Of late, the media have been much astir about former President Donald Trump’s refusal to heed the admonitions of judges in his various criminal and civil cases not to post social media messages that smack of tampering with witnesses, juries and justice. Reporters and commentators have even speculated about Trump being jailed by D.C. District Court Judge Tanya Chutkan, who is presiding at his federal election fraud trial.
It is clear that the former president wants to send the message that he is ready to defy any legal authority and play by his own rules. But as bad as that conduct is, Thursday’s news brought a chilling example of something far worse.
“The Fulton County Sheriff’s Office,” The New York Times reported, “was investigating online threats against the grand jurors who voted this week to indict former President Donald J. Trump and 18 others, accusing them of conspiring to overturn Georgia’s 2020 election results.”
We’re seeing in real time what journalist Masha Gessen has called “the performance of fascism.” Former Secretary of Labor Robert Reich agrees and encourages us not to shy away from using that word as the threat of fascism grows in America.
Reich notes that one of the key features of fascism involves a strongman, or would-be strongman, stoking rage and resentment among his followers to seek revenge. Fascists, Reich argues, “use mass rage to gain and maintain power.”
They aim that rage at anyone who does not fall in line with their plans and show loyalty to their leader. They use it to intimidate and punish ordinary citizens who are performing their public duty.
Professor Fintan O’Toole says the regime Trump is trying to establish “always comes down in the end to what happens to small, inconvenient people.” We saw that in the way Trump and his cronies fabricated stories about Georgia election worker Ruby Freeman. People like Freeman, O’Toole argues, “are lied about, criminalized, terrorized, threatened and smeared.”
This is the playbook that is being followed in the wake of this week’s indictment in Georgia.
Trump has long been calling the Georgia grand jury investigation a “witch hunt.” Almost immediately after the indictment listed the grand jurors’ names, NBC News reported, their personal identifying information was “posted on a fringe website that often features violent rhetoric.”
On Trump’s Truth Social site, a subscriber wrote, “I see a swift bullet to the head if, and when, somebody shows up at their homes.”
Trump has been fomenting violence regularly over many years. It’s hard to forget his infamous February 2016 campaign rant: “If you see somebody getting ready to throw a tomato … knock the crap out of them.”
Or recall his 2020 presidential debate “call-and-response” to the militant Proud Boys: “Stand back and stand by.” They “stood by,” planned and “responded” with violence on Jan. 6, 2021.
And there was nothing subtle about what Trump posted on Truth Social after his Aug. 4 arraignment in a Washington federal court over his alleged involvement in a conspiracy to overturn the results of the 2020 election. “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
One can only imagine what the former president would say about jurors if he is convicted on the felony charges he faces in Atlanta, Florida, New York or D.C.
But after years of Trump riling his cult with hatred, he can enlist its members without saying very much. Many of them are so inculcated with his incitement of violence that little or no explicit prompting from him about what is needed or about whom to target for threatening action.
On Aug. 5, Abigail Jo Shry, a Houston, Texas, woman left Judge Tanya Chutkan‘s chambers a voicemail threat: “You are in our sights, we want to kill you.” Shry has now been charged with the crime of threatening a judge.
It’s not just the judges, of course, who’ve been subjected to threats. On April 10, Trump called Manhattan District Attorney Alvin Bragg a “criminal.” Two days later, Bragg received an envelope and letter laced with white powder and an expletive.
Trump uses the word “racist” to describe Fani Willis, the Fulton County, Ga., district attorney who led the grand jury investigation. She and her office have received racist threats and phone calls. The Fulton County Sheriff reported that he too had been threatened for his role in protecting Willis.
For months, Trump has been attacking special counsel Jack Smith. He, too, has been threatened and has a security detail.
It’s no accident that Trump has targeted officials and citizens who play key roles in the criminal justice system now focused on holding him to account. It’s no accident that his followers hear his signals, present and past, as a literal call to arms.
On Thursday, Ruth Ben-Ghiat, New York University scholar of fascism, shared perceptions about violence and fascism, hers echoing Robert Reich’s about Trump. Ben-Ghiat, author of “Strongmen: Mussolini to the Present,” said that “[s]ince 2015, [Trump has] used his rallies … as radicalization sites. And over and over, he told his supporters at these rallies that violence was a good way to solve conflict.”
The history of civil society is a history of efforts to encourage and enlist citizens to do the important work of service that democracy demands. It a history of the struggle to foster civility and build the rule of law as a bulwark against the rule of violence.
The walls around a safe and stable society are built brick by brick. From time to time, citizens are called on to display what might be called “civic courage.”
This is one of those times.
On Thursday, an individual who leads a powerful organization of law showed that kind of civic courage. Mary Smith, president of the American Bar Association, quickly issued a statement after news broke of the threats against the Georgia grand jurors: “The civic-minded members of the Georgia grand jury performed their duty to support our democracy. It is unconscionable that their lives should be upended, and safety threatened for being good citizens.”
Smith called on others to denounce the vicious “disclosure of private and personal information.”
We all don’t lead organizations, but every one of us who cares about citizenship, public responsibility and public order can heed her call and condemn attacks on other citizens who serve our democracy and legal institutions. We must stand up and join in protecting them from the clear and present danger facing us all.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of several books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not necessarily represent those of Amherst College.
Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.