McCarthy: Stifling political debate with threats of prosecution is not the "rule of law" — it’s tyranny

Andy McCarthy:

In London last week, a frightful warning was sounded about encroaching tyranny. At an important conference, speaker after impassioned speaker warned of the peril to Western values posed by freedom-devouring sharia — the Islamic legal code. Like all tyrannies, sharia’s first target is speech: Suppress all examination of Muslim radicalism by threats of prosecution and libel actions, and smugly call it "the rule of law."

But we may already be further gone than the London conferees feared. And without resort to the Islamicization that so startled them. For that, we can thank the campaign of Barack Obama.

I’ll be blunt: Sen. Obama and his supporters despise free expression, the bedrock of American self-determinism and hence American democracy. What’s more, like garden-variety despots, they see law not as a means of ensuring liberty but as a tool to intimidate and quell dissent.

We London conferees were fretting over speech codes, "hate speech" restrictions, "Islamophobia" provisions, and "libel tourism" — the use of less journalist-friendly defamation laws in foreign jurisdictions to eviscerate our First Amendment freedom to report, for example, on the nexus between ostensible Islamic charity and the funding of terrorist operations.

All the while, in St. Louis, local law-enforcement authorities, dominated by Democrat-party activists, were threatening libel prosecutions against Obama’s political opposition. County Circuit Attorney Bob McCulloch and City Circuit Attorney Jennifer Joyce, abetted by a local sheriff and encouraged by the Obama campaign, warned that members of the public who dared speak out against Obama during the campaign’s crucial final weeks would face criminal libel charges — if, in the judgment of these conflicted officials, such criticism of their champion was "false."

The chill wind was bracing. The Taliban could not better rig matters. The Prophet of Change is only to be admired, not questioned. In the stretch run of an American election, there is to be no examination of a candidate for the world’s most powerful office — whether about his radical record, the fringe Leftism that lies beneath his thin, centrist veneer, his enabling of infanticide, his history of race-conscious politics, his proposals for unprecedented confiscation and distribution of private property (including a massive transfer of American wealth to third-world dictators through international bureaucrats), his ruinous economic policies that have helped leave Illinois a financial wreck, his place at the vortex of the credit market implosion that has put the U.S. economy on the brink of meltdown, his aggressive push for American withdrawal and defeat in Iraq, his easy gravitation to America-hating activists, be they preachers like Jeremiah Wright, terrorists like Bill Ayers, or Communists like Frank Marshall Davis. Comment on any of this and risk indictment or, at the very least, government harassment and exorbitant legal fees.

Nor was this an isolated incident.

Item: When the American Issues Project ran political ads calling attention to Obama’s extensive ties to Ayers, the Weatherman terrorist who brags about having bombed the Pentagon and the U.S. Capitol, the Obama campaign pressured the Justice Department to launch an absurd criminal prosecution.

Item: When commentator Stanley Kurtz of the Ethics and Public Policy Center was invited on a Chicago radio program to discuss his investigation of the Chicago Annenberg Challenge, an "education reform" project in which Obama and Ayers (just "a guy who lives in my neighborhood") collaborated to dole out over $100 million, the Obama campaign issued an Internet action alert. Supporters, armed with the campaign’s non-responsive talking points, dutifully flooded the program with calls and emails, protesting Kurtz’s appearance and attempting to shout him down.

Item: Both Obama and his running mate, Sen. Joe Biden, have indicated that an Obama administration would use its control of the Justice Department to prosecute its political opponents, including Bush administration officials responsible for the national security policies put in effect after nearly 3000 Americans were killed in the 9/11 attacks.

Item: There is a troubling report that the Justice Department’s Civil Rights Section, top officials of which are Obama contributors, has suggested criminal prosecutions against those they anticipate will engage in voter "intimidation" or "oppression" in an election involving a black candidate. (Memo to my former DOJ colleagues: In a system that presumes innocence even after crimes have undeniably been committed, responsible prosecutors don’t assume non-suspects will commit future law violations — especially when doing so necessarily undermines the First Amendment freedoms those prosecutors solemnly swear to uphold.)

Obama may very well win the November election but he, like Sen. McCain, should be forced to win it fair and square: by persuading Americans that he is the superior candidate after our free society has had its customary free and open debate.

One understandably feels little sympathy for McCain here. His years-long assault on the First Amendment under the guise of campaign-finance "reform" has led inexorably to the brazenness of Obama’s Chicago-style strong-arming. But the victim here is not McCain. The victim is democratic self-determination. The victim is our right to informed participation in a political community’s most important decisions. The victim is freedom.

The Justice Department’s job is to prosecute those actively undermining our freedom, not to intimidate citizens in the exercise of that freedom. Consequently, instead of threatening criminal investigations of phantom future civil-rights violations, it should be conducting criminal investigations into whether public officials in St. Louis are abusing their offices to affect a national election.

The federal Hatch Act (codified in Title 5 of the U.S. Code) prohibits executive officials (such as prosecutors and police) from using their offices to interfere with federal elections. The statute may be of limited utility in St. Louis since it principally targets federal officials. Still, state and local government may come within its ambit if their activities are funded in part by the national Leviathan — as many arms of municipal government are these days.

The same bright-line demarcation does not limit application of the federal extortion and fraud laws. The extortion provision (also known as the Hobbs Act and codified at Section 1951 of the federal penal code) makes it a felony for anyone, including public officials, to deprive people of their property by inducing fear of harm. Property interests have been held to include, for example, the right of union members to participate in a democratic process; the harm apprehended can be either physical or economic. Inducing voters to fear prosecution and imprisonment unless they refrain from exercising their fundamental right to engage democratic debate may well qualify.

An easier fit may be fraud, which under federal law (Section 1346 of the penal code) prohibits schemes to deprive citizens of their "intangible right of honest services" from their public officials. Prosecutors and police who abuse their enormous powers in order to promote the election of their preferred candidates violate their public trust.

Regardless of the legal landscape, however, it is the political consequences that matter. Day after day, Obama demonstrates that the "change" he represents is a severing of our body politic from the moorings that make us America. If we idly stand by while he and his thugs kill free political debate, we die too.