Not really. What got Vance so steamed was the Kagan passage in which he speculated that “governors of predominantly Democratic states such as California and New York through a form of nullification” could refuse to “recognize the authority of a tyrannical federal government” should the second Trump administration descend into dictatorship. From this modest account, Vance imagined that Kagan was justifying a scenario of “secession, treason, and (likely) violence.”
Perhaps Vance should switch from espresso to decaf. As much as I might want to sympathize with his takedown of a Washington Post contributor (we press critics must stick together!), nothing in my reading of Kagan suggests that he’s an American Lenin out to smash the federal government. You can fault Kagan for not spelling out in detail how the Democratic governors and statehouses might repel federal power gone amuck — he merely offers that such resistance “is always an option in our federal system.” As for Kagan’s mention of “nullification,” it bears noting that Kagan also wrote in the same paragraph that Republicans might use nullification against President Joe Biden, proving that you can speculate about something without actually advocating it (hat tip to the New York Times’ Peter Baker).
Before Vance or anybody else has a writer arrested, let’s remember that American history teems with examples of the states and feds fighting in the courts over who is in charge of what. To suggest that Kagan is calling for “open rebellion against the United States, along with the political violence that would inevitably follow” based on this slender textual evidence of his essay is horrible press criticism.
In a second piece published in the Post on Dec. 7, Kagan likely disappointed Vance as he expanded on a prescription to countering Trump, urging Republicans to consolidate behind a candidate like Nikki Haley and for citizens to organize, hold peaceful rallies, sign petitions, deluge their elected representatives with calls and mails. No bombs. No armed rebellion. Just some democracy.
Near the end of his letter, Vance tips his hand to reveal that he doesn’t really think Kagan has broken any law when he insists that the Department of Justice has broadly interpreted the law to prosecute Trump, reducing his letter into a whatabout! legal brief. His logic, as closely as I can follow it, goes like this: If Trump deserves federal prosecution for what he did regarding Jan. 6, then so does Kagan.
Vance isn’t the only Republican calling for the gears of government power to grind Trump’s opponents into dust. Trump himself has famously promised general “retribution” should he become president again. In a September Truth Social post, Trump promised to go after the “dishonest and corrupt” NBC News and MSNBC when he returns to the White House. Last week, Kash Patel, a former Trump aide, took to Steve Bannon’s podcast to threaten the press: “We’re going to come after the people in the media who lied about American citizens who helped Joe Biden rig presidential elections. We’re going to come after you, whether it’s criminally or civilly. We’ll figure that out. But yeah, we’re putting you all on notice.”
Instead of complaining about Vance, Trump, and Patel’s attempts to criminalize journalism, perhaps we should thank them for giving us advance notice that writing critically about them will get us investigated. Nothing dictatorial about that.
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