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Sen. JD Vance is asking all the wrong questions

The Ohio senator's letter to the attorney general is a trolling attempt to discredit the Justice Department's case against former President Donald Trump.

Sen. JD Vance, R-Ohio, in a letter Wednesday to Attorney General Merrick Garland, raises concerns about a recent Washington Post op-ed warning that a second Trump presidency would become a dictatorship. Vance’s concerns are about not the potential dictatorship, mind you, but about the part of the opinion piece where the author speculates about what form resisting that hypothetical dictatorship might take.

“Based on my review of public charging documents that the Department of Justice has filed in courts of law, I suspect that one or both of you might characterize this article as an invitation to ‘insurrection,’ a manifestation of criminal ‘conspiracy,’ or an attempt to bring about civil war,” Vance wrote.

Wednesday’s letter is what you get when such a troll is elected to the Senate.

If you’ve spent even a little time in corners of the internet where debates occasionally break out, you’ve encountered plenty of trolls. The most pernicious are those who are “just asking questions,” the ones who pretend they aren’t necessarily arguing for any specific point of view or outcome but are just bravely bringing thorny subjects up. Wednesday’s letter is what you get when such a troll is elected to the Senate.

In this case, Vance is asking questions about Post contributing editor Robert Kagan who, while a staunch anti-Trump voice, isn’t a “left-wing journalist,” as Vance’s news release refers to him. Kagan, a neoconservative at heart, is a conservative at the Brookings Institute who left the Republican Party in opposition to former President Donald Trump’s rise, not out of a sudden admiration for, say, single-payer health care.

Over the course of many, many words, very few of which Vance actually refers to in his letter, Kagan made the case that would be few institutional checks on Trump if he were to make it back to the White House that Americans should be honest about what that means. He implores those who’d pretend that former U.N. Ambassador Nikki Haley, for example, could beat Trump for the nomination or that the judiciary is bold enough to jail him to “stop the wishful thinking and face a stark reality.”

Kagan’s is one of several op-eds and news articles dealing with the well-documented plans for a future president Trump to transform the federal government into an instrument of his will. But Vance calls out Kagan’s piece for a single section and then misrepresents its point:

Resistance could come from the governors of predominantly Democratic states such as California and New York through a form of nullification. States with Democratic governors and statehouses could refuse to recognize the authority of a tyrannical federal government. That is always an option in our federal system.

“Excuse me? I must have missed that day in civics class,” Vance scoffs. “Our system of federalism prescribes a robust role for state governments and often allows for local resolution of local matters. […] According to Robert Kagan, the prospect of a second Donald Trump presidency is terrible enough to justify open rebellion against the United States, along with the political violence that would inevitably follow.”

Except Kagan doesn’t say that. The quoted paragraph is part of Kagan’s explanation for why any such attempts to thwart federal power are likely to falter. In particular, he notes that “not even the bluest states are monolithic, and Democratic governors are likely to find themselves under siege on their home turf if they try to become bastions of resistance to Trump’s tyranny.” Vance also conveniently disregards the very next line after the section he quotes: “(Should Biden win, some Republican states might engage in nullification.)”

After ignoring that Kagan’s argument was descriptive, not prescriptive, Vance pivots to his real mission: discrediting the Justice Department’s case accusing Trump of trying to steal the 2020 election. Trump’s four charges in that case include his alleged engagement in a conspiracy to “injure, oppress, threaten, and intimidate one of more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States — that is, the right to vote, and have one’s vote counted.”

“I would like to know,” Vance wrote, “whether a supporter of President Trump might be ‘intimidate[d]’ into foregoing the right to vote after learning that Robert Kagan has encouraged large blue states to rebel against the United States if Trump is elected. If so, I wonder further whether the editors of The Washington Post, having put Kagan’s call to arms in print, might have conspired to suppress the vote.”

Vance should be focused on preventing the looming threat that Kagan describes.

In essence, Vance is trying to argue, as Trump’s lawyers have, that Trump was just engaging in his First Amendment right to free speech ahead of the Jan. 6, 2021, attack on the U.S. Capitol. Such an argument has been tossed out multiple times, most recently by U.S. District Judge Tanya Chutkan, who rejected a slew of motions from Trump to dismiss the case on constitutional grounds. Vance is engaging in whataboutism to the nth degree in his letter, using his power as a senator to compel the attorney general to explain to him personally why an op-ed that says Trump wants to be a dictator is different from Trump’s attempting to act like a dictator after losing the 2020 election.

Vance is willfully ignoring the message of Kagan’s piece and others like it. If Trump had his way in a hypothetical second term, it’s not hard to imagine that his Justice Department would absolutely prosecute people like Kagan for even lesser slights. Framing the matter as he has could be seen as justification for future abuses of power if the firewalls between the White House and the Justice Department are removed. It’s a subtler version of how Trump himself has warned that the prosecutions against him justify his promises of retribution.

Vance should be focused on preventing the looming threat that Kagan describes. But instead, he’s more committed to looking clever in his defense of Trump. And because he’s just asking questions — literally, as there are several questions he’s demanding Garland answer by January — Vance can pretend that he’s not really advocating for the Justice Department to prosecute Kagan. Though he’s claiming to be calling out inconsistency, he’s essentially defending an arsonist because someone warned about the destructiveness of fire.