RUTHFULLY YOURS

When Abbé Sieyès, the 18th-century French clergyman and political theorist, was asked what he did during the Reign of Terror that accompanied the French Revolution, his answer was brief and to the point: “I survived.” Which is to say, he kept a low profile until the terror blew over, and so he didn’t wind up under the guillotine, as did several of his colleagues.

I don’t think we can afford to follow that passive example today, as we live through our own reign of terror, due in large measure to the advance of what is known as the woke agenda in which people can have their careers decapitated if they compliment a co-worker on her appearance or can be made to vanish from social networks for endorsing the wrong idea. Unlike the 18th-century Reign of Terror, this one seems unlikely to blow over on its own.

The proponents of this agenda are advancing their cause using control of what University of Texas scholar Michael Lind called three separate gateways: college education, professional accreditation, and commercial services, in particular media platforms. He did not mention government as a separate category, but I would suggest that it should be added to the list.

The theme of this conference, of course, is the sources of American strength, and one of those sources undeniably is the rule of law. But that presents us as conservatives with a particularly acute problem because several of those gateways are largely in the control of the private sector, which in turn poses the dilemma of whether the power of government can be brought to bear here in a way consistent with the Constitution’s limits on the reach of government, or not, and consistent with the economic freedom that has helped make this country great, or not. And the solution to that dilemma is by no means clear.

Of these gateways, perhaps the easiest target is those entities controlling professional accreditation, notably the American Medical Association and the American Bar Association. The AMA board in 2021 passed a resolution urging that future birth certificates not specify the sex of an infant, apparently based on the doctrine that sex is a continuum and that an infant might be disadvantaged by the discovery later on that a birth certificate places him or her at the wrong end of the spectrum. The ABA, for its part, has adopted a standard — Standard 206 — for accrediting law schools that would impose race and gender quotas and simply blows off nondiscrimination statutes and indeed the U.S. Constitution itself — in language that has to be quoted to be believed:

The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s noncompliance with Standard 206.

Without dwelling at length on either the AMA or the ABA, I should just say that I have enough faith in current laws and my fellow citizens to leave those bodies to the mercy of the courts and a citizenry that simply won’t take it anymore once word gets out on media platforms about what is going on. The trick is to make sure that the word gets out.

Insofar as proponents of the woke agenda are relying on media platforms to advance their agenda, the problem is more tricky. There may be something to be said — and Justice Thomas has been saying some of it — for subjecting media platforms to the same rules that apply to common carriers and places of public accommodation, or to companies that exercise monopoly power.

However, to the extent that they rely on the broad swaths of government that they control, and in particular an especially potent part of the executive — the Justice Department — it is going to take an election to reverse the damage.

But let’s look first at social-media platforms. They are private entities that have concentrated control over online content and platforms available to the public, but their right to exercise that control by excluding and limiting people may not be unlimited, and Justice Thomas has argued that they may be subject to regulation in the manner of public utilities or places of public accommodation.

Transportation and communication networks are in the heartland of businesses subject to regulation, at least by requiring them to serve all customers alike, without discrimination. So the argument is that if people have a right to have a telephone conversation on any subject, it is at least arguable that they ought to have a right to send a tweet on any subject.

Historically, governments, both state and federal, have given common carriers special privileges as part of the bargain under which they are regulated. Media platforms have received immunity under Section 230 of the Communications Decency Act of 1996 from certain types of lawsuits that could otherwise arise from the information they carry, including lawsuits for libel.

An analogy can be drawn as well between digital platforms and places of public accommodation, which provide, among other things, services to the public. Courts are split on the question of whether federal public-accommodations laws apply only to physical locations or not, but the analogy is there for both legislators and courts, and of course there is always the blunt instrument of the antitrust laws.

However, as I think this afternoon’s technology panel showed, the regulatory cure could wind up being worse than the disease. Fingers crossed, but I think the answer here would seem to be innovation rather than regulation.

To the extent the woke agenda is being pursued through control of the Justice Department, I think the overriding reality here is that personnel is policy.

I think it is important to any discussion of the Department of Justice to understand the nature of this particular department, which I think is unique. Generally, departments of government — whether the State Department or the Department of Health and Human Services, or even the Department of Defense — are expected to be run in a way that carries out the agenda of the administration that controls the White House.

As to matters of policy, that is true of the Justice Department as well. So, for example, if a president wants to give priority to prosecuting health-care fraud, the attorney general could be expected to allocate resources accordingly, and not to say, for example, “I think stock fraud is more important, so I will allocate resources to that.” That kind of decision is essentially a political decision, and the politically answerable official who heads the executive — the president — is the person ultimately responsible to the public for the results. That is true even for policies with which people in this room may disagree.

The same is true for appointments to jobs that are subject to Senate confirmation, from the attorney general on down to even the local U.S. attorneys in each district, each of whom serves at the pleasure of the president. When Bill Clinton took office, for example, he replaced all but one of the 94 U.S. attorneys, as he had the right and power to do.

But when it comes to specific cases, both civil and criminal cases, the decisions as to which particular cases should or should not be prosecuted, or which particular matters should be investigated, are supposed to be made on the merits of each case.

That is not to say that the president does not have authority over the attorney general — he does. I have two souvenirs hanging on my wall, commissions that I received at the time of my two appointments. One appointing me U.S. district judge said that Mukasey gets to sit “during his good behavior,” which means that unless and until I did something impeachable, I got to sit. The one appointing me attorney general said Mukasey gets to serve “during the pleasure of the president of the United States.” The pleasure of the president means what it says — presidents can remove an attorney general any time they want.

Nonetheless, there has grown up over time in the Justice Department a tradition of independence as between the department and the White House. Again, this does not mean that the DOJ is a fourth branch of government. It isn’t; we are talking about a tradition.

Sometimes, that can be difficult to uphold. During the Trump administration, we watched an attorney general — Bill Barr — stalwartly maintain his independence and do what he thought the law and the facts required in the face of pressure from the White House — permitting the Mueller investigation to run its course, whatever the wishes of president Trump, not indicting Andrew McCabe, deputy director of the FBI, for leaking confidential investigative information and then lying about it, despite the contrary wishes of the president, and saying out loud that the president was making it difficult for him to do his job and, of course, ultimately, that he found no evidence of widespread fraud in the 2020 election despite the president’s insistence to the contrary.

But simultaneously, he exercised his authority in the Roger Stone case with respect to the DOJ’s sentencing recommendation and overruled line prosecutors who wanted to recommend a lengthy sentence to the court in essence by using the sentencing guidelines as sort of a pinball machine and trying to see how often they could make the bell ring and run up the length of the recommended sentence.

In another case, he found that the false-statements prosecution of Michael Flynn was unjustified, even though Flynn had pleaded guilty after a prosecution of his son was threatened. That disgraceful and unjustified prosecution ultimately ended with a presidential pardon, made necessary by a federal judge’s refusal to allow the case to end, even though the Justice Department moved to dismiss it.

In each of these cases, where he refused to reach a result the president favored or reached a result the president favored, he was simply acting based on what he found to be the proper result on the facts and the law. Which is to say he illustrated by personal example not only that one of the sources of strength of this country is the rule of law, but also how much preserving that strength depends on who is applying the law.

What about the current incumbent? Here is where the point about personnel being policy comes into play.

Let’s look at a couple of separate instances.

The first is a sample from a whole class of cases. That one began somewhat over a year ago, when two officers of an organization called the National School Boards Association sent a letter dated September 29, 2021, to President Biden urging him to do something about parents who were attending school-board meetings and protesting over progressive indoctrination of their children. The letter said these parents should be investigated as potential domestic terrorists using Patriot Act investigative methods because those parents presented the threat of imminent violence affecting interstate commerce, a reference not backed up by evidence but apparently intended to provide an excuse for federal involvement.

As I said, the letter was addressed to President Biden, but the attorney general — who was not cc’d on the letter — issued a memo three days later directed to U.S. attorneys and the FBI urging the U.S. attorneys to forge a “partnership” with state and local law-enforcement authorities to develop “strategies for addressing threats against school administrators, board members, teachers, and staff.”

Now, the current attorney general is a former appellate judge and was a highly regarded one. Moreover, he has access to the most sophisticated legal advice available from the Office of Legal Counsel at the Department of Justice, which normally would be consulted and would issue a lengthy memorandum citing statutes and cases and outlining the authority on which the attorney general might rely in preparing a memo of the sort Merrick Garland issued.

In particular, an OLC memorandum would consider carefully the First Amendment rights of the parents and whether those could be infringed or chilled by a threat of investigation by the FBI or prosecution for speaking their mind at a school-board meeting.

However, the Garland memo was less than a page long and cited no legal authority — which is not surprising because there is no general federal law-enforcement authority to monitor or intervene in disputes between parents and local school boards — none, and so there would have been no cases or statutes to cite. But the prospect of an FBI investigation gets the point across to parents loud and clear and threatens them for exercising First Amendment rights of which the attorney general was aware.

This memo is stunning in and of itself, but it actually carried forward a technique that was used in the Obama Justice Department and has been used on other occasions in this administration — a technique that Andy McCarthy has described as making the process the penalty. That is, the authorities seize on conduct or positions they disagree with and then threaten Justice Department civil or criminal prosecution, or otherwise use legal processes that on their face are neutral but have the effect of harassing and intimidating people who hold policy views different from those of the administration — in this instance, views on critical race theory and gender classification.

As I said, this example is representative of a whole class of cases, and let’s review one more, just to give you the flavor.

In September of last year, the FBI arrested a pro-life activist, Mark Houck, for alleged violations of the Fair Access to Clinic Entrances Act — the clinic in question being a Planned Parenthood clinic. He was charged with shoving a 72-year-old clinic volunteer who, he said, had shouted obscenities at his eleven-year-old son and otherwise got in his face. In any event, the notable thing about this arrest on September 23, 2022, is that the underlying incident happened in October 2021. A state criminal complaint against Houck was dismissed in April 2022, but he got notice five days later that he was under investigation for violating the federal statute. His lawyers offered to bring him to the U.S. attorney’s office if he was charged, but they heard nothing until after the arrest, which was made in the morning at Houck’s home in front of his wife and children, by FBI agents wearing tactical vests and helmets and carrying long guns.

Whatever your views on the issue of abortion, this was a clear attempt to intimidate someone who was advocating the pro-life position. As you may know, Mr. Houck was acquitted of the charge at trial, but that in no way diminishes the damage done by his prosecution and the manner of his arrest.

The performance of the Justice Department in the George Floyd case is of a piece with its performance in the cases I have already referred to. As you know, the officer principally responsible for the death of George Floyd, Derek Chauvin, was justifiably convicted of murder in a state-court trial. But the Justice Department then brought a criminal charge against him for denying George Floyd’s civil rights under color of law, to which Chauvin pleaded guilty.

Chauvin was sentenced to 22.5 years in the state case. The federal case was completely redundant. He pleaded guilty in the federal case and received a concurrent sentence of 21 years, along with a guarantee that he will serve his sentence in a federal prison, a far less harsh result than if he were to serve his time in state prison. Other than conferring this benefit on Derek Chauvin, the only thing accomplished by this federal prosecution was to permit the administration to claim that it, too, had brought a prosecution — more symbolism than substance.

But there is more. The three Minneapolis cops who were on the scene of the arrest of George Floyd were prosecuted as well under the same statute, on the theory that they engaged in criminal conduct by failing to act to save Floyd. They were charged with violating three of Floyd’s civil rights: for helping to subject him to unreasonable seizure, for failing to take action to prevent Derek Chauvin from brutalizing him, and for being deliberately indifferent to his medical needs.

Yet by everyone’s account Floyd was arrested — seized — for passing a counterfeit $20 bill. The charges of failing to intervene and deliberate indifference to medical needs were asserted under the broad theory that they constituted a denial of due process, a reading of that concept that would make the statute void for vagueness.

I do not dispute that the officers who in one way or another stood by while Derek Chauvin brutalized George Floyd may have deserved to be fired, but there is simply no federal law suggesting that failure by police to act is a crime. To argue that it is a criminal violation of due process of law is simply to make up a crime to fit a politically based, woke desire to do something.

Enforcement of laws that embody a policy the enforcers agree with, and doing so in a draconian way, is only one face of the coin. The other of course is nonenforcement of laws with which the enforcers — or those who should be enforcers — disagree. The department’s role in advancing a woke agenda can be passive as well as active.

Here, I should say that it is by no means clear that the Justice Department leads in the use of nonenforcement as a social message, as all of you have no doubt experienced if you have walked the streets of the city we are in — assuming you have the courage to do so — or the streets of San Francisco or New York — if you have the stomach to do so — where you can directly experience or, if you are lucky, merely witness, what barbarism nonenforcement of laws by progressive prosecutors has brought about.

But although the Justice Department may in a sense lag behind the locals in nonenforcement, it has done and is doing its part in that category as well. One example is the lackadaisical approach to the prosecution of pro-choice advocates who commit violence, including arson, at facilities that offer pro-life counseling to pregnant women considering abortion. Only after a torrent of unfavorable publicity has the Justice Department brought any of these cases.

To cite another example, it is a federal misdemeanor to picket or parade or use any sound truck or similar device near the residence of a federal judge for the purpose of influencing that judge in the discharge of a judicial duty. For months, particularly since the leak of the Supreme Court’s Dobbs opinion that overturned Roe v. Wade, demonstrators have been picketing and using bullhorns and noise-makers near the homes of Supreme Court justices to protest that decision and otherwise to influence the outcome of any subsequent litigation on the subject of abortion.

None of those demonstrators have been arrested. The contrast with the arrest of Mark Houck in Pennsylvania could not be more stark, but the attorney general’s explanation at a Senate Judiciary Committee oversight hearing in February, for failure to arrest demonstrators, was that the decision to arrest or not lay with the U.S. Marshals who protect Supreme Court justices. That explanation simply doesn’t survive scrutiny; the marshals service is a law-enforcement agency within the Department of Justice; the head of the Marshals Service reports to the attorney general.

And so the technique of making the process the penalty now finds its mirror image in the technique of making the absence of process the penalty — and the message for the rest of us is that we had better win the next election or get used to it.

Unfortunately, this direct way of opposing and perhaps undoing the advance of wokeness from entities such as the ABA and the AMA, or within law enforcement, or of innovating around the control exercised by media platforms, does not seem obviously available when dealing with it in the academy.

On the other hand, let’s not forget that it was not too long ago — again as Michael Lind has written — that the phrase “political correctness” generated enough derision among our fellow citizens to keep what has now metastasized into wokeness pretty much confined to the academy, where it led a beleaguered existence.

The law can indeed be a strength, but only if it can be used in the way it is intended to be used, and by people who will use it only in that way. Let me illustrate with a story going back to the day I was sworn in as a district judge. I got a congratulatory telegram from a well-meaning cousin that closed with a two-word message — “Do justice” — part of a valuable life lesson from the prophet Micah but not a guide for federal judges.

No: My job was to do law, and to have enough faith in the law to know that if I did it right, the result would be justice. Law can be a strength if it can be used to keep a society open to the opinions of all, and if, but only if, its administration can be placed in the hands of those for whom the law itself is the only agenda.

The following is a transcript of former attorney general Michael Mukasey’s remarks at National Review Institute’s Ideas Summit, delivered for the James L. Buckley Lecture on March 30, 2023.