Now, with the assassination of Charlie Kirk, Republicans have a new pretext for blatantly violating the First Amendment. Attorney General Pam Bondi has promised to “come after those who engage in hate speech,” distinguishing between “free speech” and “hate speech.” As she said in a recent interview: “There’s no place, especially now, especially after what happened to Charlie, in our society. … We will absolutely target you, go after you, if you are targeting anyone with hate speech.” Vice President JD Vance is no better: “Call them out, and hell, call their employer,” he said as he guest-hosted an episode of Kirk’s podcast. “We don’t believe in political violence, but we do believe in civility.” Sen.Ted Cruz, who at least insisted that the First Amendment safeguards hate speech, told a Politico panel that he endorsed “naming and shaming” as a means of supporting a “functioning and vibrant democracy.”

It is almost amusing to hear Republicans talk this way after spending the last decade decrying the illiberal, woke Left. Now, instead of defending their own professed values, they have lustily adopted every last woke pathology. Those progressive pathologies were all too real. “Naming and shaming” is indeed what many liberal activists advocated for in the 2010s, waging Twitter-fueled cancellation attempts against anyone who violated their orthodoxies. In the wake of Trump’s first presidential victory, the Left, along with organizations like the American Civil Liberties Union, took what they considered to be reasonable measures for desperate times: abandoning discourse among friends, standards in journalism, and defenses of free speech. Just ask anyone who wanted, in 2020, to say that the police should not be defunded or Covid vaccine mandates for employment were an infringement on labor rights and personal liberty. 

The Left’s forms of censorship were more subtle than Trump’s heavy-handed approach, but they existed at a nexus of government, corporate, and institutional power, and came to define the movement in the public eye. Tech platforms, in collaboration with the government, forcefully suppressed information, whether it was the New York Post’s reporting on Hunter Biden’s laptop or discussion of the Wuhan lab-leak theory. Twitter and Facebook shadow-banned offending accounts, and many institutions, not least colleges, unduly muzzled students and faculty who vented dissident views. As the Left veered into illiberalism, the Right became, for a period, the champion of speech rights.

But those days are long over — and that could be good for the Left. 

The MAGA regime is plainly disdainful of free speech. It is abusing the powers of the federal government because it has yet to fully control the private institutions where liberals still hold significant sway. There is absolutely no difference between the Left’s dedication to cancel culture and Cruz’s call for “naming and shaming.” Or, for that matter, Vance effectively demanding that anyone who says something he doesn’t like about his slain friend get fired from their job. Or the X account Libs of TikTok boasting of making calls to dozens of ordinary people’s employers to get them fired for anti-Kirk messages.

Most ominous is Bondi, who appears ready to wield the full machinery of the Justice Department against the American Left because there are political views in the country she finds distasteful. There are no legal grounds for arresting or even harassing an individual who espouses so-called hate speech. Indeed, the Constitution protects hate speech, as the Supreme Court has affirmed. Bondi knows this. What she is hoping to do, though, is to intimidate the Left and break it on the cultural terrain. Success is doubtful, but she has the power to disrupt the lives of many activists, politicians, and intellectuals, the way the 20th-century FBI and CIA menaced, surveilled, and infiltrated the Left.

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The last time conservatives were so openly hostile to speech rights, George W. Bush was president, but that administration, at the minimum, had the excuse of the worst terrorist attack in American history. The 9/11 attack was the pretext for setting up a mass surveillance state, spying on American citizens, and intimidating opponents of the Iraq and Afghanistan wars into silence. It was vile, but it had some logic to it.  

Kirk is another matter entirely. His assassination is a tragedy and should not have happened. Yet it does not represent a grave new threat to national security or the American people more broadly. Thousands of civilians were not killed in cold blood. Conservatives can insist it’s the American Left that killed Kirk — the radicals. There may be a radical and radicalizing online discourse that destabilizes such people, and Tyler Robinson seems to have succumbed to the Left-wing variety. But there’s no formal organization or movement behind Tyler Robinson, the 22-year-old alleged shooter. He is, in the tradition of American assassins, an alienated, angry, and very young gunman. This is true of most assassins and mass shooters; they have confused and disordered inner lives. Post-hoc justifications are crafted to elucidate what is, ultimately, a form of deep mental illness, and one that occurs on both sides. It is true that the Left has been guilty of blaming mass shootings on an infectious Right-wing ideology but, in almost every instance, the violence had no clear cause that could neatly fit a political binary. Now conservatives are guilty of the same fallacy. 

A good question is what Kirk, a man who defended free discourse, would ask for now. Would he want his death to be used as a pretext for shutting down debate? We’ll never know. One of the great failings of Kirk — yes, it’s acceptable to criticize the recently deceased — was that he was usually willing to jettison certain principles in the service of Trump and MAGA. He did this repeatedly, from dropping his pursuit of the Epstein files once Trump wanted the matter dropped, to flip-flopping from isolationist to supportive of Trump’s bombing of Iran. 

With the Right wing apparently finished with free speech, it will be up to the Left to defend and champion it anew. This is possible, still. At the very minimum, the many activists, pundits, and politicians who dismissed the First Amendment’s value in the last decade are discovering, again, why it’s so vital. We can only hope they’ve learned their lesson and are ready to embrace principle over political expediency — only that will bring back the votes.

What might this look like? In the 20th century and into the Aughts, there was rarely any conflict between progressive values and free speech. Leftists understood that an unstinting defense of the First Amendment was vital, and to support the speech rights of so-called enemies was necessary if a climate of free discourse was to survive. The American Civil Liberties Union defended the right of the Ku Klux Klan to hold a march, and drew a clear distinction between that and an endorsement of the organization’s racist ideology. In the 2020s, Democratic politicians and Left-leaning organizations like the ACLU must become speech champions again. Americans believe in the First Amendment, and they don’t want their rights trampled on. Can liberals and progressives earnestly safeguard these rights once more? It’s not impossible. MAGA, certainly, has handed them an opportunity. 

The Republican Party today is a battleground. The confrontation isn’t between traditional conservatives and Trump supporters. Rather, it pits genuine MAGA reformers against MAGA-in-name-only lobbyists. It’s a fight over whether Americans will have equal justice under law, or whether the wealthy and the well-connected enjoy preferential access to our justice system.

Officials like Assistant Attorney General Gail Slater, my former boss, strive to remain true to President Trump’s populist message that resonated with working-class Americans. Antitrust enforcement that applies equal justice under the law can deliver tangible results for millions of Americans. The MAGA-in-name-only lobbyists and the DOJ officials enabling them are pursuing a different agenda. They’re determined to exert and expand their influence and enrich themselves as long as their friends are in power. Will America be governed by the rule of law or the rule of lobbyists? If the rule of lobbyists prevails, it will render futile the realignment of the two parties, which has impelled millions of working-class Americans to migrate to the Right over the past decade.

The Department of Justice is today the central front in this battle. Slater and her closest advisers are committed to protecting ordinary Americans by vigorously enforcing the antitrust laws. The same can’t be said for many in the senior leadership. This was painfully demonstrated in the handling of the HPE-Juniper merger, which saw two tech giants achieve a sweetheart settlement, circumventing the Antitrust Division by currying favor with senior officials above us. The arrangement, as Sohrab Ahmari reported in these pages, involved a literal backroom meeting over cocktails.

It is still early days in this administration, and correcting the problems at the DOJ is possible, either by political will or judicial decree. I experienced nothing remotely like this when I served at the DOJ in the first Trump administration, and hopefully this is a short-term aberration.

To be clear, I have absolutely no reason to think the White House or other departments are involved in the current HPE-Juniper merger scandal. Nor do I think Deputy Attorney General Todd Blanche is involved.

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But I can’t say the same about a small set of actors in senior leadership within the DOJ. I met with the most senior officials of the DOJ regularly, and my concerns aren’t based on conjecture. The core problem is simple: Attorney General Pam Bondi has delegated authority to figures — such as her chief of staff, Chad Mizelle, and Associate Attorney General-Designee Stanley Woodward — who don’t share her commitment to a single tier of justice for all.

Good may yet prevail, but at least with respect to senior DOJ oversight of antitrust enforcement, we are on a path toward injustice.

Under the rule of law, rules matter and must be respected, both in substance and in procedure. Under the rule of lobbyists, by contrast, antitrust laws are nuisances or obstacles to overcome. Rather than the legitimate lobbyists who have expertise and perform traditional functions of education and engagement, bullying lobbyists with no relevant expertise are perverting law enforcement through money, power, relationships, and influence.

There are people within the DOJ who follow the law and care deeply about protecting Americans from anticompetitive behavior. That is true of the leadership and career staff at the Antitrust Division. Sadly, there are others inside and outside the government who care little for the antitrust laws. They consider law enforcement not as binding rules, but an opportunity to leverage power and extract concessions.

Although the terms of my service with the federal government limit what I can say even after I depart, I believe that in the HPE-Juniper merger scandal, Mizelle and Woodward acted inconsistent with the populist values of the Trump administration. These actions have potentially opened the case to judicial scrutiny under the Tunney Act, passed by Congress in the Seventies to ensure that merger settlements take place consistent with the public interest, not based on political connections over cocktails between lobbyists and government officials.

It would be helpful for the court reviewing the settlement to clarify the substance and the process by which the settlement was reached. Although the Tunney Act has rarely served its intended purpose, the court may demand extensive discovery this time around, and examine the surprising truth of what happened. Indeed, the court should block the HPE-Juniper merger. If you knew what I know, you would hope so, too.

The second distinction between the rule of law and the rule of lobbyists is that those who follow the rule of law show no special favors to the parties and counsel appearing before them. By contrast, the rule of lobbyists cares deeply about benefits they can extract in transactional relationships with perceived friends. At the Antitrust Division, we ignore the affiliations of the lawyers who appear before us — whether friend or foe, Republican or Democrat — and attempt to treat everyone equally. That’s how we maintain a single-tier system of justice.

Others at the DOJ and elsewhere in government consider some parties, counsel, and lobbyists to be on the “same MAGA team” and worthy of special solicitude. They consider others to be “enemies of MAGA” that merit particular disfavor. Too often in the current DOJ, meetings are accepted and decisions are made depending upon whether the request or information comes from a MAGA friend. Aware of this injustice, companies are hiring lawyers and influence-peddlers to bolster their MAGA credentials and pervert traditional law enforcement.

Third, the rule of law provides predictability while the rule of lobbyists guarantees instability. Violations of the antitrust laws impose grave risks to companies, including criminal prosecution, massive civil penalties, company breakups, and the blocking of mergers. Lawyers and their clients need a stable and predictable environment to do business. The Antitrust Division uniformly seeks to promote the rule of law in both litigation and merger enforcement. I personally have heard lawyers say that the political uncertainty of this administration is more difficult than the hostile but predictable environment of the Biden administration.

The DOJ, of course, must welcome all lawful competition and all pro-competitive mergers. And there is nothing wrong with lobbying done the right way. But this new pay-to-play approach is so far removed from legitimate lobbying or traditional antitrust enforcement that it is creating massive legal and economic uncertainty. Those adopting this new approach care little about the instability this creates for the markets.

The cost to the country of this new pay-to-play approach to antitrust enforcement is enormous. MAGA-in-name-only lobbyists are influencing their allies within the DOJ and risking the president’s conservative-populist agenda.

Is this the new normal, with every law firm hiring an influence-peddler to dual track and sidestep the litigation and merger review process? That’s what law firms are considering. The DOJ is now overwhelmed with lobbyists with little antitrust expertise going above the Antitrust Division leadership to seek special favors with warm hugs. On numerous occasions in a variety of matters, we implored our superiors and the lawyers on the other side to call off the jackals. But to no avail. Cases are being resolved based on political connections, not the legal merits.

Which case is the next casualty? Will the same senior DOJ officials ignore the president’s executive order on live entertainment just because Live Nation and Ticketmaster have paid a bevy of cozy MAGA friends to roam the halls of the DOJ in defense of their monopoly abuses, making bogus arguments about mergers being necessitated by national security?

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What must the antitrust bar think? If the new game in town is to hire well-connected lobbyists ignorant of the law to get your deal done or your case dismissed by going around and above Slater, what role are respected antitrust lawyers supposed to play? Why did the lawyers advising the parties in the HPE-Juniper merger scandal not appreciate the risk they were generating, not only for their clients and their law firms, but for the entire antitrust bar?

Lastly, there are real costs for the lobbyists, the companies and lawyers who hired them, and the officials within government. Outside the small circle of transactional MAGA friends seeking and giving favors, do these lobbyists and their friends in power actually know what traditional or populist conservatives think about them?

Those who forsake the rule of law are violating fundamental moral principles. The Bible teaches: “You shall not pervert justice. You shall not show partiality.… Justice, and only justice, you shall follow” (Deuteronomy 16:19-20). I know many in and out of government who sincerely respect these moral principles. Perhaps now is the time to implement them. The influence-peddlers and their allies in government will hide behind their friends in power, excuse their behavior, claim we are naïve, and hope this all goes away. But many of their friends in power have principles and want to avoid further scandal.

How will the DOJ recover from the current crisis? Will there be policy or personnel changes among the senior leadership at the department? Will Slater have the freedom to enforce the law and fire or hire her team consistent with the administration’s true antitrust agenda? At a minimum, will the DOJ remove Chad Mizelle and Stanley Woodward from any antitrust oversight? In the absence of reforms at the DOJ, must state attorneys general now join every DOJ antitrust lawsuit and merger challenge as a check against influence-peddling? The status quo is simply unsustainable.

My position while I served in government was simple: lobbyists and lawyers are subordinate to the law. Yet by stating this truth, I was dismissed for insubordination. My termination letter is now framed and hangs on the wall in my office at Notre Dame. I joke with friends that I’ve never been fired before, and I’ve been working since my first job as a young teenager at the Dairy Queen in Sherman, Texas. All it took to be fired were lobbyists exerting influence on my superiors to retaliate against me for protecting the rule of law against the rule of lobbyists.

The rule of law is not just an inheritance, it is also an opportunity and obligation. Soldiers are willing to go to war and risk their lives to serve our country. So why shouldn’t we take lesser risks to serve our country and protect the rule of law? The principles inscribed in marble at the Department of Justice building only survive if each generation takes up the fight. Failure is always a possibility. But so too is triumph.