(Editor’s Note: The excerpt below is from Attack from Within: How Disinformation is Sabotaging America by Barbara McQuade, published by Seven Stories Press.)

Counter Harms to the Rule of Law

Agreeing to comply with laws and to resolve our differences in courts is essential to a peaceful society. The rule of law requires all members of society to comply with laws because they express the will of the people. When people engage in corruption or take the law into their own hands, the rule of law is diminished. We must take steps to buttress it.

One way to reinforce the rule of law is to dispel the idea of “vig­ilante justice” and replace it with terms that describe it for what it is—terrorism. Most often, citizens who “take the law into their own hands” lack training and knowledge of the law, or even an aware­ness of all relevant facts. When three men ambushed and murdered Ahmaud Arbery while he was jogging on a street in Georgia in 2020, they claimed they suspected him of a crime and were acting under legal authority to conduct a citizen’s arrest.[1] The men who plotted to kidnap Michigan governor Gretchen Whitmer over her shutdown orders were engaging in vigilantism. In Michigan, an election-denying county sheriff suggested the Whitmer kidnap plotters may simply have been performing a citizen’s arrest.[2]

Laws permitting citizen’s arrests are on the books in a number of states.[3] And while the laws vary, they generally permit a member of the public to detain a suspect who has allegedly committed a crime in their presence. The laws were created with good inten­tions; for example, they allow a citizen to stop a thief caught in the act of stealing a wallet, or a security guard to temporarily detain a shoplifter. But these laws tend to do more harm than good, because they allow wrongdoers to rationalize their conduct to hold or even harm someone they believe has violated the law, even when they lack probable cause, a standard many lay people are unlikely to understand. According to Michael J. Moore, a former US attorney in Georgia, the danger of citizen’s arrest laws is that “some people see the laws as license to become a cowboy, or that somehow it deputizes you to become a cop.”[4] Some people see citizen’s arrest laws as permission to serve as judge, jury, and executioner—a gross distortion of the rule of law. Add disinformation to the mix, and citizens who believe that they are in a war of good against evil may be inclined to use citizen’s arrests to defeat their perceived enemies. Removing these laws from the books would encourage people who believe they have identified a criminal suspect to call the police instead of taking the law into their own hands, a dangerous step with potentially deadly consequences.

Enforce laws against paramilitary activity

Another way to protect public safety would be to use the laws already on the books to address groups calling themselves militias.[5] The 2021 US National Strategy for Countering Domestic Terrorism stated that “militia violent extremists” pose the greatest threat of domestic terrorism directed against government personnel and facilities.[6] Enforcing laws already on the books would discourage private groups from performing military and law enforcement func­tions and signal that they operate outside the rule of law.

According to the Institute for Constitutional Advocacy and Protection at Georgetown Law Center, “All 50 states prohibit pri­vate, unauthorized groups from engaging in activities reserved for the state militia, including law enforcement activities.”[7] Some states restrict unauthorized private militias by forbidding groups of civilians from “parading” or “drilling” in public with firearms.[8] Others prohibit individuals from training people in the use of firearms, explosives, or “techniques capable of causing injury or death.”[9] And still more prohibit civilians from assuming the uni­form or duties of a peace officer.[10] Civil liberties concerns about free speech, free assembly, and the right to bear arms may make law enforcement authorities reluctant to enforce existing laws, but arrests and prosecution would deter others from engaging in con­duct that endangers the public.

Combat corruption

Public officials who take bribes, extort contractors, engage in fraud, or otherwise abuse their office allow powerful people to play by dif­ferent rules. Ignoring corruption spreads the lie that some people are above the law. Declining to prosecute or pardoning offenders normalizes corruption, which degrades the rule of law.

We must vigorously enforce laws against even powerful politi­cians who engage in corruption. If leaders get a pass, then ordinary citizens can rightly question the fairness of the criminal justice system. In addition, presidents should take into consideration the counsel of the Department of Justice’s Office of the Pardon Attorney, a norm Donald Trump violated.[11] Relying on institu­tions to approve pardons lends uniformity to the process and the results, so that offenders under similar circumstances are treated alike, an important tenet of the rule of law.

No one of these proposed solutions will cure all ills of disin­formation, but we must have the political courage and will to try some of them, or others. Our democracy is too precious to simply surrender to authoritarians, fascists, foreign influence operations, and scammers. But all the laws in the world cannot eradicate dis­information unless the citizenry wants to defeat it. We need to pass legislation that compels public servants—even the president and commander in chief—to adhere to facts and not deceptions. We must demand the truth from those who represent us rather than accept as true that which we want to believe. This is a battle for democracy that requires us to assert our nonnegotiable sovereignty and powers of self-governance.

[1] “Federal Judge Sentences Three Men Convicted of Racially Motivated Hate Crimes in Connection with the Killing of Ahmaud Arbery in Georgia,” press release, United States Department of Justice, August 8, 2022, https://www.justice.gov/opa/pr/federal-jury-finds-three-men-guilty-hate-crimes-connection-pursuit-and-killing-ahmaud-arbery.

[2] Paul Egan, “Sheriff Who Suggested Whitmer Kidnapping Could Be ‘Citizen’s Arrest’ Sues over Election,” Detroit Free Press, December 7, 2020.

[3] AJ Willingham, “Citizen’s Arrest Laws Aren’t Cut and Dry. Here’s What You Need to Know,” CNN, November 10, 2021, https://www.cnn.com/2021/11/10/us/citizens-arrest-what-is-explained-trnd/index.html.

[4] Willingham, “Citizen’s Arrest Laws.”

[5] Barbara McQuade, “We Have Met the Enemy and They Are Us,” podcast audio, 47:09, Horns of a Dilemma, June 17, 2022.

[6] National Strategy for Countering Domestic Terrorism (Washington, DC: National Security Council, June 2021), 10–11; McQuade, “We Have Met the Enemy.”

[7] “Fact Sheets on Unlawful Militias for All 50 States Now Available from Georgetown Law’s Institute for Constitutional Advocacy and Protection,” press release, September 22, 2020, Institute for Constitutional Advocacy and Protection, Georgetown Law, https://www.law.georgetown.edu/icap/our-press-releases/fact-sheets-on-unlawful-militias-for-all-50-states-now-available-from-georgetown-laws-institute-for-constitutional-advocacy-and-protection/.

[8] Prohibiting Private Armies at Public Rallies (Washington, DC: Institute for Constitutional Advocacy and Protection, September 2020), 5.

[9] Prohibiting Private Armies, 6.

[10] Prohibiting Private Armies, 7.

[11] Beth Reinhard and Anne Gearan, “Most Trump Clemency Grants Bypass Justice Dept. and Go to Well-Connected Offenders,” Washington Post, February 3, 2020.

IMAGE: American flags and the U.S. Capitol building. (Photo by Stefani Reynolds via Bloomberg)