Democracies fall to fascism when the opposition fails to unite until it’s too late. It’s getting late.
Nothing sums up the psychological difference between the two major parties quite like this fact: In the week-and-a-half after Donald Trump was convicted of 34 felonies, it was the Democrats who fretted about whether they were nominating the right candidate.
Democracies fall to fascism when the opposition fails to unite until it’s too late. It’s getting late.
Big-name Republicans were quick to circle the wagons around their felonious leader: If a jury found him guilty, then the jury system must be to blame. Anybody and everybody — judges, prosecutors, witnesses, the Biden administration, the FBI, the jurors — must be corrupt, because Trump can’t possibly be corrupt. Only he can be trusted, and just wait until he’s back in power and can turn the power of government against Democrats!
Meanwhile, the latest collective Democratic shiver started, oddly enough, with an article in Rupert Murdoch’s Wall Street Journal: “Behind Closed Doors, Biden Shows Signs of Slipping“. These “signs” of fading mental acuity had been noticed by such unbiased and reliable sources as Kevin McCarthy and Mike Johnson, causing CNN to comment:
Republicans accusing their political foe of lacking the mental fitness to hold office is nothing surprising. Such accusations are made every night on Fox News. And Donald Trump, who at 77 years old has also shown plenty of signs of waning mental faculties, including repeatedly falling asleep at his own high-stakes hush money trial, has made the accusation a centerpiece of his campaign. In other words, these accusations from the right aren’t exactly news.
The WSJ article was followed by Mark Leibovich in The Atlantic making a headline out of an insult from cheap-shot artist Bill Maher: “Ruth Bader Biden“, “the person who doesn’t know when to quit and so does great damage to their party and their country.”
If my social media is typical, we then saw yet another round of young progressives suggesting Biden should withdraw and let the Democratic Convention choose someone else, or perhaps that left-of-center folks should all vote for Cornell West or Jill Stein in November.
It’s hard to know where to start. There are so many wrongheaded notions floating around that by addressing one in detail I can seem to covertly accept the others. So let’s keep this short and simple:
Biden is fine. Yes, Joe Biden is 81, arthritis causes him to walk stiffly, and he’s never going to be an Obama-class orator. But whenever there’s a big test and he needs to be at the top of his game, he is. Watch either of the lasttwo state of the union addresses, where he didn’t just deliver a good speech, he bantered with Republicans in the audience and ate their lunch. (If that seems like ancient history to you, watch his D-Day speech from this week.) He got the better of both McCarthy and Johnson in budget negotiations. He has brilliantly used the Strategic Petroleum Reserve to stabilize the oil market. A debate with Trump is coming up two weeks from Thursday (if Trump doesn’t come up with some excuse to drop out). Watch it. If you’re expecting Biden to be a doddering old man, I think you’ll be surprised. (Also, if it’s so obvious that he’s fading into senility, why do his critics need to post doctored videos to make that point?)
This would have been a worthwhile discussion to have a year ago, or maybe even six months ago. But not now. The Democratic Party held its ordinary primary process this year. If support had coalesced around some other candidate, that candidate could be the nominee. But none of the white knights people hope to nominate instead of Biden made that challenge then, and they’re still not making it. Maybe you should respect their judgment.
A chaotic Democratic Convention is not going to help defeat Trump. Competitive conventions tend to get nasty, and people come out of them with hard feelings. (For example, I can easily picture Black voters getting miffed if the Convention passes over Kamala Harris to nominate a White candidate like Gavin Newsom or Gretchen Whitmer.) That wonderful Biden-replacement nominee you’re imagining will have to spend most of the fall reuniting the base rather than reaching out to persuadable swing voters.
Any Democratic nominee will have to run on the Biden record. Pushing Biden aside more-or-less ratifies Trump’s assertion that Biden has been a terrible president. Certainly most of the public will interpret it that way. I don’t see how we then turn around and convince them to vote for another Democrat.
Whoever you imagine nominating to beat Trump, that candidate can be smeared too. Whenever the right-wing noise machine turns its power against someone, that candidate develops “baggage”. Before Biden’s supposed mental decline, it was Hillary’s emails and Obama’s birth certificate and Kerry’s swiftboat. There’s always some reason why this was the wrong person to nominate. We often picture our favorite alternative candidate remaining unsullied through November. But by election day, he or she would have baggage too. No one is so perfect that they can’t be lied about.
Biden has been a good president and has a good story to tell. We need to stop wasting time and start telling that story. Biden didn’t inherit the rosy pre-Covid America Trumpists get nostalgic about. He inherited a mess — high unemployment, a stagnant economy, huge budget and trade deficits, a high murder rate, and thousands dying of Covid every day. He has done a remarkable job cleaning that up. Job-creation is off the charts. We’ve finally started the transition to a sustainable economy, even if there’s still a long way to go. Crime has fallen significantly. Looking ahead, Biden will protect your personal autonomy, your voting rights, and American democracy — all of which are threatened if Trump returns to power. The longer we compare Biden unfavorably to some ideal alternative, the less time we’ll have to make that case.
I know it’s frustrating that the polls remain close, and that so many Americans fail to see what Trump is or what Biden has accomplished. But believe me, bickering among ourselves is not going to solve that problem. In every democracy that falls to fascism, the story is always the same: The opposition fails to unite until it’s too late. Let’s not make that mistake here.
Twelve ordinary Americans reviewed documents, listened to witnesses, and concluded beyond a reasonable doubt that Trump is guilty of 34 felonies. His defenders almost entirely avoid disputing the facts of the case, but argue instead that he should get away with those crimes.
An innocent man running for office should want to clear his name before the election, but Trump has used every device at hand to delay his trials until after the election (when, if he wins, he will gain new powers to obstruct justice). But Trump lacked any leverage for delaying the Manhattan trial: Because it’s a state trial, the Supreme Court had no grounds to stop it; because New York is a blue state, no state officials got in the way; and the judge overseeing the case was not indebted to Trump.
So the trial was held. It was a fair trial. Trump had been indicted not by President Biden or the Department of Justice, but by a grand jury of New York citizens. He exercised a defendant’s usual right to participate in selecting the trial jury. His lawyers were allowed to cross-examine the witnesses against him, to introduce relevant evidence in his defense, to file motions, to object to prosecution questions and witness statements, to call witnesses of their own, and to give a summation to the jury. The judge ruled on those motions and objections, sometimes favoring the prosecution and sometimes favoring the defense. Trump himself had the right to testify, but chose not to. The jury was instructed that they should acquit if they found any reasonable doubt about his guilt.
In short, Trump received every consideration the American justice system grants to defendants. In certain ways, he was treated much better than most other criminal defendants: Just about anyone else would have been jailed after 11 violations of the judge’s orders, but Trump was not.
Outside the courtroom, the world frequently bent under the gravity of his political power. The chairs of three House committee tried to intimidate his prosecutor (despite Congress having no oversight role in regard to state prosecutors), and at least one is still trying. Members of Congress, all the way up to the Speaker himself, have come to New York to repeat Trump’s accusations, as a way of circumventing the judge’s gag order.
The jury found Trump guilty. This means that (after considering all the evidence) they were convinced beyond a reasonable doubt that the following facts are true: Trump had sex with a porn star, had his fixer buy her silence to keep voters in the 2016 election from finding out, reimbursed his fixer, and cooked the books of the Trump Organization to hide those payments from election regulators.
Those are no longer mere accusations or “alleged” facts. They have been established in a court of law.
If nothing else results from this conviction (see the discussion of jail time below), it should call attention to the seriousness of the shenanigans delaying the other trials. [2] The charges Trump faces are quite real, and the evidence against him is convincing. In each case, the public interest demands a trial.
The response. Rational people might begin to have second thoughts about supporting a candidate convicted of felonies, but that is not how the Republican Party works these days. With very rareexceptions, Republicans doubled down on their Trump support, choosing instead to attack the American justice system.
At this point, you might be wondering: Is any of this surprising? Trump always claims he’s the victim of a conspiracy, and Republicans always end up backing whatever Trump says.
But that’s precisely the problem. The current Republican party is so hostile to the foundations of the American political system that they can be counted on to attack the possibility of a fair Trump trial. Either Trump should be able to do whatever he wants with no accountability, or it’s proof that the entire edifice of American law and politics is rotten.
What exactly needs to be “set straight” is almost never spelled out. I have heard and read a lot of outrage from the MAGA cult, but few of them care to argue the facts of the case. They just think Trump should get away with it. They attack the judge, the jury, the prosecutor, and the Biden administration (which played no apparent role in this trial). They argue that Trump should never have been prosecuted (which is a strange thing to argue after the jury returns a guilty verdict [3]), or that an appeals court should overturn the verdict on some technical grounds.
But they don’t argue that Trump didn’t do exactly what the indictment says he did.
The most troubling response to the verdict are the threats of violence. So far, the jurors have remained anonymous, but Trump supporters online are doing their best to deduce who the jurors might have been. Both Judge Merchan and District Attorney Alan Bragg will have to watch their backs for years to come.
Of course, Trump could make a magnanimous public statement urging his followers not to harm the jurors and other people involved in the case. But don’t be silly. MAGA is a violent movement, and Trump likes it that way.
Will he go to jail? No time soon, and almost certainly not before the election (unless Judge Merchan gives him a few days of jail time for contempt of court).
Trump will be sentenced on July 11, and all options are open. Felony falsification of business records is a Class E felony in New York, the lowest category. The maximum sentence is four years. Theoretically, he could get four years for each of the 34 convictions, but since the offenses are so similar it seems likely he would serve the sentences concurrently.
Experts disagree about whether jail is a likely sentence at all. The majority of first-time Class E felons aren’t sentenced to jail, but some are. In his favor is that this is his first conviction and he is 77 years old. Working against him is the seriousness of the conspiracy (it may have decided the 2016 election), his complete lack of remorse, his repeated violations of the judge’s orders, his threats of revenge, and his history of civil fraud judgments. It’s not clear to me whether the judge can take into account his other felony indictments.
I can only laugh when Trump defenders say that he is unlikely to re-offend. Trump will almost certainly re-offend if he is not in jail. And Jay Kuo makes a good point:
If you think famous, wealthy people who are first-time offenders cannot be sentenced to prison for covering up a crime, Martha Stewart would like a word.
I’m betting that some form of incarceration will be part of the sentence, maybe tailored for his convenience, like weekends in jail or house arrest. Almost as humiliating would be community service, which in New York typically means wearing an orange jumpsuit and picking up litter in a park or near a highway.
Whatever Trump’s sentence, it will almost certainly be suspended pending his appeal, which probably won’t be decided until after the election. If he wins the election, he probably can’t be imprisoned until he leaves office, which is yet another motive for him never to leave office (which I already don’t expect him to do voluntarily).
If he loses the election, on the other hand, his other trials will eventually start, and I predict he will be convicted of some other felony before this felony can be wiped off his record. After all, those are the “stronger” cases.
People too young to remember President Nixon’s Watergate scandal might not recognize the cartoon at the top of this post, but it was iconic in its day. It came from Gary Trudeau’s Doonesbury comic, which ran daily in most newspapers. The full strip is here, along with some commentary. In 2017, Trudeau updated the comic in response to the Trump/Russia scandal (which remains unresolved).
From a evidentiary point of view, the Mar-a-Lago documents indictment is probably the strongest. After his term ended, Trump had no right to possess classified documents. When the government asked for him to return the documents he had taken, he said he didn’t have them. Then the FBI searched Mar-a-Lago and found them. There’s no innocent explanation for that set of facts.
That case also involves various things Trump did to try to obstruct the investigation, but the core of the charge is the simple description in the previous paragraph. A jury will have no trouble understanding it, if the Trump-appointed judge ever allows a trial to happen.
[2] It should particularly call attention to the delaying tactics of this corrupt Supreme Court. Both Clarence Thomas and Sam Alito are compromised, and according to the rules governing any other federal court, should recuse themselves from any January 6 related cases. But they have not.
The public especially deserves to know what role these compromised judges have played in the Court’s decision to hear Trump’s absurd immunity claim, which has been convincingly rejected at all lower levels. If their votes were decisive in the Court’s decision to take the case (thereby delaying Trump’s federal trials by many months, probably past the election) that’s a grave and highly consequential injustice.
[3] Usually, the sign that a case shouldn’t have been brought to trial is that the jury doesn’t find the prosecution’s case convincing.
For example, when Bill Barr was Trump’s attorney general, he appointed John Durham as special prosecutor, and charged him with proving Trump’s conspiracy theory about the nefarious origins of the Mueller investigation. Trump claimed Durham would uncover “the crime of the century” and “treason at the highest level”.
Two jury trials came out of this effort, both fairly minor indictments of fairly minor figures: Michael Sussman and Igor Danchenko were charged with lying to the FBI. Both were unanimously acquitted by juries that only needed a day or two to reach agreement. The supposed authors of the conspiracy — Hillary Clinton, Barack Obama, or somebody (I could never figure it out exactly) — were never charged with anything.
That’s what it looks like when a case is undertaken for purely political purposes by a weaponized Justice Department and charges should never have been brought.
While we were watching the flags, Alito wrote a decision that greenlights racial gerrymanders and opens a door for Jim Crow to come back.
Samuel Alito has long been my least favorite Supreme Court justice, even before his anti-American-democracy flags (which I’ll cover in the weekly summary post that will follow this one), and even before he wrote the Dobbs decision. You might think I just dislike him because his judicial philosophy is different from mine, but I don’t think that’s it. You see, I’m not convinced he has a judicial philosophy.
What makes Alito a frustrating judge for me is that his rulings seem to have nothing to do with the law. In just about any case, you can predict Alito’s opinion by asking three simple questions:
Does one outcome favor the Republican Party?
Does one outcome favor the Catholic Church?
Does one outcome favor the Haves over the Have-Nots?
If the answer to any of those questions is “yes”, that’s where Alito will come down. You can safely make that prediction without knowing anything about the facts of the case or the relevant laws. All the stuff people argue about in law school is irrelevant.
Other justices will sometimes surprise. Even bought-and-paid-for Clarence Thomas has a few legal hobby horses that occasionally cause him to take a position I wouldn’t have expected. But as best I can tell, Alito has none. He has partisan commitments and he votes to support them; end of story.
Whenever I read an Alito opinion, I’m reminded of a distinction that occurs in religion, between theology and apologetics. Theology attempts to ascertain truths about God, but apologetics develops convincing arguments to defend prior religious beliefs. The two often resemble each other: When Thomas Aquinas claims to prove the existence of God through reason, is he nailing down something previously in doubt (theology), or is he evangelizing to rational people who otherwise might not believe in God (apologetics)? It can be hard to tell.
Similarly, Alito’s written opinions often resemble legal reasoning. He cites precedents, makes deductions, and in general constructs arguments that lead to conclusions. But the arguments appear to have nothing to do with how he reached those conclusions. Instead, they give a gloss of legality to Alito’s prior convictions.
The Dobbs decision is an obvious example: Ostensibly, Alito argues that
Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
The Dobbs opinion is one long history lesson justifying that claim. But its history is carefully edited, and Alito does not address the points made in an amicus brief by actual historians. [1] He appears to have no interest in history beyond how it might justify fulfilling the Catholic goal of overturning Roe v Wade.
This week gave us another example, whose importance is in danger of being lost in the controversy over Alito’s flags: He wrote the majority opinion in Alexander v South Carolina NAACP, a decision that Vox’ Ian Milhiser calls “a love letter to gerrymandering“. This decision gives states a green light to engage in all manner of racial gerrymandering; the practice is still technically unconstitutional, but under the standards of Alexander, it becomes nearly impossible to establish in court.
Gerrymandering. Let’s review a little: Gerrymandering means drawing the lines of electoral districts so that your side can win a decisive majority in some legislative body with only a minority of actual votes. There are numerous examples of this happening in state legislatures and even in the U.S. Congress. In extreme examples, a near-50/50 state can wind up with a legislative supermajority for one party. (Basically, you pack all of the other party’s voters into a few districts, which they win with 90% majorities. Then you distribute your voters so that you have reliable 55-45 wins in the other districts.)
On paper, gerrymandering is a cross-partisan problem, and there are states where Democrats gerrymander. But Democrats have tried to ban the practice, and on the whole it favors Republicans, whose rural voters are already more distributed geographically, and who have less shame generally about subverting democracy.
Not that many years ago, optimists thought partisan gerrymandering might get banned by the courts as a violation of basic democratic principles. That hope went out the window in the 2019 Rucho decision, where Chief Justice Roberts declared partisan gerrymanding “nonjusticiable”, meaning that whatever damage the practice might do to democracy, courts have no power to stop it.
But racial gerrymandering, where you draw lines to diminish the voting power of some racial minority, is still considered a violation of the 14th Amendment. The problem is how to tell the difference when a racial minority has predictable voting patterns. If South Carolina moves voters from one congressional district to another, how do we know whether they’re being moved because they’re Black (unconstitutional) or because they’re Democrats (nonjusticiable)?
The Constitution entrusts state legislatures with the primary responsibility for drawing congressional districts, and redistricting is an inescapably political enterprise. Legislators are almost always aware of the political ramifications of the maps they adopt, and claims that a map is unconstitutional because it was drawn to achieve a partisan end are not justiciable in federal court. Thus, as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting. By contrast, if a legislature gives race a predominant role in redistricting decisions, the resulting map is subjected to strict scrutiny and may be held unconstitutional.
These doctrinal lines collide when race and partisan preference are highly correlated. We have navigated this tension by endorsing two related propositions. First, a party challenging a map’s constitutionality must disentangle race and politics if it wishes to prove that the legislature was motivated by race as opposed to partisanship. Second, in assessing a legislature’s work, we start with a presumption that the legislature acted in good faith.
In Alexander, Alito’s assumption of the legislature’s good faith bulldozes all evidence to the contrary. In particular, it bulldozes the deference higher courts are supposed to give to the factual findings of lower courts. In Alexander, a three-judge panel held a trial where they listened to witnesses and compiled a record that runs thousands of pages. That panel concluded unanimously that South Carolina’s gerrymander was motivated by race.
On appeal, higher courts are supposed to accept such judgments unless there is a clear error in the record. (The reason for this is simple: The appellate judges can read the record, but they didn’t hear the testimony. They have no basis for rejecting the lower-court judges’ conclusions about who was or wasn’t telling the truth.) But Alito rejects the lower-court findings because the three-judge panel made the “clear error” of not giving him the finding he wanted. They should have accepted South Carolina’s claims that race was not the motive if there was any possibility that it might be true.
Justice Kagan’s dissent shreds this argument, and concludes:
What a message to send to state legislators and mapmakers about racial gerrymandering. For reasons I’ve addressed, those actors will often have an incentive to use race as a proxy to achieve partisan ends. And occasionally they might want to straight-up suppress the electoral influence of minority voters. Go right ahead, this Court says to States today. Go ahead, though you have no recognized justification for using race, such as to comply with statutes ensuring equal voting rights. Go ahead, though you are (at best) using race as a short-cut to bring about partisan gains—to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks in the end: Just raise a “possibility” of non-race-based decision-making, and it will be “dispositive.” And so this “odious” practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue.
Disrespect for precedent. Kagan also points out that the Court heard a nearly identical case in 2017: Cooper v Harris. In that case, Alito made a nearly identical argument, but he lost 5-3, and the lower court’s rejection of North Carolina’s map was upheld.
Cases like that are supposed to be binding precedents, but this Court no longer respects precedent, so it reached the opposite conclusion in this case.
What changed since 2017? Were new laws or constitutional amendments passed? Did we learn something new about gerrymandering that called previous conclusions into question?
Not at all. As with Dobbs, the only thing that has changed is the composition of the Court. With the addition of the Trump justices, the three dissenters in Cooper have become the majority. Kagan writes:
Today, for all practical purposes, the Cooper dissent becomes the law.
Going forward. As with Dobbs, the arguments in the decision have much broader implications. When you read Alito’s opinion, it’s easy to forget that the Court’s precedents against racist laws come out of an ugly history. Ignoring this history, Alito expresses great sympathy for state officials who might find themselves accused of racism
[W]hen a federal court finds that race drove a legislature’s districting decisions, it is declaring that the legislature engaged in “offensive and demeaning” conduct that “bears an uncomfortable resemblance to political apartheid.” We should not be quick to hurl such accusations at the political branches.
But you will search Alito’s opinion in vain to find any expression of sympathy for the victims of racism. It’s as if racism exists only as an “accusation”, something disreputably used to stain the reputations of White people, who deserve our “presumption of good faith”.
Kagan calls out Alito’s message to legislatures that want to gerrymander away the electoral power of non-White voters: “Go ahead.” But the Alexander decision is even bigger than that. It says “Go ahead” to any legislative attempt to reestablish Jim Crow. If legislatures just avoid announcing their racist intentions openly, if they create plausible cover stories for laws that disadvantage racial minorities, the Supreme Court will “start with a presumption that the legislature acted in good faith” and be quick to dismiss any evidence to the contrary.
[1] The historians’ brief begins:
When the United States was founded and for many subsequent decades, Americans relied on the English common law. The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy.
This week saw the publication of two major articles about Israel, one concerning its recent policies in Gaza and the other a long-term look at the official tolerance of settler terrorism in the West Bank. “The Israeli Defense Establishment Revolts Against Netanyahu” by Yair Rosenberg in The Atlantic, describes the conflict within Israel about Netanyahu’s strategy in Gaza. “The Unpunished: How Extremists Took Over Israel” by Ronen Bergman and Mark Mazzetti in the New York Times goes back decades to tell the story of right-wing extremists in Israel who established illegal settlements in the West Bank, terrorized Palestinians, and eventually became a threat to Israeli democracy itself.
Let’s take them in that order.
The central issue of the defense establishment’s “revolt” (which has been entirely verbal so far) is the same issue that divides Israeli Prime Minister Netanyahu from President Biden: What’s the plan for Gaza’s future? Netanyahu has committed himself to nothing beyond Hamas’ total defeat, which itself is only defined vaguely. (As I explained last week, I see Hamas primarily as the idea among Palestinians that peace with Israel is impossible. If that idea is not defeated — which no purely military operation can do — a new insurgent force can reconstitute around it no matter how many fighters Israel kills or captures.)
The lack of a long-term plan for Gaza becomes a military issue because there is no post-Hamas successor government to keep Hamas from reappearing in areas that the Israeli Defense Force (IDF) has cleared. Consequently, soldiers have had to return to “cleared” areas two and even three times since October.
Already in October, on the night of [the start of] our military maneuver [into Gaza], the defense establishment presented its war plan to the Cabinet, stating that it will be necessary to destroy Hamas battalions, while simultaneously working to establish a local, non-hostile Palestinian governing alternative.
Since October, I have been raising this issue consistently in the Cabinet, and have received no response.
The end of the military campaign must come together with political action. The “day after Hamas” will only be achieved with Palestinian entities taking control of Gaza, accompanied by international actors, establishing a governing alternative to Hamas’s rule. This, above all, is an interest of the State of Israel.
Unfortunately, this issue was not raised for debate. And worse, no alternative was brought up in its place.
Gallant alluded to the multiple long-term defense challenges Israel faces, including confrontation with Iran and its allies in Lebanon. Being bogged down endlessly in Gaza, he claimed, would sap the country’s ability to deal with those challenges. But absent a political solution for governing Gaza, he sees no alternative.
Then he threw down his gauntlet:
I will not agree to the establishment of Israeli military rule in Gaza. Israel must not establish civilian rule in Gaza.
The responsibility to dismantle Hamas and to retain full freedom of operation in the Gaza Strip rests on the defense establishment and the IDF, yet it depends on the creation of a governing alternative in Gaza, which rests on the shoulders of the Israeli government and all its various bodies.
Its implementation will shape Israel’s security for decades ahead.
I call on Prime Minister Benjamin Netanyahu to make a decision and declare that Israel will not establish civilian control over the Gaza Strip, that Israel will not establish military governance in the Gaza Strip, and that a governing alternative to Hamas in the Gaza Strip will be raised immediately.
Rosenberg explains why Netanyahu won’t do that:
Netanyahu cannot publicly commit to a postwar plan for Gaza that includes Palestinians, because the day-after plan of his far-right partners is to get rid of those Palestinians.
Yesterday, standing at a lectern emblazoned with the words settlement in Gaza will bring security, the far-right minister Itamar Ben-Gvir told a rally of thousands that the only way to defeat Hamas is to “return home” to Gaza and encourage “voluntary emigration” of its Palestinian population—a euphemism for ethnic cleansing. “Tell them,” Ben-Gvir declared, “‘Go to your homes, go to your countries. This is ours now and forever.’” Shlomo Karhi, a hard-right member of Netanyahu’s faction, offered similar sentiments. “In order to preserve the security achievements for which so many of our troops gave up their lives,” he said, “we must settle Gaza, with security forces and with settlers.”
Rosenberg quotes polls saying that most Israelis reject this solution, and that Gallant is far more popular than either Netanyahu or his right-wing allies. Another popular figure, war cabinet minister Benny Gantz, joined the rebellion this weekend, threatening to resign if Netanyahu has not brought the war to some kind of conclusion by June 8, which according to the BBC would include “the establishment of a multinational civilian administration”
Back in the 80s — in my memory it’s earlier than that, but the book wasn’t written until 1980 — I remember spinning a paperback rack in a department store and finding They Must Go by Meir Kahane. I didn’t buy it, but I read enough to realize what it was: a plea for Israel to ethnically cleanse Palestinians from the lands it controlled. At the time, I had no idea anyone in Israel was seriously imagining such a thing. But Kahane was the founder of a movement that has continued and grown, and is now a significant force in Israeli politics.
“The Unpunished: How Extremists Took Over Israel” by Ronen Bergman and Mark Mazzetti tells the story of that movement and related right-wing politics, going back to 1975 when the Israeli government decided not to remove the first illegal settlement in the West Bank.
The long arc of harassment, assault and murder of Palestinians by Jewish settlers is twinned with a shadow history, one of silence, avoidance and abetment by Israeli officials. For many of those officials, it is Palestinian terrorism that most threatens Israel. But in interviews with more than 100 people — current and former officers of the Israeli military, the National Israeli Police and the Shin Bet domestic security service; high-ranking Israeli political officials, including four former prime ministers; Palestinian leaders and activists; Israeli human rights lawyers; American officials charged with supporting the Israeli-Palestinian partnership — we found a different and perhaps even more destabilizing threat. A long history of crime without punishment, many of those officials now say, threatens not only Palestinians living in the occupied territories but also the State of Israel itself.
Events usually presented in American media as one-off lone-wolf incidents — terrorist bombings targeting West Bank mayors, two armed attacks on the Dome of the Rock mosque (in 1982 and 1994), the assassination of Prime Minister Yitzhak Rabin, and several others — are lined up and connected. Again and again, the Israeli government seems to be at war with itself: It convicts perpetrators and then pardons them, it declares settlements illegal and then funds them, it produces reports of pro-settler corruption and then buries them.
By now, individuals with deep ties to this terrorist movement are inside the government, including Itamar Ben-Gvir and Bezalel Smotrich, who sit in Netanyahu’s cabinet.
To me as an American, the situation in the West Bank is reminiscent of the South during Reconstruction, when the KKK was not an official part of government, but had many allies that would wink and nod at its crimes. The article begins and ends with Palestinians from the village of Khirbet Zanuta whose homes have been destroyed, and who go to the Israeli Supreme Court hoping to get the law to protect them.
A tiny Palestinian community, some 150 people perched on a windswept hill in the West Bank near Hebron, it had long faced threats from the Jewish settlers who had steadily encircled it. But occasional harassment and vandalism, in the days after the Oct. 7 Hamas attack, escalated into beatings and murder threats. The villagers made appeal after appeal to the Israeli police and to the ever-present Israeli military, but their calls for protection went largely unheeded, and the attacks continued with no consequences. So one day the villagers packed what they could, loaded their families into trucks and disappeared.
Who bulldozed the village after that is a matter of dispute. The Israeli Army says it was the settlers; a senior Israeli police officer says it was the army. Either way, soon after the villagers left, little remained of Khirbet Zanuta besides the ruins of a clinic and an elementary school.
Perhaps this kind of treatment will lead to another intifada, but maybe that’s the point.
Ehud Olmert, the former Israeli prime minister, said he believes that many members of the ultraright in Israel “want war.” They “want intifada,” he says, “because it is the ultimate proof that there is no way of making peace with the Palestinians and there is only one way forward — to destroy them.”
Let’s not do to Harrison Butker what Trump did to Colin Kaepernick.
As you’ve no doubt already heard, last Saturday a football player (Kansas City Chief kicker Harrison Butker) gave the commencement address at Benedictine College in Atchison, Kansas. Much has been said and written about this speech, and there’s a petition asking the Chiefs to “dismiss Harrison Butker immediately for his inappropriate conduct”. Last I heard, more than 200K people had signed.
I try to know what I’m talking about before I write, so I watched the full speech on YouTube. (You can also read a transcript.) It’s a very traditional Catholic talk, including a lengthy endorsement of the Latin mass, so if you feel wounded by a Catholic upbringing (as many people I know do), you shouldn’t torture yourself with it.
That said, I would not sign the petition, because taking away someone’s livelihood is a big deal and should be reserved for more serious offenses.
Here’s what I think should happen: People who disagree with Butker and find themselves at a game where he takes the field should feel free to boo loudly. If you have access to any public platform, from your own TV show to a window-facing whiteboard, it would also be appropriate to make fun of him mercilessly. (Here’s an example to get you started.) I don’t know if he endorses any products, but if he does you can boycott them. All those actions just exercise the same freedoms he claims for himself.
Of course, this response is nothing like what happened to Colin Kaepernick, whose NFL career ended prematurely after he knelt during the national anthem to protest racism. (Kaepernick’s unofficial shunning by teams who needed quarterbacks accorded with then-President Trump’s demand to “get that son of a bitch off the field.“) That gross injustice should not be forgotten — and in fact this is a good time to remember it — but dealing out a similar injustice to Butker will not right that wrong.
Anyway, here’s why I think Butker should not be punished beyond verbal humiliation: Benedictine College is a Catholic college that in recent years has moved to embrace traditional Catholic teachings and values. Students presumably choose to go there at least partially for that reason (though not all the graduates approved of Butker’s speech, and neither did the Benedictine Sisters associated with the College who said: “We reject a narrow definition of what it means to be Catholic”). Butker told the graduates, in essence, that they should feel good about what their school stands for. Places like Benedictine, he said, “are showing the world how an ordered, Christ-centered existence is the recipe for success.”
I have a lot of tolerance for religious groups making their case positively, as in “This is what we’re doing and it works for us. You should try it.” For the most part, that’s what the Benedictine College leadership seemed to be looking for and what Butker provided. At the end, he got a standing ovation.
Of course, Butker’s speech also included a lot annoyed me, beginning with his fairly snide remarks about “bad policies and poor leadership” during “the Covid fiasco”, which he seemed (without naming names) to attribute to Anthony Fauci but not Donald Trump (whose negligence is implicated in the deaths of hundreds of thousands of Americans). He talked about the importance of Catholics “staying in their lane”, but did not seem to do so when he criticized unnamed bishops. He denounced the “tyranny of diversity, equity, and inclusion”, and referred to “the deadly sin sort of pride that has an entire month dedicated to it”, i.e. gay pride.
He also spoke for his wife, telling “the ladies” what she “would” say about her choice to embrace her vocation as a homemaker rather than pursue her dream of having a career. For all I know he may be totally right about her lack of regret, but couldn’t he have asked her directly and then quoted her exact words, rather than ask himself and imagine her response? I was left to wonder (perhaps unfairly) how many opinions Mrs. Butker is allowed to have.
Mainly, though, he did what defenders of tradition so often do: justify a system in which he himself is privileged. Billionaires extol the virtues of low taxes, white Supreme Court justices tell us why laws protecting non-Whites are no longer needed, and Butker explains that
As men, we set the tone of the culture, and when that is absent, disorder, dysfunction, and chaos set in.
Yes, we men are being totally selfless when we demand to set the tone of the culture. We only do it so that society will be spared the chaos that would inevitably ensue if our God-given authority were ever questioned.
Until recently, though, Trump himself had said little to directly validate those worries, beyond occasional threats to “go after” the people he thinks have done him wrong. Mostly that’s because he’s been preoccupied with other topics: complaining about how persecuted he is, lying about Joe Biden and the Biden administration, painting a false rosy picture of how wonderful things were four years ago, and claiming that none of the world’s current problems would exist if he were still president. For the most part, that last point short-circuits any attempt to talk about his future policies: Why should he have to tell us how he would handle Ukraine or Gaza when those problems wouldn’t exist if he were president?
How to interview Trump. Interviewing Donald Trump presents unique challenges, because he won’t simply answer questions. To Trump, a question is an invitation to go on a long ramble which may or may not have anything to do with what he was asked. Along the way he will launch attacks, invent stories, exaggerate, make false insinuations, and sometimes lie outright.
In a live TV interview, this is a journalistic disaster. If you ignore all his false claims, you’re letting him use your platform to spread misinformation to your viewers. But if you challenge him, which false statement do you pick, understanding that you’ll probably never get back to all the others? Meanwhile, he hasn’t answered your question.
Time’s National Politics Reporter Eric Cortellessa took advantage of the print-media format to implement a unique strategy: He let Trump ramble, fact-checked in a separate article, kept returning to his questions, and then wrote a summary article focused on the answers to his questions. If you don’t read the transcript of the interview, you never see all the misinformation.
For example, the interview starts like this:
Let’s start with Day One: January 20, 2025. You have said that you will take a suite of aggressive actions on the border and on immigration—
Donald Trump: Yes.
You have vowed to—
Trump: And on energy.
Yes, yes. And we’ll come to that, certainly. You have vowed to launch the largest deportation operation in American history. Your advisors say that includes—
Trump: Because we have no choice. I don’t believe this is sustainable for a country, what’s happening to us, with probably 15 million and maybe as many as 20 million by the time Biden’s out. Twenty million people, many of them from jails, many of them from prisons, many of them from mental institutions. I mean, you see what’s going on in Venezuela and other countries. They’re becoming a lot safer.
Well, let’s just talk—so you have said you’re gonna do this massive deportation operation. I want to know specifically how you plan to do that.
Trump: So if you look back into the 1950s, Dwight Eisenhower, he’s not known for that, you know, you don’t think of him that way. Because you see, Ike, but Dwight Eisenhower was very big on illegal immigration not coming into our country. And he did a massive deportation of people. He was doing it for a long time. He got very proficient at it. He was bringing them just to the other side of the border. And they would be back in the country within a matter of days. And then he started bringing them 3,000 miles away—
What’s your plan, sir?
But what shows up in the summary article is just the eventual answer:
To carry out a deportation operation designed to remove more than 11 million people from the country, Trump told me, he would be willing to build migrant detention camps and deploy the U.S. military, both at the border and inland.
That answer, if you read the transcript, comes wrapped in a lot of fantasies: Trump doesn’t think the camps will be necessary, because the deportation operation will function smoothly and get people out quickly. He expects local police to do most of the work, because so many migrants are criminals that police “know by name”. (The statistics showing that there is no migrant crime wave are “fake news”.) The Posse Comitatus Act (which sharply limits the use of the US military inside the country) won’t constrain him because “these aren’t civilians. … This is an invasion of our country.”
If you accept all of Trump’s fantasies, he seems to be saying that Cortellessa is worrying about nothing: no detention camps, no military involvement, no long delays as courts decide the constitutionality of his plans. He’ll just collect the 15-20 million people he thinks are in the country illegally and ship them out (to somewhere) without incident.
So from the MAGA point of view, this is a hostile interview that results in a slanted article. But my own point of view is similar to Cortellessa’s: Trump’s plans often don’t go smoothly, and when they get blocked, he doesn’t calmly accept defeat. Take, for example, his Mexican wall: When Congress wouldn’t fund it, he shut down the government. And when that didn’t work, he declared a state of emergency that allowed him to take money from the defense budget. How far he’s willing to go when things don’t work out is a question well worth asking.
The answers. Contellessa’s summary of his interview continues:
He would let red states monitor women’s pregnancies and prosecute those who violate abortion bans. He would, at his personal discretion, withhold funds appropriated by Congress, according to top advisers. He would be willing to fire a U.S. Attorney who doesn’t carry out his order to prosecute someone, breaking with a tradition of independent law enforcement that dates from America’s founding. He is weighing pardons for every one of his supporters accused of attacking the U.S. Capitol on Jan. 6, 2021, more than 800 of whom have pleaded guilty or been convicted by a jury. He might not come to the aid of an attacked ally in Europe or Asia if he felt that country wasn’t paying enough for its own defense. He would gut the U.S. civil service, deploy the National Guard to American cities as he sees fit, close the White House pandemic-preparedness office, and staff his Administration with acolytes who back his false assertion that the 2020 election was stolen.
Each one of those sentences is the result of a back-and-forth similar to the one about migrant detention camps. Trump was especially cagey about abortion, saying that it wasn’t a federal matter any more, now that the Supreme Court has moved it to the states. He refused to discuss the possibility of vetoing a federal abortion ban, saying that it wouldn’t happen because it would need 60 votes to pass the Senate. (Contellessa doesn’t raise the possibility that a Republican Senate majority might do away with the filibuster precisely so that it could ban abortion.)
Contellessa then focused in on whether there was anything states couldn’t do, and Trump’s reluctant answer was no. Monitor women’s pregnancies to make sure they weren’t getting abortions? “I think they might do that. Again, you’ll have to speak to the individual states.” He dodged an issue he will have to address: how the federal government regulates the abortion drug mifepristone. He said he would have a statement out about that in the next week, but in the follow-up two weeks later that statement hadn’t appeared. (It still hasn’t.) And he refused to say how he planned to vote on Florida’s upcoming referendum about its six-week abortion ban.
His comment on being a dictator only on his first day? A joke. (Nobody has a sense of humor any more.) And Trump denied that he would seek to change the two-term limit. “I wouldn’t be in favor of it at all. I intend to serve four years and do a great job.”
He sees “a definite anti-white feeling in this country” that is “very unfair”.
Transactional government. Something Contellessa didn’t cover is Trump’s very wide-open notion of transactional government. Thursday (after the Time interview) the WaPo published an article about his meeting with oil executives at Mar-a-Lago.
As Donald Trump sat with some of the country’s top oil executives at his Mar-a-Lago Club last month, one executive complained about how they continued to face burdensome environmental regulations despite spending $400 million to lobby the Biden administration in the last year.
Trump’s response stunned several of the executives in the room overlooking the ocean: You all are wealthy enough, he said, that you should raise $1 billion to return me to the White House. At the dinner, he vowed to immediately reverse dozens of President Biden’s environmental rules and policies and stop new ones from being enacted, according to people with knowledge of the meeting, who spoke on the condition of anonymity to describe a private conversation.
Giving $1 billion would be a “deal,” Trump said, because of the taxation and regulation they would avoid thanks to him
This is far from the only example. In March, Trump abruptly reversed himself on banning TikTok. The change happened shortly after a meeting with Jeff Yass, a Trump donor who owns billions in TikTok-related stock. During his first administration, Amazon lost a valuable defense contract because Trump thought Jeff Bezos’ Washington Post wasn’t covering him favorably enough.
Summing up. It’s easy to take these issues one-by-one and feel like they wouldn’t be that big a deal. He’ll tell the Justice Department who to prosecute. He’ll deport at least 11 million people, some of whom have been in the country for decades. Ukraine may fall, leaving NATO countries to wonder whether the US will support them against Russia. He’ll establish that committing violence in his name is OK; you can count on a pardon. The civil service will lose its independence, making the federal government one big political machine. He’ll use emergency powers to circumvent Congress’ power of the purse. Companies that want a break on regulations just need to do something in return.
Now picture it all happening at once. The America we’re describing is a very different and much darker place than any we have lived in so far.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the conservative Barrett said, according to the Louisville Courier Journal. She said the high court is defined by “judicial philosophies” instead of personal political views. “Judicial philosophies are not the same as political parties,” Barrett said.
Most of the legal experts who have appeared on MSNBC or CNN since then have more-or-less given that view the benefit of the doubt. Sure, some things have been hard to explain. In particular, the Court’s “originalist” rulings — “originalism” being one of the philosophies Barrett cited — have been suspiciously selective about the “history” that informed their majority opinions, and overall the originalist justices have shown little interest in history as it is taught by professional historians. On its shadow docket, the Court was far more responsive to the Trump administration’s requests to move quickly than it has been to the Biden administration. And then there’s Clarence Thomas, who takes six-figure gifts from billionaire “friends” he had never met before he ascended to the Court.
But hackery? No. Surely not. This is the Supreme Court we’re talking about.
These talking-head legal experts are almost entirely institutionalists: ex-prosecutors, retired judges, law professors, and even one ex-Acting-Solicitor-General. They’re deeply invested in the idea that the legal system works.
They’ve had a tough week.
Thursday, the Court heard oral arguments on Donald Trump’s claim that he has “absolute immunity” for anything he did as president. That claim is holding up his federal prosecution in the January 6 case.
Partisan delay. It’s already been clear that the Court has been shading the process in Trump’s favor. The original purpose of this immunity claim was to delay Trump’s trial past the election, so that he can order the Justice Department to dismiss the case if he becomes president again. Both the district court and the appellate court found no legal merit in “absolute immunity” — or in any kind of immunity that would cover this case — and the Supreme Court didn’t have to hear the appeal at all.
But instead, the Court has dragged its feet. Back in December, Jack Smith asked the Court to hear the appeal immediately, skipping the appeals court, so that Trump’s trial could get under way. They refused, waited for the appellate ruling, and then spent weeks deciding whether to review that ruling. When they finally did decide to hear the case, they scheduled oral arguments on the last day of the term for hearing arguments, burning as much time as possible.
But still, the institutionalist commentators told us, while the conservative majority might manipulate the calendar in a partisan fashion, it wouldn’t distort the law to favor Trump. Surely it would find, as both lower courts did, that there was no legal merit in this claim.
After Thursday’s hearing, though, that outcome is seriously in doubt. The conservative justices gave Trump’s attorney a far more sympathetic hearing than he deserved.
Breaking faith. Slate’s Dahlia Lithwick expressed a disillusionment I heard from many professional commentators:
As a blinkered institutionalist, I’m getting blowback along the lines of: “I told you so. They’re a bunch of partisan hacks.” I truly believed that at least seven members of the court would take the potential failure of democracy as a proposition seriously enough that the partisan valence of this case went away. That didn’t happen.
Former Assistant US Attorney Andrew Weissmann said, “Big picture: I’m in a very, very depressed mode.” And his podcasting cohost Mary McCord (a former Assistant Attorney General) replied “It’s been a rough several weeks of listening to Supreme Court arguments.”
Weissmann characterized the justices’ discussion of presidential immunity as “almost like a policy debate in Congress”. (It’s worth listening to this part, because you can hear the heartbreak in his voice.)
What was missing from that [discussion] was the text of the Constitution, the intent of the Framers, the history of the United States. I mean, it so belied the originalism/textualism credo of the so-called conservative justices. … And then, even within that policy debate, what was missing from the conservative justices was any record support, in terms of 200 years of history. …
It was remarkable to me the antipathy towards the actual criminal justice system that you were hearing from Alito and Gorsuch. Which was Alito saying, “You know, you can indict a ham sandwich.” I mean, this is our criminal justice system! … It was remarkable to me that you had people sitting in the Supreme Court denigrating the entire infrastructure of and edifice of our criminal justice system that they are a huge part of creating.
Alito had [Michael] Dreeben [representing the special prosecutor’s office] walk through the layers that protect a president from a frivolous or vindictive prosecution. Then he dismissed each one out of hand. So Dreeben said: First, you need a prosecutor who’s willing to bring charges; then you need a grand jury to indict; then there’s a criminal proceeding in open court where a jury of his peers decides whether he’s been proved guilty. And Alito just laughs it off as though it’s a big joke. Because we all know Justice Department attorneys are hacks who’ll do whatever they want, right? And a grand jury will indict a ham sandwich—nobody believes a grand jury will do anything worthwhile. And then, oh, sure a jury of his peers, like that’s going to do anything. [1]
This is the justice who is, by far, the most friendly to prosecutors and hostile to criminal defendants in case after case. Who could not for the life of him find a violation of the right to trial by jury or due process. But when the defendant is Trump, he suddenly thinks this entire system of criminal prosecution is such a bad joke that the Supreme Court has to step in and essentially quash this prosecution, because we can’t trust the system to work. The system that is incarcerating so many other people whose convictions Sam Alito just rubber-stamps.
And Lithwick replied:
I felt like that was the turn for me—it was Alito winking to Dreeben, saying, in short, “We both worked in the Justice Department; we know what a racket that crap is.” This was another one of those moments when I thought, sorry: Did one of the justices of the United States Supreme Court just imply that everything that happens at the Justice Department is hackery and rigged prosecutions? …
For his part, bribe-taking Clarence Thomas said little, but his very presence in the room said much: His wife Ginny traded texts with Mark Meadows in the lead-up to January 6. She probably won’t be called as a witness, but she could be. Under any sane system of ethics, he should have recused himself from this case.
But this is Clarence Thomas. He has no ethics. And this is the Supreme Court, where ethical standards have no enforcement mechanism. So there he sat. He will presumably vote on this case and perhaps even write a self-serving opinion.
Restraint? Another longstanding principle of conservative jurisprudence is judicial restraint: A court should decide the case brought before it, and not make wide-ranging rulings that are not needed to decide that case.
But Thursday, the conservative justices could not be bothered to discuss the actual case — Trump’s attempt to stay in office despite losing the 2020 election. Kavanaugh said as much: “I’m not as concerned about the here and now, I’m more concerned about the future.” Gorsuch echoed: “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” And Alito added: “I want to talk about this in the abstract.”
These justices seemed to take for granted that this case is precisely the kind of vindictive prosecution Trump’s lawyers warned about, and to discount entirely that a president might abuse his power to stay in office illegally, as a grand jury has indicted Trump for doing. These prior assumptions are entirely political assessments of the situation. They cited no facts of the case that would point in this direction, and no legal problems with the indictment.
What happens next? What seems likely to come out of these arguments is a ruling — probably on the very last day of the term in June, continuing to burn as much time as possible — that attempts to define a doctrine that is not really needed in this case, and has not been needed in the two centuries of American history so far: drawing a line between presidential acts that are immune from subsequent prosecution and those that are not. Having drawn this line, the Court can remand the case to Judge Chutkan with instructions to apply the new doctrine. Her ruling, whatever it is, can then be appealed back up the ladder, pushing the trial well past the election.
Fly free, Mr. Trump!
Jay Kuo, however, finds hope in an ironic place: Amy Coney Barrett. Barrett, Kuo reports, actually seemed to be paying attention to the case at hand, and might be looking for a way for the legal system to do its job, rather than grind its gears until the case is moot. So perhaps it will fall to her to fashion a way around the partisan hacks whose existence she denied in 2021.
As I remarked in my piece yesterday, so much of our future, and indeed even the plight of the world, has depended on just one or a few traditional conservatives still managing to do the right, principled thing. It might happen again here, who knows?
Barrett was interested in drawing a line between a president’s private acts and his officials acts.
Okay. So, in the Special Counsel’s brief, on pages 46 and 47, he urges us, even if we assume that there’s—even if we were to decide or assume that there was some sort of immunity for official acts, that there was sufficient private acts in the indictment for the trial to go, for the case to go back and the trial to begin immediately.
Barrett outlined scenarios that included much of Trump’s indicted conduct, such as the conspiracy to present false electors to Congress. Kuo speculates that Barrett might convince Roberts and the three liberal justices to support a majority opinion along these lines.
Another possible way forward consists of Judge Chutkan taking the remand and getting creative with it. In deciding which of Trump’s acts might fit the Court’s brand-new definition of immunity, she might have to hold an evidentiary hearing — not a trial — in which much of the prosecution’s case could be presented. It would not result in a jury verdict, but at least testimony from witnesses like Mike Pence and Mark Meadows could get onto the record.
This is decidedly a second-best (or third- or fourth-best) result. In a nation with an uncorrupted Court, a full trial would be completed and a jury verdict reached before the election. But we don’t live in such a nation. At least until Democrats can win enough elections to rebalance the Court — hopefully naming honest jurists with liberal philosophies rather than just more partisan hacks who lean left rather than right — we’re stuck with the corrupt Court we have.
[1] It’s worth pointing out that juries were the difference between the legitimate performance of Special Counsel Robert Mueller and the politically motivated Barr-Trump special counselship of John Durham. Mueller obtained convictions of a number of Trump associates like Paul Manafort and Roger Stone. But Durham’s drawn-out expensive investigation resulted in only two jury verdicts, both unanimous acquittals.
Juries are in fact what Trump is afraid of in his current cases. If his indictments were indeed the political witch hunts he claims, he should want a jury to expose this fraud to the voters. Instead, he seeks every delay possible, so that if a jury rules at all, it will come to late to inform the electorate.
Dangerous antisemitism or peaceful protest against genocide? You can find whatever story you want to read.
Protests against Israel’s US-backed war in Gaza have broken out on college campuses around the country, with a wide variety of responses from campus officials and police. Some of the tent encampments are being left alone, while on other campuses the demonstrators are being forcibly removed.
Similarly, press coverage has been all over the map. Some sources essentially repeat the Netanyahu claim that “antisemitic mobs have taken over the leading universities”, while others interview demonstrators with more sympathy.
Even the coverage from supposedly liberal sources has been mixed. I was listening to MSNBC’s “Morning Joe” on Wednesday when host Joe Scarborough cited the fact that students had not protested the mass killing of Arabs by Saddam in Iraq or Assad in Syria, clearly implying that Israel is being viewed differently because of antisemitism. I couldn’t decide whether Scarborough was being clueless or actively disingenuous: The obvious difference is that Israel is carrying out its operations with American funds, American weapons, and American support at the UN. Whether we see Israel’s Gaza war as just or unjust, Americans should view these Palestinian deaths differently because we are implicated in them.
Given this diverse press coverage, I should probably go visit an encampment and make my own judgment, but I haven’t. The conclusion I’ve come to from reading a variety of sources is that, as is true with any large group of people, you can find whatever you look for. If you look for antisemitism, you can find it, like the Columbia student who said “Zionists do not deserve to live.” He has been banned from campus.
The large majority of demonstrators, though, look to me to be exactly what they say they are: peaceful protesters who think the killing in Gaza is unjust, want it to stop, and want the US (and their universities) to stop supporting it.
Student protests on Columbia’s campus have been nonviolent so far. Representatives from the New York Police Department said during a press conference Monday that there had been some incidents in which Israeli flags were snatched from students and unspecified hateful things said. But they said that there have not been any reports of Columbia students being physically harmed or any credible threats made against individuals or groups associated with the university community ahead of the start of the Jewish holiday of Passover.
… On Tuesday, a student draped in an Israeli flag spoke to reporters from within the fenced-in area of the encampment. Jewish students who have been suspended from Columbia and Barnard stated that they had celebrated a Passover Seder within the encampment at a press conference.
Antisemitism should have no place in America — not on college campuses or anywhere else.
But there is nothing inherently antisemitic about condemning the ongoing bloodshed in Gaza that has so far killed at least 34,000 people, mostly women and children.
Protesting this slaughter is not hate speech. It is what should be done on a college campus — taking a stand against a perceived wrong, at least provoking discussion and debate.
In the end, you may decide that Israel’s actions in Gaza are entirely justified, given the horror of Hamas’ October 7 attacks and the likelihood of similar attacks in the future. (Or you might not.) But reasonable people can disagree about this, and they should be allowed to express their views in public.
Many Republican politicians have responded cynically to the protests, trying to recreate Ronald Reagan’s successful demonization of campus protests during the Vietnam War. For example, it’s hard to take Texas Governor Greg Abbott seriously when he talks like this:
These protesters belong in jail. Antisemitism will not be tolerated in Texas. Period.
But Abbott is only intolerant of apparent left-wing antisemitism; he’s always been fine with right-wing antisemitism. Reporter Steven Monacelli of the Texas Observer comments:
I’ve seen no credible reporting of actual antisemitic incidents at the UT Austin protest. What I can tell you is that I’ve reported on numerous neo-Nazi events and Greg Abbott never once tried to put any of them in jail.
Before the trial started, I (and a lot of other people) thought prosecutors faced two big potential problems:
Their case depends on the jury believing Michael Cohen, who is a convicted perjurer.
Falsifying business records is only a felony if the false records were intended to support or cover up some other crime. Establishing that other crime might be difficult.
Well, I shouldn’t have worried. By the time Cohen takes the stand, he’ll just be coloring in a picture that has already been outlined by other evidence. Documents and more trustworthy witnesses will establish that meetings were held, topics were discussed, agreements were made, and money was paid. Very little of the case relies on believing things purely on Cohen’s say-so.
As for the other crime, at least one is already well on its way to being established. National Enquirer publisher David Pecker has told the jury that the catch-and-kill scheme that kept several bad-for-Trump stories out of publication was intended to influence the 2016 election, and that he knew at the time their agreement violated campaign finance laws.
Simultaneously, the defense looks weak. Trump’s apparent strategy is to challenge the prosecution’s points piecemeal, but his lawyers are offering no alternate narrative that pulls everything together. So it’s already easy to picture what will happen when the jury deliberates: Some juror will repeat the defense’s challenge to some detail in the prosecution’s case, and another juror will respond, “Maybe. But then why did this other thing happen?” If there was no agreement with Trump, why did The National Enquirer suppress stories that would have sold a lot of papers? If Trump didn’t order it, why did Michael Cohen borrow money to pay Stormy Daniels? (And what about that document where Allen Weisselberg added up all the numbers to arrive at Cohen’s reimbursement?) If there was no crime, then what did Cohen go to jail for? And so on.
To the extent that it tells a story at all, the defense is claiming that Trump did nothing wrong, while all around him other people were doing odd things they had no reason to do. Believing that is not impossible, I suppose, but it requires something well beyond reasonable doubt of the evidence presented. [1]
This scattershot approach is a tactic Trump uses in all his scandals: He never settles on a single explanation of what happened, leaving himself free to spin different stories at different times to different audiences: I didn’t do it. I did it, but it’s not illegal. Maybe it’s not legal, but everybody does it and gets away with it, so singling me out is political persecution. Biden, Hillary, Obama, or somebody else I don’t like has done worse. In fact, it was the right thing to do and I’m proud I did it; nobody else would have had the guts to do it.
That works in a political world of short news cycles and shifting attention spans, but in court it fails. (We’ve already seen it fail in his civil trials.) The jury is required to sit there for weeks and keep paying attention, so distracting them for a moment or two doesn’t get him off the hook. They get to see all the evidence, and they want to form a complete picture of what happened. So if one side can paint them a complete picture and the other side can’t, they notice.
[1] One thing I remember from my own jury experience was the judge’s explanation of “reasonable doubt”, which is literally doubt that has some rationality behind it. Just being able to imagine that the defendant might not be guilty is not good enough. That’s why evil-twin theories don’t usually fly in court.
If we can’t trust ordinary people to be jurors, then we’ve already given up on Democracy.
The central mission of a rising authoritarian movement is to destroy public trust in any institution that can stand in its way, and in particular, in any source of truth that is independent of the movement and its Leader. And so over the last few years the MAGA movement has told us that:
We can’t trust our public health institutions to guide us through a pandemic.
We can’t trust what climate scientists tell us about global warming.
We can’t trust the FDA’s opinion on the safety of abortion drugs.
We can’t trust historians to recount the story of American racism, or librarians to make sound decisions about books that discuss either race or sex.
We can’t trust women who tell us they were sexually assaulted, or any women at all to make decisions about their own pregnancies.
We can’t trust the news media to report simple facts (like the size of Trump’s inaugural crowd).
We can’t trust our secretaries of state and local election officials to count votes.
We can’t trust the FBI and the Department of Justice when they fail to find evidence of voting fraud.
We can’t trust our intelligence agencies when they tell us about Trump’s friend Vladimir Putin.
We can’t trust a judge of Mexican ancestry to oversee the Trump University fraud lawsuit, or any judges appointed by Democrats to handle Trump’s other trials.
And so on. Because in an authoritarian system, the Leader defines Truth. Only he can be trusted.
In each of these situations, we are presented with a Manichean choice: There is MAGA and there is the Deep State. There are Trump followers and Trump haters. If you are not one, you are the other — and that’s all that matters. No one can be trusted to simply do their job in a fact-based, objective, or professional manner.
This week we saw another example of that authoritarian trust-destroying mission: We can’t trust juries. Specifically, we can’t trust a jury of New Yorkers — or any jury convened in a blue state — to stand in judgment over the Great Leader himself. Most New Yorkers didn’t vote for Trump, and so by definition they are Trump haters who are incapable of listening to evidence and forming objective opinions about his guilt or innocence.
Already in August, Kellyanne (alternative facts) Conway was telling Fox News that Trump couldn’t get a fair trial in three of the four venues where he has been indicted — “the most liberal county in Georgia, D.C., New York City, all these places that voted against him”. Apparently only in south Florida, under the supervision of a judge he appointed himself, could Trump possibly get a fair shake. Because a courtroom is just another political arena where all that matters is the love or hate you feel for Donald Trump.
It’s important to push back on this insidious belief, because it strikes at the heart of any notion of Democracy. If ordinary people can’t be trusted, then they can’t be allowed to govern themselves. If they are too unreliable to be jurors, why should these same untrustworthy people be allowed to vote or protest or express themselves in any way at all? If ordinary people can only be trusted when they belong to the Leader’s party, then why let any other party compete for power?
There’s a reason that trial by jury goes back to the Magna Carta, and was guaranteed by the Founders in the Sixth Amendment. A belief in juries is fundamental to the whole project of Democracy.
Encouraging corruption. Once you convince yourself that an institution is inherently corrupt, the obvious next step is to make that corruption work for you rather than against you. So conservative talk-radio host Clay Travis made this plea to his listeners:
If you’re a Trump supporter in New York City who is a part of the jury pool, do everything you can to get seated on the jury and then refuse to convict as a matter of principle, dooming the case via hung jury. It’s the most patriotic thing you could possibly do.
In other words: Don’t answer the judge’s questions honestly, and once you get on the jury, don’t do your job with integrity. Don’t listen to the evidence and form an objective opinion. Refuse to convict “as a matter of principle”.
What principle would that be? That the Leader can do no wrong? That he is above the Law?
My plea is to the people of Manhattan that may sit on this trial: Please do the right thing for this country. Everybody’s allowed to have their political viewpoints, but the law is supposed to be blind and no respecter of persons. This is a trash case; there is no crime here; and if there is any potential for a verdict, they should vote not guilty.
But of course, there is a crime: falsification of business records, which is illegal in New York. Donalds knows this, just as he knows that Michael Cohen has already served time for his role in this illegal plot. If he truly believed Trump to be innocent, he could simply urge jurors to do their jobs with integrity, and express faith in the outcome. But he didn’t, did he?
Fox News has been doing its best to out the jurors, so that they can be vulnerable to intimidation and coercion from the violent MAGA faithful. In one case they have already succeeded: A juror who was seated on Tuesday came back Thursday asking to be excused because people had already begun to guess her identity. Fox host Jesse Watters had picked her out (by number) as a juror who might be difficult for Trump. (The evidence against her? She had blasphemed by saying: “No one is above the law.”) He then slandered (and Trump retweeted him) the jurors in general.
They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.
In reality, Trump’s lawyers had caught people with liberal views saying that they could be objective. There is no reason to believe they can’t, beyond the dogma that all liberals are irrational Trump-haters.
In the face of this attack on a core democratic value, it’s important to reaffirm our faith in it, as Vox’ Abdallah Fayyad does:
Regardless of what the former president says, the demographics of New York or Washington, DC, won’t determine whether or not he will receive a fair trial. That will depend on how the prosecution makes its case, and whether the jurors will take their jobs seriously and evaluate the case on its merits rather than on their views of the defendant — something that juries are more than capable of doing.
That’s why Trump’s disingenuous attacks on the jury are dangerous: not because he’s questioning their potential fairness (juries can indeed be unfair, and defendants have the right to point that out), but because he’s broadly deeming some Americans — that is, anyone who doesn’t support him — as inherently illegitimate jurors.
If you believe in Democracy, the legitimacy of jurors doesn’t depend on who they voted for in 2020 or plan to vote for later this year or what they think of Donald Trump. Trials are not popularity contests. You can believe Trump is the scum of the Earth, and still evaluate fairly whether the prosecution has proved its case against him. As many a defense lawyer points out in summation: “You don’t have to like my client to find him not guilty.”
Could I be a juror? As I watched (from a distance) the Manhattan court’s effort to form a Trump jury, I did what I think a lot of people did: wondered how I would answer the questions prospective jurors were asked. In particular: Could I be objective? Could I listen to the evidence and arguments from both sides and reach a fair verdict?
I decided that I could. Now, as anyone who reads this blog or follows me on social media knows, I have a very strong negative opinion of Donald Trump. I have openly said that I think he’s guilty, not just in this case but in the other three cases as well. Had I been in that courtroom, the defense would undoubtedly have used one of their peremptory challenges to make sure I never came anywhere near the jury box. So how could I imagine being a fair juror?
Here’s how: I have a clear sense of the duties of a juror takes on. And the principle of trial by jury is more important to me than the fate of one man. Demagogues and grifters like Trump will come and go in American history, but trial by jury is something that I hope will endure through the centuries. I wouldn’t want to be part of screwing it up.
In particular, I believe that everyone accused of a crime deserves a fair trial, and that the prosecution has a responsibility to prove its case beyond a reasonable doubt. I also believe in the rules of evidence. As a juror, it wouldn’t matter to me what I had read in the news media or what I thought I remembered from the internet: The real evidence, the trustworthy evidence, isn’t what I heard on Fox News or MSNBC, it’s the evidence that shows up in court. And so when the trial ground to its conclusion, I would ask myself: Given what I’ve heard in court, has the prosecution proved its case? If it hadn’t, I would vote to acquit.
Now, I sincerely doubt that anything that might happen in this trial will change my opinion of Trump. At the end of the trial, I’m sure I will still believe he’s a fundamentally dishonest man who cares for no one but himself. I may even still believe that he’s guilty of the charges against him.
But if I’m a juror, that doesn’t matter. The question isn’t “Do you believe he’s guilty?” but “Has the prosecution proved he’s guilty.” If they haven’t, I could vote to acquit — even as I continued to hope that the prosecutors in one of his other cases would have more success.
Can this jury be fair? I have great faith that it can.
Part of my faith comes from having served on a jury several years ago in an emotionally fraught federal drug case. The defendant came from a household that in many ways exemplified the American dream: He and his wife were Hispanics who had worked their way into the middle class and were raising several children, all younger than 10. He worked in a local factory, and she was a nurse. The real bad guy here seemed to be the defendant’s brother, a career drug dealer that the government had been failing to make a case against. He sold drugs out of the defendant’s basement, and when the undercover cop showed up wanting to buy, he was too smart to sell. But the defendant trusted the cop, so the brother in essence said, “If you trust him, you sell to him.” The defendant did, and that was how he came to be on trial.
After the evidence was presented, we deliberated for an afternoon and most of the next morning. We were all over the map, and I had a very difficult night while I shouldered my responsibility. All of us sympathized with the wife and children. Several jurors who had been leaning not-guilty in the afternoon changed their minds overnight: By morning they were angry at the defendant for letting his brother sell drugs out of the house where his kids lived.
In the end, we answered the question we were given: Had the government proved that he sold the drugs? It had, and we convicted him. (We also had a meeting with the judge where we pleaded for him to sentence mercifully. I never checked whether he did.)
I learned a few things from this experience: First, the ritual of the court is powerful magic. You may come in with all sorts of impressions and opinions. But you very quickly learn to appreciate the awesomeness of the power you have been delegated and the responsibility it puts on you. (Spider-Man is right: With great power comes great responsibility.)
Second, no matter how different the individuals are, some kind of group loyalty develops. Not reaching a verdict feels like failure, and the jury doesn’t want to fail. We had each given a week of our time to this trial, and we didn’t want to believe our time had been wasted.
This is why I have faith in the Trump jury. Yes I can imagine all sorts of scenarios where somebody follows Clay Travis’ instructions: lies to the court so that they can get on the jury and rig the outcome. But that’s a harder mission to pull off than you might think.
My jury only met for a week. This one will probably sit for a month or more. During that time, they’ll share a lot of cups of coffee and more than a few lunches. They’re not supposed to discuss the trial until deliberation, but they’ll undoubtedly find other things to talk about: kids, jobs, the weather, TV shows. They’re going to see each other as people and develop a sense of common purpose.
Imagine spending that whole month with people while animated by a single malevolent thought: “I’m going to make sure you all fail. Because of me, this month we’ve all sacrificed will come to nothing.”
That would be a hard mission to carry out.
Even if you came onto the jury with a fairly strong belief in Trump, I think the ritual of the court and the camaraderie of the jury might well capture you. Every day you will look at Trump and realize that he is (as one prospective juror put it) “just a guy”, and not the great savior you imagined him to be. You will see him glower and bluster and doze off and treat you and your fellow jurors and the judge with disrespect. You will hear the prosecution witnesses assemble the case against him step by step. (You will have heard that the case is all politics, but in fact no one is talking politics. They’re presenting evidence.) When the defense takes its turn, you will hope for some grand revelation that shatters the prosecution’s case. And you will be disappointed.
During deliberation, you will have no real argument to make against your fellow jurors who want to convict. Over the month, you will have learned that they are not the frothing Trump-haters Fox News led you to expect. They’re just ordinary people trying to do their civic duty. Are you then going to look them all in the eye and admit that out of sheer stubbornness, you are going to make them fail?
The Weekly Sift 