Merrick Garland will need all the intelligence and judicial discernment his supporters say he has, as well as a theoretical perspective his prior roles have not required, so that Garland will be successful as Attorney General because the policies to be implemented by him will be the most important of the issues of the Biden Administration after that of the coronavirus Recovery Act and what comes right after that, which will probably be some deal on immigration. Biden is correct in picking Garland to deal with some of the most controversial issues Biden will have to deal with. Here are three of them: what to do with prosecutions of Trump and his henchmen; the legislation concerning police violence and voter disenfranchisement; and the legislation concerning social media. All three of them fall into the hands of the Justice Department because criminal justice, voting rights and anti-trust are part of their responsibilities.
It has always been the case that kings or even tribal leaders have delegated matters of criminal justice to someone else and so eventually to a judicial process which operates independently of the sovereign. That is so kings can walk away from crimes and so not make it always political, and so, eventually, to have justice seem not political. Kings and officials do not have to use political capital to weigh in with one defendant or another. Joe Biden doesn’t want to deal with deciding what to do with Trump and so, he has said, he will leave it for the Justice Department to determine what crimes are to be levied against Trump or his associates. Garland has so far avoided the question of putting an ex-President in the dock by proclaiming the need to prosecute those who were the insurrectionists without saying Trump was one of those.
It will take a solomonic rendering of Garland to decide what are the balances to be considered concerning Trump. There are many charges that can be brought against Trump aside from whether he was an inciter or abettor or legitimate agitator of the insurrection. Garland may decide that there are violations that are so serious that Trump has to be accused. There is tax evasion, which is clearly a federal offense. There are fraudulent bank loans, such as those in dealing with Deutsche Bank. These might face criminal liability even though Mueller was told by Ron Rosenstein that taxes and loans were outside the ambit of the first investigation into Trump. There was a great deal of money at stake. But think about criminalizing Trump as a precedent concerning who can become President. Anyone engaged in business or real estate might get put under a microscope if they got involved in national politics. (Maybe not Andrew Yang in that high tech is a clean business.) It may have been foolish for Trump to open up a can of worms about everything he had done previously to being a nominee for President especially given the fact that the American people had not much cared that Trump had not released his taxes before his election. The sad consequence of these events concerning Trump’s finances may lead to only people who are professional politicians, knowledgeable in organizing their finances for public notice, to be the ones who can run for office. That would do away with the idea that most people who do well won’t be haunted if they go into politics, and that would limit possible Presidents, such as Wendell Wilkie, from running as someone who is an outsider from the political class. That might seem not too frequent a loss but it is a blemish on the idea that anyone can be President. Also, one of the most important of Trump’s transgressions might be his attempt to get the Georgia Secretary of State to throw the election. But the difficulty is that the impeachment referenced but did not present his manipulation as an offense. Are we now to go after criminal trials to go after what had been put aside in the legitimate political trial? That is what Mitch McConnell has suggested, perhaps as a way to get Trump but good for his various outrages, but the whole point of impeachment was to alleviate the burdens of incessant criminal trials on political opponents.
Then there are less major crimes. The New York District Attorney is considering charges against Trump because money paid to cover up his sex workers should have been included as costs to his reelection campaign or that the money was not taxed properly. This seems very petty, just as was the case of getting after Bill Clinton for dealing with Monica Lewinsky. It is a bad idea to hound an ex-President for whatever you can dig up on him. It seems harassment of someone who is no longer a President. That is what happens in banana republics or just Brazil. My idea is that an ex-President should have a “Get Out of Jail Free'' card. After all, it was momentous to have elected him and certain privileges go along with that in office and so afterwards. Biden is correct to give Trump no longer his security briefings (as if he ever read them when he got them in office) but criminal issues are another matter, though I leave on the table about what charges are levied against Trump that are clearly non political or petty or what he does in the future. I would like to have the matter neat and clean, as Ford did when he pardoned Nixon, who never did a crime again, but you can’t rely on Trump to behave himself. Some people say that putting Trump in one trial or another for the next two years will keep him out of politics, and so is worthwhile for that reason, but, first of all, the publicity of the Trump trials will further support his following and, second, using that political purpose for such trials tarnishes the idea that criminal justice is about the crime rather than to discredit a person because he is a political opponent. Garland will have to maneuver with regard to Trump as to what is political and what is purely criminal. Garland may not be able to interfere with local and state jurisdictions, but he will have to decide whether Trump is the leader of the insurrection, given Garland’s promise to go after the insurrection, and, even so, and fully aware of what is happening in local and state jurisdictions, whether it is advisable to pursue his own efforts against Trump.
Two issues of new laws that Garland will face.They both have to do with legal and criminal rights of particular interest with people of color. There is the George Floyd Justice in Police Bill, which was based on the Black Congressional Caucus suggestions to reduce police violence. They include barring police choke holds and chest compression, barring no knock warrants, and making police officers liable to civil penalties and creating a registry so that police could be recognized as people who had previously been dismissed for police infractions could be flagged if they were trying to become police men and women in different jurisdictions. There is also, with far less fanfare but to much more serious moment, the John Lewis Voting Rights Advancement Act, which revives what had been part of the Civil Rights Act of 1965 which requires states and jurisdictions that had voting rights infractions to be submitted for pre-clearance, which means that state or county procedures that might make it more difficult for people of color to vote would have to be reviewed by the Department of Justice before it could be implemented. That would apply, I take it, to the recent business whereby the Governor of Texas allowed only one drop off box for ballots per county, which meant that all of Harris County, which includes Houston, would have a single drop box, given that Houston is very largely Black. This act are an attempt to return the standards for free and fair voting established in the Sixties and Seventies and which resulted not only in electing Black congresspeople but all the local sheriffs so as to alleviate the situation whereby local officials harassed Black citizens. It will be very difficult to decide which regulations of voting are pernicious rather than merely annoying.
The most important issue that Garland will confront as Attorney General is the least one under public scrutiny for the moment: reshaping the very idea of what free speech means. That is because the social media have so interfered with the normal processes of communication that some of the outlets are clear and present dangers to the American people in that some social media outlets have prompted and communicated and planned about the insurrection as well as poisoned the people about what is happening. So Merrritt Garland, who has previously been in favor of broadening free speech in traditional lines, will have to engage in a radical conception of the idea. J. S. Mill argued in “On Liberty'', in 1859, that there was a free market in speech in that all voices could say what they wanted because the customers of newspapers would want to pay their pennies so that they could get true accounts of the facts as well as what they already wanted to hear. Free speech advocates, in general, have followed Mill in arguing that the best way to counteract lies engaged in free speech is to provide even more free speech on the grounds that speech that is true will counteract speech that is false. The image was of contending newspapers, each one presenting its own point of view but generally abiding by canons of truth as to the facts of a contemporary matter. In fact, as late as the Sixties and Seventies, the greatest exponents of free speech followed the same line. Thomas Emerson, the Yale Law School professor published his “Free Expression” in 1970. He argued that the key distinction in the limits of free speech had to do when people moved from thought into action. Freedom of speech meant that everyone could think what they wanted, even if the thoughts were obnoxious or only a very minority view, so long as the person had not gone into engaging in an action, such as inciting riot or making personal threats. You can call an opponent a bastard but you cannot threaten to kill him.
Times have changed. The situation of free speech in the last generation is partly but not entirely the result of social media. The basis of free speech can’t be competition, as was said to be the case by Mill. is because people stay in their media silos and so don’t compare points of view. Nor can the basis for free speech rely on separating thought from action, which is what Emerson thought, because talk that is inflammatory or is a parcel of lies can lead people to define their alternatives for action even if they have not enflamed or incited action. The Big Lie that Biden had not won the election is generally understood to have done so in certain circles, and it led some people to believe that they had no choice but to storm the Capitol so as to redress their grievances, good people going into action because important people, not just the President, said it was the case that the Biden election had been fixed. No Trump speech was the cause. These were the beliefs some people had. The inflamed populace can be attributed to many issues, such as people looking for a cause because of the deficiencies of their own lives, or because poor civics education in high schools does not engender a respect for the nature of American government, or because a particularly artful demagogue has been abroad. The question is what to do about it, what new distinctions have to be drawn so as to validate a proper ground for free speech in a democratic society.
European nations have had to deal with this question. Germany has anti-Nazi laws that do curtail the content of speech because it is a special wound for Germans. The French can outlaw the Burqa because the long French struggle between religion and the civil order has been a political one while there is the American attempt to regard the state as neutral between religions and taking no side on religion in general. How can the United States deal with a substantive decision rather than a procedural one for how to decide speech is unacceptable?
One thing to do is to update the J. S. Mill idea of the competition of ideas. There used to be competition between newspapers, each one was responsible to the owner/publisher who set out the standards for what would be offered as news or opinion in the newspaper. That competition also applies to broadcasting and cable television. There were a variety of beliefs available because people like Roger Ailes invented a network that suited his point of view and was responded to by a large number of viewers. The current situation also has multiple websites, but there are just a few that are particularly dominant, though some young people say that Facebook is not as dominating as it once was. But be that as it may, what if MarK Zetterberg can bar Trump from his social media outlet just because Zetterberg is an owner and therefore a publisher of his enterprise? Who made him God even if he owns Facebook? Social media platforms are really not like publishers because they are also utilities in that they are just transmission lines for thoughts rather than adjudicators of content.
So what is to be done if the social media don’t or shouldn’t patrol their own postings? If even some private conglomerate of social media honchos decide on a common policy for censor social media messages, that would just beg the question in that the Justice Department would have to decide whether the conglomerate was available for anti-trust action or whether the Justice Department or the Federal Communications Commission could intervene because the conglomerate was interfering in the exercise of free speech by citizens. So Garland would have to fashion a new principle whereby we would have to intrude into the substance of free speech so as to declare what is and what isn’t permissible, now that competition and the harmlessness of free speech are put aside as the guidance of free speech. Here are two principles that might be introduced and both of them are so troublesome as to pause at trying to frame a better one.
It might seem that Garland might distinguish between hate speech from more temperate speech. Hate speech is obviously identified as venomous. People who call people as kikes or used against Blacks with the N-word can have their posts and their privileges eliminated from social media. Indeed, we already add criminal penalties who are otherwise engaged in crime if it is perpetrated along with hate speech. Beating up a man in the street while uttering these curse words gets a bigger or additional penalty. But it is not always easy for people to be dispassionate when they express their opinions. Maybe social scientists are particularly able to deadpan the observation that demographics in an area are changing rather than that those disgusting people are moving to your neighborhood. I don’t want a Black activist who opines that white people are the ruination of Black people and so I detest them to be treated as objects of hate speech when they are offering a general observation which he or she believes is attested to by the burden of history. And so I don’t think it would be wise for Garland to say that posts on social media should be discarded if they are emotional rather than rational. Most utterances combine the two.
Garland might otherwise suggest that posts should be eliminated if they were not factually correct. Posts saying Joe Biden was not legitimately elected would be eliminated, and overwhelmingly most educated people would agree. But when should that decision point be made? When the networks decided Biden was elected? I thought as much when it was Walter Kronkite who decided who had been elected. Some might say it was when the electoral college met and the Congress accepted that result. Or maybe only because Biden had indeed been inaugurated, whatever shenanigans had happened in the election, though that does make it a banana republic in that who gets the red sash is now the President. Who is to decide when legitimate discourse ends?
Maybe it happens when there is a consensus of opinion because, after all, science progresses by developing a consensus among scientists about whether a theory is verified. But public opinion is much too volatile and so there is no long term stability that gets created through consensus. Decisions are made by majority rule and can be overturned in an election that is never more than two years away. Moreover, we still want free speech to include incorrigible dissidents who don’t agree with the consensus. I am a climate change denier and I don’t want any posts I propagate from my point of view. I hope to change the public consensus on this issue, just as others, including white racists, are entitled to push their views until the rest of the country sees the light, or until there are so many confrontations that the matter will be settled by violent confrontation, as happened with the Civil War. We cannot suppress the views of others, as outlandish as their views might seem, so that they go underground and ferment violence, which, by the way, did not come about in that the insurrectionists were very above board in their activities, and so premature in their revolutionary intentions. But I doubt the insurrectionists had consulted the history of revolutionary Marxism and the ins and outs of that process, nor is it advisable to restrict such tracts so as to illuminate them about how to form a revolution. There would be so many books and pamphlets that would have to be banned from the internet that free speech would have been rendered in tatters.
So Garland has a very heavy plate and how he picks his morsels to inspect in detail will be difficult. Good luck.