Musings on enemies lists, the politics of NO, and the death of free speech

Trump’s announcement that he wants Kash Patel to be the next FBI director has many Americans worried that the wild-eyed, pitchfork-wielding Trump loyalist would weaponize the FBI, using it to go after Trump critics and designated enemies.

Consider the warning Patel delivered on Steve Bannon’s podcast — that, once elected, Trump and company “will go and find the conspirators—not just in government, but in the media. Yes, we’re going to come after the people in the media who lied about American citizens to help Joe Biden rig presidential elections. We’re going to come after you, whether it’s criminally or civilly.”

The prospect of Trump and Patel, their dark worldviews and organizations now in perfect alignment, just doesn’t end well.

Patel’s Worldview

Maybe I’m being too hard on Patel. It should be noted that he wrote lovingly crafted children’s books, which has to qualify him as a good guy. (Just in: I’m being told the books are about “King Donald” defeating the enemy “Hillary Queenton.” Nevermind!)

Patel’s real-life mission is to crush the supposed Deep State that he maintains has conspired against Trump. In his 2023 book, Government Gangsters: The Deep State, the Truth, and the Battle for our Democracy, he argued that the Deep State is run by officials who…weaponize the law, spread disinformation, spurn fairness, or even violate their oaths of office for political and personal gain.” Trump, no surprise, endorsed the book “as a blueprint to help us take back the White House and remove these Gangsters from all of Government!”

Patel’s being performative; he doesn’t care if people, at least “his” people, “violate their oaths of office”—and doing it for political and personal gain” is kind of the point. That’s just B.S., a guise for his real goal: to reduce dissent and opposition. What he calls “thugs in suits” are mostly hardworking, diligent, government and agency workers. The right used to call them bureaucrats, which was supposed to be a nasty insult, before they settled on the dystopian rhetoric of the “Deep State.”

Patel’s Enemies List

Patel was nice enough to share his enemies list in his book, where he breaks down his list of 60 or so members of the Deep State, most of whom have worked for the government, military, or media.

The 60 names – that’s just for starters. Patel makes it clear that he views anyone that tried to oppose Trump as an enemy. Writing for Mother Jones, David Corn suggested Patel gave off Joseph McCarthy vibes, reminding him of “the old commie-hunter who spots subversives under every bed and at every PTA bake sale.”

Cults and despotic leaders must protect their Origin Story, their Intellectual Property, the mythology of how they came to be. It’s a job that propagandist Patel, a fervent QAnon adherent who believes the FBI is part of the Deep State, relishes: There was massive voter fraud in the 2020 election, he maintains. Trump won that election, and the Jan 6^th riot was caused by outside agitators in conjunction with the feds.  Connecticut Senator Chris Murphy said Patel even wants to go after “people who tried to uphold Joe Biden’s win in 2020.”

Even Republicans like Bill Barr, Trump’s one-time attorney general, made Patel’s hit list. Barr’s crime was that he stopped Trump last time from appointing Kash Patel as deputy director of the FBI (At the time, Patel was the chief of staff for the acting defense secretary.) Deputy director was a bridge too far for Barr, who insisted Patel wasn’t remotely qualified for the job. It will happen “over my dead body,” warned Barr, according to the New York Times’ account. Trump would love nothing more than to own Barr by making Patel the next FBI director.

Conservative though he may be, Barr believes in standards and merit, whereas Trump elevates loyalty above all else. By raising objections, Barr was seen as disloyal. Nobody says NO to Trump. In this new world, good-faith, independent thought is regarded as treachery and principled disagreement as dissent. Let that sink in.

Conservatives like to caricature liberals as permissive parents raising spoiled children who can’t bear the slightest criticism and whose delicately wired systems crash upon hearing NO. Same could be said of Trump and Patel. They’re in it for the money, sure, but they’re really in it for the acquisition of unadulterated, top-down, centralized, masculine power—or at the very least, life without NO.   

Enter Olivia Troye

Olivia Troye had the temerity to stand up and say NO.

No, Kash Patel would not make a good FBI director, she insisted on MSNBC. Troye knew this firsthand from working with Patel, when she served as former Vice President Mike Pence’s homeland security and counterterrorism adviser.

When Patel would share information, Troye was often dubious; the last thing she wanted was to pass bad information to her boss. To avoid this, she often found herself having to work around Patel to get to the truth. She continued, “He would lie about intelligence. He would lie about making things up on operations,” she said, noting that it led to the lives of Navy SEALS being put at risk during a Navy SEAL mission in Nigeria.

She felt it necessary, then, to exercise her free speech rights and share her opinion of Patel. “Kash Patel is a delusional liar,” she said on MSNBC, holding back no punches, adding that it would be “insane” if Patel were made FBI director. He lacks the experience, character and credibility to lead the FBI, an opinion she said that was shared by others who have crossed Patel’s path.

How did Patel respond?

Patel fired back a warning shot: a letter sent to Troye from his attorney, threatening a defamation lawsuit if she didn’t retract her comments. In the letter, Patel called Troye’s allegations “complete fabrication.” The letter was clearly designed to instill fear; near the end, Patel’s attorney demands that Troye maintain all correspondence related to Patel.

From Free Speech to Costly Speech

One of the great accomplishments of the right was portraying the Trump GOP as the party of free speech despite its track record of quashing free speech. Breaking news: Free speech is not compatible with, and does not exist in, authoritarian-leaning governments. Exhibit A: During his first term, Trump sought to use the military against American citizens. He jailed Michael Cohen to stop publication of his book, because he found it embarrassing. And, lest we forget, Attorney General Jeff Sessions tried to jail “The Laugher” for giggling at his inauguration. The authoritarian does not abide being mocked (Thank you John Malkovich.)

I have no doubt that Patel and many on the authoritarian right, who have no appetite for dissent, would jump at the opportunity to delete the First Amendment of the Constitution. But given that Patel can’t suspend the people’s free speech rights, he can at least attach a high price to the exercise of future speech. Like he did with Olivia Troye, making sure her “free speech” carried significant risks and costs, among them the threat of retaliation and retribution via lawsuit and litigation, online harassment, and pain and suffering. When that happens, “free speech” ceases to be free and transforms into what I call “costly speech.”

Patel is hoping that next time a member of the media or a pundit has the audacity to criticize him, they will think twice. This is also called “chilling” speech. Can speech ever be free if exercising it is attended by the threat of having the speaker’s life turned upside down?  

When Patel tried to cancel Troye’s speech, Elon Musk and the free speech absolutism crowd were oddly mum – to Troye’s defense they did not run. Or maybe their silence wasn’t so strange after all, as what they meant from the start was “free speech for us” and “costly speech” for libs that want to impugn and desecrate the name of Dear Leader.

How did Troye respond to Patel’s ultimatum?

Borrowing a page from the authoritarian right’s playbook, she doubled down, saying she stood by her comments and even posting the entire letter and her response on X and Bluesky.

Asked in an interview if she planned to retract her statements, as the lawyer’s letter implored, Troye said, “I’m not going to retract from telling the truth.”

Why did Patel threaten to bring the lawsuit?

1. Punish Troye

Dissenters must be taught a lesson. Patel is showing his ability to force Troye “to defend herself with money and to make her life difficult,” noted pundit Bill Kristol on The Bulwark.

2. Protect his nomination

Patel’s worried Troye’s criticism could influence whether Senators vote to confirm him as FBI director. By threatening Troye, he hopes to silence his critics and discourage people from coming forward and derailing his nomination.

3. Chill the media and eliminate dissent

Patel’s lawsuit is designed to discourage, or chill, the exercise of free speech on which our democracy demands.

The lawsuit sends a chilling message to the media and members of the so-called Deep State:

Don’t dissent, or else.

Troye saw it as “an attempt to bully me, silence me, intimidate me,” but also recognized that Patel’s power move was bigger and broader than herself. “It’s also a signal to others,” she said.

4. Maintain his reputation

The character he’s concocted is dark and ominous and powerful – someone to be feared. Threatening a lawsuit, Patel hopes, will help maintain his street cred and convince Americans – especially the Senators whose approval he needs in order to be confirmed –that he has not been weakened or tarnished by Troye’s allegations.

Could Patel win his lawsuit against Olivia Troye?

I’m no lawyer but I’ve studied constitutional and first amendment law. You’d think what appears to be a frivolous lawsuit designed to inflict pain would be quickly dismissed. But they’re not always easy to dismiss.

Still, Troye has multiple factors in her favor. The United States Supreme Court has ruled that political speech is the highest form of speech and deserves the greatest protection. If said speech is not only political but also regarded as opinion, then the bar to show defamation is extremely high. And finally, if the speech is targeting a public figure like Patel, then there’s an even higher burden of proof. Public figures are very hard to defame.

The higher burden of proof is intended to protect free speech and allow for open debate about public figures.

Against this backdrop, it’s hard to see Patel winning in court.

The real win is disrupting Troye’s life, causing her pain, and holding her up as an example if you get in his cross hairs.  

This analysis assumes Troye’s speech – “delusional liar” – would be regarded by a court as opinion. If the speech has a factual basis, it could be a different story. Consider the libel lawsuit Trump brought against ABC News anchor George Stephanopoulos for saying on-air that Trump had been found guilty of raping E. Jean Carroll. The jury in that trial had concluded that Trump sexually abused and defamed Carroll, but was not liable for rape, a point of fact. Over the weekend, it was announced that ABC News and anchor George Stephanopoulos arrived at a settlement with Trump.

Will Kash Patel be confirmed as FBI director?

It appears likely. According to Politico, Republicans were expecting Patel’s nomination to cause more opposition and outrage than it has. Patel has been meeting with Republican senators to garner their support. Many have said they’re on board; even the more moderate senator, Susan Collins, said she’s open to the idea of Kash Patel leading the FBI. Democratic senators will question him and express outrage during next month’s confirmation hearings, but whether it will be enough to move the needle seems doubtful.

Could Biden pardon the people on Patel’s enemies list?

That’s what Pennsylvania Congressman Brendan Boyle is calling for. After Patel was nominated, he issued a press release urging President Biden to issue a blanket pardon for “anyone unjustly targeted by this vindictive scheme.”

He noted Trump’s and Patel’s plan to use the FBI to target “law enforcement officers, military personnel, and others who have spent their lives protecting this country. These patriots shouldn’t have to live in fear of political retribution for doing what’s right.”

Adam Kinzinger, a member of the January 6^th congressional committee that investigated Trump’s role in the capitol riots, is on Trump’s and Patel’s radar. He says, bring it on: “The idea that you can jail me because I embarrassed you is ridiculous.” (Tell that to Michael Cohen, who was jailed by AG Barr to stop publication of a book that Trump found embarrassing.)

Final Thoughts

It seems like yesterday that the right was preaching to us not just about free speech but free speech absolutism, the belief that there are no real limits to what you can say. The right is suddenly losing interest in the free speech narrative, which you started seeing after Trump won the election. Now that they are preparing to assume power, free speech is taking a back seat to their need for power and control, of which Patel and his lawsuit are indicative.

The lawsuit certainly does nothing to dispel the notion that Trump is trying to refashion America into a Trump-led authoritarian state, or autocracy. The power, the brute power that authoritarianism enables, is more intoxicating than slow-moving, process-oriented, high-minded democracy.

In an open, democratic society, power is a function of persuasion. In a healthy democracy, Patel would issue a statement indicating he disagrees with Olivia Troye’s critique, enlist the help of some proxies to speak on his behalf, place a couple op-eds, try to win hearts and minds.

But in top-down, authoritarian-leaning governments, you win by might and power. Authoritarian power survives by quashing dissent, by exacting costs for people that stand up and say NO. Intimidate the media and the administrative state – sue them into submission via self-censorship and ultimately, acquiescence. If they don’t comply, throw them into jail.

Patel has shown us his true colors. When he said he’d be coming after his fellow Americans, he meant it. And that’s why Olivia Troye matters so much: she’s one of the first to show us what’s just around the bend.

“I think it’s a very clear sign of what’s to come should he become the director of the FBI and how he’s going to conduct himself,” she said on MSNBC. “These are things that he has threatened in the past, and we should take him at his word.”