On February 27, 2024, Just Security hosted a live event for the launch of Professor Barbara McQuade’s new book, Attack from Within: How Disinformation is Sabotaging America. Barbara is an Editor at Just Security and a Professor from Practice at the University of Michigan Law School. She joined NYU Professor of History and Italian Studies Ruth Ben-Ghiat for a conversation about the book followed by questions from the audience.
Just Security’s Co-Editor-in-Chief, Ryan Goodman, introduced Barbara and Ruth. This event was co-sponsored with the NYU Institute for Public Knowledge and the American Constitution Society.
Show Notes:
On February 27, 2024, Just Security hosted a live event for the launch of Professor Barbara McQuade’s new book, Attack from Within: How Disinformation is Sabotaging America. Barbara is an Editor at Just Security and a Professor from Practice at the University of Michigan Law School. She joined NYU Professor of History and Italian Studies Ruth Ben-Ghiat for a conversation about the book followed by questions from the audience.
Just Security’s Co-Editor-in-Chief, Ryan Goodman, introduced Barbara and Ruth. This event was co-sponsored with the NYU Institute for Public Knowledge and the American Constitution Society.
Show Notes:
Paras Shah: Hello and welcome to a special episode of the Just Security podcast. I’m your host, Paras Shah.
On February 27, 2024, Just Security hosted a live event for the launch of Professor Barbara McQuade’s new book, Attack from Within: How Disinformation is Sabotaging America. Barbara is an Editor at Just Security and a Professor from Practice at the University of Michigan Law School. She joined NYU Professor of History and Italian Studies Ruth Ben-Ghiat for a conversation about the book, followed by questions from the audience.
Just Security’s Co-Editor-in-Chief, Ryan Goodman, introduced Barbara and Ruth. This event was co-sponsored with the NYU Institute for Public Knowledge and the American Constitution Society.
Ryan Goodman: So, welcome to a conversation about a new book, Attack from Within: How Disinformation is Sabotaging America, by Barb McQuade, published by Seven Stories Press. And today's, in fact, the launch of the book and the birthday, in a certain sense, of the book.
My name is Ryan Goodman. I'm a professor here at NYU Law School and Co-Editor-in-Chief of Just Security. And Just Security, along with the NYU Institute for Public Knowledge and American Constitution Society, are all co-organizing tonight's events. For me, it's just an honor. How often do you get to introduce two of your heroes? And that's what I get to do tonight.
So, let me just say a few words about our two speakers. So, Ruth Ben-Ghiat, I think, is already known to you all, as is Barb. Ruth is a professor of History and Italian Studies here at NYU. She studies and writes about fascism, authoritarianism, propaganda, and democracy protection. She's a recipient of a Guggenheim Fellowship, and other fellowships. She also publishes at Lucid, a Substack newsletter on threats to democracy in the U.S. and abroad. Recently, I also had the honor of speaking with some of Ruth's subscribers, so if you're a subscriber to Lucid, you have this opportunity to be part of an amazing network. I was really, honestly very taken aback by just how the group had formed, and were in some sense part of the frontlines of democracy protection that come to Ruth for guidance and her expertise. Her latest book, Strongmen: Mussolini to the Present, is a must-read for anybody who self-selected into tonight's event. It completely complements Barb McQuade’s work as well, and it's about what we're all here for to talk about — the protection of American democracy.
Barbara McQuade is a professor from practice at the University of Michigan Law School. She's a legal analyst for NBC News and MSNBC and a co-host of the podcast #SisterInLaw. From 2010 to 2017, she served as U.S. Attorney for the Eastern District of Michigan. I get to say one more word of pride. I'm also proud to be able to say that Barb is also a member of the editorial board of Just Security. So, it's just great to be here with you all.
And just to do the opening welcome, I think of Barb's book at coming at the worst of times, and the best of times. It is the worst of times, because we are in, I think, a dire situation for the fate of American democracy, which might be decided in the next several months. It's the best of times, because the book is at a perfect moment to make a difference, and to protect our democracy. That's why it is a must-read for everybody, in a sense, everybody in this country, and I'll even say beyond. It's an incredible mapping of the threat that is presented to the United States of the toxic brew of authoritarianism and disinformation. That alone would be a significant contribution, but it's not just mapping the threat. Barb offers lots of specific solutions on both the supply side and the demand side of disinformation, and how to work within our legal system and to change our legal system to better address these threats, which Barb can draw from her vast legal experience in order to do that. And it demonstrates trends that are not just happening in the United States, but challenging democracies around the world.
So once again, what a perfect setup for these two speakers to be talking about American democracy, but also in the global context. So, with that, I just want to turn it over to Ruth and to Barb. But, in terms of housekeeping matters, a couple of items. They'll have a conversation, then that conversation will open up to questions from the audience, after which the event will end, but then there'll be a book signing afterwards out those doors, and you can buy the book yourself if you don't have it already. So, thank you so much for being here and welcome.
Ruth Ben-Ghiat: So happy to be here to celebrate this amazing book. And one of the many things that's so special about Barb's book is the way it's organized crystal clear, also by topic, so either you can go and see how is disinformation affecting the rule of law, public safety, national security. And I found that incredibly helpful because there is a sea and ocean of things on disinformation, but I haven't found something that is organized to be truly helpful to people. And that's in keeping with your, you know, mission of your, what you do on television, and you're just a crystal clear writer and thinker. And so, I'm really happy to be here to speak with you.
So, I'd like to know, what prompted you to write the book. I mean, we know we're in an emergency. But I really liked the way that, you know, in the book’s cover, there's the word “sabotage” — how disinformation is sabotaging our society, sabotaging our democracy, because it's really, it's the active voice. It's something that's being done by bad actors. And so, can you talk about that?
Barbara McQuade: Yeah, I will. Thank you, Ruth. And thank you to Ryan for hosting us here at NYU Law School. It's really great to be here. Just a word about your compliment of my outlining skills. Anybody here who’s ever been to law school? I know some of you have. Finally a use for outlining skills, right? I couldn’t nail that outline in law school. Finally.
Yeah, this idea of sabotage. Well, the reason I wrote the book is, I have been involved in national security law for most of my career. I worked as a prosecutor, as a national security prosecutor, at the U.S. Attorney's Office in Detroit before I was U.S. attorney. And now I teach national security law at the University of Michigan Law School. And during the time I have worked in this space, I've seen this evolution of threats to national security. You know, at one time, it was Al Qaeda, and then it was ISIS, and then it was cyber intrusions, and then it was Russia. And now, it seems to me that this greatest threat to our national security is coming from within, right? It's attack from within. My editor, Greg Ruggiero, is here and he wouldn't let me call the book, The Calls Coming from Inside the House, which is what I wanted to call it!
But it is this idea that there are people who are willing to tear down our institutions, you know, trust in the rule of law, and our courts, and our law enforcement system, calling them a disgrace, claiming that indictments against Donald Trump are simply election interference. I mean, all of that is really eroding the institutions that protect our democracy. And I think it is actors who are inside who are abusing their power through disinformation, and some people are duped along the way, and other people know better and are willing to go along with the con because they care more about power and more about winning than they do about preserving our institutions of democracy.
Ruth: Yeah, I'm glad you are mentioning both of those categories, and in a way the latter — they're both upsetting, because I have to say, so I study strong men and propaganda, and nobody — I can't think of anybody who's pulled off a mass deception, massive disinformation, mass indoctrination on the scale of Donald Trump, working in an open society. This is the thing that is astounding. He convinced tens of millions of people of a very easily verifiable thing about, like, a national election, but he didn't have, you know, what Mussolini or Hitler had — a closed society with dominant — or even, Viktor Orbán in Hungary. 85 to 90% of the media is domesticated now.
So, Trump did this in a completely open society with a highly pluralistic media environment. I don't know anybody who has been able to do that. So, when we think about people who say, “Oh, Trump's lazy, he's a clown.” No. He works very hard at the things he cares about, and one of those things is disinformation. So that's where you've got the two — you have these enablers who know better, who are willingly jeopardizing our national security. It's just, it's tragic. I'm so glad you wrote about that. That's why I honed in on the sabotage, because I feel very angry as an American that this is happening.
Barb: Yeah. Well, as you know, Ruth, I cite a good bit of her book, Strongmen, in my book, because, although the delivery mechanism has changed and evolved — you know, we have social media, which is something that didn't exist decades before — the tactics that Donald Trump uses are really no different from the tactics we saw with Mussolini and Hitler and others. You know, Hitler wrote in Mein Kampf, as you know, Ruth, that deceptions need to be simple, things that people can understand and then repeated and repeated again and again. And people need to hear it not just from the source, but they need to hear it repeated from different sources. And then that sounds like it's theirs, because there's credibility, because I'm hearing it from a lot of places.
And the other thing that Hitler wrote about in Mein Kampf is the importance of a big lie. And that's because all of us tell small lies from time to time. We might say, “Jack, you look great in that sweater.” No, really, I'm kidding. He's a friend. My husband might say, “Oh, no, dear, that dress doesn't make you look fat.” But he's saying these things out of a place of kindness, and we've all done that. But what Hitler wrote is, that it would never enter into our heads to have the audacity to lie about something that is very significant. And so, because it is such a big lie, it is ironically more believable, because we just can't imagine someone being so immoral, so completely bereft of any integrity, that they would say such things. And so, it's one of the things that makes it so believable.
Ruth: Yeah, unfortunately, one of the things that autocrats specialize in is doing the unthinkable, is making the unthinkable possible, and they send out these trial balloons, like, “I'm going to be a dictator for a day,” and now everybody's talking about a dictator. And then at Trump rallies, people are like, “I want a dictator too,” right? And people are amazed that the unthinkable becomes normalized. And that's the skill. They think big. They're grandiose, and they do things that are so diabolical or so heinous that people thought no one would do such a thing, and no one would scale it, that they scale it. So that's, that's one of the reasons we're always taken by surprise.
Barb: Yeah, you know, there's that phrase after Donald Trump was elected in 2020 that the media had made the mistake of taking Donald Trump — sorry, 2016 — of taking Donald Trump, literally, but not seriously, when in fact it should have been the other way around.
But I think what you're saying is, we should take him literally when he says things like, “I'm going to build a wall, and I want to be a dictator for a day,” and all of these kinds of things. These are — you start nudging it, you tell it like a joke. And it becomes more and more normal as time goes on.
Ruth: Yeah, it's the pushing of — the slow destruction of norms.
So, on that note, one of the discussion areas of the book is how disinformation is eroding the rule of law. And something that I've been thinking about these past weeks, is I don't think we've ever lived through such a concerted campaign to delegitimize a sitting president, and all of our democratic institutions. And so those MAGA operatives, those congresspeople, are out there using Congress, using the courts, showing their scorn. When they behave badly in court, they intend to behave badly, because they want to show that democratic justice is a joke. They're arrogant.
And then the whole thing with Biden, right? They’re sniping and sniping at him. And so, for example, when they don't want him to deliver the State of the Union message, because they don't want him to be up there as the authority. So, disinformation is about Biden, about Trump's crimes. All of this is very, a massive delegitimation.
I don't know, as a scholar of law and a lawyer, how you feel about that, because I'm thinking about that a lot. But I am a historian, I don't have that framework to understand the gravity of it.
Barb: So, I think attacking the rule of law is incredibly dangerous, and that is something we see, you know, since even before 2016, Donald Trump would criticize the courts. Remember when there was a judge from Indiana who was assigned to a case against him? I think it was the Trump University case or something. He said, “He can't be fair to me, because he is Mexican. You know, he is of mixed Mexican descent, U.S. citizen, you know, federal judge.” And because he was building a wall, he suggested the judge couldn't be fair to him.
And that was just the start. We've now seen him go after all kinds of judges. Judge Tanya Chutkan in federal court is engaging in election interference. He says Judge Arthur Engoron and his clerk in New York. Attorney General Letitia James. Fani Willis in South Carolina. Going after all of them and suggesting that they're racist, that they are engaged in witch hunts, or hoaxes.
And I will tell you that from a law enforcement perspective, I spent most of my career as a federal prosecutor, you need the public to have faith in our institutions, in our courts, and our law enforcement system, because when they don't, and you ask people to come in and be jurors in a case and to believe an FBI agent when they testify in a kidnapping case, or a bank robbery case, if they have heard from their president that the FBI is a disgrace, and that they plant evidence at Mar-a-Lago, they're not going to believe agents when it comes to enforcing garden variety laws. And so, I think all of that has this slow erosion of destroying our law enforcement system and our court system.
Ruth: Yeah, and unfortunately, one of the scariest things about authoritarianism is that it's the institutionalization of lawlessness. And indeed, one of the patterns — and it's just, it's been terrible to study this stuff, you know, first Italian fascism, then global — and now see all the patterns, practically, coming to home, and happening here, such as, when a party is becoming autocratic, you need to recruit, you have to look at what it's remaking itself. Who is kicked out, or who leaves, and who's coming in? And it's lawless people coming in.
And the big lie, because like, you know, election denial, election fraud, all that, it's a form of corruption. It's defrauding the American public. And so, you see that they're going out of their way to recruit lawless people. So, you have — that's what the Nazis did. You know, the Nazis used to recruit in prisons. And in Italian fascism, you know, you had, it started out as a militia movement with squadrons, black shirts, who beat people up. Every single minister of culture — and this lasted 20 years — had been a black shirt. So, they're all thugs. They're all murderers and thugs.
So, that's the dynamic, and so, when now you have people who participated in January 6 running for office, or you have GOP politicians competing to hire Kyle Rittenhouse, or Trump said, “I could stand on Fifth Avenue and shoot someone” — that's, like, not good. You know, it's not good.
Barb: Well, and how about, Ruth, as another example, of Donald Trump referring to people who are in prison for their conduct on January 6 as hostages. And now, we're hearing — you talk about normalization — we're hearing Representative Elise Stefanik, say the same thing, and Marjorie Taylor Greene say the same thing. And so, there's that normalization of that behavior, which is horrifying. Anybody who saw what happened on January 6 knows that that was not ordinary tourist behavior.
Ruth: Yeah, so, let’s take — because it's so upsetting that they have quite successfully been able to change the narrative. So, that leads me to a question I had for you. What are some of the tactics of disinformation, and why do they, you know, if you choose one or two, why did they work on people?
Barb: Well, I'll mention just a couple. One is something that is referred to as the either-or fallacy. And so, it's this idea — debaters use it — there are only two sides to any issue. There are only two candidates, there are only two teams, you know. It's red and blue, it's conservative versus progressive, or, you know, patriotic versus democratic, radical leftist. And instead of appreciating nuance in between, and the idea of compromise, it is all about, you know, one versus the other, there are only two choices, and then demonizing the other side, and convincing people that they are so bad, that that is a completely untenable choice. And so therefore, you have to be with our side, and if you're not with our side, then you are part of that demon class that should not be given any respect whatsoever.
And so, in an effort to garner respect in their group, in their social status group, people will buy into all of the theories and support all of the ideas. You know, when I was in college, you could have lots of different views on things. Maybe you favored gun control, but maybe you were also opposed to affirmative action, and you cared about tax cuts, but maybe you had a different view on immigration. Now, it's, you got to be all right or all left, and there's no room for individual, independent thinking on any of those things. So that's one tactic.
Another is this idea of destroying the concept of truth. And you may have some thoughts on this, that this is something that Vladimir Putin engages in in Russia, which is something they refer to as the fog of unknowability, that, “I am going to put out all kinds of competing narratives about things, and consistency doesn't even matter. I'm going to tell you one day that the missiles were shot by Ukraine. Next day, they were shot by Russia. The next day, they were shot by NATO.” And people become so confused by all of it, that they become cynical and they just check out. You know, “I'm numb, I can't keep track of what's going on in politics. So, I'm not going to worry about it.”
Or, to the point where truth doesn't matter. Truth is for suckers. Truth is for the naive. And what you really ought to do is get what you want, vote for the person who has your best interest in mind, and forget about all this silly integrity and honor and honesty and facts, because that's for suckers. That's for chumps. So those are some of the tactics and then you asked, why do they work? And I think one big reason is, they prey on fear. There is, you know, this idea of, the world is declining, things are awful, things are terrible. You better watch out, or we'll all be replaced by black and brown people who are coming in across the border unchecked, and there is a plot to replace everybody with black and brown people, or it's all organized by Jewish people. And it's all a conspiracy.
And we tend to believe in conspiracy theories, we're kind of wired that way as a survival instinct. You know, when we see clouds forming, we learn through experience that that means, maybe a storm is coming. And so, we learn through these patterns, and it makes it difficult for us to think of facts as happening randomly. We want order in our lives. And so, it's very easy for us to put together conspiracy theories and see things that maybe aren't there. We look for those explanations, and we want to believe them with our emotions, as opposed to our logic. And so, we are susceptible to these things.
And the other thing that we are, is incredibly stubborn, because we are also wired to win arguments. It's not enough that we use logic to solve problems. We want to dominate our fellow man. We want to be the big alpha, and we want to win and be in charge. And so, that means never retreating from your position or admitting when you're wrong, or changing your mind. So, all of those things make it difficult — when was a federal prosecutor, we used to see this with fraud victims all the time. They had fallen for fraud, and it was very difficult for them to believe that their stockbroker or their lawyer or their doctor had lied to them, because they built this relationship of trust. And then they felt a lot of shame, and it was difficult for them to even admit that they had been duped.
Ruth: That's, that's really, I was going to mention that, because it's so interesting that the literature that comes from crime studies and legal things, sociology, anthropology, disinformation studies. When people maybe starting to believe that a little bit of grain of something in them, they realize maybe they've been duped, their first response is often to dig in further, because they're afraid of being shamed. I saw this with my mother. She lives in England, and during the pandemic, she became radicalized by watching Russia Today. And so, I tried to explain to her that this was Russian propaganda, and she goes, “No, they’re English, they’re English,” you know, because they use English hosts. And so, when she started, you know — eventually, then they banned it, Russia Today in England. So, she stopped watching and she started realizing, and when I would point out to her — and I probably did it in the most clumsy fashion possible — or I would hang up on her, which is not — you're not supposed to do that — and she would dig in further.
So, this is why, actually, all the studies — whether they come from disinformation or authoritarian leader cults, whatever, psychologists — when you do bridge building with people, you can't judge them. You can't condemn them morally, because they're afraid of shame, which is what Barb is saying. You have to be there and have endless patience, because if you cast them off, and you shame them, they just go back into their tribes, more than before.
So, it's very painstaking. It's very slow. So, once people fall under the spell of disinformation, it's a little bit, like, analogous to losing your democracy. It can be lost quickly, and it's really long and hard to get it back.
Barb: Yeah, I talked to so many of my friends who say that they've lost their parents to Fox News, you know, that they just watch it endlessly hours and hours on end and believe everything they hear. And they’re, “How do I bring them back?” But you know, there is some evidence, in my book, that people can come back. So, don't give up on your relatives, right? Don't give up on your relatives.
Ruth: Tell us how.
Barb: Yeah. So, there was a study that said that people who watched, it was Fox News, on a regular basis were removed from it for a period of time. And so, they were surveyed on their attitudes about things. At the beginning of the study, they were removed from and were required to watch only other news sources for a period of time — I don't know what it was, you know, two weeks? — and then they took the survey again, and they had really changed their views and open their mind to at least considering other views after they had heard competing… One of the big challenges with newscast coverage, of course, is, it's not just what they're saying. It's what they're not saying, what they're not covering, right? They're not covering certain stories.
I was in a ski shop a couple of weeks ago, and I walked through, and I heard Hunter Biden, Hunter Biden, Hunter Biden, and what did they tell you? Oh, it's Fox News. It's all about Hunter Biden, right? And it's not about other issues that we should be focusing on. But when people do break the plug and start looking at other news sources, they do realize that there's more information out there and have open minds. So, don't give up on your relatives and your parents and your siblings and your neighbors. There's hope for them yet.
Ruth: So, right now, the news is full of bad news about the media — so many layoffs, contractions, consolidations. And then we also have these kinds of new class — there's always been billionaires who fund disinformation, like the Koch Industries, et cetera. But now we have these people, like the Bill Ackmans and the Elon Musks, who are just willfully peddling in their own different ways disinformation, have a lot of power and influence. So, these are, you know, two related things, but two separate things. So, how do you see, with media becoming more consolidated and local journalism difficult, you know, in a difficult position, how do you see the future of this as it affects disinformation?
Barb: Yeah, so I think local journalism and social media, I think, of as two different problems, but they're really interconnected as one problem. And you know, it used to be all politics is local, and now it seems like all journalism is national, you know. We've lost that local newspaper that is covering the city council meeting and the school board meeting, or even at the state level, sometimes, you know, what's going on in state budgets and other kinds of things because of the consolidation. And there aren't those local papers. And so instead of talking about things that help us build community — who won the local high school football championship, or who won a prize at the science fair — instead, it's all Trump and Biden and immigration border issues at a national scale all the time. And I think that's damaging for our communities and our ability to communicate with each other and live together in neighborhoods.
And so instead, we're relying on, you know, social media, to tell us what to think about all these national issues, and we have relied on the private sector to increase and grow social media. And you know, in many ways, it's an incredible invention, right? You can get on social media and talk to someone around the world and find people in various affinity groups, and it's a really incredible tool. But you know, it's kind of like raising a baby alligator in your bathtub. It's adorable when it starts, and then it grows and grows until at some point, it's a man-eating predator. And I think we need to really reimagine the way we think about social media, and not leave it in the hands of a few billionaires because their interest is not our interest. Their interest is in making money and controlling the world. And so, I think we need to regulate it.
And there are a number of ways we can do it. You know, there's this Section 230 of the Communications Decency Act that gives social media companies immunity from legal liability, and there are others who say it should be completely repealed. Once again, it's not an either-or. I think there are things we can do to modestly check some of the power that social media has, thinking about regulating it like a utility, in the same way we get our water supply, and we get our lights, and we get our electric grid and all those kinds of things. Somebody owns that and somebody operates it, but there are rules in place to make sure that it is being run for the public good.
I think we ought to think about antitrust violations. You know, a few billionaires who control so much of the social media infrastructure is likely just too much power. I think we could have regulation of the algorithms that are there, steering us to certain content and manipulating us. And so, I think there are plenty of things that we can do, but we have to have the political will to do it. When we see these hearings before Congress —you know how every once in a while you'll see a clip on TV or photo in the newspaper, where Mark Zuckerberg and Jack Dorsey and, you know, some of the big wigs from big tech are there in front of members of Congress. And they're asking them questions, and as soon as they give back an answer, they look like people in those ads for the Progressive ads, you know, you're becoming your parents? “Am I hash tagging right now?” you know, and you can see them just go “Oh, man.”
But they have the ability to bring in experts to help them, you know, formulate legislation. I mean, we do it in banking and exports and national security and all kinds of very complicated areas. There's no reason we can't do this. We just need the political will. And, you know, instead, we're busy arguing and creating chaos about what's happening in immigration and at the border, and other issues, instead of trying to make real progress that could improve the lives of Americans and maybe provide some guardrails for our democracy.
Ruth: So, I'll just ask you one last question, and then we'll open it up. What are you most concerned about in terms of disinformation’s effect on national security?
Barb: Well, I worry about our ability to have a successful, well, working democracy in the United States, and elsewhere around the world. In the Robert Mueller report, after the 2016 election, when Russia's influence campaign seemed to work — like, I don't know if they were the only thing that caused the outcome of that election, but they certainly influenced that election — that they were toasting champagne, and congratulating each other on what they had done to our democracy. And their goal was, in part, to elect Donald Trump. But it was mostly to just sow discord in the United States, and to try to demonstrate that democracy doesn't really work.
And then in 2020, when we had that awful scene on January 6, where the people were rising up against the certification of an election, there were a lot of enemies of democracy around the world saying, “See, democracy doesn't work.” And if democracy fails not only here, but elsewhere in the world, we are all less safe. Democracy has been one of our goals since World War II, because having other nations that are democracies reduces the risk of military conflict for us, it increases trade partners for us, it leads to fewer refugee crises for us. So, we want thriving democracies all around the world, and disinformation is really harming ours, as well as others all around the world. So, we need to fight back and preserve our democracy.
Ruth: Thank you. And in educating people through your book, well, we'll help.
Barb: Yeah. And same to you, Ruth, you've written a really outstanding book, and I've learned a lot from it. Thank you.
Ruth: So, I think we can take some questions.
Audience Member: This has been super interesting. I have a question about rule of law, because maybe we can just assume that authoritarianism is not a particularly American phenomenon, as you point out, and as your research has shown, it's a worldwide phenomenon. It's happening in lots of different places. But the one thing we always thought, and I'm wondering if we were just naive, is that we thought that we were different, that the rule of law would hold, that the legal system, as imperfect as it's been, in the last couple of 100 years, has incrementally approached a better system of justice and one that would keep the guardrails intact. And maybe for the first time, we have to seriously ask ourselves, “Is there something fundamentally wrong with the way law is administered in the United States?”
Barb: Yeah, so I think that the rule of law to date has been one of the good parts of the story so far. You know, if you look at the election interference efforts of Donald Trump, he lost 61 out of 62 cases that he brought, including some handled by judges he appointed to the bench, and the 62nd case, the only one he won, was a procedural case about affidavits that didn't have an outcome and effect on the outcome. So, that struck me as really meaningful.
We're seeing some accountability in courts against Donald Trump already. Judge Engoron in New York, with the Letitia James case for fraud, was $355 million dollars. The E. Jean Carroll cases, the Trump Organization tax case — all of those cases held Donald Trump accountable. I think we're in for some big tests this year with these four criminal cases that we will see come to pass.
The one area where I have been a little discouraged in recent years is with the Supreme Court — is that an understatement? You know, one of the things I learned in law school is, that we are a system of stare decisis. We stand by things decided, and we follow precedent. But there are some rules for overturning precedent. It should be rare, but it can be done. For example, Brown v. Board of Education overturned less Plessy v. Ferguson, which had said, “Separate but equal.”
But there are some factors courts are supposed to look at before they'll overturn a precedent, and those are a change in understanding of the facts, a change in understanding of the law, a look at whether people have relied on this rule in their everyday lives, and whether the rule has proven inconsistent or unworkable in light of the way the rest of the law has developed around it. Those are the four factors courts are supposed to look at. And from my perspective, all of those factors would have argued in favor of preserving Roe v. Wade when Dobbs was decided. And instead, Justice Alito wrote in that opinion that he believed that Roe was egregiously wrong when it was decided, and egregiously wrong today. That's not one of the four factors. He's merely substituting his own judgment for the judgment of the justices.
I can recall a different case that came along in the mid 90s. When I was a brand-new prosecutor, there was a case where the Supreme Court ,run by Chief Justice Rehnquist at the time, was considering overturning the Miranda rule, you know, that's the one you have the right to remain silent, all that. And a lot of conservative justices didn't like that rule, because they said it's not in the Constitution. It's not in the text. It's kind of made up. Well, the idea is, that if you're going to waive your right against self-incrimination, you should be knowledgeable about that. And so, that's where those warnings come from. And so a lot of us thought, “Well, it's over,” like, “Miranda is over, they've got this majority, and they've all said they don't like it.” But what Chief Justice Rehnquist wrote in that opinion, was, “Were I writing on a clean slate, I don't like this rule, I think it was egregiously wrong. But we stand by things decided, and so we will uphold it. It works pretty well. There's no change in understanding of the facts. There's no change in understanding of the law. The law has worked up around this in a way that works pretty well. And so, we will uphold this law because it's been on the books for 50 years,” or whatever it was.
That's changed. And I think that one of the things I say in my book, another book called How Democracies Die, by Steven Levitsky and Daniel Ziblatt — I see some nods, maybe some people have read, it great book — but one of the things that they talk about is, to preserve democracy means that you don't always use every ounce of power you have. It means showing restraint, because the institutions matter more than winning on any given issue. So, mostly the courts have held, but I am a little worried that some justices might be intoxicated with their own power and decide that the ends justify the means.
Audience Member: Thank you. I wanted to follow up on that question, first of all, and ask about the average American’s experience with the law, ad what you think about that, and whether that may have some bearing on the acceptance of a figure like Donald Trump, or an acceptance of the kind of disinformation that is perpetuated by him. And on the point of disinformation, I was encouraged to hear you talk about that people can be converted, so to speak. How do we get into their information — news and information streams? And, when people have opened up, how has that happened, as far as you know?
Barb: Yeah. Well, I'll talk about that last part. How do you get in their information stream is such a good question, because we all live in our own social media bubbles. I know sometimes my sister will say, you know, “Did you see this scandalous story,” or something like. No, I haven't heard anything about it. She said, “Well, everybody's talking about it on Facebook.” And I say, “Yeah, I don't think I'm in the same Facebook group. Because I haven't seen anything about that. That doesn't strike me as right.” And so, it's hard to know what else is out there.
There’re also, in some communities, these WhatsApp groups that can be very large. You know, these are private text messaging, where you might have a group of 30 or 50 or 100 people, like-minded, who are sharing information with each other, Nd there's no visibility for anyone else to be able to debunk it and say, “No, no, no, that's not true at all.” So, it can be very challenging. I think we have to get out into the real world and talk to people. Like, all of you, congratulations on coming out tonight, by the way, wonderful. On a rainy night, even. Like you got to be out and see people. I think one of the challenges of the past several years has been not only our online world, but COVID, right, which sent a lot of people inside and into our basements where we're just talking with all of these people who are like-minded and we're in our own echo chambers. But when you are in the real world, you encounter people who might have differences from you, you know, at the workplace, at school, at a faith community, at labor unions, you know, all kinds of places where you have to actually talk to people, in a law school class, you know. People have different viewpoints, and it really sharpens your arguments, I think, to be exposed to that.
I remember we had a speaker, a member of Congress, come speak to us at the law school a few years ago, and he was very, very conservative. Our students tend to lean kind of progressive, and they were asking him questions about his views on guns, mostly. And his answers were so weak, I was stunned. And it occurred to me, it's because he spends all his time in his very conservative district, and among like-minded people in Washington, that he had not bothered to sharpen his arguments, because he had never heard these counter-arguments. So, I think we have to reach out to people with kindness and patience in the real world.
And one of the things, I cite this in my book, there's another author who talks about how to approach people, and it is, you know, not by questioning their conclusions, but asking them for their evidence, you know? So, how is it you know that? What's the source of that? Asking questions as opposed to telling them they're wrong. You can wait to do that, you know, after they admit they have no evidence, then you can dunk on them with how wrong they are.
Ruth: Exactly. But just one of the reasons that Republicans are trying to completely wreck schools is that they don't — because schools are famous for bringing different kinds of kids together, and kids are very porous, and all kinds of people are together at school — and they want to totally wreck liberal democratic models of education, from kindergarten up to universities, and, you know, have Christian homeschooling, so that you don't meet, you don't mix, you don't interact. And also, even, not taking care of gun violence, so that people are afraid to go out. There's a whole very unfortunate landscape of things, that the upshot is to wreck civil society, because civil society is the bedrock of democracy, because it's where you go to the market. And you know, somebody has a different opinion than you. But, if you're not going out anymore, because you know, you feel afraid, you feel terrorized, your child's not in school, you don't mix with parents, that's a kind of big picture thing. They're very threatened by that. So that's, I think, doubly true what Barb says.
Audience Member: Thanks a lot, a terrific conversation. I wanted to ask about the good guys, so to speak, during misinformation. I'm going to give you a very simple example. I had to sue a bunch of federal judges, who, instead of my argument, and government lawyers’ argument, concocted their own spun argument and adjudicated their own argument, and I sued them for fraud. And they said, we federal judges gave ourselves the right to act from the bench, “maliciously and corrupt.” And I said, wonderful. The New York Times is going to love to put that on its front page, that the full third of American government thinks that they have the right to act maliciously and corruptly. And if Trump said that, of course, it would be there, but when it is federal judges, nobody — not at Washington Post, not New York Times, not, you know, NPR, and all those organizations — they do not want to hear. So, there is, as you've mentioned, there is misinformation by omission, and misinformation by commission and the bad guys are doing all this misinformation by commission. But the good guys stay quiet about how the full third of American government operates. And, you know, federal judges are, you know, I don't know, I probably shouldn't use the word “swindlers” but they are.
Audience Member: Hi. So, I went to undergrad in upstate New York, and I was kind of surrounded by a lot of people who are very susceptible to, and accepting of, misinformation, just because of, like, their indifference towards politics, and just things going on in the world, and because of the belief that a lot of these issues didn't affect them in their personal lives, and through their day-to-day. So, my question is, what would you say is the best way to reach these kinds of people, college students, to kind of make them want to care about these issues more when they've given up their democracy?
Barb: Yeah, that's such a great point. You know, “What does this have to do with me? All I want to do is go to class and work on getting my job. And that's all I need to worry about.” What's the old quote, Ruth? “First, they came for the Jews and I said nothing. And then they came for the laborers, and I said nothing. And then finally they came for me and there was no one to speak for me.” Yeah.
Yeah, that's, how do you get people to care about politics? I think that's super important, especially among young people. You know, it's understandable that perhaps there are times in our lives when we are very focused on other things, because we are in school, because we are working, because we are raising children. But I think that people need to remember that a democracy only exists as the power of the people, and we are ceding an awful lot of power if we disengage. It is what Putin does in Russia to deliberately cause people to get fed up with politics by feeding them all of this different contradiction and stuff. Like, “I don't know what to think, I can't even keep track of it anymore. I'm just gonna throw up my hands and not worry about it.” And so, it is so important.
So, I guess, you know, just some things that you could do is talking to them about how important it is, asking them to get involved at the very, at the most local level, because sometimes people may feel that, you know, national politics, “It's not even worth it if I vote — what difference can I make?” But at a local election, peoples’ votes make a huge difference.
I will tell you a story about a time when there was a local race for a county commissioner in my hometown in Ann Arbor, Washtenaw County, Michigan, and my husband and I had discussed who we were going to vote for. And we talked about voting for this one particular candidate, and a few days before the election, a guy comes walking, and he's knocking doors. And he tells us his name, he's running for this position. He is not the candidate we are planning to vote for. But, he stopped, and we are assembling a trampoline in our yard for our kids, not very well. And so, this guy is able to offer, you know, just another set of hands. And he helps us, and we said “Alright, well, as long as you're helping us, tell us you know, your pitch, tell us your thing. What are you all about?” And he told us, and he seemed like a nice guy. And we said,
We will both vote for you, because of your kindness. So, thank you so much.”
And, I have discussed this with him since that time, darned if this guy didn't win by one vote, right? So, without our two votes — and everybody who voted for him says they were the deciding vote. And you know what? They're right. So, every vote matters. And so, maybe you can convince your friends that at a local level, even if not at a national level. How about you, Ruth?
Ruth: I’ll just say one thing. The democracy activist, civic activist Eric Liu says that not voting is a form of voting, like, not voting is an action. And I'm very haunted by the 80 million — I don't know the exact, but it was 80 million in the last elections — who didn't vote. That's a lot of people. And how do we get those people to vote? And the, it's often overlooked, what Barb said, that the goal is not just to confuse you, it's actually to make you disgusted and cynical, as Barb said, but to give up. And so, when we think about authoritarian regimes, some of the most famous ones, like Nazis, were mobilization regimes, because they were expansionist. They wanted to conquer territory. But, a lot of the other ones, they want to demobilize you, so that you stay quiet, and there's lots of threats and things to make you stay quiet.
You don't see things, you don't hear things, and you're just apolitical. You keep your head down, and then the crooks stay in power. So that's part of it. It's not just so that you think, “Oh, I don't know what to believe anymore because there's no truth.” You find, you think that it's just beyond your capacity and you don't care, or it's not safe to care. That's another stage. We're already living in an epidemic of threat in our country, and we don't talk about it enough. Everybody gets threatened who speaks out, at this point. But the making people disgusted and confused to a point of not caring anymore is one of the most, it’s one of the worst states that you can be in as a nation, actually.
Audience Member: So, disinformation right here, right now, going on, you know, for news junkies, like most of us are. Accountability to people, off the top of my head —
Jimmy Comer and Jim Jordan. So, is there any hope that there will be any accountability? I know you've kind of given a question mark on that, as a lot of folks that are asked this question. So that's part one.
Part two. I noticed this morning like I was watching a YouTube video, and I think it was Farron Cousins, or one of those folks, and he showed that Putin was putting out a video that said the — sorry, I’m cumbersome with the name — was going to be released the week before he was found dead. I don't know if anybody saw that. Yeah, I can’t pronounce the name. Right, but, you know, now that's a perfect example of this disinformation nonsense because he was killed. Now they're putting up this, you know, story, which is offensive if anything else. So, but that's the second part. Getting back to the accountability. Can you comment on that?
Barb: Yeah. So, I think it's very difficult with members of Congress. You know, the Special Counsel in the federal election interference case has charged only one defendant, and that is Donald Trump. I think that is an effort to streamline that case, because if you have multi defendants, it can get slowed down with a lot of motions and other things. But, there are six unindicted coconspirators there, most of whom appear to be lawyers like Rudy Giuliani and Sidney Powell and other people who, I think, will either cooperate in the case, or will be indicted after Donald Trump is dealt with.
But who's not charged in there is Jim Jordan, I think, and others, and I think it's very difficult to charge members of Congress because of a number of privileges they enjoy, including the speech or debate immunity. You know, anything they say on the floor of Congress or in support of what they say on the floor of Congress is immunized. And so, I think it can be very difficult to charge them. But make no mistake, both of the ones you name are absolutely engaging in disinformation. I mean, Comer with this thing with Alexander Smirnoff, right? You know, this is a not just unconfirmed information like the Steele dossier was. This is a provably false statement about, you know, these communications that were had about the Bidens and accepting bribes and other kinds of things. And even after the FBI told them, “You can't use this,” you know, they insisted on getting it and using it to smear the Bidens, so it's terrible.
Jim Jordan, another one who is — and I know Ruth mentioned this — you know, weaponizing his power as the head of the Judiciary Committee and the other committee, he created, subcommittee to study the weaponization of government, you know, to investigate the January 6 investigators, and using you know, subpoenaing Alvin Bragg and Fani Willis and all of the people who are prosecuting others to try to create this impression that they're the ones who are engaged in wrongdoing. So, I think what they're doing is incredibly disloyal to the United States. But my guess is, it would be very difficult to charge them criminally. And the other accountability is to vote them out of office, of course, but they're very popular in their home districts.
Ruth: You know, in my newsletter, I call this, well, two things — the upside-down world of authoritarianism, but the Jim Jordan, these, like, sham subcommittees, this is called garbage politics. It's just garbage. It's supposed to distract from, you know, like, it's supposed to just create a media circus, it's supposed to weaponize government.
And the other thing, and this is something that I'm saying as someone who knows nothing about law and legal, this idea — I didn't know this, actually‚ that you have immunity if you're a member of Congress. But what if Congress becomes populated by violent thugs, who support, like, January 6? Why should those people be immune?
Barb: Yeah, so it's for speech or debate. So, if they engage in actual violence themselves, it would be one thing, but if they said from the floor of Congress, you should, you know, go out there and do something about this person, I think that is protected by the speech or debate privilege.
Ruth: This is the problem. I look at the US system through the lens of global autocracy. And there's just a bunch of — it all works as long as you don't have Donald Trumps and Donald Trump criminal enablers. It's a huge problem.
Barb: All right, probably time for one last question.
Audience Member: So, I don't want to ask you to bite the hand that feeds you. But, I have great concerns that mainstream media and the media outlets are so involved in presenting both sides instead of the facts. How much are they contributing to the disinformation ecosystem?
Barb: Yeah, I think that that can be a problem. I like to think it's getting a little better. I think, in the early days of Donald Trump, the media just did not know how to handle him. They refused to use the word lie. I think they still refuse to use the word lie, right? They would just say, “It is inconsistent with the facts,” you know, some euphemism like that. And there is this need to sort of both sides everything, right? I think it comes from a tradition of trying to present to readers both sides of an issue, but that only works when both sides are coming at the issue in good faith. That, you know, one side wants to increase taxes under this policy and another wants to cut taxes under this policy, and here are the good faith arguments on both sides, then it makes sense. But instead, when one is just throwing out, you know, lies to just, you know, throw a monkey wrench into the machine, it seems that that does not deserve the same legitimacy as someone else on the other side of an issue, who is acting in good faith. And I agree, I don't think the news media has yet kind of figured out how to work in that sort of environment.
Ruth: No, they're working from a completely outdated playbook. They're working from a playbook that is, that presupposes that — we're a bipartisan country, and one of the two parties is an autocratic entity that's enthralled to a violent cult leader. And so, their whole structure doesn't work. That's the problem. And so, we've been, I know we're trying to wake people up on the interviews we do, that there is a new reality in this country. And our structures, or media structures, have to take advantage. You know, they have to, like, they have to acknowledge this.
Barb: Yeah, well, let's end on a happy note, because being enthralled to a cult leader —
Ruth: I'm always a downer, you know.
Barb: But it's true, but it's true. But, you know, we all have the power to do something about this, right? We can talk with our friends, talk to our neighbors, make sure people are registered to vote. There's so many people who don't vote, don't know where to vote. You know, you can be part of the solution. Get involved in your local parties, get involved — I love the League of Women Voters. You know, there's so many things we can do. Help young people register to vote for the first time. There's a lot we can do to take back our democracy, and it depends on all of us. So, the fact that all of you came out to listen to us tonight gives me hope that America will endure.
Ruth: Thank you for writing such a wonderful book.
Paras: We hope you enjoyed this discussion. Barbara’s book is available now from Seven Stories Press.
You can find all of Just Security’s coverage of disinformation and the rule of law, including an excerpt of Barbara’s book which we’ll link to in the show notes, on our website.
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