Free Speech in Andrew McCabe's America: A Post on Conlawprof

In his 60 Minutes interview, former acting FBI director McCabe said:

There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt… publicly undermining the effort of the investigation.

<https://www.lawfareblog.com/thoughts-andrew-mccabes-60-minutes-interview> (emphasis added).

Is not this statement troubling, if not Orwellian? Think or speak the wrong thing—and the government investigates you? In a 2017 blog post on New Reform Club, I wrote about this issue as follows:

[Beginning]

We have a free speech problem in America. See This Is What Is Wrong with the American Judiciary, The New Reform Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v. [T]he wider legal community has embraced the same legal philosophy [taken on board by the high judiciary]. 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. [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).]

Let’s take [Bob Bauer’s] 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 Attorney 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)?

OK. So much for Trump.

[What about Bauer?] 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 [even where or if disagreeing with his substantive views], 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 [and now McCabe and others] 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 [its] professionals fills me with a sense of impending disaster. 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.

[Ending]

The above is from: Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and Ours, New Reform Club (July 23, 2017, 10:36 AM). I have omitted quotation marks and footnotes on my Conlawprof post and above. My full post with quotation marks and footnotes is here: <http://tinyurl.com/y7ahouep>. FYI: Bob Bauer now teaches law at NYU. I sent him a link to the original 2017 post—he never responded.

CITATION: 

Seth Barrett Tillman, Free Speech in Andrew McCabe’s America: A Post on Conlawprof, New Reform Club (Feb. 19, 2019, 6:54 AM), <https://reformclub.blogspot.com/2019/02/free-speech-in-andrew-mccabes-america.html>.