Debate, Dispute, Disagree—But Please Don’t Call for Arrest

No sooner had the Nunes Memo been released than the cries began. “Lock every single one of these bastards up,” tweeted former long-time Democratic Congressman John Dingell, referring to “Congressional Republicans . . . clearly complicit in this White House’s effort to undermine and obstruct justice.”

Similar rhetoric erupted on the other side of the political spectrum. Republican Congressman Paul Gosar declared that the Nunes Memo revealed behavior that was “not just criminal but constitutes treason.” Gosar quickly made clear that his choice of language was no mere rhetorical flourish: “I will,” Gosar promised, “be leading a letter to the Attorney General seeking criminal prosecution against these traitors to our nation.”

This has to stop. When the language of criminal investigation and prosecution infects the language of politics and policy, a democracy like ours faces dark days ahead.

This trend emerged with particular ferocity during the 2016 campaign cycle. Who can forget retired Lt. Gen. Michael Flynn stirring an anti-Hillary Clinton crowd into a frenzy at the Republican National Convention with chants of “lock her up”? Or then-candidate Donald Trump’s references to Clinton’s “criminal scheme” and his pledge that, if he were president, Clinton would “be in jail”? Those seemed, at the time, the disgraceful excesses of a purposefully inflammatory campaign. But they now seem much more: the infection of our political dialogue with the rhetoric of crime. And they have accompanied the president into the Oval Office, with Trump’s accusations that President Barack Obama and his National Security Adviser Susan Rice committed crimes in the collection and handling of intelligence and Trump’s provocative tweets referencing “Crooked Hillarys [sic] crimes” and “so much GUILT by Democrats/Clinton.”

That language has become so widespread so quickly that there’s a danger of missing just how aberrant and worrisome it is. For centuries, a key feature of our democracy has been the distinction between the political space and the criminal space. Sure, political debates, disputes, and disagreements could become heated—rightly so, given the stakes for big-ticket issues from immigration to social security to the use of military force. Losing those debates had real costs: The losers had to watch unwanted policies executed, and often saw the public turn against them—even costing them elections. But that, after all, is democracy.

Today’s rhetorical turn, however, suggests a far darker consequence to losing a political debate: facing investigation and even arrest and imprisonment. Lose an election, Trump told Clinton, and find yourself in a prison cell. Release a misleading memo on a party-line vote of the House Intelligence Committee, former Representative Dingell is telling House Republicans, and you should be locked up.

This may be a new development in the United States, but it’s all too common abroad. The slide to authoritarianism tends to involve the subtle infection of political dialogue. And the political invocation of language referring to criminal investigation and prosecution is a particularly telling sign that democracy may be giving way to authoritarian and even violent tendencies. A powerful study of “stealth authoritarianism” explains how a subtle approach to achieving and exercising authoritarian control often involves threatening—and ultimately carrying out—the criminal prosecution of political opponents.

That’s a sober warning in light of Trump’s persistent rhetoric portraying political opponents like Clinton as criminals. It’s even more sobering when one realizes that the way to deliver on that rhetoric is to politicize our law enforcement institutions that have long been kept out of the fray of partisan politics, and—worse still—to demand personal loyalty from those who lead such institutions. Trump, of course, fares poorly on both counts.

But that’s still no excuse for others to emulate this language. Whether you’re a Democrat or a Republican, a senator or simply a concerned citizen, I beg of you: Don’t call for the arrest of those you disagree with. Dispute their arguments; debate them directly; denounce their hidden agendas even. But don’t let our precious public square for political dialogue be further soiled by the language of criminal recriminations.

We’ve long treated the intersection of law enforcement and that which is politically sensitive as requiring the utmost of care. We see that, perhaps most notably right now, in the arrangement for a special counsel at the Department of Justice. Robert Mueller’s ongoing work to investigate possible collusion with foreign actors by the Trump campaign is the exception, not the norm; and that’s why there is a carefully crafted set of regulations in place to demarcate his role. Those regulations were deliberate reactions to the excesses of the special counsel’s predecessor, the independent counsel, which proved a constitutional and political mess. And those regulations are designed, in part, to ensure that an investigation of heightened sensitivity does not become a political witch hunt. (It also helps to have credible people in such delicate roles, such as a widely respected Republican former FBI Director like Mueller.)

The careful demarcation of a special counsel’s role underscores how hard we’ve long worked to keep politics discrete from what should be the apolitical task of criminal investigation and prosecution. That’s a line a democracy must treasure—because its erosion signals the demise of something precious. Even for Trump’s critics, Mueller’s continuing investigation should be viewed, as I’ve previously characterized it here at Just Security, as a solemn responsibility to be respected across the partisan divide—not as a political tool to be relished and described in language indulging the blurring of the political with the criminal.

The current trend may still be “just” a rhetorical infection. That’s worrisome in its own right; but it portends something far worse. Reports indicate that, at the president’s behest and with a push from the president’s own lawyers, Attorney General Jeff Sessions is considering investigating Clinton for a range of alleged activities, perhaps even through the appointment of a second special counsel. When those who lose elections in fact become targets of dubious criminal investigations—especially at the behest of those who triumphed over them—it’s a sign that our democracy is under real strain.

For now, we must all do our part to keep the language of political disagreement free from the rhetoric of law enforcement. Debate, dispute, disagree—but don’t call for any arrests.

 

Image: Christopher Furlong/Getty

 

About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection, Visiting Professor of Law at Georgetown University Law Center, Fellow in New America’s International Security Program, Former Senior Director for Counterterrorism at the National Security Council, Former Deputy Legal Advisor to the National Security Council, Former Counsel to the Assistant Attorney General for National Security at the Department of Justice