The violent protest at the U.S. Capitol on January 6 has long been over, but the upcoming Biden administration’s response to it is likely to do greater violence to the U.S. Constitution and the rule of law than anything the worst of the protesters could have accomplished. Thanks to the response of the George W. Bush administration and Congress to the 9/11 attacks almost two decades ago, Joe Biden’s prosecutors will have plenty of legal ammunition to go after their political enemies. It won’t stop with prosecuting people who broke into the Capitol.
After the 9/11 terrorist attacks, horrified Americans were ready to embrace virtually any proposal that promised to keep them safe. Government officials, for their part, were eager to curry favor with the fearful public and saw an opportunity to promote legislation and policies that had failed to win support in the past. The result was a surge of authoritarianism from which the U.S. has yet to recover. Now—with the public understandably concerned after the January 6 storming of the Capitol—we should brace ourselves for another wave of political responses that would, again, erode our liberty.
We are in very uncertain and certainly perilous waters. In the post-Trump era, Democrats want revenge and they want it now. I fear for my friends that worked in the Trump government, with Democrats calling for them to be blacklisted, harassed, and ultimately “canceled.” Representative Alexandria Ocasio-Cortez, who continues to shed any perception that she wants anything less than a soft totalitarian country, has publicly called for a “media literacy” initiative that reminds one of Orwell’s Ministry of Truth.
In an interview with MSNBC (surprised?), former CIA head John Brennan declared that the Biden administration agencies
“are moving in laser-like fashion to try to uncover as much as they can about” the pro-Trump “insurgency” that harbors “religious extremists, authoritarians, fascists, bigots, racists, nativists, even libertarians.”
Not surprisingly, there was zero pushback on his statement from the mainstream media, and one suspects that probably most mainstream journalists today would not mind seeing large numbers of people they dislike being hauled off to prison or just plain disappearing at the hands of the authorities.
For that matter, the Trump presidency was hardly the Libertarian Moment, and Trump gave one the sense that if he could control the flow of news, he would gladly do so. Whether or not one believes he was cheated out of office in the last election, for him to claim he “won in a landslide” and to call for official election results to be overturned can hardly leave one surprised that the DC “rally” turned into an out-and-out donnybrook.
Unfortunately, the violence that followed has given the Biden people the fig leaf they need to move against the Constitution and rule of law on many fronts—all the while claiming they are “restoring democracy.” The United States could well be at a tipping point at which whatever pretenses we had toward constitutional government are cast aside for a “pragmatic” state that addresses the so-called needs at hand and is not bound by legal niceties. For now, my guess is that Biden will unleash federal prosecutors who will face no constraints whatsoever, and that means a lot of innocent people are going to have their lives ruined.
Before going into more detail, I explain why the Bush administration nearly twenty years ago made Biden’s job much easier for him than it ever should be under the rule of law. In the early 2000s, I began to write about the abuses that accompanied the expansion of federal criminal law and published (often with Candice E. Jackson) in a number of outlets including Regulation, Reason, the Independent Review, and the Mises page. Because of what Jackson and I called the “highly derivative” nature of federal criminal law (the actual charges are compiled from actions that usually are only prosecuted under state law), it is easy for federal prosecutors to draw up a list of charges that are hard to fight, have draconian penalties, but often involve criminalizing actions that harmed no one, and certainly did not do harm that is up to standards of criminal conduct.
In the hysterical aftermath of the 9/11 attacks, Congress rushed through the PATRIOT Act (which Joe Biden claimed to have written almost single-handedly—probably an exaggeration), a law that even at the time legal experts doubted would be effective in preventing acts of political terrorism but that allowed federal prosecutors to throw other “crimes” under the umbrella of “terrorism,” thus permitting them to box in defendants and force them to plead out to lesser charges and receive substantial prison time.
At the time, civil liberties groups like the American Civil Liberties Union along with media entities such as the New York Times served at least a semieffective role in blunting the more outrageous attempts by prosecutors to expand their powers. (The NYT had not shown the same restraint during the 1980s when Rudy Giuliani abused his powers in the infamous Wall Street prosecutions, instead allowing Giuliani to break numerous federal statutes in the paper’s crusade to “fight capitalism.”)
This time, however, it is highly doubtful that either the ACLU or the media will do anything but be cheerleaders for the Biden DOJ, given that the government says it will specifically target what it sees as threats from the right, something the NYT recently praised. A couple of recent incidents regarding the media and the so-called conservative threat are instructive.
Shortly after the January 6 Capitol riots, a number of mainstream news outlets breathlessly reported that the leaders of the protests actually were planning on kidnapping and assassinating a number of political figures. Not one mainstream news outlet questioned the feds’ claims. Shortly thereafter, however, CNN (which gave the original charges massive coverage) reported that the Department of Justice was walking back its original statements.
Not to be outdone, the Associated Press on January 11 presented the specter of armed uprisings all over the country:
The FBI is warning of plans for armed protests at all 50 state capitals and in Washington, D.C., in the days leading up to President-elect Joe Biden’s inauguration, stoking fears of more bloodshed after last week’s deadly siege at the U.S. Capitol.
The dispatch continues:
An internal FBI bulletin warned, as of Sunday, that the nationwide protests may start later this week and extend through Biden’s Jan. 20 inauguration, according to two law enforcement officials who read details of the memo to The Associated Press. Investigators believe some of the people are members of extremist groups, the officials said.
As we know, there were no armed uprisings, no right-wing armed mobs storming capitols and no massive protests. Now, on Inauguration Day, there was mob political violence and lots of it, but the mobs were leftist and the cities were Portland and Seattle and the national media saw little reason to publicize the protests, as they did not fit The Narrative.
Even the January 6 riots, as bad as they were, did not fall into the category of a coup, no matter what journalists and other political pundits were claiming. David French went even so far as to claim it was a “Christian insurrection” because some of the protesters said they were Christians and someone played Christian music on a loudspeaker. While it was an ugly scene nonetheless, does anyone (at least besides David French) really believe that the vast government regime known as The United States of America was in danger of being overthrown by a mob led by someone in a buffalo costume?
Yet, the same journalistic and political elites who excoriated Donald Trump for sending some agents to protect the federal courthouses in Seattle and Portland from Antifa mobs apparently had no problem with Biden dispatching thousands of federal troops to turn Washington, DC, into an armed camp. It is the same kind of overreaction that leads the media and political elites to demand that the government engage in massive surveillance of half the country.
Not all who are considered to be on the left are good with Biden’s internal spying plan, including Tulsi Gabbard, the former member of Congress who angered fellow Democrats with her appeals to civil liberties during her appearance in the presidential primary last year. National Review reports:
“What characteristics are we looking for as we are building this profile of a potential extremist, what are we talking about? Religious extremists, are we talking about Christians, evangelical Christians, what is a religious extremist? Is it somebody who is pro-life? Where do you take this?” Gabbard said.
She said the proposed legislation could create “a very dangerous undermining of our civil liberties, our freedoms in our Constitution, and a targeting of almost half of the country.”
“You start looking at obviously, have to be a white person, obviously likely male, libertarians, anyone who loves freedom, liberty, maybe has an American flag outside their house, or people who, you know, attended a Trump rally,” Gabbard said.
Even more eye-opening is the missive that the hard-left publication Jacobin has launched against this round of surveillance. Now, the publication that is openly nostalgic about the former East Germany hardly is going to champion civil liberties or even basic freedoms, but the people there are politically astute enough to know that a government with vast surveillance powers isn’t going to stop at going after political conservatives:
However such legislation may be justified with liberal-sounding language, there’s absolutely no reason to believe authorities wouldn’t use new powers to target groups that have nothing to do with Donald Trump or Trumpism. Police almost certainly infiltrated Black Lives Matter protests last summer, and American law enforcement has a long and ignominious history of targeting progressive groups—not to mention socialists, trade unions, and civil rights activists. As this history suggests, the premise behind any new anti-terrorism law will also be wrong on its face: the American state hardly faces excessive restrictions on its capacity to surveil, discipline, and punish. (The FBI, to take an obvious example, already possesses considerable power to investigate groups suspected of extremist activity.)
The problem is that the traditional gatekeepers of civil liberties that we once had in the media and in political and academic circles has disappeared into the maw of political tribalism. Matt Taibbi, a former writer for Rolling Stone and now an independent journalist, sees mainstream journalism as little more than an echo chamber for progressive politicians in which journalists seem to pretend they are players in a version of The West Wing:
West Wing was General Hospital for rich white liberals, a seven-season love letter to the enlightened attitudes of the Bobo-in-Paradise demographic. If that’s the self-image of the national press, it’s no wonder they make people want to vomit. The coverage of Biden’s inauguration, another celebration of those attitudes, was an almost perfect mathematical inverse of late-stage Trump reporting, a monument to groveling sycophancy.
John Heileman at MSNBC compared Biden’s speech to Abe Lincoln’s second inaugural, and suggested that the sight of “the Clintons, the Bushes, and the Obamas” gathered for the event was like “the Marvel superheroes all back in one place” (this was not the first post-election Avengers comparison to be heard on cable). Rachel Maddow talked about going through “half a box of Kleenex” as she watched the proceedings. Chris Wallace on Fox said Biden’s lumbering speech was “the best inaugural address I ever heard,” John Kennedy’s “Ask Not” speech included. The joyful tone was set the night before by CNN’s David Challen, who said lights along the Washington Mall were like “extensions of Joe Biden’s arms embracing America.”
Journalists who are going to claim that a bunch of lights in paper bags symbolize a Joe Biden group hug are not going to be intellectually or professionally capable of taking a hard look at the government’s attempt to arrest and imprison political and religious conservatives and libertarians, since they already have convinced themselves that these people constitute a dire threat to what is left of the republic. They more likely will serve as the publicity arm for the DOJ—as long as prosecutors stick to going after men in buffalo suits waving Trump flags.
To be depressingly honest, the only barrier to the Biden administration’s launching of an American version of the Stasi against dissenters on the right would be the individual consciences of those in charge of the spying and making arrests. Much of the Democratic Party and most of mainstream journalists seem to have no problem with criminalizing speech and launching a regime of mass arrest and imprisonment.
As I see it, we no longer are looking at threats to our liberty in the abstract. For years, I have launched missive after missive at federal (and sometimes state) prosecutors and not feared for my own safety and liberty, save a few death threats I received when I aggressively wrote against Michael Nifong, the dishonest prosecutor in the infamous Duke Lacrosse Case, and I didn’t take those seriously.
This situation is different because those who were the gatekeepers of liberty now have decided that liberty itself is a threat to our well-being. When the New York Times comes out against free speech and when journalists call for the power of the state to be used against other journalists they don’t like, we have turned the corner and are headed for the abyss.
No, I don’t expect to be hauled off to a concentration camp because I have written articles critical of federal prosecutors, but this country now is building a critical mass of journalists, college professors and administrators, and political figures that well might see concentration camps and other “reeducation” devices as being legitimate political tools. We are not as far away from such a dystopian future as one might think.
Federal criminal law provides these antiliberty groups the kinds of devices that can be used to criminalize speech and turn garden-variety dissenters into criminals. We should not be surprised if ambitious US attorneys in the Biden administration, cheered on by the likes of the New York Times and MSNBC, decide it is time to do just that.
This article was originally featured at the Ludwig von Mises Institute and is republished with permission.