Earlier this week, I wrote about the letter the Washington Post published ahead of January 6, the one written by all of the former Secretaries of Defense who are still living, calling on the military to stay out of electoral politics. Former Vice President Dick Cheney, someone whose politics have never appealed to me, was among the signatories to that letter. I remember reading it for the first time and understanding that the fact that this group of men with very different world views felt compelled to write with one voice signaled how dangerous the moment was, so dangerous that it sparked agreement across the political spectrum that Trump was off the rails. It truly was then, and is now, Trump versus democracy.
Tonight, I’m writing about the other Cheney, Liz Cheney, because despite the onrush of the holidays and family and lots of lots of excitement and work that is taking up all of our bandwidth right now, we have to focus on what has happened. In a 128-page report released last week by the House Administration Subcommittee on Oversight, House Republicans called for a criminal investigation by the Justice Department into Liz Cheney’s work on the House January 6 committee. The report specifically calls on the Justice Department to look at whether she engaged in witness tampering with Cassidy Hutchinson, the young aide to Mark Meadows whose compelling testimony made the January 6 hearings must-watch television for much of the country. Predictably, Trump weighed in on Truth Social. "Liz Cheney could be in a lot of trouble based on the evidence obtained by the subcommittee, which states that 'numerous federal laws were likely broken by Liz Cheney, and these violations should be investigated by the FBI.’"
This is how revenge prosecutions start. A Trump-led Justice Department investigates following a referral from the subcommittee. That sounds normal enough and can be presented to the Trump supporters and even non-lawyers in the general public as though it is. But it isn’t. It’s not even close to normal. Cheney, of course, has speech and debate clause immunity for all of this work. What she is accused of doing clearly and literally falls within the well-understood contours of that doctrine. Members of Congress have immunity for conduct they engage in on the floor of their chamber as well as when they are engaging in committee work, including investigations. And that protection can extend much further, as we learned when South Carolina Senator Lindsey Graham tried to avoid testifying pursuant to a grand jury subpoena in the Fulton County investigation. When that matter reached the Supreme Court, the Court held that the trial court correctly “assumed that the informal investigative factfinding that Senator Graham assertedly engaged in constitutes legislative activity protected by the Speech or Debate Clause” and that “Senator Graham may not be questioned about such activities.” The Courts agreed that for anything that allegedly was outside of the scope of Graham’s senatorial duties, for instance, communications with the Trump campaign, he could go to the court for further consideration of how far the privilege reached. Based on this decision and others, it’s clear that Cheney is entitled to immunity for her investigative work as a member of Congress on a House committee. In other words, there can’t be a successful prosecution. Just as Trump argued with presidential immunity, conduct involving his official acts could not form the basis for a prosecution. The only difference is that the Constitution sets forth speech and debate immunity for Senators and Representatives, while Trump’s special privilege was crafted for him by the Supreme Court.
That makes the referral unusual and the kind of thing DOJ typically passes on. Prosecutors can only indict a case if they believe they can obtain an conviction and sustain it on appeal and where it’s barred by immunity from the outset, no dice. But this referral from the House comes in the context of Trump’s call for revenge prosecutions, which means we don’t have to think very hard to understand what’s going on. House Republicans have bent the knee, and hard. This is not normal and it must not be ignored. And it’s not just Liz Cheney. Trump is suing civilly, in what looks awfully frivolous at first blush, the Iowa pollster who concluded Kamala Harris was running ahead of him on the eve of the election. He’s using Iowa consumer protection laws to lodge an election interference claim against her. It’s an unprecedented lawsuit Polls are speculative by nature; that’s their entire point. I don’t recall anyone suing Nate Silver in 2016. But Trump’s lawsuit has harassment value. And that may be the whole point. Being sued puts the defendant through the expense and stress of a lawsuit and public focus. Even if the case is ultimately dismissed, it sends a warning to others: stay in line, or this could be your fate too. The attack on Liz Cheney speaks to just how far the country is capable of slipping and how fast. Speech and debate immunity should protect Cheney, and she has the resources and public profile to survive a witch hunt. But others won’t. Trump shows signs of being willing to use both criminal prosecutions and civil cases to attack people he views as his enemies. Hungary’s authoritarian leader Viktor Orban made a similar move to consolidate his power, making it easier for public figures to sue members of the press for libel, a strategy that could be used here, too. We could see lawsuits of local leaders or journalists in places outside of New York City and Washington, D.C., places where there is less of a spotlight cast by national media and more opportunity to suppress the voices of people who would speak truth to power, as in Iowa. That sort of approach, wrapped in the legitimacy of the law, could send shockwaves to journalists, doctors, teachers, lawyers, and others across the country who want to protect American’s rights. It’s a dangerous road map for the end of a democracy, with the goal of suppressing the voices that educate, that provoke thought, and that ensure we have a marketplace of ideas to support democracy. For long-time Democrats, the Cheneys will seem like an unlikely pair of champions. When it comes to the policy direction the country should be headed, areas of agreement with them may well be a null set. But democracy has proven to be a different matter. Ironically, it’s precisely because we have differences on matters of policy that we understand democracy is essential. Democracy is the process through which we work out our differences and reach the accommodations that are necessary when so many people live together in such a big country. Democracy can be imperfect and frustrating. But the alternative, the one that currently looms on the horizon, is authoritarianism. Despite the disappointment of the 2024 election, it’s reassuring to know there are plenty of people in our country who still believe democracy is better than dictatorship. We do not have to agree with people on matters of policy in order to work together to support democracy. Prosecuting elected officials for doing their job because they’ve done it in a way that a would-be strongman doesn’t like, a way that exposes him for what he is, is a danger zone. Revenge prosecutions are the stuff of banana republics, but that seems to be where MAGA is determined to start. Believe them when they tell us who they are. We’re in this together, Joyce |
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