Why does it increasingly seem like Twitter and Facebook do more enforcement work than the Justice Department? A day after Twitter permanently banned Rep. Marjorie Taylor Greene, R-Ga. (her personal account – not her official account), Facebook suspended her account. According to the tech companies, both enforcement actions were for Greene’s misinformation about Covid-19 vaccine safety.
Such bans probably do lessen the harmful impact of lies spread at light speed through social media, but do we have to depend on Twitter and Facebook for the work that the Justice Department and other prosecutors could be doing to hold public officials accountable?
Twitter and Facebook shouldn’t be the new sheriffs in town when we already have the Justice Department.
Let’s start by debunking the myth that conduct like engaging in racist speech and lying to the public about a health crisis or the legitimacy of our elections can never be criminal. We don’t need new laws to address these actions. We need prosecutors to use the laws that are already in place. More specifically, they need to stop taking such a timid approach to their interpretation of existing laws like making false statements, honest services fraud, obstruction of Congress and campaign finance fraud and look to expand the definitions as needed.
Lying is central to all of these actions, and it can be a crime under 18 U.S Code § 1001 (“False Statements”) when falsehoods are made “knowingly and willfully” about “any matter within the jurisdiction of the executive, legislative, or judicial branch.”
It’s a bit tricky when it comes to honest services fraud. It’s a charge now in disuse because prosecutors fear the Supreme Court’s decisions in a line of cases – the most recent of which overturned former Virginia Gov. Bob McDonnell’s corruption conviction in 2016 – that appear to limit such fraud to the most basic of bribery quid pro quos.
Dating to the late Justice Antonin Scalia, who said in 2009 that the honest services fraud law failed to distinguish “criminal breaches, conflicts and misstatements” from “obnoxious but lawful ones,” the courts and the Justice Department appear to have given up on the concept that public officials owe any real duty of honest services to the public they serve — other than not accepting brown bags full of cash in return for abusing their offices.
While legal scholars and well-paid white-collar defense lawyers can debate the definition and intent of this statute, there can be no debate that Americans should expect their public officials to serve them in a fiduciary capacity. Under no stretch of the imagination is Greene serving the public when she works against our safety by repeating falsehoods about the Covid vaccines.
That leads us to obstruction of Congress, which several courts have upheld as a charge against rioters accused in the Jan. 6 insurrection because they sought to interfere with the election certification by physically invading the Capitol. This same charge could be applied to public officials who sought to undermine that same process through misinformation.
Under no stretch of the imagination is Greene serving the public when she works against our safety by repeating falsehoods about the Covid vaccines.
Moreover, using such lies to support campaign fundraising is obviously dishonest. It’s no different from the practice of falsely claiming to donors that their donations will be matched to boost donations — a practice the Justice Department recently began to take notice of.
Expanded views of federal reckless endangerment crimes (which seem to apply only to narrow categories of actions in the armed forces and on Native American lands) should also be examined by the Justice Department to apply to misinformation about Covid-19. For that matter, why do Greene’s repeated violations of Congress’ mask policy apparently go unpunished other than by her racking up fines? The Justice Department could work with Congress to put some teeth in enforcing its own rules.
Next up is the overly broad protections afforded to members of Congress under the speech and debate clause of the Constitution, which is meant to give senators and representatives immunity for positions they take in performing their official duties and the motivations for those acts. But it shouldn’t, as pointed out in United States v. Brewster, be read to include activities that are “political in nature rather than legislative.”
Inciting violence and racist hatred is not “speech and debate.” It can and should be prosecuted. It seems like no workplace other than Congress tolerates someone’s falsely labeling colleagues a “Jihad Squad,” as Greene tweeted about Rep. Ilhan Omar, D-Minn., and Rep. Alexandria Ocasio-Cortez, D-N.Y. The fiction that racist hate speech that incites violence or other criminal activity enjoys blanket First Amendment protection was dispelled long ago. Greene’s actions fan Islamophobia and have the potential to incite violence.
Deputy Attorney General Lisa Monaco, whom I previously worked with at the Justice Department, recently urged federal prosecutors not to be deterred by “fear of losing” in bringing cases. She was speaking in the context of pursuing corporate crime, but her remarks should apply equally to scrutinizing public officials.
It is insufficient to leave accountability up to social media platforms and to such clichés as “vote them out.” Twitter and Facebook shouldn’t be the new sheriffs in town when we already have the Justice Department.
Like all prosecutors, federal prosecutors have vast discretion in how to use and interpret existing laws. The Biden administration and the Justice Department need to see that the historical trend of scaling back investigation and prosecution of public officials must yield to the reality that such timidity has led to increased boldness by offenders. If we don’t change course, the past will be prologue to a dangerous future.