Vance Downplays Trump's Promises To Use 'Lawfare' Against His Opponents

The vice presidential hopeful displayed his dishonesty on Joe Rogan's podcast last week.

"That's the way that Kamala Harris lies," said Republican vice presidential hopeful J.D. Vance on Joe Rogan's podcast last week. "Not only does her administration actively brag about trying to arrest her political opponents; she will go out and say that if Donald Trump is president, he's going to arrest his political opponents, even though he already was president and he didn't do that."

Let us count the ways in which this statement by Ohio's junior senator is dishonest—starting with the fact that his running mate has repeatedly and publicly promised to do exactly what Vance insists would be preposterous to expect from him. 

Former President Donald Trump has said that President Joe Biden and his family should be prosecuted, that Vice President Kamala Harris should be also be prosecuted, that members of the House select committee on January 6 should be jailed (and that former Wyoming Rep. Liz Cheney should face "TELEVISED MILITARY TRIBUNALS"), that news outlets and tech companies that treat him unfairly should be shut down, that poll workers should be arrested, and that "Lawyers, Political Operatives, Donors, Illegal Voters, & Corrupt Election Officials" should have "legal exposure" if they stand in the way of his victory in tomorrow's election. (This is not an exhaustive accounting.)

Vance claims that Trump "has never said, 'I want to arrest you because you're a Democrat.' He's never said, 'I want to arrest you because you disagree with me.' He's never said, 'I'm going to censor you,' even, 'because you engage in disinformation.'" That rings thoroughly hollow. It may be true that Trump has avoided saying that he plans to target his political enemies because they are Democrats or because they disagree with him; nonetheless, he has indisputably threatened his political enemies with legal retribution on numerous occasions. Vance, of course, knows this.

Second, Vance wants us to believe that Trump can be trusted with executive power because during his first term he did not use that power in the particular way under discussion. But during his first term, Trump repeatedly ordered members of his administration to abuse the legal system for his benefit and was repeatedly thwarted by their noncompliance. As former Secretary of State Rex Tillerson recalled in 2018, "I'd have to say to him, 'Mr. President, I understand what you want to do, but you can't do it that way. It violates the law."

Trump told White House Counsel Don McGahn to fire Robert Mueller, who was investigating the possibility of collusion between the Trump campaign and Russia; McGahn refused. Trump told Attorney General Jeff Sessions to take over the same investigation and eventually fired him when he would not. According to former FBI Director James Comey, Trump told Comey to overlook potential wrongdoing by former Trump adviser Michael Flynn and then fired Comey when he refused. And according to McGahn, Trump told him that he wanted the Justice Department to prosecute Comey and Trump's 2016 opponent, Hillary Clinton; declining, McGahn "had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rivals, he could face a range of consequences, including possible impeachment," per The New York Times.

This is also not an exhaustive list. But it suffices to show that Trump was largely unable to get those around him to behave as if he had dictatorial powers, not that he understands that he does not possess such powers—and certainly not that we can be sure he wouldn't have more success enacting his dictatorial whims during a potential second term. After all, as I explained in Reason's October cover story, numerous groups have spent the last four years preparing to staff a future Trump administration with MAGA loyalists who will do his bidding without asking questions.

The third reason to believe that Trump would in fact "go out and arrest his political opponents" is that there is now an explicit right-wing effort to build up an intellectual permission structure for just that. This summer's National Conservatism Conference in Washington, D.C., featured a panel on "Lawfare: The Criminalization of Politics" in which all four participants spoke favorably about the idea of Republicans using the legal system to go after Democrats. 

In remarks he titled "Prosecuting for Fun, Profit, and Survival," the Berkeley law professor John Yoo declared that because progressives have "broken an important tradition of not prosecuting past presidents," conservatives "have to retaliate against them in exactly the same way until you restore some amount of deterrence. And so if we're not going to become a banana republic country, where we continuously prosecute our predecessors in office, unfortunately I'm afraid we're going to have to use banana republic means." Among other things, he called on Republican prosecutors and district attorneys to go after those who have brought charges against Trump and his allies "until they stop." 

This line of argument relies on the beliefs that the Trumpworld indictments have been motivated entirely by political concerns—and that this gives Trump et al. carte blanche to respond in kind. It's the "They started it!" defense beloved of toddlers. And since people's views on whether something is a legitimate prosecution necessary to deter lawbreaking or an illegitimate prosecution representing a misuse of authority are very likely to map to their partisan preferences, a leader bent on using the judicial system to punish his foes can, at this point, be fairly confident that his political supporters will endure whatever mental or ethical contortions are required to back him.

Vance knows this as well. "What [Trump] has said is that we should investigate some of the obvious sources of corruption in the United States government," he told Rogan. "That's not going after your political opponents." It's true that investigating corruption is a valid function of the state. But neither Trump nor Vance can be trusted to make responsible use of the power that comes with that job.