Arrests and convictions over contempt of Congress. Police enforcement of bureaucratic and relatively obscure archivist laws. FBI raids on former presidents (and future political opponents?).
In their rage, the Democratic Congress and administration have written a vicious battle plan — one that conservatives will do well to follow when they return to power if they’re at all serious about restoring any semblance of respect for law in our country. In weeks past, there’s little reason to believe conservatives are; but Monday night’s raid might finally have changed that.
Just over one year after President Joe Biden’s election to the White House, his Department of Justice arrested Steve Bannon, President Donald Trump’s former political director. Bannon was arrested for contempt of Congress, or, refusing to answer a congressional subpoena.
After he was convicted last month, Bannon became the first American to face a prison sentence for contempt since the House Un-American Activities Committee sent 10 uncooperative, suspected Hollywood communists to prison in 1948.
In the more than 70 years between the Hollywood Ten’s sentencings and Bannon’s conviction, contempt of Congress had devolved into more of a political tool used to investigate the other party, but rarely brought to its legal conclusion.
While Democrats tried to prosecute contempt of Congress twice during the Reagan years, the administration only let one prosecution come to pass (in which the defendant was ultimately found innocent of contempt). Decades later, when Republicans tried to bring a similar case against President Barack Obama’s obstinate attorney general, Eric Holder declined to prosecute himself, citing executive privilege.
Two years later, when Republicans sought answers from the IRS’s Lois Lerner over her targeting of political opponents, Holder also declined to prosecute. Later, when Democrats tried to bring criminal contempt charges against Trump’s secretary of commerce and attorney general, Bill Barr similarly declined to prosecute himself.
Criminal enforcement is extremely rare because the reality is Congress can refer who they like, but the administration prosecutes whomever the administration chooses to prosecute.
The Biden administration has made clear they’ll prosecute their political opponents every chance they get. That means that despite Republican House Minority Leader Kevin McCarthy’s threat to hold Attorney General Merrick Garland accountable in the next Congress, he will only be empowered to hold Garland accountable under a Republican administration (unless he complies with Republican congressional oversight, which he won’t).
True: Arresting an administration official after he’s left office is a dangerous precedent, but it’s one Democrats gleefully set this past year.
And contempt of Congress is far from the only weapon the administration has wielded against their out-of-power opponents: Tuesday’s raid of former President Donald Trump’s home, for example, reportedly centered on his handling of classified information (and the Watergate-era Presidential Records Act).
While politicians such as Hillary Clinton have been accused of similar crimes, prosecution is extremely rare — and focuses on the most egregious cases. For example, Bill Clinton’s national security adviser, Sandy Berger, was prosecuted in 2004 for stealing and destroying classified documents on the Clinton administration’s handling of terrorism prior to his testimony before the 9/11 Commission. Gen. David Petraeus was similarly charged for sharing classified documents with his mistress.
Neither Berger nor Petraeus was charged with so much as a felony, instead pleading guilty to misdemeanors. Neither Berger nor Petraeus’s homes were ever raided, either, and neither man ever served a day in prison. Most importantly, neither was a former president of the opposing party — nor a potential political opponent in the next general election.
That’s what makes the FBI’s raid of Trump’s Mar-a-Lago home so shocking — so disconcerting that voices from former Democratic New York Gov. Andrew Cuomo to the liberal Bloomberg editorial board to D.C.-groupthink mouthpiece Playbook have all voiced their unease.
These liberals’ unease stands in contrast with Republican Senate Leader Mitch McConnell, who ignored a reporter’s Tuesday afternoon question on the subject, and didn’t issue so much as a peep of concern for the first 23 hours after the raid was publicized. He was joined in his silence by Senate Republican Whip John Thune (who issued a statement at the same time, Tuesday night), Senate Republican Policy Committee Chairman Roy Blunt (who remained silent as of 9 p.m. on Tuesday), and the Senate’s premier “thoughtful conservative” cosplayer, Ben Sasse.
Why the silence? While after five years of increasingly unrealistic (and unproven) conspiracies and accusations against the former president, some Republicans still somehow trust the FBI. The reality is that others, such as McConnell, are pleased by the raid. But regardless of their private thoughts and motivations, their impotent silence in the face of the Biden administration’s charges, arrests, and raids on its political opponents exposes their inability to handle the crisis the American state finds itself in.
While over the coming years, still other Republicans will cite this dead norm or that gutted precedent as they hesitate to use the Democrats’ own battle plans back on them, one-sided disarmament is no strategy at all.
The only way to fight back is to make the kinds of people who’ve weaponized and undermined the American state suffer for their actions. They’ve arrested their enemies, revived obscure rules as pretexts for partisan attacks, and raided their opponents’ homes, and they won’t be sorry until they’ve felt the same pain.
They aren’t sorry at all — yet.