Op-ed views and opinions expressed are solely those of the author.
In the wake of the unfortunate January 6, 2021 invasion of the Capitol Building, Wyoming Republican Representative Liz Cheney, in an awkward attempt to adopt the ballyhooed “straight talk” style of the late Senator John McCain, sought both to take advantage of a horrified public and to take a shot at a sitting president who has criticized her father.
However, she so clumsily waded into the verbal fray that she made Donald Trump look like a graceful ballet dancer. Her rhetoric, rather than being a unifying banner under which principled conservatives and moderates could rally, was toxic, divisive, and, ironically, contained several palpable lies.
She now, upon reflection, needs to swallow her pride, acknowledge her mistake, and amend her hasty words, before she does permanent damage both to the conservative cause and to her own theretofore promising career.
Cheney has stubbornly put her back to the wall, insisting in a May 3, 2021 tweet that anyone claiming the election was or might be “stolen” was telling the “THE BIG LIE” (her original words in caps):
The 2020 presidential election was not stolen. Anyone who claims it was is spreading THE BIG LIE, turning their back on the rule of law, and poisoning our democratic system.
Let us unpack these words, hopefully reckless and not carefully and deliberately chosen. Over 50% of Americans and 70% of Republicans believe there were serious problems with the 2020 election, the vast majority of them arguably part of a disturbing, ostensibly coordinated pattern occurring in five urban areas. Their preliminary view of this seeming debacle constitutes a consensus opinion about inferences to be drawn from admittedly incomplete facts. Such an opinion is not a “lie,” which means the deliberate misrepresentation of a conclusively proven fact known to be false by the declarant. So, at worst, it is an opinion that might be proven wrong, just as prospective jurors invariably form preliminary opinions at the outset of a case which might be proven otherwise during a trial. So claiming that such an opinion is a “lie” is itself a lie, especially when the state of mind of millions of citizens is unknown to Cheney.
But, wait, one might counter, weren’t all lawsuits challenging the election unsuccessful? Certainly, they were all unsuccessful in overturning the certified election results, which were correct judicial decisions. But there were no trials or evidentiary hearings to determine the truth or the falsity of the election objections, all tossed at the pleading stage. All of these cases, then, were dismissed without evidentiary hearing, as dismissed they should have been, since our judicial system is not designed to relitigate an election. Elections are supposed to be controlled at the election centers, not in courtrooms.
Elections should be designed and conducted with sufficient scrupulousness such that conscientious citizenry do not believe, as in less advanced countries, that the election results did not truly reflect their democratic will. Without demonstrable election safeguards, citizens should voice their displeasure, and do so loudly and insistently, demanding reform, of course peacefully.
Doing so is the essence of the democratic process. Suppressing, delegitimizing or punishing honest debate on election safeguards is the essence of totalitarian, undemocratic thuggery. This is precisely what Liz Cheney is undertaking, a cancel-culture, deplatforming assault on democracy.
What about her charge that these protests amount to “undermining the rule of law”? We can all agree that rioting is such an offense. But verbally disagreeing that the 2020 election was appropriately administered? That disagreement is seeking to enforce the rule of law at the ballot box, not defeat it. So, by verbally terrorizing citizens’ democratic wish for better election law enforcement, calling them undemocratic liars, it is Liz Cheney that is truly “undermining the rule of law.”
But aren’t these protesters gainsaying decided judicial opinions? No. As we have noted, while the untutored were upset at court decisions, none of these decisions determined the facts. They were purely legal and procedural, as they should have been.
But let’s say that for some, these decisions were at the heart of their dissent. Of course, even such disagreement was generally based not on legal reasoning, but on the ugly facts of the election, which many had hoped that a court would overturn. But even if these were indeed factual rulings, would objection to them in such a hypothetical situation amount to “undermining” of the “rule of law”? Of course not. Principled observers, such as Professor Alan Dershowitz, have written screeds declaiming the Supreme Court’s Bush v. Gore decision. Dershowitz in so doing was exercising his democratic right, as would anyone disagreeing with the O.J. Simpson, Dan White or Rodney King criminal case decisions. Such dissent doesn’t undermine any democratic norm; it is the essence of a free democracy. It is Cheney who is undermining the rights of citizens to protest. You know, free speech, the First Amendment to the Constitution and all that, sometimes referred to as the “law.”
Do our stalwart media come to the defense of such democratic protest? Yes, if the “protest” burns down cities and results in needless deaths. But now that a Republican is criticizing millions of other Republicans (and Independents and Democrats) who protest the 2020 election administration, Cheney not only exchanges cutesy fist bumps with President Biden, but also receives a full-throated defense from the likes of the belletristic Peggy Noonan. Aren’t we who defend the election, albeit without a shred of specificity in defense, polite, upstanding and virtuous?
Of course, the House leadership has thereafter reluctantly leaned toward Cheney’s ouster from their group. After all, who wants to be led by one who calls most Republicans liars and criminals? How often will Cheney’s words be repeated in future Democratic attack ads? But apparently wishing, like Cheney, to be accepted in cosmopolitan circles, Peggy Noonan has also dismissed critical thinking about Cheney’s divisive words, in favor of execrable name-calling. The House Republican caucus, she tells us, is a “House of Cowards.”
With support such as Noonan’s, Cheney may talk herself into believing that she can shoot her way out of this one. She should realize that the defense by Noonan and others is rhetorical fool’s gold, and that many principled conservatives would wish her to resume her climb to the top of the party with but a graceful walk-back of her inflammatory rhetoric. However, without a refinement of her unnuanced verbal thuggery, a back bench awaits her, as well as a primary challenge.
John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of the book, Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate, and Began Today’s Partisan Advocacy Journalism and the host of the new podcast series, The Mysteries of Watergate.