Dear Reader,
A chilling effect doesn’t work when critics bring the heat.
On Sunday, Donald Trump said that the members of Congress who investigated the Jan. 6 attack on the U.S. Capitol should “go to jail.”
Words that once may have sounded like the ramblings of an angry old man become more menacing when they’re uttered by someone who will soon hold the most powerful office in the world. And while Trump said he would not order his new attorney general or FBI director to initiate investigations, he noted, “I think they’ll have to look at that.”
Punishing his rivals is part of Trump’s longtime strategy as a “counter-puncher.” When critics attack him, he once explained, he retaliates times ten. In Trump’s book, The Art of the Deal, he said retribution was an important part of his business success. As he, or perhaps his ghost writer, noted, “When people treat me badly or unfairly or try to take advantage of me, my general attitude, all my life, has been to fight back very hard.”
The value of counter-punching, of course, is that it not only exacts vengeance, it also causes deterrence. Observers learn that it’s dangerous to cross the counter-puncher because they might be next. His wrath has a chilling effect on other would-be critics.
Trump’s remarks about congressional investigators included committee chair Bennie Thompson, a Mississippi Democrat, and co-chair Liz Cheney, the former GOP congresswoman from Wyoming. With no basis in fact, Trump said, “Cheney did something that’s inexcusable, along with Thompson and the people on the un-select committee of political thugs and creeps. They deleted and destroyed all evidence.”
It remains to be seen whether Trump’s nominee for attorney general, Pam Bondi, or his pick for FBI director, Kash Patel, if confirmed, would follow through with criminal investigations against Cheney, Thompson, and other members of the committee. Initiating an investigation in the absence of evidence would violate Department of Justice policy, which requires what’s called “predication” -–that is, a well-grounded factual basis. In addition, DOJ’s policies prohibit investigations based on politics. But policies can be changed.
Even if Trump’s DOJ leaders were to launch such probes, it’s difficult to imagine they could get past the safeguards against abuses of power that are embedded in the criminal justice system – the probable cause screening function of a grand jury, a motion to dismiss filed by defense counsel and decided by a judge, or a finding of guilt beyond a reasonable doubt by a unanimous jury. Nonetheless, simply filing such charges could cause pain for Trump’s rivals, who would need to expend resources on attorney’s fees, endure stress, and suffer harm to their reputations and political careers.
But even if DOJ were to lose the cases, Trump would find victory in the fear he would instill in other potential critics. They would learn to stay silent in the face of Trump’s worst instincts lest they become the target of his next counterpunch. Building a reputation for vengeance is Trump’s recipe for defeating checks and balances.
And that’s why Cheney’s response was so important. Rather than being deterred from responding, she countered the counter-punch. She denied Trump’s claims about destroying evidence as “ridiculous and false.” In fact, the committee released an 845-page report, along with digital reams of supporting documentation, that are available to the public online. But Cheney did more than play defense; she also went on the offensive. Calling Trump’s threats an “assault on the rule of law and the foundations of our republic,” she said, “Here is the truth: Donald Trump attempted to overturn the 2020 presidential election and seize power.” Her statement detailed his conduct to summon the mob to Washington and then watch his supporters assault police officers while failing to intervene, in what she called “the worst breach of our Constitution by any president in our nation’s history.” Those are strong and bold words.
Former Congressman Adam Kingzinger of Illinois, the only other Republican on the House select committee, employed a similar strategy, denying Trump’s allegations before firing back, even referring to the president-elect with only his first name: “If Donald wants to pursue this vindictive fantasy, I say bring it on. I’m not intimidated by a man whose actions on January 6th showed a cowardly disregard for democracy and the rule of law.”
Cheney and Kinzinger may be on to something. In repressive regimes, critics are silenced by fear of retribution. It seems to me unlikely that Cheney and Kinzinger will really be prosecuted because of both the absence of evidence of wrongdoing and the resulting re-airing of the devastating evidence against Trump. And so, calling out Trump for his bluster could help blunt its force. When other people see him fail to follow through on his threats against Cheney and Kingzinger, they, too, may be empowered to push back.
Rather than succumbing to the chilling effect of Trump’s false accusations, Cheney and Kingzinger are exposing them to the sunshine of the truth.
Stay Informed,
Barb
