Lawfare Against Free Speech

Two issues of Quadrant ago I wrote about the dire legal straits of former President Donald Trump under the assault of Democrat federal and state prosecutors who seemed to be weaponising US law to ensure the conviction of Tom Wolfe’s ultimate Great White Defendant by any technicalities necessary. It’s a process well-described as early as 1940 in a law journal article on “The Federal Prosecutor” by Justice Robert H. Jackson who was in turn FDR’s Attorney-General, an Associate Justice of the Supreme Court, and the chief prosecutor in the Nuremberg trial of war crimes:

It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offence, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to, or in the way of, the prosecutor himself.

In recent months Trump’s legal perils have metastasised further as prosecutors have employed more and more recondite legal arguments to convict him. That said, as I ended my Quadrant column: “Donald Trump is big enough to look after himself. What about the rest of us?”

John O’Sullivan appears in every Quadrant.
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For Democrats in law and political office have recently been selectively applying laws across a wide field and harming both their rivals and the general public—releasing dangerous criminals onto the streets without bail, refusing to enforce border laws, not charging some rioters while throwing the book at others, and using regulatory and prosecutorial powers to censor opinions they dislike and bankrupt those who express them.

Very few ordinary Americans, whether individuals or small businesses, can afford Trump’s kind of first-class legal defence to keep at bay a state or federal prosecutor armed with limitless taxpayer funding and free to range through a forest of laws and regulations so dense that he can indict almost anyone he likes (or dislikes) for crimes they have no memory of committing. And by what is anything but a strange coincidence, a small mom-and-pop business, the website Vdare.com, and its owners, Peter and Lydia Brimelow, have recently been suffering under such assaults from a recidivist prosecutor, none other than the New York Attorney-General Letitia James, who is one of Trump’s earliest and main tormentors. (Full disclosure: I am an old family friend of Peter Brimelow, a former colleague on National Review, and sympathetic to proposals for restrictive immigration reform, though we differ on other issues.) Ms James claims to be conducting a regulatory oversight of the website to check it abides by the state’s business regulations, and to ensure in particular that as a 501©(3) foundation, it has not become a vehicle for self-dealing by the Brimelows.

The specific suspicion directed towards them is that they are living either rent-free or on favourable terms in a West Virginia castle that was bought by Vdare with donors’ money for the purpose of holding conferences. The castle was indeed bought with donations, and necessarily so: Vdare needs a conference venue that cannot be cancelled at will, after more than a dozen hotels had been pressured by left-wing groups to cancel its conferences in the previous four years. And it has since held successful conferences at the castle.

Yes, the Brimelows were initially living on the property as they restored it (they live now in a nearby cottage), but they pay rent for doing so and that rent is estimated by an independent assessor. All these arrangements were drawn up and approved by lawyers to ensure probity and avert suspicions.

Nonetheless, in pursuit of her suspicions, Ms James demanded that Vdare provide her office with an extraordinary array of forty-four different kinds of documents, some dating from 1999, covering not only the website’s everyday business, but also all its internal emails, any documents relating to its lawsuit against the New York Times, any property transactions it has had, the names of its anonymous contributors, and much, much more.

Vdare complied with some of these demands from the start, sending over 7000 documents, while claiming privilege in others, and the cost to it so far has been more than $300,000 in money and a great deal more in time and work. No one seems to have identified a crime that might explain the prosecutor’s demands, but the extent and number of them suggests they are a “fishing expedition” undertaken in the hope of finding something incriminating or just unpopular that would damage Vdare and the Brimelows.

After all it is unlikely that Ms James and her office spend their days scouring small businesses only tangentially related to the state for potential but unknown regulatory infractions. Vdare was registered as a 501©(3) foundation in New York in 1999 but it has operated either in Connecticut or West Virginia ever since. If nothing else, it would be a waste of taxpayers’ money and a distraction from more important state business. What is likely to be the real motive?

That’s an important question because America’s First Amendment forbids them from investigating Vdare because they disapprove of the content on its website—as they well might. As Vdare itself concedes in its court filings, it is a “controversial” website that provides news and content in the context of advocating a more restrictive immigration policy. It does so with tabloid flair and vigour—and, inevitably, controversy since Democrats increasingly treat any opposition to open borders as “xenophobia”. In particular, it has been accused of white nationalist sympathies. Brimelow has denied these accusations forcefully to the extent of suing the New York Times for claiming falsely that he is an “open” white nationalist (which the paper has since “stealth-edited” out while refusing to apologise).

Vdare may not be to everyone’s taste, but its reporting and commentary are constitutionally protected under the First Amendment from, among others, crusading prosecutors.

Is then Ms James’s regulatory assault, as Clausewitz said of war, “politics by other means”? She certainly has form on such matters. She mounted a regulatory assault on the National Rifle Association. She sent a letter to the Cornerstone Church in Batavia, warning its pastor against hosting a meeting that had both Trump’s son and his national security adviser, General Michael Flynn, as speakers. In a letter clearly designed to intimidate the church—which it failed to do—she justified her intervention on the grounds that the meeting coincided with the anniversary of the Charlottesville attack, thus linking the church absurdly to political murders and conspiracy theories, and claiming to be exercising a duty to warn the church against inviting racially-motivated violence.

That letter was objectionable on several grounds, notably libel, defamation, and partisan political favouritism—unless, of course, she has sent out similar letters to left-wing and Democratic organisations reminding them of their duty to avoid violence like that of Antifa and the 2020 rioters. If she has done so, she could at least claim to be an equal opportunity legal harasser. If not, she would appear to be guilty of partisan lawfare.

On the other hand, can her critics point to any actual link between her regulatory assault on Vdare and the content on its website? As it happens, there are at least grounds for suspicion of one. A letter her office sent to Facebook seeking to subpoena information about its transactions with Vdare was signed not by an auditor or tax lawyer but by an official, Rick Sawyer, described as “Special Counsel for Hate Crimes”.

She has also sought Vdare documents relating to Brimelow’s libel action against the New York Times. And she is demanding the names of anonymous Vdare contributors which the website wants to keep confidential. If their names were public property, they might face cancellation from work or even worse things. In the age of Antifa not even Supreme Court justices can be certain of official protection. All of which suggest Ms James’s office is concerned with the website’s content on immigration reform, which would bring her office into plain conflict with the First Amendment.

Vdare and its lawyers have sought to raise these issues in the courts, both state and federal, but their attempts have so far been frustrated, in part because James’s office has played a ruthless game of bait-and-switch between state and federal courts, and in part for procedural reasons. The res judicata rule holds that a court cannot take action in a case that another court has already decided. Since Vdare thought it was responding to regulatory inquiries in the state court, it did not raise the First Amendment and free speech issues there. The federal court is now likely to rule that they cannot now be raised in its proceedings either. If that were so, a case that is above all about the First Amendment would be decided without reference to it. That would be an absurdity, which the court may yet recognise.

That partly explains why Vdare is not getting the kind of media attention and support that traditionally goes even to gadfly publications under attack from political and legal establishments. Nor is it getting support from conservative and “right-wing” organisations because immigration is a hotly contested issue even within conservative and libertarian circles. As for the ACLU which used to defend all free speech, even those expressions of which it hotly disapproved, it long ago deep-sixed its quotations from Voltaire. Cancel culture is the speech policy of most liberal NGOs now.

Even if Vdare were to prevail in court under the above procedural constraints, however, the Brimelows would still have to be content with a moral victory—and a very expensive one at that. As Mark Steyn has observed and indeed experienced, “the process is the punishment”. The $300,000 the Brimelows have already spent is equal to almost half of Vdare’s annual budget. The bill is still rising and likely to rise further. The cost of their time, effort and anxiety is incalculable.

We treat these legal impositions as if they are “Acts of God,” natural calamities like an avalanche or a flood which it is pointless to complain about or to fight. In fact they are serious flaws that lead to serious injustices in America’s justice system. Legal reform is very unlikely to become an establishment issue; it should be a populist one; it is a popular one.