The Last Bastions of Democracy: Defamation and Disbarment
These two rarely used tools could be the difference in 2024
by Jeremy Novak
Jack Smith won’t be able to do it. Neither will the Supreme Court. Nor Congress, states legislatures, or even the President himself.
No one can simply “save” democracy. And anyone that even comes close to that kind of power so far has been unwilling or unable to just step up and make the tough decisions that risk the ire of a rabid minority in this country, like Lincoln did when he took the extra-constitutional actions necessary at the time to ensure that the country survived.
Lincoln’s gambit
In the turmoil of the beginnings of the Civil War, Lincoln likely broke the law—and knew it—when he suspended the writ of Habeus Corpus in order to ensure the military communication lines between Baltimore and the capital of Washington, D.C. remained open. Even The Emancipation Proclamation arguably wasn’t exactly “Constitutional”, but justly freed enslaved persons and helped to hasten the end of the Civil War.
But we are not currently engulfed in a civil war, so do we want someone flexing that much power today? Do we really want to use extra-constitutional powers at this moment in time? Why would that be any different than a demagogue like Trump, acting as an autocrat?
The reality is that it wouldn’t really be much different. It would be analogous to a “benevolent dictatorship”. The problem with this system, much like any autocratic system, is who decides (and how?) what is “benevolent”?
Our American system hasn’t been tested like it recently has been since the days of Lincoln, and thus we’re going to learn what, if anything, holds this country together. As of right now, thankfully, the testing is being done with words more than weapons. Once that balance shifts, we’ll be in a new Civil War.
This is partly why relying on ourselves to save democracy at the ballot box may not be the most reliable solution either. Sure, it could be—and likely will be—that we vote out the fascists, cultists, demagogues, and autocrats, and they wither away politically for the foreseeable future.
But the problem is that “we” also consist of a fairly large segment of the population that either supports, tolerates, is ignorant of, or simply is the fascists, cultists, demagogues, and autocrats. So, it’s also possible that “we” choose the path of autocracy. That’s why anxiety about the upcoming election is through the roof.
The last bastions of democracy
Enter the remaining bastions of democracy in our modern society: defamation laws and disbarment. At this stage, where words still have the advantage over weapons, these little-used pillars of law have much power; or, at least, they should. And we will learn how much over the next year.
They maintain the current balance of words and weapons and help to keep weapons from gaining momentum. How? By essentially providing a chilling effect on incendiary words that lead to weapons gaining an edge.
How defamation laws will alter the playing field in 2024
Somewhat surprisingly, defamation was much less tolerated in the first 200 years of our country than in recent times. This means that our modern society is more tolerant of ugly public statements about people than it used to be. But even in this era, the “ugly” is currently on the road to being too ugly for comfort, and we’re at a precipice where ugly may get a major makeover.
The 2020 election was challenged by Trump and MAGA extremists largely by the use of false and incendiary statements about innocent people and organizations, such as election workers Ruby Freeman and Shaye Moss in Atlanta, and voting machine companies Dominion and Smartmatic. The elements of these accusations were aired constantly by Fox News and other right-wing media outlets after the election and portrayed as real “news”.
The reputational damage, personal emotional pain, and physical threats prompted these victims to sue for defamation. Freeman and Moss won their case to the tune of $148 million. Dominion and Smartmatic obtained a near-$1-Billion settlement from Fox News, among other settlements with right-wing media broadcasters. Even with the modern high bar for legal victory, it has proven to be very costly to unquestionably engage with unsubstantiated claims of wrongdoing.
So how will Fox News, Donald Trump, and other right-wing actors behave leading up to, during, and after the 2024 election? Well, they will likely think twice about airing claims of fraudulent activity about individuals or companies without any proof or sense of legitimacy. Just the possibility of being sued for defamation in the current political climate—and having to go through the costly process of lawyering up and discovery—will be a repulsive proposition.
And even if Trump—who is basically a nihilist wild-card that seems to be oblivious to accountability—spews out this venom again, his specific claims are unlikely to get promoted to a larger audience via major right-wing media outlets. Therefore, the legitimacy of such lies will be minimized without these outlets to promote them.
How disbarment might reduce “creative” lawyering in 2024
The legal profession sits at a prominent place in our society, as it requires a high level of education, time, and effort. One is rewarded with relatively lucrative employment after they pass through the hurdles necessary to practice law. To have one’s law license revoked—be disbarred, in other words —is a devastating and humiliating event to be avoided at all costs.
In the 2020 election aftermath, when certain select lawyers concocted legal theories that drove the efforts of Trump and his minions to overthrow the results, the standards for disbarment were tested, and justice seems to be passing the test.
Jon Eastman, the originator of creative theories of Vice-Presidential powers within the Electoral College counting process, has been disbarred for his efforts, and his bank accounts have even been shut down due to this stain on his record. Other prominent “creative” electoral thinkers, such as Sydney Powell and Kenneth Chesebro have not been disbarred, but appear to be on the way soon. As it turns out, you can’t just pursue any legal theory you want; it has to be somewhat within the realm of reality. That’s good to know.
And that will help in the 2024 election, which is likely to be the most litigious in history. Many ballot-related rules will likely be challenged by Republicans in battleground states, similar to the signature challenges or contesting the validity of COVID emergency judicial rulings in the 2020 election. That’s somewhat legitimate, I suppose. And if Republicans want to spend their time and money on trying to overturn rules that have been deliberated and legislated extensively, many by Republican state legislatures, that’s their business.
But it’s the theories of what can be done Constitutionally to work around the established Electoral College process that may become prominent again in 2024, that could be particularly insidious. And the fact that 2020’s creative Constitutional theories didn’t go well for lawyers will likely chill these efforts in 2024. It helps that a Biden administration will be in power at the time, but there will be plenty of people in Congress that will be tempted to work through these efforts again.
Who will be the lawyers that write the memos in support of these efforts? We’ll see. But the risk of disbarment, and the threat of losing their reputations and livelihoods will probably minimize the numbers and the prominence in the public discourse come election time.
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The 2024 election could go smoother than we anticipate
I’m not Pollyanna. I know that we are in for a tense fight of right vs. wrong in the 2024 election. But I also know that things often aren’t as bad as they seem. And the fact that the efforts in 2020 to overthrow an election were unprecedented also means that our society had an opportunity to lay out the cost-benefit analysis of a previously unheard-of scenario.
It’s now established that if you want to break into a government building to stop the election process, you are likely going to be prosecuted and put into jail. If you baselessly accuse individuals of conspiring to commit large scale fraud, you are likely going to be sued, humiliated, and ordered to give up your life savings. And if you come up with cockamamie legal theories in order to sanitize and legitimize an attempted coup, you will risk losing your status in society and livelihood.
Are those things worth it? Many people will now have to ask this question and do the cost-benefit analysis this time around, whereas, in 2020, it was easy to get caught up in the excitement of the next revolution. The pause necessary for this analysis will be the difference between democracy or a descent into autocracy.
Perhaps I’m crazy, but I think most people having to grapple with this question are selfish enough to make the correct call. In this way, self-preservation will be the preservation of democracy. This is basically the reason for laws and rules in the first place. Therefore, defamation laws and disbarment rules should prevail in 2024, and help keep the next generation of electoral criminals at bay.
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I think you’re right on an individual level, that the threat of disbarment/lawsuits will be influencing behavior in a positive way going forward. You don’t mention this, but I also think locking up many of the J6 actors has also been beneficial; that may be a large part of why Trump’s pleas for demonstrations against his trials haven’t been answered. Unfortunately I don’t see any evidence that the Dominion etc lawsuits have had any impact on Fox’ behavior. I think they are just considering this as a business expense, assuming they will have to do payoffs periodically, and continuing with their current business model. To really influence very wealthy actors, IOW, you have to credibly threaten some of them with prison, not just monetary penalties.
And so it seems it will be down to the smaller courts, not the Supreme Court, that saves our democracy.
All the lawyers and politicians who have been charged and many jailed due to Trumps rallying call have made examples of themselves, they’re the poster child of the “don’t break the law for a sitting president” or you will likely be disbarred, serve prison time or both.
And the “not news” programs that report disinformation will have to tamp it down or be sued for huge amounts, along with defaming civilians who’s only wrong was to volunteer their time.
I’ve been thinking that the outcome of these and the FBI’s finding and bringing to justice so many Jan 6 terrorist will do a lot to dissuade violent rioting before it turns ugly, uglier.
I’m glad you wrote this bring up those cases because if anything can save our democracy it’s fear of these punishments. The courts for the most part are still in the side of right. Not right wing.