The President did not say
Rosenstein is a crook or that if Rosenstein does the same thing again, he will be jailed. The
President merely expressed (according to Bauer) doubts. Is that view
illegal? Is it a threat or a promise to do something illegal in the future?
Again, Bauer’s view amounts to this: the President holds the wrong opinion as
to past events.
In
neither situation does Bauer suggest that the President is lying. Bauer does
not suggest that the views expressed by the President are anything but what the
President actually believes. In other words, part of Bauer’s criticism is that
the President is telling the truth (at least, as the President sees it). In
neither situation does Bauer suggest that it is a good thing for this or any president to
express his views forthrightly to the nation’s citizens about how he sees the
world. Indeed, another element of Bauer’s overall critique is that the
President is not listening to his legal advisers who have told the President (or
who should have told the President) to shut up. Instead, the President refuses to
listen to his advisers, and he keeps communicating with the public, i.e., telling
the public precisely what he thinks about the issues of the day. Has Bauer
considered the possibility that a good segment of the voting public likes the
President’s honesty (even if they also disagree with his substantive views)? Perhaps this is why Trump won, and why HRC
lost?
OK.
So much for Trump. Bauer thinks Trump has the wrong opinions about things that
happened in the past and in regard to hypothetical events. Trump has the wrong resentments
and the wrong doubts. So what should right-thinking people believe? Now Bauer
tells us: we ought “to appreciate, or be moved by, the conception of [Department
of Justice] professionalism . . . independence and impartiality.” Bauer cannot
be telling us that Trump ought to appreciate these values as things in
themselves. Rather, it only makes sense for Bauer to criticize Trump on these
grounds if in fact the DOJ is professional, independent, and impartial. I
suppose it might be, and if Bauer ended here we could agree or not with Bauer’s view here based on what we know about the DOJ’s past and current behavior. But
Bauer does not end here. Rather, Bauer concludes with: “Trump’s continued emphasis
on the supreme importance to him of loyal subordinates in the ranks of law
enforcement will not serve him well as prosecutors form a picture of him in
evaluating evidence of obstruction.” Now isn’t this the most extraordinary admission?
Isn’t Bauer telling us that if you have the wrong opinions, if you have the wrong resentments,
and the wrong doubts,
and if you have the wrong (I kid you not) emphasis, then the likelihood of the
DOJ’s prosecuting you will meaningfully increase? And if that is the measure of
DOJ professionalism, independence, and impartiality, if those virtues are not
to be found when the DOJ exercises its prosecutorial discretion, then isn’t Trump 100%
correct in demanding loyalty?
Bauer
describes a prosecutorial regime where free speech is not protected or even valued. His
criticism of Trump is that Trump will not kowtow to the bullies and to his
legal advisers (i.e., people like Bauer) who urge him to submit to the
bullying. Does it even dawn on Bauer that maybe, just maybe, Trump ought to be praised for trying to reclaim America’s free
speech tradition? Is it possible that thousands of voters, sensing the decline of our free speech tradition, voted for Trump for precisely this reason? And perhaps that is why Trump won several close states, if not the election, and why HRC lost?
This
is a dangerous and divisive game that Bauer and the President’s opponents are
playing. Bauer finds it perfectly normal, if not archetypically professional, for
the prosecutorial arm of the government to mobilize itself against a citizen
(here, the President!) for nothing more than expressing opinions about past public
political events and for having the wrong resentments, the wrong doubts, and the wrong emphasis. Again: the wrong emphasis! Bauer’s sad comment on our ‘justice’ system and professionals fills me with “foreboding.” “That
tragic and intractable [totalitarian] phenomenon,” which we see with horror in
former Soviet Bloc countries, Third World dictatorships and, more recently,
among the most politically correct members of the European project, “is coming
upon us” in the United States “by our own volition and our own neglect.” It
will be of European dimensions before we realize the full scope of the
transformation in American free speech mores and law. “Indeed, [the
transformation] has all but come.”[2]
Seth
Barrett Tillman, Bob Bauer’s Free Speech
Problem and Ours, New Reform Club (July 23, 2017, 10:36 AM), <http://tinyurl.com/y7ahouep>.
[1] Bob Bauer,
Considering Trump’s Legal Position (and
Problems) After the New York Times Interview, Lawfare (July 20,
2017, 11:30 AM), <http://tinyurl.com/yax56hg9> (emphasis
added).
[2] Address to
the Annual General Meeting of the West Midlands Area Conservative Political
Centre (Birmingham, Midland Hotel April 20, 1968). My blog post’s last paragraph has
drawn freely from the language and imagery used in the Birmingham speech,
although that speech was on an entirely different subject matter.
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