Tag Archives: democracy

How Things Stand

February 24, 2025 – 9:48 am

The struggle to preserve American democracy is still undecided.
Neither despair nor complacency is warranted.

I keep having the same conversation with my friends, who are anxious and/or depressed about the Trump/Musk attempt to establish an autocracy, and wonder how I stay so sanguine. There are three reasons, one of which is personal and won’t help anybody else. But the other two might.

The personal reason is that my wife died in December. So from my point of view, nothing worse is going to happen anytime soon. I realize that’s a very self-centered point of view, but it is what it is.

The other two reasons, though, are generalizable and linked:

  • Nothing about the current struggle should be all that surprising.
  • The events that will tell us how it plays out haven’t happened yet.

I didn’t read all 900+ pages of Project 2025, but I did see enough of it to realize that the first few months of a second Trump administration would constitute an all-out assault on American democracy. I can’t claim that I foresaw the details of the current mess — Elon’s role in particular surprised me — but the general outline was all there. And I know Trump denied Project 2025 was his plan, but nobody should have taken that denial seriously.

So now we’ve seen Trump’s opening moves: a blizzard of executive orders claiming unprecedented powers that can be found nowhere in the Constitution. That was all predictable.

What wasn’t predictable, and is still unknown, is how the other American power centers would respond. I’m talking about Congress, the courts, the state governments, and the People. That’s all still very hard to predict, because each of those power centers will influence the behavior of the others.

It’s important for us to be neither complacent about all this nor resigned to our fate. Things really are still up in the air. Let’s look at the possible resistance centers one by one.

The People. Let’s start with the People, who elected Trump in November with 49.8% of the vote — hardly the “mandate” he likes to claim. Historically, voters have rewarded election winners with a give-the-guy-a-chance response that pundits sometimes refer to this as a president’s “honeymoon”. So, for example, Barack Obama got 52.9% of the vote in the 2008 election, but his post-inauguration approval rating bounced up to 69% (the highest it ever got).

By contrast, Trump’s post-inauguration approval (as estimated by 538’s polling average) was almost identical to his vote total: 49.7%, with disapproval at 41.5% (indicating that some Americans who voted for Harris or someone else were now neutral. By contrast, Obama’s post-inaugural disapproval was a mere 13%.) Trump’s most recent split is still positive, 48.5%-47.0%, but just barely. Some recent polls have turned sharply negative, like Ipsos, which has gone from a post-inaugural 47%-41% to a recent 44%-51%.

Polls that focus more specifically on what Trump is doing look worse for him. A WaPo/Ipsos poll showed 57% of Americans believe that Trump has overstepped his authority. 54% disapprove of his management of the federal government. Elon Musk’s approval is 15 points underwater with 49% disapproving and only 34% approving.

Short version: As people see what Trump is doing, they’re turning against him. I expect this to continue as more and more Americans notice that Trump’s “temporary” actions aren’t temporary, and aren’t solving any of the problems he campaigned on. (Bought any eggs lately?) I anticipate worse polls for Trump and a lot more demonstrations like the one I participated in February 14 in Boston.

Congress. Republicans hold slim majorities in both houses, so Democratic responses are necessarily limited: Democrats on their own cannot pass legislation, hold hearings, or subpoena witnesses. They can make speeches and create photo ops, but that’s about it. And the press, knowing Democrats can’t do much, don’t pay much attention to them. (I often hear comments like “Why don’t the Democrats say or do X?” Chances are some of them have, but you didn’t hear about it.)

Initially, congressional Republicans have been loyal Trump supporters, including confirming obviously unqualified cabinet nominees like Pete Hegseth, RFK Jr., Kash Patel, and Tulsi Gabbard. (No Democrat voted for any of the four.) But Republicans can also read polls, and apparently constituents are burning up their phone lines, so some are beginning to get uneasy about cuts that affect their home districts.

But will they do anything to rein Trump in? The real test happens when the government runs out of money on March 14. It’s easy to be for or against things until somebody puts price tags on them and adds them all up. In order to get the bill he wants, Trump will need support from almost all of the Republicans in the House. If Democrats stay united and only two Republicans vote against a spending deal, it fails.

If that happens, that’s when congressional Democrats begin to have negotiating leverage.

State and local governments. Contrasting with decades of Republican rhetoric idealizing government close to the people and villainizing know-it-alls who meddle from distant Washington, Trump is trying to use federal power to overwhelm the states and cities.

The scandal over Trump’s deal to drop federal corruption charges against New York Mayor Eric Adams is all about Trump trying to make liberal cities dance to his tune, in spite of what their voters want. So is his attempt to cancel in New York City’s congestion pricing. Ditto for border czar Tom Homan’s threat to “bring Hell” to Boston after the Boston police commissioner said he would obey local laws that don’t give him the authority to enforce federal immigration laws. In a White House meeting with governors of both parties, Trump tried to bully Maine Governor Janet Mills into submitting to his executive order banning transwomen from women’s sports. “I’ll see you in court,” Mills replied.

All in all, Democratic officials at the state and local level are standing firm against federal usurpation. Democratic attorneys general are leading a number of the lawsuits against the Trump administration’s overreach. How well they succeed, though, largely depends on the courts.

The courts. Many of the things Trump is doing are illegal or unconstitutional. His attempt to undo birthright citizenship is a blatant contradiction of the 14th Amendment. His refusal to spend money already appropriated by Congress violates both the Constitution’s assignment of spending power to Congress and the Impoundment Act of 1974. He has no authority to disband agencies created by Congress, like USAID or the Consumer Financial Protection Bureau. His treatment of federal employees violates the laws establishing the civil service, as well as union contracts signed by previous administrations.

But laws do not enforce themselves if lawbreakers are determined to ignore them. Victims of the law-breaking have to go to court. Judges have to rule in accordance with the law in spite of executive pressure against them. Court orders can be appealed, so the process can take a long time.

So far, the lower courts are following the law and the Constitution, so Trump is losing most of the cases.

This is all leading up to two questions:

  • Will the Supreme Court invent new interpretations of our laws to back Trump up, essentially ending the rule of law as we have known it?
  • If the Court does rule against Trump, will he defy the Court’s orders?

In theory, Supreme Court decisions take place in an abstract world of law. In practice, though, public opinion will play an important role. If Trump’s excesses are popular, the Court will be more likely to jump on the fascist bandwagon. But if his poll numbers keep spiraling down the drain, the Court may not want to go down with him.

Similar considerations apply to the defiance option: If the public is solidly behind Trump and sees the Court as blocking him for no good reason, he will be more likely to ignore the Court’s orders. On the other hand, if the public is turning against him, the thought that even this Supreme Court thinks he’s wrong may increase the slide.

The first of the cases has already reached the Supreme Court, briefly, sort of. Hampton Dellinger was the head of the Office of the Special Counsel, and independent agency established by Congress to do things like protect whistleblowers in the government. He was appointed by President Biden and confirmed by the Senate to a five-year term. The statute establishing the position makes provision for the President to fire the special counsel “only for inefficiency, neglect of duty, or malfeasance.” But on February 7 Trump fired Dellinger without claiming any of those things. A district reinstated Dellinger temporarily, and the Trump administration appealed, losing 2-1 at the appellate level. From there they went to the Supreme Court.

The Court also declined to overturn the district court’s order, but it’s hard to read much into that decision, because essentially it is just giving time for the lower court to complete its work. The restraining order runs out Wednesday, when the district court has a hearing scheduled.

The issues here get to the heart of the separation of powers, because it’s hard to see how the OSC can do its job if the head of it can be fired on a presidential whim. Presidents typically dislike whistleblowers, so the OSC won’t be much of a protector if it has no independence from the President. If it finds for Trump, the Court will be saying that the goal the Congress had in mind can’t be achieved.

The good scenario. Obviously, Trump is going to do a lot of harm no matter what anybody else does. The USAID freeze is already killing people in Africa, and no one knows how much damage American medical research will suffer from having its funding stream interrupted or perhaps cut off altogether. A lot of the near-term impact of the research-funding freeze will depend on unpredictable events like whether some future mutation of bird flu enables human-to-human transmission. Trump’s almost vandal-like approach to Biden’s climate change initiatives is going to make it that much harder to deal with long-term challenges that already threaten catastrophe. In short, the voters made an enormous mistake in November, and that mistake will have consequences.

But in my mind those consequences pale compared to the establishment of a lasting autocracy in the United States — and that outcome is still avoidable. The scenario that avoids it goes like this:

  • Trump continues losing popularity. He never had much, but his brand becomes politically toxic.
  • That lack of voter support makes support from congressional Republicans waver. They may not openly defy Trump, but the slim Republican majorities (especially in the House) lose their cohesion, making it impossible to pass legislation without at least some Democratic support. The lack of legislative accomplishments feeds back into public opinion: Maybe Trump isn’t such a strong leader.
  • The Supreme Court, at least partly influenced by public opinion, refuses to invent new legal principles to justify Trump’s seizures of power.
  • The refusal of congressional Republicans and Trump’s own appointees on the Supreme Court to go along with his wishes feeds back into public opinion: If even his would-be minions can’t fully support him, maybe his critics are right.
  • Facing an extreme lack of public support as well as dissension in his own ranks, Trump reluctantly obeys court orders. Or, if he doesn’t, the military refuses orders to crack down on mass public protests.
  • Republicans get soundly defeated in the November, 2025 Virginia elections, sending Republican elected officials into a panic.
  • Democrats win back control of the House in 2026, putting them in a position to block future usurpations.
  • Trump is dissuaded from trying to hang onto power in 2028. The MAGA movement splinters into its component factions — tech bros, racists, burn-it-down nihilists, etc. — none of which is able to win the national election.

That scenario is far from a sure thing, but the way is still open. We’ll learn a lot from future polls, from how Congress handles the possible March 14 government shutdown, and from what the Supreme Court does as cases arrive on its doorstep.

By weeklysift | Posted in Articles | Also tagged | Comments (23)

How Do Things Change?

February 10, 2025 – 10:30 am

a tentative start to a historical investigation

Last week I argued that mere election tactics — a more attractive candidate, some new slogans, a better framing of the issues — will not be enough to overcome the MAGA movement in the long run. (We defeated them soundly in the elections of 2018 and 2020, but MAGA showed amazing resilience.) MAGA itself is not just an unfortunate convergence of political forces, it is a cultural movement of some depth. Defeating it will require a counter-movement.

The 2024 campaign showed that the counter-movement can’t just be a reversion to some prior status quo. My assessment of how the Harris campaign failed is that Trump managed to tag Harris as the candidate of the status quo and present himself as the candidate who will shake things up. [1]

Harris’ problem was that (as a whole) the status quo is not working for many Americans. I listed a number of ways that things are not working, but fundamentally they boil down to this: It gets harder and harder to plan for a successful life with any confidence that your plan will succeed. Far too many Americans feel that the system is stacked against them, and that simply trying harder is not the answer.

Rather than present any coherent program, Trump has responded to the public’s justified anxiety with scapegoating and nostalgia: Immigrants, foreigners, minorities, and people who rebel against their assigned gender roles are the problem, and we should look to the greatness of America’s past — now, apparently, the high tariffs of the 1890s — for our salvation. To the extent that he has a plan — like ignoring climate change and reverting to the fossil-fuel economy of the 20th century — it is likely to be counterproductive.

But “don’t do that” has turned out to be an unpersuasive message for the Democrats. It worked when Trump was in office, actively doing unpopular things. But as soon as he was defeated, nostalgia renewed its charms. To a large extent, Trump’s 2024 message was that electing him would make it 2019 again, and all the disruption of the Covid pandemic (including the parts he brought on himself) would be behind us.

But realizing that we need a deeper movement is not the same as having one, or even knowing what it would be or how it might come together.

With that question in mind, I’ve been looking at history. Despite recently being idealized as the new “again” in Make America Great Again, the late 1800s were a low point in American history, dominated by the robber barons of the Gilded Age. Industry after industry was reorganizing as a monopolistic trust with the power to maximally exploit both workers and consumers. It was a hard time both for urban factory workers and rural small farmers.

Somehow, things got better: Antitrust laws got passed. Governments began to regulate working conditions, product safety, and child labor. Standard Oil was broken up. Unions began to win a few battles. And the gap between rich and poor narrowed. The New Deal was unthinkable in 1880, but by the 1930s it was popular. This was a profound change in what David Graeber referred to as “political common sense“. How did it happen?

A friend recommended a place to start: The Populist Moment by Lawrence Goodwyn. The book was published in 1978, so to the extent that it says something about the present day, either about MAGA or how a democratic movement might oppose it, that message arises naturally from the history, and not from some pro- or anti-Trump bias of the author. [2]

What was Populism? These days, MAGA and similar neo-fascist movements in other countries are often described as “populist”, but the version in the late 1800s was quite different. There is a surface similarity — in each case, large numbers of working class people found themselves resisting their era’s educated consensus — but from there things diverge fairly quickly.

In the 19th century, farming was still the largest American occupation, employing over half the labor force as late as 1880. But the system was stacked against small farmers in two ways: First, farmers with no capital beyond their land found themselves at the mercy of “furnishing merchants”, who would lend money for them to plant a crop (and survive through the growing season) in exchange for a contract on the harvest. Once he had contracted with a furnishing merchant, the farmer was stuck with that merchant, and would typically end up both paying high prices for his supplies and receiving a low price for his crop. [3]

But second, that long-term situation was made much worse by post-Civil-War monetary policy. The Civil War had been financed in part by printing paper currency, known as “greenbacks“. That had caused inflation during the war, and the prevailing economic wisdom of the time was that the dollar needed to be made “sound” again. In other words, the greenbacks had to be withdrawn from circulation, so that all US money could be redeemable for gold again. (Greenbacks became fully convertible to gold in 1878.)

In modern terms, the government’s policy was to shrink the money supply. If expanding the money supply had caused inflation, shrinking it could be counted on to achieve deflation; i.e., prices would come back down.

if you think like a consumer, deflation sound great. (Just last fall, that’s what Trump was promising his voters: “Prices will come down. You just watch: They’ll come down, and they’ll come down fast.”) But now imagine being a farmer who is counting on selling his wheat or cotton at the end of the season: You bought and borrowed when prices were high, and now you have to sell when prices are lower. The result was that large numbers of farmers were failing to clear their debts. Every year, many would lose their land and wind up as sharecroppers or worse.

The conventional wisdom of the time was that, sure, times were hard. But the “sound dollar” had to be restored, so farmers would just have to become more efficient. If some had to go broke in the process, well, that’s capitalism for you. Creative destruction and all that.

At some point, though, farmers began to realize that this wasn’t a story of individual failure, but of a badly structured system. And some postulated a solution: Farmers could cooperate rather than compete. They could form “farmer alliances” to pool their resources, negotiate for common supplies, and market their crops collectively.

Through the 1870s and 1880s, farmer alliances played a game of escalating pressure with the merchants and banks. Initial co-op successes would lead to new merchant strategies to freeze the co-ops out of the market, resulting in some larger co-op plan. The ultimate trump card was played by the system’s last line of defense, the bankers: Banks would take mortgages on individual farms (the old model), but they would loan nothing to a co-op backed by the land of its members.

Watching the more prosperous classes act in concert to thwart their plans radicalized the farmers and made them turn to politics. They created the People’s Party, whose presidential candidate carried four western states in the 1892 election. The party was organized around a platform, some of which was achieved decades later, but much of which might still be considered radical today. It wanted a revision of the banking system that would orient it toward the interests of “the producing classes” rather than “the money trust”. It wanted a flexible money supply (which we have today) rather than a gold standard. And it wanted government ownership of the railroads and other essential utilities that could be manipulated against working people by monopolies and trusts.

Ultimately, the People’s Party supported the Democratic candidate, William Jennings Bryan, in 1896, and then faded into insignificance.

So Populism was a failure in the sense that it never achieved power. But David Graeber once said that “one of the chief aims of revolutionary activity is to transform political common sense”. By that standard, Populism was more successful. [4]

Partisanship. The People’s Party ran into partisan loyalties that were left over from the Civil War and generally had more to do with identity than with life experience. If you were a White Southern Protestant or a Northern urban Catholic, then you were a Democrat. But if you were a Northern Protestant or a Southern Negro, you were Republican. Those loyalties were hard to break, and each party charged that the Populists were really agents of the other party. “Patriotism” meant faithfulness to the team your people played on during the War.

How movements happen. Goodwyn has a lot to say about this, and argues against the view that protest movements arise naturally during “hard times”. History, he says, does not support this.

“The masses” do not rebel in instinctive response to hard times and exploitation because they have been culturally organized by their societies not to rebel. They have, instead, been instructed in deference.

He points to parallel ways this worked in his own day on both sides of the Iron Curtain. (This is 1978, remember.)

The retreat of the Russian populace represents a simple acknowledgment of ruthless state power. Deference is an essential ingredient of personal survival. In America, on the other hand, mass resignation represents a public manifestation of a private loss, a decline in what people think they have a political right to aspire to — in essence, a decline of individual political self-respect on the part of millions of people.

He then asks the billion-dollar question:

How does mass protest happen at all then?

Which he then proceeds to answer: There are four stages:

  • forming: the creation of an autonomous institution where new interpretations can materialize that run counter to those of prevailing authority
  • recruiting: the creation of a tactical means to attract masses of people
  • educating: the achievement of a heretofore culturally unsanctioned level of social analysis
  • politicizing: the creation of an institutional means whereby the new ideas, shared now by the rank and file of the mass movement, can be expressed in an autonomous political way.

And he notes that “Imposing cultural roadblocks stand in the way of a democratic movement at every stage of this sequential project.”

For the populist movement, the first stage was the creation of farmers’ alliances. After years of experimenting, the farmers alliances came up with a mass recruitment model: large-scale cooperatives that farmers could join in hopes of getting cheaper supplies, better crop prices, and various other benefits. Then the co-ops themselves became educating institutions that taught farmers how the monetary system tilted the playing field against them, and how an alternative system might work. And finally the People’s Party itself provided an electoral outlet.

How well the People’s Party did in various states corresponded to how well the previous stages had taken hold.

In the 20th century, labor unions played a similar role to the co-ops: Masses of workers would join a union in hope of getting better pay and improved working conditions. And the union would then educate them in the issues relevant to their situation. [5]

MAGA. It’s worth considering how Goodwyn’s model applies to MAGA. You wouldn’t expect it to fit perfectly, because fundamentally MAGA isn’t a democratic movement. There has always been big money behind it, and the grassroots aspects, while genuine in some sense, also include quite a bit of astroturf. [6]

However, there are a number of parallels. The initial hurdle MAGA faced was getting its working-class foot-soldiers to believe in themselves rather than be intimidated by experts like economists, climate scientists, and medical researchers. The internet has undoubtedly made this easier, but the validation of “doing your own research” was also key.

And what was the recruiting institution that could attract masses of people and educate them in the new way of looking at the world? Evangelical churches. People came to them for the variety of reasons that always attract people to churches, and usually not for political indoctrination. But once there, they could be taught that elite scientists (like those promoting anti-Genesis ideas of evolution) were agents of the Devil. Their sense of grievance could be raised and sharpened, and the whole idea of a fact-based or reason-based worldview could be undermined. You might join because you enjoyed singing in the choir, but after a few years you were ready to believe that DEI was an anti-White conspiracy, or that economic malaise was God’s punishment for tolerating gay marriage and trans rights. You were ready to march for Trump.

Counter-movement. The lack of an obvious recruiting-and-educating institution is an obvious hole in the formation of an anti-MAGA counter-movement. Conservatives seem well aware of possible avenues — like the universities, a revitalized union movement, or even charitable activities like refugee resettlement or soup kitchens — and are committed to shutting them down.

Conversely, this is why a number of left-leaning voices (Perry Bacon, for one) are encouraging their listeners to connect with institutions where they can meet with like-minded folks.

I find the historical pattern evocative, even if I can’t immediately see how to implement it: The recruiting-and-educating institutions offer a very simple practical advantage: higher wages, say, or better crop prices. But by engaging in the institution’s core activity, people begin to see the oppressive forces arrayed against them, and begin to radicalize.

[1] And indeed, he is shaking things up. In my opinion, however, the parts of the status quo he is attacking are the best parts: the rule of law, the separation of powers, and the independence of federal institutions like the Department of Justice and the military, just to name a few.

Trump’s attacks on what he calls “the Deep State” are telling. If you know any federal employees, you probably understand that there is a Deep State, but it’s not the monster Trump paints it as.

The Deep State consists of federal workers who are more committed to the mission of their agencies than they are to the current administration. So career EPA officials will resist a president who wants to harm the environment, career prosecutors will drag their feet about harassing the current administration’s political enemies, career public health officials will do their best to support best practices against pressure from above, and so on. To the extent that the agencies are well set up and well motivated, their employees’ loyalty to the agency mission is a good thing, not a bad thing.

[2] Populism is literally just a place to start. I’m going to be delving into other aspects of the 1870-1941 period in future posts.

[3] Something similar happened to miners and factory workers who were paid in vouchers that could only be redeemed at company-approved merchants, who used that monopoly power to drive workers ever deeper into debt. As 16 tons puts it “I owe my soul to the company store.”

[4] Another movement that benefits from Graeber’s political-common-sense standard is the French Revolution. It is frequently judged a failure (especially by comparison to the American Revolution) because it didn’t achieve a lasting Republic, but instead devolved into the Reign of Terror and the dictatorship of Napoleon. However, the French Revolution changed political history. Before the revolution, absolute monarchy was still seen as a valid and plausible form of government. Afterwards, it wasn’t. The Czars of Russia might hang on for another century or so, but the writing was on the wall.

[5] It is unfortunate that farmers alliances and labor unions didn’t peak at the same time. Combined, they might have achieved significant political power.

[6] MAGA precursors, like the John Birch Society and the Tea Party, always had wealthy donors. You can see the pattern in present-day groups like Moms for Liberty. While there are indeed concerned moms in Moms For Liberty, the group’s expansion has been greased by professional consulting and seed money from wealthy establishment groups like the Heritage Foundation.

By weeklysift | Posted in Articles | Also tagged , | Comments (9)

Campaign or Movement?

February 3, 2025 – 9:18 am

Does the Trump resistance need a rival candidate, or a cultural turnaround?

This week, two very different articles caught my eye. In one, The Washington Post ranked “The 12 Democrats who make the most sense for 2028“, starting with Tim Walz at #12 and concluding with Josh Shapiro at #1. In the other, Rolling Stone picked “The 100 Best Protest Songs of All Time“, reminding us of moments when history was moved not so much by politicians as by songs (or perhaps, going further back, by novels like Uncle Tom’s Cabin or pamphlets like Common Sense).

Three years out from the 2028 campaign — assuming elections are still meaningful in three years — should we be uniting behind a candidate or promoting a broader cultural movement?

Maybe it’s the people I hang around with, but the anxieties of my friends keep manifesting in two opposite ways: Many are just refusing to watch the news at all. And the others are obsessed with campaign-and-candidate analysis: What states do Democrats need to flip? What demographic groups might be persuadable? What policy positions should our messaging emphasize? And most of all: Who can lead us to that promised land?

I’ve been pretty useless in those conversations, because (while I am watching the news) anything about candidates and strategy leaves me cold right now. I think they play into an unhealthy framing: politics as game. We lost the last game, so how are we going to win the next one?

What I think we need to reestablish in America is that politics is about something, and the things it is about are important. Our politics should be about the People banding together to make systems work for us rather than grind us into the dust.

And that’s what the list of protest songs symbolizes for me. Not candidates and campaigns, but ending wars, establishing justice, and liberating people from oppression.

What MAGA does. MAGA, of course, is both a candidate and movement. It’s a cult of personality, full of images of Trump as a superhero or God’s chosen one. But it’s also a culture of grievance revolving around the message that favored groups in America — Whites, men, Christians, etc. — are actually victims of some vast Satanic force. And America itself — the richest most powerful country on Earth — is the most aggrieved nation of all, battling a world system that is unfairly stacked against it.

In 2024, Trump often played the role of a typical American presidential candidate: He raised money, held rallies, won primaries, made TV commercials, and toured swing states. But it was the MAGA cultural movement that lifted him out of situations that would have doomed any previous candidate. Elected Republicans were ready to be done with Trump after the 2020 loss and his failed coup on January 6. But the movement would not hear of it, and party “leaders” were forced to come around.

If we could unstring the MAGA movement by winning an election, 2020 would have done it. But instead, being rejected by the voters was just one more grievance to add to its list. Getting past the MAGA moment in our politics will have to involve a change in the larger culture, not just a winning campaign.

What happened in 2024? Everyone has their own theory about what went wrong in 2024, and just about any of them can be justified if you slice and dice the exit polls with that conclusion in mind. Harris should have run further to the left or the center, said more or less about the economy, defended trans youth or thrown them under the bus, defended Biden better or denounced him. Maybe she should have picked a different VP, or maybe Harris herself was the problem and we should have run a White man. Maybe Biden should have gotten out of the way sooner. On and on.

But OK, I get it. Without some reasonable explanation, people begin to think that the currents of History are against us, or the Universe is, or God. Without a plan (or even a fantasy) of what we might do next, despair can seem overwhelming.

So let’s briefly talk the language of analysis. After considering the various theories, I’ve come down here: Trump won because he managed to cast himself as the candidate of change and Harris as the candidate of the status quo. The problematic part of Trump’s candidacy, which Harris tried to point out but never made stick in the minds of low-information voters, is that Trump was specifically running against the best parts of the status quo: the rule of law, the separation of powers, democratic process, and even the existence of Truth itself. What we’re seeing in the early days of the Trump administration is that he has no program for change beyond aggrandizing himself: His supporters are good and should be rewarded; his detractors are bad and should be punished.

But try as he might, it will be hard for Trump to avoid responsibility for the status quo going forward. So in my mind, the fundamental question for Democrats to answer in 2026 and 2028 is: What’s wrong with the status quo?

That was a hard question for Democrats to message in 2024, because the Biden/Harris administration really did have accomplishments it deserved credit for (but never got). It managed the post-Covid economic rebound well, resulting in spectacular job creation with inflation no worse than the rest of the world. It made investments for the future, ended the long fruitless war in Afghanistan, and began taking action against climate change. Biden left office with excellent economic statistics: GDP rising, unemployment low and steady, inflation under control.

But claiming credit for all that sounds a lot like claiming responsibility for the status quo, and arguing that it’s not so bad. (And it honestly wasn’t as bad as Trump kept making it sound. There never was an immigrant crime wave, for example. Or a crime wave of any kind.)

So let’s start here: What’s not to like about the status quo? Plenty, as it turns out. Put aside the statistics, and consider how life looks to a large number of Americans.

  • It’s hard to get out of college without a lot of debt.
  • Once you get out, it’s hard to get a career started.
  • If you do get a career started, it’s hard to find a house you can afford in a town with good schools.
  • If you’re not in a town with good schools, it’s hard to pay for private schools for your children.
  • If your children have any special problems — physical handicaps, learning disabilities, neuro-diversity, etc. — you’re on your own.
  • At any moment, you might fall through one of the cracks in our healthcare system and be bankrupted.
  • At every moment, you’re vulnerable to the risks of a market economy: Your good job may vanish. To get employed again, you may have to move away from your town with good schools.
  • Even if the difficulties of your own life work out, you may have to take care of your parents and deal with a nursing-home industry that can eat life savings of almost any size.
  • It’s hard to get your children through college without burdening them with a lot of debt.

In short, America may be a rich country statistically, but most Americans don’t feel rich. Life looks like a labyrinth with lots of dead ends.

Now, all those difficulties have been building for decades, so there’s no particular reason voters should have blamed them on Joe Biden or his party. (Republicans have held the presidency for 6 of the last 11 terms, and none of those situations improved during Trump’s first term.) But the Democrats did not tell a convincing story of how they were going to take on these problems.

To be fair, neither did Trump. It’s hard to look at any of the hardships on that list and paint a plausible picture of Trump solving that issue, or even helping you deal with it. Much of what he has proposed — eliminating ObamaCare, say, or defunding the Department of Education — will probably make some of them worse.

But Trump did do something politically clever. He told unhappy voters who to blame: immigrants who are stealing your opportunities; women who don’t know their place; rebels against the God-given order, where there are only two genders and you mate with the opposite one; people who worship the wrong God, or none at all; so-called “experts” who make you feel stupid by quoting “facts”; Chinese scientists who engineered the Covid bio-weapon, a.k.a. the Kung Flu; environmentalists who care more about fish or birds than about you or your children; and (most of all) liberals who enable all the other villains by putting the government on their side rather than yours.

What was going to solve these problems was not any particular Trump plan, but rather the abstract “greatness” of America, or perhaps of Trump himself. Or alternately, the greatness of God, who will once again shower His blessings on America once the atheists and Satanists are removed from power.

It’s not a rational story, but it is a story.

Prospects for 2026 and 2028. My thinking going forward is based on the assumption that Trump will provide his followers with entertainment and satisfying spectacles (like immigrant children in cages or FBI agents on trial), but he won’t actually improve anyone’s life. (He didn’t in his first term either, though he was able to take credit for the economic momentum established in Obama’s second term.) We can see that already in the skyrocketing price of eggs. Somehow, neither Trump’s inherent greatness nor his Day-One executive order is bringing prices down, and he has never had any actual plan to fall back on.

So if the labyrinth of American life looks difficult now, it’s not going to look any better in 2026 or 2028. Trump will likely have consolidated his influence over most major media platforms (both broadcast and social), but there are limits to propaganda’s effectiveness when it tells you that you ought to be happy when you’re not.

Consequently, I expect there to be considerable discontent with Trump in 2026 and 2028, just as there was in 2018 and 2020. (Now, it’s entirely possible that by then he has made elections irrelevant. I don’t expect that, but it’s a possibility. In that case, though, this whole discussion is moot; neither a candidate nor a movement has any hope.)

If that’s the lay of the land, how do we want to be positioned? In my mind, this is where the candidate-centered vision falls short — unless your candidate is a genuinely mythic figure whose mere presence will give the electorate hope. Unfortunately, I don’t see any of those on the horizon. If I’m, say, a 20-something worried about my future, I don’t think “Gretchen Whitmer will save me” goes very far. Nothing against Gretch — I’ll be happy to vote for her against the MAGA candidate in 2028 if it comes to that — but there’s nothing messianic about her or Gavin Newsom or anybody else on the Post’s list of 12. Plus, I expect the failure of salvation-by-Trump to discredit the whole idea of individual saviors.

Instead, I picture just about any Democratic candidate having a message like this:

  • I know many of you are facing a difficult path into the future.
  • Our explanation of who you should blame is better than MAGA’s. The oligarchs are to blame. While the American economy remains productive, the benefits of that economy keep getting channeled towards a smaller and smaller group of people, who keep exchanging wealth-for-power and power-for-wealth, with a profit on every transaction. (This point comes from the playbook of the Bernie/AOC left, but there’s no reason a centrist can’t use it too.) If Elon is still around (doubtful, I think), he can be the poster boy for the corrupt interplay between corporate and government power.
  • We have specific ideas that can help you, but the general idea is simple: The productivity of America needs to be redirected towards making people’s lives better, rather than further enriching the oligarchs.

The protest songs almost write themselves. America has a long tradition of songs about people being cheated out of the fruits of the economy they built. Here’s one from the Depression:

Once I built a railroad, I made it run, 
Made it race against time. 
Once I built a railroad; now it’s done. 
Brother, can you spare a dime? 

What about now? It’s important to recognize that Democrats currently have no national power base, so demanding that they “do something” is unrealistic. They can’t bring legislation to a vote. They can’t launch investigations or subpoena witnesses. They can vote No on things that do come up for a vote, but if all (or nearly all) Republicans vote Yes, those things will pass anyway.

The urge to do something is misplaced for another reason: Trump is the one who needs to show quick results right now. He has a unleashed a flurry of activity, and that will carry him for a while. But without some actual progress, the public disgust with the game of politics will rebound against him. All his activity will look (in MacBeth’s words) like “sound and fury signifying nothing”.

Some liberal pundits are calling for the kind of resistance shown in 2017, with millions of marchers and other displays of energy. But demonstrations that are simply anti-Trump harden people into their current stances. We just had an election about Trump, and we lost. Demonstrations will come into play again, I imagine, and probably soon. But it’s important that the demonstrations be about something more than Trump. Heather Cox Richardson puts it like this:

This is the time for the American people to say “Hang on just a red hot minute here. It’s my country. Those are my tax dollars. And this is what I want the government to do.” And to reshape the way we approach this moment from saying “I gotta stop this. I gotta stop this. I’m afraid of this.” to say “I care deeply about cancer research, something Trump has stopped money for.” [Lists other things you might care about.] Those things are ways to define America in this moment as something other than what Trump is trying to kill. Because that takes the initiative away from him, and away from his people, and gives it back to us.

The important thing to ask about any political activity is “Will this persuade anybody who wasn’t already on our side?”

Unfortunately, protests that are about something more than Trump require waiting for things to play out a little. There need to be visible results worth protesting, not just possibilities.

Similarly, Democratic votes in Congress will start to mean something again as we approach March 14, the date when the government runs out of money. If Speaker Johnson can’t muster unanimity among his troops — something he has never done in the past — then Trump and Johnson will need Democrats. Then there will be leverage to make demands.

More importantly, March 14 is when Trump’s vague promises and intentions have to resolve into actual numbers and legislation.

In the meantime, the only arena currently open for struggle is the courts, and they are being used. State-level Democrats have filed lawsuits to block illegal Trump actions, and so have organizations like the ACLU. Legal action means delay, and delay works in our favor.

These last two weeks have felt like an assault, as Trump tries to panic and stampede us. It’s a time to endure, to remember your core values, and wait for the wind to blow itself out. And if you can learn the guitar while you’re waiting, that would be good too.

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Resisting, eventually

December 2, 2024 – 9:14 am

Recovering from the disillusionment of the election is taking longer than I expected.

Many articles are being written about how best to resist the incoming Trump administration and its expected assault on democracy and human rights. I had planned to write a post curating those articles for you, picking out the best ones and summarizing their advice. Unfortunately, I’ve bookmarked more of them than I’ve read, and I haven’t given the ones I’ve read enough serious thought.

That lack of motivation has forced me to admit something about myself: I’m not ready to resist yet. I hope I will be soon.

Everybody’s absorbing the reality of the election at their own pace and in their own way, I suppose. Prior to the election, I advised my readers over and over again not to speculate about what would happen. Like many advice-givers, I almost listened to myself. I refused to anticipate and dwell on either the thrill of victory or the agony of defeat. (I’m dating myself: When I was growing up, “the thrill of victory and the agony of defeat” was the well-known catch-phrase of ABC’s Wide World of Sports.) And yet, deep down, I stubbornly refused to believe the American people would do this. Even at the lowest points, like after Biden’s disastrous debate, I would think about a second Trump administration and think, “No. That can’t happen.”

In retrospect, my faith in the good judgment of the American electorate looks like the faith of a wife who is certain that her husband won’t ever cheat on her, or a child who is sure Dad will never go back to drinking, because it led to so much pain the first time.

But here we are.

I had imagined I was living in an early British detective novel, where Sherlock Holmes or Miss Marple would eventually figure everything out and justice would triumph. Instead, I woke up in an American detective novel by Dashiell Hammit or Raymond Chandler, where the Powers That Be have known all along who the murderer is, but see no reason to do anything about it.

Here we are.

Many of my friends have reported periods of anger, which I haven’t experienced yet. Maybe that’s still coming or maybe I’m just not built that way. Instead, I’ve been living with a deep sense of disappointment. I don’t anticipate any satisfaction coming when Trump voters lose their health insurance or see his tariffs reignite inflation in their grocery stores. When Trump-supporting Hispanics have their naturalization revoked or see their birthright citizenship denied, I don’t expect “I told you so” to taste delicious in my mouth. It will be a sad day, even if they did it to themselves. They are my countrymen, even if my country tells me otherwise.

But I’m still not ready to construct my resistance strategy. I hope I will be soon. Andrea Pitzer is right about this much: Most countries that experienced a fascist takeover didn’t enjoy the luxury of three months to plan. But one of those months is gone already. The clock is ticking.

I can tell I’ll eventually come around. One weird aspect of my psychology is that I’m aware of a subconscious personality who communicates with me — and occasionally critiques my behavior — through my brain’s musical soundtrack. (I noticed it my senior year in college, when I was trying to keep a relationship from getting too serious because I anticipated it ending with graduation. All spring I unaccountably found myself humming “Frosty the Snowman”.)

Lately it’s been playing a song I haven’t heard in years, maybe decades: Graham Nash’s “Chicago“, which he wrote in response to the Chicago 7 trial. It’s aimed at someone Nash wants to “come to Chicago” to protest, and hopes that the listener isn’t like Jack, who won’t help “cause he’ll turn the other ear”. And he envisions this:

We can change the world.
Rearrange the world.
It’s dying to get better.

I wonder.

In my uninspired wanderings through resistance articles, I have noticed a few things, which I’ll pass on in lieu of a better post in some future week.

The simplest advice has been repeated by many people, so you’ve probably heard it already: Timothy Snyder says “Don’t obey in advance.” In their formation phase, authoritarian regimes wonder what they can get away with. When people anticipate the regime’s demands and comply before they’re asked, they teach the government what it can do. We’ve seen simple examples already: When the Washington Post and LA Times owners torpedoed their editorial departments’ Harris endorsements, they signaled to Trump that he can control the press through the government’s influence on the owners’ other businesses. Seth Moulton — my congressman, sadly — has already offered that many Democrats are willing to surrender trans rights without a fight.

Other examples are more local, like libraries that remove LGBTQ memoirs or non-White fiction before anyone demands it, or sociology departments that voluntarily pare back their programs to avoid discussing White supremacy.

The other thing I’ve been struck by is the importance of perception. The power of an authoritarian regime rests more on belief than on institutional power or even guns. No one resists because everyone believes that (in the words of Star Trek’s Borg Collective) “resistance is futile”. But if enough people believe resistance isn’t futile, then it’s not.

That’s why Trump and his people are working so hard to assert that his sub-50% showing in the election is a “mandate” or even a “landslide“. But if you voted for someone other than Trump, you belong to the majority. And there’s certainly no mandate for implementing Project 2025 policies, which he explicitly denied during the campaign.

Similarly, we can expect a Day One shock-and-awe campaign, where it will seem as everything is happening at once: mass deportation, attacks on abortion rights and trans rights, tariffs, oil drilling on public lands, rolling back environmental regulations, firing civil-service workers, and so on. Trump and his people will make it sound as if these are all done deals — it’s happened already, get over it.

But in fact it won’t have happened. Most of his Day One moves will be challenged in court or require agreement from Congress, either of which will (at a minimum) take time, and may result in significant revisions or even reversal. Every delay means that less gets done, and the secret to saving American democracy is making sure that Trump doesn’t finish it off before the next elections.

So one of the worst things we can do is be defeatist, and claim that democracy is already lost. That does Trump’s work for him.

A George Orwell quote from 1946 is relevant here:

Power worship blurs political judgement because it leads, almost unavoidably, to the belief that present trends will continue. Whoever is winning at the moment will always seem to be invincible. If the Japanese have conquered south Asia, then they will keep south Asia for ever, if the Germans have captured Tobruk, they will infallibly capture Cairo; if the Russians are in Berlin, it will not be long before they are in London: and so on. This habit of mind leads also to the belief that things will happen more quickly, completely, and catastrophically than they ever do in practice. The rise and fall of empires, the disappearance of cultures and religions, are expected to happen with earthquake suddenness, and processes which have barely started are talked about as though they were already at an end.

Trump’s overthrow of democracy has barely started. We can’t let him pretend that it has already succeeded.

Perry Bacon‘s list of things to do or avoid doing is well chosen. The gist: Get involved in something beyond electoral politics, like union, a local issue-oriented group, or a politically committed liberal church. (After initial skepticism, Perry is a UU now. Welcome!) Don’t obsess over political news or Democratic strategy.

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Democracy Succumbs in Silence

October 28, 2024 – 10:03 am

What the Washington Post and Los Angeles Times aren’t saying speaks volumes.

Newspaper endorsements seldom garner much attention. (The New York Times endorsed Harris almost a month ago. Did you notice?) It’s debatable whether such endorsements move many votes, though I think they used to. As a 12-year-old in 1968, one of my first political actions was to stand near my hometown’s central square, where Lincoln once debated Douglas, and hand out copies of the Times’ editorial endorsing Hubert Humphrey. Clearly the Humphrey campaign thought the newspaper’s voice might have some influence, even a thousand miles from Manhattan.

But this week, the decisions of the Washington Post and LA Times not to endorse any presidential candidate did get attention, and for good reasons. In each case, the editorial department of the paper had a Harris endorsement drafted, but the higher-ups squelched it. At the LA Times, owner Patrick Soon-Shiong intervened, and also nixed a week-long Case Against Trump series that would have led up to the Harris endorsement. At WaPo, the decision was announced by publisher and CEO William Lewis, but the Post’s own news division reported that the decision came from owner Jeff Bezos.

The problem here isn’t that newspapers are obligated to make endorsements. Whether news organizations should endorse candidates or show a public face of neutrality is a question journalists can debate in good faith. Earlier in their history, both the WaPo and the LAT had periods where they didn’t endorse presidential candidates. Rival news organizations CNN and NPR still don’t. I’m on the editorial committee of the hyperlocal Bedford Citizen, which serves the 14 thousand people of Bedford, Massachusetts. We don’t endorse candidates, or even take positions on controversial local issues (despite the fact that members of the editorial committee are often fairly unified in our opinions).

Changing policies is also not the problem. Individual news organizations should be free to change their endorsement policies (whatever they are) whenever they want, or to decide in some election cycle that neither candidate deserves their support. But both the process and the timing of these particular decisions augur badly for the future of American democracy.

WaPo’s Publisher Lewis put a principled spin on the paper’s non-endorsement, framing it

as a statement in support of our readers’ ability to make up their own minds on this, the most consequential of American decisions — whom to vote for as the next president.

However, both the LAT and the WaPo have endorsed senate candidates this year, so the principle here escapes me. And if readers can make up their own minds, why have an editorial page at all? If you have an editorial department and a decision process for making endorsements, why not trust it? And after your editorial department comes to a decision, what valuable new insight does an owner bring to the table?

That last question is what makes these non-endorsements so disturbing: The owner brings a business point of view. An owner can see how a new administration, particularly a corrupt and vengeful new administration, might use the power of government to attack either the paper itself or the owner’s unrelated businesses. Conversely, such an administration might also rain benefits on a supportive media-company-owner’s businesses, like Bezos’ Blue Origin or Elon Musk’s Starlink. (LAT owner Patrick Soon-Shiong has a variety of business interests in pharmaceuticals, energy, and biotech. I could not easily guess which carrots or sticks a second Trump administration might use to influence him. Compared to Bezos or Musk he is a mere pauper, with a net worth just over $7 billion.)

During the first Trump administration, Bezos (whose much larger business is Amazon) saw what can happen when his newspaper becomes too annoying.

In 2019, Trump found his lever. Amazon was due to receive a $10 billion cloud-computing contract from the Pentagon. The Pentagon suddenly shifted course and denied Amazon the contract. A former speechwriter for Defense Secretary James Mattis reported that Trump had directed Mattis to “screw Amazon.”

This is the context in which the Post’s decision to spike its planned endorsement of Kamala Harris should be considered.

In other words, the owners of one (or maybe two) major American newspapers appear to be giving in to intimidation/bribery. Their actions (or non-actions) are teaching Donald Trump that intimidation/bribery works. So if he is elected next week, they will see more.

The WaPo’s and LAT’s silence illustrates what fascism expert Jason Stanley calls “anticipatory obedience“, a primary pattern in democracies that surrender to autocrats: Don’t wait for the lash to fall. Anticipate what the autocrat will require of you and obey in advance. (Stanley himself makes the connection with the newspaper non-endorsements here.)

For all the good it will do, journalists have protested. The LA Times editorials editor resigned, along with a couple of editorial writers. Twenty WaPo columnists have cosigned a column calling Bezos’ decision a mistake, and at least two contributors have resigned. But it was WaPo’s satirist, Alexandra Petri, who had the best response:

Roots are important, of course. As recently as the 1970s, The Post did not endorse a candidate for president. As recently as centuries ago, there was no Post and the country had a king! Go even further back, and the entire continent of North America was totally uninhabitable, and we were all spineless creatures who lived in the ocean, and certainly there were no Post subscribers.

But if I were the paper, I would be a little embarrassed that it has fallen to me, the humor columnist, to make our presidential endorsement. I will spare you the suspense: I am endorsing Kamala Harris for president, because I like elections and want to keep having them.

Readers are also protesting. A person I don’t know on X/Twitter (I realize how unimpressive that sourcing is) writes:

A friend who works for #WaPo marketing dept says there’s a #WaPoMeltDown in their business unit following the news as digital subscriptions cancellations have hit 60k barely 8 hrs after decision not to endorse. Cancellation rate is unprecedented and we’re barely 24 hours into it.

But as damaging as this might be to the WaPo business model, it’s hard to imagine it having a noticeable impact on Bezos-scale wealth.

The impact Bezos’ decision is having on American democracy is easier to see. Norman Rockwell famously illustrated Freedom of Speech by painting a man wearing working-class clothes standing up at a public meeting. All eyes are on him, and he seems to be about to speak his mind. His own eyes tilt upward, as if he were being inspired by a high ideal. Maybe he what he says will change minds and convince his fellow citizens to take some worthy action.

But picture, for a moment, a different way that scene might play out: Some rich employer or local political boss might shoot him a dirty look, causing the man to think better of speaking and sit back down. His refusal to speak also would have an influence on fellow citizens, but a less positive one.

That’s what has happened here.

The Post’s slogan is “Democracy Dies in Darkness”. But democracy also dies in silence, particularly if those moments of silence happen when everyone is looking at you and waiting for you to speak.

By weeklysift | Posted in Articles | Also tagged | Comments (19)

Harris, Trump, and Our Broken News Media

August 19, 2024 – 9:50 am

In recent weeks, Donald Trump and Kamala Harris have taken opposite approaches to dealing with the media. Harris has taken few on-the-record questions from reporters, and has focused instead on talking to the voters directly in rallies. She and her running mate Tim Walz are drawing large, raucous crowds that cheer their every word, much the way Trump’s crowds did in past elections, when he was more energetic and his act wasn’t quite so stale.

Trump, meanwhile, seems reluctant to leave home. He has settled into a schedule of two rallies a week, appearing only eight times in the month since the Republican Convention. Harris, by contrast, recently spoke to seven rallies in five days, and has made her way towards the Democratic convention on a bus that stopped in numerous small towns in Pennsylvania. Instead, Trump held news conferences at his Mar-a-Lago home and his Bedminster golf club, as well as an online interview with centibillionaire Elon Musk.

For obvious reasons, the media prefers Trump’s approach, even though it seems to be working badly for him. Harris has been surging in the polls, and now leads Trump in all the national polling averages (RCP, 538, NYT, Economist), as well as in recent polls of most swing states. While Biden’s hopes for Electoral-College victory followed only one shaky path (Wisconsin, Michigan, Pennsylvania — where he was behind, but usually within the margin of error), Harris is also ahead or very close in Georgia, Arizona, Nevada, and even North Carolina. She is unlikely to carry Ohio or Florida, but is running strong enough that Republicans will have to actively defend those once-safe states.

Nonetheless, the media holds that it is Harris who needs to change her strategy. She “must speak to the press” and “needs to present her ideas” by answering press questions. Otherwise she’s running a “no-substance campaign“. She needs an Issues page on her campaign website, filled with white papers proposing specific policies that can be analyzed and critiqued in the media (because that worked so well for Hillary Clinton).

All this lines up with a vision of democracy I grew up believing: The press represents the People. Reporters use their access to ask the questions that voters want answered. When they demand answers, it is because the People need those answers. Ignoring the press means ignoring the voters, which the voters will resent.

And sometimes, the press is an older, wiser aunt or uncle to the voters. Reporters have the time to study issues and become experts in them, so they ask questions that the voters would ask, if they knew more. While voters may get distracted by the flash and gimmickry of a campaign, the press will stay focused on what’s truly at stake.

Quite likely you are laughing now, or at least smiling, at my younger self’s naivety. Because if the press ever filled such a role, it hasn’t for a very long time. James Fallows was already diagnosing the problem in his 1996 book Breaking the News: How the Media Undermine American Democracy. Rather than raise the questions the voters are or should be asking, the press covers elections like sporting events: Who’s ahead? What is each team’s strategy? How likely is that strategy to work? Or (like trouble-making junior high gossips) they try to get one candidate to say something nasty about the other, which they can take to the other candidate and (hopefully) get something nasty in response.

None of that is what wavering voters want or need to know. None of it helps the electorate imagine how a future Smith or Jones administration will affect their lives.

For example, look at what reporters asked about when they did get access to Harris: her plans to debate Trump, and what she thought of Trump’s criticisms of herself or Tim Walz. Not a word about taxes or inflation or competing with China or climate change or abortion.

And why would Harris sit down for an extended interview with a “neutral” journalist, when she has just seen how un-neutrally journalists treated President Biden? After his disastrous debate with Trump, Biden tried to prove his mental competence by meeting with ABC’s George Stephanopoulos. Stephanopoulos could have simultaneously tested Biden’s mind and served the public interest by asking a wide range of questions that would force the President to jump from one serious issue to the next: Ukraine, the economy, voting rights. Instead, he spent 22 minutes badgering Biden with different versions of the same question: What would have to happen for Biden to drop out of the race?

When Biden held a press conference after the NATO summit, and demonstrated his deep and detailed knowledge of problem areas around the world, headlines the next day focused on moments when he said the wrong name, and on his “defiant” insistence on staying in the presidential race. (Who was he defying, exactly?)

Trump, meanwhile, has the media tamed. After years of insults and abuse, the “fake news media” doesn’t even try to ask follow-up questions that challenge his false claims. Whatever he says is just “Trump being Trump”.

Saturday, for example, Trump appeared not to know what state he was in. At a rally in Wilkes Barre, Pennsylvania, he asked the crowd: “Would that be OK, North Carolina?” If Biden had done that a few weeks ago, it would have been a banner headline. But CNN , the NYT, and the WaPo didn’t find Trump’s confusion worth mentioning. (Robert Reich claims to have asked reporters why they don’t cover “Trump’s malfunctioning brain”. They reply that it’s old news.)

Post-event fact-checking has its place, but the checks never catch up to the lies, because far fewer people see them. NPR fact-checked Monday’s Mar-a-Lago press conference and found 162 lies and distortions delivered in 64 minutes — approximately one every 24 seconds. But the news networks had given Trump free air time to spew those lies with no real-time corrections. He took full advantage by telling the millions of viewers these howlers:

  • Willie Brown told him “terrible things” about Kamala Harris, which Brown would do because Trump knows him “very well” after they “went down in a helicopter” together. (This entire story is a fantasy. Three decades ago, Trump shared an emergency helicopter landing with a different Black politician who has not discussed Harris with him.)
  • “Millions” of people are coming to America from other countries’ “prisons, from jails, from mental institutions”.
  • Harris replacing Biden as the Democratic candidate is “unconstitutional”.
  • His January 6 crowd was larger than the crowd that heard Martin Luther King’s Dream speech.
  • Reversing Roe v Wade is what “everybody” wanted: “That’s Democrats, Republicans and Independents and everybody, liberals, conservatives, everybody wanted it back in the States, and I did that. … I’ve done what every Democrat and every every Republican wanted to have done.”
  • An electric truck is “two-and-a- half times heavier” than a gas-powered truck.
  • Democrats want to allow abortions after birth.
  • He was “very protective” of Hillary Clinton. “They used to say, lock her up, lock her up. And I’d say, just relax, please.” (You remember that, don’t you?)

Check NPR’s article for why none of that is even close to being true.

But in fact Trump’s Potemkin press conferences are even worse than just the specific lies, in ways you can only appreciate if you watch the whole video or read the whole transcript. Because in the entire 64 minutes, there was not a single speck of useful information.

When he wasn’t lying outright, he was making claims about the parallel universe where he was reelected in 2020. Everything is perfect there: There was no post-Covid inflation. Putin didn’t invade Ukraine. Hamas didn’t attack on October 7. Iran folded under the pressure of his sanctions and ended its nuclear program. That’s why he doesn’t need to tell us how he would deal with these situations, because none of them ever would have happened if he were still president.

Or he was predicting disaster without offering any explanations: We’re on the verge of “a depression of the 1929 variety”. Simultaneously, “we’re very close to a world war”. If Harris becomes president “It’s going to be a failure the likes of which this world has never seen.”

Or he was testifying to things that (even if they were true) he couldn’t possibly know: President Biden “is a very angry man right now. He’s not happy with Obama and he’s not happy with Nancy Pelosi.” (Does Biden call him late at night and confide his deepest thoughts?)

Or he was throwing around value judgments unmoored from any standards: Biden is the worst president in US history. Harris is the worst vice president, and also “the most unpopular” (though she’s kicking his butt in the polls). She is “a radical left person” and also “the worst Border Czar” (a position that has never existed). Nancy Pelosi is “crazy”. Kamala Harris and Gavin Newsom “destroyed San Francisco” and “destroyed the state of California”. “We have a very sick country right now.” Josh Shapiro (whose approval/disapproval rating is at +18) “is a terrible guy and he’s not very popular with anybody.” Tim Walz is “heavy into the transgender world”.

In short, he said nothing of any news value, and nothing that would help a voter picture his life in a second Trump administration. The “press conference” was a string of take-it-or-leave-it assertions, a naked attempt to overpower voters’ thought processes rather than convince them of anything.

But you would not grasp any of that from the news stories written about the event. The Hill described it as “long and characteristically rambling”, i.e., Trump being Trump.

After the Mar-a-Lago press conference, Lawrence O’Donnell called out his colleagues in a rant that is well worth watching in its entirety. He began by questioning why a network (especially his own MSNBC) would put Trump on the air to say whatever he wanted without live fact-checking. But then he unloaded on the whole Trump/Harris comparison:

There are rumblings now in the news media about Kamala Harris as a presidential candidate not doing what Donald Trump did: stand in front of reporters today and take their questions. And some of the tiny minds in the news media continue to give credit to Donald Trump for standing up and lying in response to every single question they ask. A lie is not an answer. Donald Trump never answers reporters’ questions. Anyone in the news media that tells you Donald Trump has answered reporters’ questions and Kamala Harris hasn’t is lying to you. And they are too stupid to know they are lying to you because they don’t know what an answer is.

Trump has no policy proposals worth mentioning. The RNC platform promises that he will end inflation “very quickly”, but gives no hint as to how. He has said he would end the Ukraine war in 24 hours, but again, that sound bite is the whole of his stated policy on the topic.

Or at least, he has no proposals he will admit to. Project 2025 is full of detailed policy for a second Trump administration, but its proposals are unpopular, so Trump denies it, despite a recently-revealed undercover video in which Project 2025’s Russell Vought gave his pitch to British journalists that he thought were prospective donors. Vought dismissed Trump’s denials as “graduate-level politics”, and noted that Trump is “not even opposing himself to a particular policy”.

But Project 2025 never came up during the Mar-a-Lago press conference, and Trump faces no general demand from the press for policy details. Only Harris does.

The liberal blogosphere is having none of this. Jeff Tiedrich imagines what Harris will be asked when she finally does hold a press conference:

let’s imagine that Kamala agreed to hold a presser tomorrow. we all know what would happen: it would devolve into a shit-show. the press would waste everyone’s time — and drop our collective IQ by three points — by asking worthless questions.

“Madam Vice President, Donald Trump says you only recently became Black. what is your response?”

who fucking cares? what fresh insight could possibly be gained by asking these kinds of questions? what’s Kamala going to say, that Donny’s a racist lunatic? we already know this. what would be the point of bringing up the toxic sludge that oozes out of Donny’s rancid anus-mouth?

He predicts further questions of similar heft, all based on Republican talking points that have nothing to do with reality and nothing to do with what voters want to know.

Justin Rosario adds:

I want to be super clear: The press is demanding Harris give them access so they can:

A. Badger her with stupid questions

B. Generate soundbites they can take out of context

C. Try to catch her with gotcha questions

D. Use A-C to undermine her campaign because Donald Trump is imploding at light speed and their precious horse race is threatened.

The only useful suggestion I’ve heard from the mainstream press comes from the WaPo’s Perry Bacon. He begins by invoking the old-time religion of the press’ role in democracy:

Harris is making a mistake. She should be doing interviews and other engagements with journalists, in recognition of their important role in democracy.

But after more-or-less acknowledging that reporters haven’t been playing that role and probably can’t be trusted to do so in the future, he does contribute one good idea: Continue ignoring mainstream political reporters (like Bacon himself), but do interviews with “wonky” journalists who specialize in particular areas, like foreign policy, economics, or the environment.

This makes sense to me. CNN or the Wall Street Journal may be eager to ask Harris inside-baseball questions about polls or her response to ridiculous Trump accusations (like what she’ll do about his mythical “migrant crime wave” or whether she supports abortion-after-birth), but Grist would undoubtedly want to know substantive things about her approach to climate change, while Foreign Policy would be curious about how her approach to Iran or Israel might differ from Biden’s. A reporter who specialized in immigration policy — even one from the NYT or the WaPo — would already know that she was never “Border Czar”, understand the details of the bipartisan border bill Trump had his allies block in Congress, and ask meaningful questions about how to help local governments whose resources are being stretched by the inflow of migrants.

Unlike general press conferences or one-on-ones with the likes of Stephanopoulos, those interviews actually could serve democracy. It might be worth a try.

By weeklysift | Posted in Articles | Also tagged | Comments (20)

The Two Kinds of Unity

July 22, 2024 – 9:34 am

Unity can arise in two very different ways: when a group of equals recognize their common interests and purposes, or through dominance and submission. Guess which kind of unity Trump called for Thursday night.

Shortly after Donald Trump’s ear was barely grazed by a bullet, piece of shrapnel, or whatever it was, he announced that he was rewriting his convention speech to call for Unity.

It is a chance to bring the country together. I was given that chance.

The media dutifully reported this intention, imagining, as they so often do, that Trump was about to mature and become presidential. Friday morning, some headlines around the country echoed Trump’s call for unity, as if he had actually made one. Parker Malloy collected the evidence:

She commented:

The notion of a Trump “pivot” is as old as his political career. Since 2015, the media has repeatedly predicted — and prematurely celebrated — moments when Trump supposedly transformed into a more measured, presidential figure. These predictions have consistently proven to be mirages, disappearing as quickly as they formed.

When the mainstream media realized the speech wasn’t what they had predicted, they started interpreting it as two speeches at war with each other (which at least would explain why it was twice as long as a typical acceptance speech).

The “new” Donald Trump soothed and silenced the nation for 28 minutes last night. Then the old Trump returned and bellowed, barked and bored America for 64 minutes more.

This interpretation is misguided. Trump gave one speech, with a single theme: unity, but not the kind of unity politicians in a democratic republic usually call for.

Pundits misinterpret Trump when they refuse to recognize what he is: a sociopath. As such, Trump has no concept of what we usually mean by national unity: A broad consensus of citizens coming to recognize their common interests and purposes, and using that recognition to put aside their previous conflicts and mutual distrust.

The most obvious examples of unity in our history come after shocking disasters like Pearl Harbor or 9-11. Republicans did not instantly find love in their hearts for FDR, and Democrats similarly did not love W. But they recognized that all Americans faced a common threat and needed to move with a common purpose.

Admittedly, moments like that are rare, and the attempted assassination of Trump didn’t rise to that level. But nonetheless there are common purposes Trump could have invoked and built on.

Hardly anyone likes the level of hostility that currently exists in American politics. We’ve fallen a long way from that moment in the 2008 campaign when John McCain corrected a questioner who said she couldn’t trust Barack Obama because “he’s an Arab”.

“No ma’am,” McCain politely but firmly replied, “He’s a decent family man, a citizen, who I just happen to have disagreements with on fundamental issues. And that’s what this campaign is all about.”

We’re also past the moment that same year when then-Speaker Nancy Pelosi and former Speaker Newt Gingrich made an ad together about addressing climate change.

Nonetheless, there is still a lot to build common cause around. A substantial majority of Americans in each party want our children to get educated, and to be able to find productive places in a prosperous economy. We want our basic infrastructure — roads, electrical power, communications, etc. — to work flawlessly. We want clean water and breathable air. We want sick people to get care and old people to live their final years in dignity. We want to be safe from crime. We want to live in peace. We want our country to do well in international competition, and not to fall behind China (or anyone else) either economically or militarily. We want to help our fellow Americans when natural disasters strike. We want to be able to take pride in our country, and to believe that oppressed people around the world see us as a beacon of hope.

We often lose sight of these common intentions, but we shouldn’t. How to accomplish any of these goals leads to serious arguments — like whether the government or the market should take the lead — many of which are hard to resolve. So there would still be plenty of room in our politics for “disagreements on fundamental issues”. But there is a lot to build unity around, if we would choose to do so.

Donald Trump, however, doesn’t live in a world where that kind of unity is possible, or even makes sense. To a sociopath, all relationships are built around dominance and submission. In every interaction, somebody wins and somebody loses. Win/win is just not a thing.

This view runs far deeper than just his politics. The Art of Deal, for example, is about winning every negotiation, not about building mutually beneficial long-term relationships with clients, employees, or suppliers. He often refused to pay small contractors who worked on his casinos and clubs, or he bullied them into taking less than their contracts called for. (They will never deal with him again, but so what? He won.) The background for his recent fraud trial was that banks would no longer offer him competitive rates without special guarantees, which he verified through false documentation.

Or take a look at his cabinet picks from 2017: Mike Pence, Rex Tillerson, Jim Mattis, Steve Mnuchin, Jeff Sessions, Mike Pompeo, Ryan Zinke, Sonny Perdue, Wilbur Ross, Alexander Acosta, Tom Price, Ben Carson, Elain Chao, Betsy DeVos, Rick Perry, John Kelly, David Schulkin, Nikki Haley, Scott Pruitt, Mick Mulvaney, Robert Lighthizer, Linda McMahon, and Andrew Puzder. Forget about whether any of them will serve again should he be reelected; how many of them are even supporting him now? Why did he even need a new vice president?

Trump doesn’t do mutually beneficial relationships that build trust over time. He uses people until their usefulness is exhausted, then he discards them as “losers” or denies that he ever really knew them.

Similarly, NATO has never made sense to him, because it’s about countries banding together for mutual protection. In his mind, though, if we’re not taking advantage of them, they must be taking advantage of us. Many of the fantasy sir-stories he tells during his rallies are about him expressing dominance and other world leaders submitting. Here’s one in his convention speech:

For years and years when I first came in, they said President Obama tried to get [gang members we wanted to deport] to go back and [other countries] wouldn’t accept them. They’d put planes on the runway so you couldn’t land the plane. They’d close the roads so you couldn’t take the buses; they’d all have to turn back.

As soon as I said no more economic aid of any kind to any country that does that, they called back and they said, “Sir, it would be our great honor to take M.S. 13. We love them very much. We love them very much, sir. We’ll take them back.”

He reinterprets his greatest diplomatic blunder — tearing up the Obama agreement that would have kept Iran from getting nuclear weapons, then utterly failing to get the “better deal” he said was possible — as simply not having enough time for his attempted domination to take effect. (Because of course the country that was willing to lose hundreds of thousands of soldiers in its war with Iraq would crumble under his economic threats.)

I told China and other countries, “If you buy from Iran, we will not let you do any business in this country, and we will put tariffs on every product you do send in of 100 percent or more.” And they said to me, “Well, I think that’s about it.” They weren’t going to buy any oil. And they were ready to make a deal. Iran was going to make a deal with us.

And then we had that horrible, horrible result that we’ll never let happen again. The election result. We’re never going to let that happen again. They used Covid to cheat. We’re never going to let it happen again. And they took off all the sanctions, and they did everything possible for Iran and now Iran is very close to having a nuclear weapon, which would have never happened.

Because to Trump, that’s what relationship is all about: dominance and submission. If you’re not the predator, you’re the prey.

So it should have been immediately obvious what kind of national unity Trump would call for in his convention speech: If you’ve been resisting his dominance, it’s time for you to recognize that you’re beaten and submit.

The opening part of Trump’s speech, the 28 minutes Axios liked, sounded like common-purpose unity, if that’s what you were primed to hear.

I stand before you this evening with a message of confidence, strength and hope. Four months from now, we will have an incredible victory, and we will begin the four greatest years in the history of our country.

Together, we will launch a new era of safety, prosperity and freedom for citizens of every race, religion, color and creed.

The discord and division in our society must be healed. We must heal it quickly. As Americans, we are bound together by a single fate and a shared destiny. We rise together. Or we fall apart.

I am running to be president for all of America, not half of America, because there is no victory in winning for half of America.

But it is also consistent with the sociopathic unity of dominance and submission, as the second part of the speech made clear. He wasn’t reaching out to the other half of America, he was demanding its surrender.

And we must not criminalize dissent or demonize political disagreement, which is what’s been happening in our country lately, at a level that nobody has ever seen before. In that spirit, the Democrat party should immediately stop weaponizing the justice system and labeling their political opponent as an enemy of democracy. … If Democrats want to unify our country, they should drop these partisan witch hunts, which I’ve been going through for approximately eight years. And they should do that without delay and allow an election to proceed that is worthy of our people. We’re going to win it anyway.

He lamented what has been happening to his sons, who were fellow defendants in the fraud lawsuit that he lost (because a jury of ordinary Americans found that he and his sons committed fraud).

[Eric is] such a good young man. He went through a lot of trouble, and Don, last night, was incredible. They went through so much trouble. They got subpoenaed more than any people probably in the history of the United States. Every week they get another subpoena from the Democrats. Crazy Nancy Pelosi, the whole thing. Just boom, boom, boom.

They’ve got to stop that because they’re destroying our country. We have to work on making America great again, not on beating people. And we won. We beat them in all. We beat them on the impeachments. We beat them on the indictments. We beat them. But the time that you have to spend, the time that you have to spend. If they would devote that genius to helping our country, we’d have a much stronger and better country.

Got that? Everyone has to stop focusing on beating people, but I beat you. You don’t win; I win. So stop trying to make me obey laws or holding me accountable for my crimes. Submit. And then our country can move forward in unity.

If we do that, if we submit to Trump, he offers the vision that he can become powerful enough to dominate others on our behalf.

For too long, our nation has settled for too little. We settled for too little. We’ve given everything to other nations, to other people. You have been told to lower your expectations and to accept less for your families.

I am here tonight with the opposite message: Your expectations are not big enough. They’re not big enough. It is time to start expecting and demanding the best leadership in the world, leadership that is bold, dynamic, relentless and fearless. We can do that.

We are Americans. Ambition is our heritage. Greatness is our birthright.

But as long as our energies are spent fighting each other, our destiny will remain out of reach. And that’s not acceptable. We must instead take that energy and use it to realize our country’s true potential — and write our own thrilling chapter of the American story.

Trump closed by recalling past American glories.

Together, these patriots soldiered on and endured, and they prevailed. Because they had faith in each other, faith in their country, and above all, they had faith in their God.

Just like our ancestors, we must now come together, rise above past differences. Any disagreements have to be put aside, and go forward united as one people, one nation, pledging allegiance to one great, beautiful — I think it’s so beautiful — American flag.

But you will search this text in vain to find any indication that Trump himself is putting aside past differences. He’s still talking about “crazy Nancy Pelosi” and refusing to recognize any positive purpose (like mitigating climate change or trying to limit Covid deaths) that Biden might have been trying to achieve with his policies. And if you don’t share “faith in their God”, well, you just don’t count.

Even Sunday, after Biden withdrew from the race, Trump could not be gracious, and continued to lie about Biden and his record.

Crooked Joe Biden was not fit to run for President, and is certainly not fit to serve – And never was! He only attained the position of President by lies, Fake News, and not leaving his Basement. All those around him, including his Doctor and the Media, knew that he wasn’t capable of being President, and he wasn’t – And now, look what he’s done to our Country, with millions of people coming across our Border, totally unchecked and unvetted, many from prisons, mental institutions, and record numbers of terrorists. We will suffer greatly because of his presidency, but we will remedy the damage he has done very quickly.

So no, putting aside differences is not for him, it’s on me and on you. We just need to get in line and submit. Only then will America have the kind of unity Trump wants.

There is a word for this kind of unity, but not an English word: gleichschaltung. It’s an old German engineering term, for when you wire a bunch of electrical circuits together under a common master switch. It got applied to German politics in 1933, for reasons that you may recall from history books.

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The Immunity Decision: End of the Republic or No Big Deal?

July 8, 2024 – 8:38 am

Should we “fear for our democracy”, or is that reaction
“wholly disproportionate to what the Court actually does”?

In their dissents in the Trump immunity case, Justice Sonya Sotomayor explicitly expresses “fear for our democracy” and Justice Ketanji Brown Jackson warns that “the seeds of absolute power for Presidents have been planted”. But in his majority opinion, Chief Justice John Roberts dismisses such concerns:

As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today

So who is right? In granting Donald Trump nearly all the immunity he asked for, did the Court “reshape the institution of the Presidency” and “make a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law”, as Sotomayor claims? Or did it simply make explicit principles that since the Founding have been implicit in the separation of powers and in Article II’s concise “The executive Power shall be vested in a President of the United States of America”?

I won’t leave you in suspense: Sotomayor and Jackson are right. Roberts and the conservative majority have embedded a time bomb in the Constitution. That bomb could sit peacefully for decades until it is disarmed by some future Court, or it could go off as soon as next January.

What is this case about? Trump v United States arises from the indictment being prosecuted against Donald Trump (now a private citizen) in regard to his attempt to hang onto power by fraud and force after being defeated in the 2020 presidential election. While it is often referred to as “the January 6 case”, the indictment presents the January 6 riot not as a one-day event, but in the context of Trump’s months-long attempt to delegitimize the election that he lost and monkeywrench the usual constitutional and procedural processes that lead to the peaceful transfer of power.

The first steps of that effort were lawful, as Trump and his allies filed many dozens of lawsuits to challenge the election results in various states. These suits were routinely swatted down by courts that demanded evidence commensurate with Trump’s outlandish claims of fraud and procedural malfeasance, as well as his calls for unprecedented responses to those claims. He had no such evidence to present, and no further evidence has emerged in the subsequent years.

From there, Trump pressured state and local election officials to refuse to certify the election results. Up to a point, this too might have been lawful, as any candidate for office might suggest that officials look into election procedures he found suspicious. But much of it seemed to cross a line, as when Trump pressured Georgia Secretary of State Brad Raffensperger to “find” the votes he needed to win Georgia, and suggested Raffensperger could be prosecuted if he didn’t.

Trump then tried to leverage the authority of the Justice Department, by having DoJ write letters to legislatures in states that Trump lost, falsely claiming that an investigation had found fraud in their elections and suggesting that they hold special sessions to replace the Biden electors the voters had chosen. Justice Department officials refused, and threatened to quit en masse if Trump appointed a puppet attorney general to send such letters.

The next step was to recruit fake electors who would present fraudulent papers to Congress claiming that their votes for Trump were the official Electoral College votes for their state, allowing either Vice President Pence or Congress as a whole to declare either that Trump had won or that the result of the election was unclear, initiating constitutional chaos that he hoped to turn in his favor.

As part of his pressure campaign on Vice President Pence and Congress, Trump assembled a mob on January 6 and sent them to the Capitol. They proceeded to battle police (injuring more than 100), invade the Capitol, and send members of Congress (and the vice president) running for their lives. While this was happening, Trump watched the riot on television, refusing for hours either to ask the rioters to go home or to call out the national guard to restore order.

The legal process. After many delays, this case was nearly ready to go to trial when Trump’s lawyers claimed the indictment was unlawful because the former president had “absolute immunity” from prosecution for any actions taken during his term in office. Special Prosecutor Jack Smith, recognizing the likelihood that the question would go to the Supreme Court eventually and hoping to get the trial done before the fall election, asked the Court to take the case on an expedited basis in December. They refused.

The case then went through the ordinary process, with every judge involved rejecting Trump’s immunity claim. For example, a unanimous three-judge panel from the D.C. Circuit Court of Appeals declared on February 6:

For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

Most court-watchers and legal scholars found the appellate court ruling compelling, and many expected the Supreme Court to let it stand without a further hearing. When the Court did take up the case two weeks later, even court-watchers skeptical of the conservative majority’s motives saw the move simply as an attempt to aid Trump by delaying his trial past the election. [1] The Court’s scheduling — hearing arguments in April on the last day for hearing arguments and announcing the results on the last day of the term in July — seemed to confirm that suspicion. Right up to the decision’s announcement on July 1, few anticipated that the Court might find in Trump’s favor.

But they did.

What did the Court decide? As far back as the oral arguments in April, it was clear that the Court was going far afield from the case the appellate court had considered. Both the appellate court and the district court had focused the case in front of them: Trump’s claim of immunity for the acts alleged in the grand jury’s indictment. But the conservative justices showed little interest in the details of what happened on January 6 or the events that led up to that riot. Instead, they discussed abstract theories about executive power and elaborate hypothetical situations bearing no resemblance to the case at hand. [2]

So instead of a decision on whether the case against Trump should move forward, the conservative justices (excluding Barrett on at least one key point we’ll get to) laid out the following theoretical framework.

  • There is absolute immunity “with respect to the President’s exercise of his core constitutional powers”.
  • Presidents also have “at least presumptive immunity” for all other official acts “unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch’.” [The internal quote is from Nixon v Fitzgerald, which will come up a lot]
  • There is no immunity for “unofficial acts”, but prosecuting even these acts might be difficult, given that “courts may not inquire into the President’s motives”, and official acts cannot even be presented “as evidence in a criminal prosecution of a President”. [3]

The Trump case will be sent back to the District Court so that Judge Chutkan can apply the Court’s principles to the indictment.

How does Roberts justify this ruling? Not very well, and not at all consistently with the conservative majority’s “originalist” or “textualist” philosophy. As Sotomayor points out:

It seems history matters to this Court only when it is convenient.

Criminal immunity for the president is mentioned nowhere in the Constitution, in spite of the fact that (as Sotomayor points out) at the time several state constitutions gave immunity to their governors. So it’s unlikely this significant provision just slipped the Founders’ minds. It also appears nowhere in American history, and some historical events make no sense if criminal immunity is assumed. (Why, for example, did President Ford offer Richard Nixon a pardon, and why did he accept it?) In justifying his vote not to impeach Trump for January 6, Mitch McConnell said:

President Trump is still liable for everything he did while he was in office as an ordinary citizen, unless the statute of limitations is run, still liable for everything he did while he’s in office. He didn’t get away with anything yet — yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.

At the time, this point was not considered controversial. Trump’s own lawyer had told the Senate

If my colleagues on this side of the chamber actually think that President Trump committed a criminal offense, and let’s understand, a high crime is a felony, and a misdemeanor is a misdemeanor. The words haven’t changed that much over time. After he’s out of office, you go and arrest him.

Literally no one in America [4] believed in presidential criminal immunity until Trump raised the issue in his recent trials.

Roberts’ main argument is that if the the president is subject to future prosecution he might “be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive”. He projects this opinion into the minds of the Founders by quoting Alexander Hamilton and George Washington lauding “vigor” and “energy in the executive” as an advantage the new Constitution offered over the old Articles of Confederation. However, he gives us no quotation in which this “energy” is connected to immunity from prosecution (because there is none).

Sotomayor writes:

In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.

Lacking any support in the text of the Constitution or American history, Roberts rests most of his argument on the precedent Nixon v Fitzgerald, the source of that “bold and unhesitating action” quote, in which the court ruled that presidents were immune from civil litigation based on their official acts. Roberts repeatedly quotes Fitzgerald, largely ignoring one substantial difference between civil suits and criminal indictments: Anyone can file a lawsuit, which (until a trial is held) is a “mere allegation” (as Fitzgerald puts it and Roberts quotes). But a criminal indictment comes from an impartial grand jury, and deserves considerably more respect. It easy to imagine an ex-president being peppered with thousands of frivolous lawsuits. But if multiple grand juries are finding probable cause that a president committed crimes, that seems like a more serious situation.

Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. … Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect.

Again, the quote is from Fitzgerald, as if a grand jury indictment were simply an allegation.

The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.

But this problem never occurred before Trump, who both committed multiple crimes in office and now threatens to gin up sham prosecutions against President Biden, should he regain power. This is not a structural problem in American government; it’s the consequence of one man’s vices.

Sotomayor responds:

The majority seems to think that allowing former Presidents to escape accountability for breaking the law while disabling the current Executive from prosecuting such violations somehow respects the independence of the Executive. It does not. … [T]he majority believes that a President’s anxiety over prosecution overrides the public’s interest in accountability and negates the interests of the other branches in carrying out their constitutionally assigned functions. It is, in fact, the majority’s position that “boil[s] down to ignoring the Constitution’s separation of powers.”

Roberts three-part division. Roberts sketches out three zones: absolute immunity, presumptive immunity that can be overcome in certain situations, and no immunity. How much comfort should this system give us?

Not much, in my opinion. The need for a very small zone of protection appears in our history: Congress shouldn’t be able to make laws that restrict a president’s constitutional powers, and then try to prosecute him for violating those limits. This happened after the Civil War, when Congress made a law preventing President Andrew Johnson from firing cabinet officials, and then impeached him for breaking it. We can easily imagine Congress restricting the pardon power, say, by banning a president from pardoning members of his family or his administration. If he did so anyway, a subsequent administration might prosecute him. A court would be justified in tossing out such prosecutions before trial.

Sotomayor finds this kind of immunity irrelevant to the current case.

In this case, however, the question whether a former President enjoys a narrow immunity for the “exercise of his core constitutional powers,” has never been at issue, and for good reason: Trump was not criminally indicted for taking actions that the Constitution places in the unassailable core of Executive power. He was not charged, for example, with illegally wielding the Presidency’s pardon power or veto power or appointment power or even removal power. Instead, Trump was charged with a conspiracy to commit fraud to subvert the Presidential election

But Roberts’ zone of absolute immunity is much larger, and includes immunity for everything a president might do with his core powers. In the current case, this blows away the part of the indictment where Trump attempted to induce the Justice Department to send that false letter to the Georgia legislature.

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

Testimony about such discussions cannot even be used to inform a jury’s evaluation of a president’s unofficial actions.

If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated.

Again, the quote is from Fitzgerald, who was talking about civil lawsuits, not criminal charges. Again, this removal of any “scrutiny” is where Barrett diverged from Roberts. [3]

In the zone of presumptive immunity, the presumption is almost impossible to overcome. The prosecution must “pose no ‘dangers of intrusion on the authority and functions of the Executive Branch’.” Sotomayor notes that this is a much higher bar than any precedent can justify.

No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be “justified by an overriding need to promote objectives within the constitutional authority of Congress.” [Nixon v. Administrator of General Services]. Other intrusions may be justified by the “primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” [United States v. Nixon] According to the majority, however, any incursion on Executive power is too much. When presumptive immunity is this conclusive, the majority’s indecision as to “whether [official-acts] immunity must be absolute” or whether, instead, “presumptive immunity is sufficient,” hardly matters.

And then we come to the “no immunity for unofficial acts zone”. If a president were to sexually assault a woman, maybe “grab her by the pussy”, say, that would presumably be an unofficial act for which he could be prosecuted.

But even here, we run into a president’s prerogative to use his official powers to obstruct justice. Recognizing his legal exposure, a president might order federal officers to destroy evidence, or even kill the woman before she could report the crime. He might then pardon the officers who carried out this order. These would be official acts, and so completely immune from prosecution.

Chilling doom. Justice Jackson’s dissent lays out how the fundamental structure of our government has changed: The executive and judicial branches gain power and Congress loses power. The very vagueness of the current decision empowers the Supreme Court to decide what presidential behavior is or isn’t permitted.

[T]he majority does not—and likely cannot—supply any useful or administrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II does not contain a Core Powers Clause. So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess. … [T]he Court today transfers from the political branches to itself the power to decide when the President can be held accountable. What is left in its wake is a greatly weakened Congress, which must stand idly by as the President disregards its criminal prohibitions and uses the powers of his office to push the envelope, while choosing to follow (or not) existing laws, as he sees fit. We also now have a greatly empowered Court, which can opt to allow Congress’s policy judgments criminalizing conduct to stand (or not) with respect to a former President, as a matter of its own prerogative.

She also hints at the likely partisan applications of this power.

Who will be responsible for drawing the crucial “ ‘line between [the President’s] personal and official affairs’ ”? To ask the question is to know the answer. A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents

And finally, Sotomayor takes the long view:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

With other safeguards stripped away, the only protection the people have is their own vote, for a long as that is allowed and recognized. We must elect only presidents of high character who will not use the “loaded weapon” this Court has provided. Because once presidents are in power, little can be done to constrain them.

[1] Here’s Slate’s Dahlia Lithwick and Mark Joseph Stern on February 6:

The question is not whether a majority will ultimately agree with Trump (it won’t) but whether a majority will abet Trump’s efforts to run out the clock (it might).

[2] The faux humility of Roberts’ opinion sometimes reads like a bad joke.

the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. Because we need not decide that question today, we do not decide it.

In reality, the only thing the Court needed to decide is what should happen to the current indictment. Roberts’ whole opinion is a gratuitous exercise in judicial overreach. But no, after much theorizing about situations that may or may not ever occur, the specifics of this case are what get punted back to the lower courts for another yo-yo ride of decisions and appeals that can waste months or maybe years.

[3] This is where Justice Barrett leaves the conservative bloc, giving this example:

Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.

In other words, in this hypothetical bribery case, a jury could only hear about the bribe, and couldn’t be told what the president did to earn the bribe. Did he commute the last month of a dying man’s prison sentence, or did he give terrorists a nuclear weapon? Sorry, jurors, but we can’t tell you.

Barrett’s dissent has even more significance when you consider that both Thomas and Alito should have recused themselves from this case: Thomas because his wife could be a material witness, and Alito because the flags flying over his two houses raise legitimate concerns about his impartiality.

Do the math: Barrett should have been the swing vote in a 4-3 decision, and her dissent should have been the majority opinion.

[4] No one, perhaps, beyond Richard Nixon, who told David Frost “when the president does it … that means that it is not illegal.” Prior to the current case, this quote had widely been considered horrifying. Now, in most cases, it is the law.

By weeklysift | Posted in Articles | Also tagged | Comments (10)

Defending American Values: Trial by Jury

April 22, 2024 – 8:52 am

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?

Rep. Byron Donalds (who a few months ago was in the running to be Speaker of the House) similarly denied that there was any need for jurors to listen to the prosecution’s case:

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?

Maybe. But I doubt it.

By weeklysift | Posted in Articles | Also tagged | Comments (12)

Catching up on Donald Trump

January 8, 2024 – 9:31 am

As always, a lot of news during the last three weeks centered on Donald Trump. The main themes were

  • whether the 14th Amendment bans him from holding office again,
  • the partial report on the millions he received from foreign governments while he was president
  • mainstream media still hasn’t figured out how to cover Trump
  • campaign odds and ends

Let’s take those in order.

The disqualification argument. So far, Trump has been ruled off the primary ballot in two states: Colorado and Maine. The Colorado Supreme Court ruled him ineligible, as did the Maine Secretary of State. Trump is appealing those rulings and the Supreme Court will ultimately have to decide whether he is qualified to be president again. They plan to hear arguments in February.

The basis of his disqualification is Section 3 of the 14th Amendment, which reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The key legal questions to answer are:

  • Does the attack on the Capitol on January 6, 2021 qualify as an “insurrection”?
  • Did then-President Trump “engage” in this insurrection or “give aid and comfort” to the people who did?
  • Since the presidential oath does not include the word “support”, but does give the president the (arguably stronger) obligation to “preserve, protect, and defend the Constitution”, is an insurrectionist president disqualified?
  • Since the 14th Amendment does not specifically name the president, is the presidency covered by “any office … under the United States”?
  • What kind of legal process is needed to enforce disqualification? Both Colorado and Maine held evidentiary hearings where Trump was allowed to produce evidence that he is qualified. Is that good enough?

When I first heard the disqualification theory raised by retired Judge Michael Luttig and Harvard Law Professor Lawrence Tribe in an Atlantic article in August, I was ambivalent about it, largely because I wasn’t sure what the people who wrote, passed, and ratified the 14th Amendment intended insurrection to mean. All I would say then was:

disqualification is a serious question, and our legal system owes the country a serious answer.

Since then, both the Colorado Supreme Court’s decision and the Maine Secretary of State’s statement have addressed the legal questions with some fairly convincing arguments. The historical context of the term insurrection — remember, conservatives on the Supreme Court claim to be originalists — has been well covered by Ilya Somin, and covered in eye-glazing detail by Mark Graber. So my current opinion is that January 6 was an insurrection, so Trump is not legally qualified to be president again.

I am still open to hearing convincing arguments in the other direction. But what I don’t want to hear are political arguments about whether disqualifying Trump or attempting to disqualify him is a wise course for the nation or for Democrats to take.

Trump frames all the legal proceedings against him — the indictments, the defamation suits, the challenges to his qualifications for office — as political. When we calculate the political advantages and disadvantages of those actions, we validate that frame.

But whether or not the Constitution bans him from holding office again is a question of law, not politics. The whole point of including things in the Constitution is to take them out of politics. If constitutional provisions are subject to politics, then all the rights the Constitution supposedly gives us are up for grabs. Your right to do any particular thing will depend not on the Constitution, but on whether your action is politically popular.

Those who argue that “the people should decide” whether Trump should return to power are advocating that we ignore the Constitution. We didn’t let the people decide whether Barack Obama should be elected to a third term in 2016, when he would probably have beaten Trump. But instead, Obama and the Democratic Party accepted that the 22nd Amendment disqualified him, independent of how much support he had.

Another bad argument is that disqualifying Trump will lead to Republicans trying to disqualify Democratic candidates. This is something we hear constantly: Democrats shouldn’t use a process in good faith because it will inspire Republicans to use the same process in bad faith. (That’s what we’re seeing now with the attempt to impeach Biden as a tit-for-tat response to the Trump impeachments. They can’t even formulate a charge, much less support one with evidence comparable to the evidence against Trump.) If Republicans have legitimate constitutional grounds to disqualify current or future Democratic candidates, they should go for it and let the courts sort it out. But courts are not going to be impressed by “they did it to us” as grounds for disqualification.

The worst argument of all is that disqualifying Trump will anger his supporters, who might respond with an even larger insurrection than January 6. Timothy Snyder, who has written books about how fascist movements take power, calls this a “pitchfork ruling“

How does the rule of law become something else? First comes the acceptance that one person is not subject to the rule of law, for whatever bad reason — that he was in office; that he has violent supporters; that he is charismatic; that we are cowards. Once that move is made, once that hole is opened, the person so sanctified as a Leader has been empowered to change the regime itself, and will predictably try to do so.

In short, I think disqualification is a legal question that deserves a legal answer. Personally, I don’t believe the Supreme Court will disqualify Trump. But I’m eager to find out how they will come to that conclusion: Will they find a plausible argument qualifying him, or will they simply make up an excuse to avoid doing something they don’t want to do? I have often accused the conservative justices of invoking originalism in bad faith, as sophistry that justifies whatever their prior opinions were. They have a chance to prove me wrong here.

Jay Kuo covers the current state of other Trump legal cases, including the second E. Jean Carroll defamation case, which starts a week from tomorrow. Final arguments in the New York civil fraud case, where the state has upped its ask to $370 million, start on Thursday.

Foreign emoluments. From the beginning of his administration — and maybe throughout his entire life — Donald Trump’s attitude towards his legal obligations has been: “Make me.” If a law has no effective enforcement mechanism, he sees no reason to follow it.

During his administration, that attitude showed up in many areas, such as the Hatch Act, which “prohibit[s] federal employees from using their official authority or influence for the purpose of interfering with or affecting elections”. A report issued in November, 2021 by the Office of the Special Counsel found repeated violations of the Hatch Act by 13 Trump administration officials.

[W]ith respect to an administration’s senior-most officials—whom only the president can discipline for violating the Hatch Act—the Hatch Act is only as effective in ensuring a depoliticized federal workforce as the president decides it will be. Where, as happened in the Trump administration, the White House chooses to ignore the Hatch Act’s requirements, there is currently no mechanism for holding senior administration officials accountable for violating the law.

Thursday, we found out about another example of Trump administration lawlessness: violations of the Foreign Emoluments Clause of the Constitution, which prohibits US public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” … “without the Consent of Congress”.

With respect to the President, the Foreign Emoluments Clause is enforced only the impeachment. So a lawless president who can count on the unflinching support of 34 senators can violate it to his heart’s content, which apparently Trump did.

A partial account of the money Trump took from foreign governments while president — at least $7.8 million from China, Saudi Arabia, and others — is the subject of a new report “White House for Sale: How Princes, Prime Ministers, and Premiers paid off President Trump“, written by the Democrats on the House Oversight Committee. The story of how this report came to exist, and why it isn’t the complete accounting we might hope for, is as interesting as the report itself.

At the very beginning of his administration, ethics experts recommended that Trump divest his business interests, particularly the ones that had foreign customers and clients. He refused to do so, and instead made an arrangement for his two adult sons, Don Jr. and Eric, to manage the Trump Organization in his absence, while he retained ownership and ultimate control. So foreign governments could do business that benefited the President (like owning a floor of Trump Tower or running up a big bill at a Trump hotel), the President could know about that business, and the President might subsequently take actions that furthered the interests of those foreign governments (like shielding MBS from the consequences of murdering Jamal Khashoggi).

When the House Oversight Committee (controlled by the House’s Democratic majority from 2019-2023) began investigating his foreign emoluments, Trump fought them at every turn, refusing to turn over documents and fighting subpoenas served to his accounting firm (Mazars) all the way to the Supreme Court. The Court ruled in the Committee’s favor in 2020, and Trump continued to try to limit the scope of the subpoenas in lower courts until an agreement was reached in September, 2022.

This agreement remained in effect only until March 2023, by which time Republicans had regained control of the House. New Oversight Chair James Comer then released Mazars from the agreement and ended the full committee’s investigation. So ultimately, only a fraction of the subpoenaed documents were turned over, only a fraction of Trump’s foreign emoluments were revealed, and the report was issued by the committee’s Democrats alone.

All this raises a question Comer and the Republicans have never answered: Why shouldn’t the public know about the profits Trump made from foreign governments?

This question is particularly appropriate given Comer’s focus on Hunter Biden’s foreign dealings, which he hopes someday to tie to President Biden, but so far has not. Why is it important to determine whether Biden has profited from foreign governments like China, when we already know for a fact that Trump did, and Comer does not care?

Media coverage. Thursday, AP wrote a headline outrageous in its false equivalence: “One attack, two interpretations: Biden and Trump both make the Jan. 6 riot a political rallying cry“. James Fallows commented with this parody:

Abraham Lincoln, Jefferson Davis: Two leaders, two traditions; both making the South’s “peculiar institution” a rallying cry.

Josh Marshall added:

Some headlines, you should look at yourself as a journalist and think I should stop being a journalist.

CNN’s Phil Mattingly responds as a journalist should:

There aren’t in fact two interpretations here. There is what happened, and then there are lies.

AP isn’t alone here. A big chunk of the mainstream media is still covering Trump the way it did in 2016: He says something false, Biden says something true, and the headline is “Two interpretations”. Journalists hate to “take a side”, but a higher priority should be to follow the truth. If the truth has taken a side, you have to follow it.

Promoting this kind of false equivalence is going to be a main thrust of the Trump campaign, and I was disappointed to see George Will — not normally a Trump puppet — echo it. “A Constitution-flouting ‘authoritarian’ is already in the White House” he wrote on Wednesday, citing Biden’s naming as acting head of the National Highway Traffic Safety Administration a woman whom he had been unable to get confirmed by the Senate, as if this were somehow comparable to Trump’s attempt to overturn the 2020 election or his plan to invoke the Insurrection Act on Day 1.

Other odds and ends. On the campaign trail, Trump has adjusted the famous “Are you better off than you were four years ago?” line that Ronald Reagan used against Jimmy Carter in 1980. Instead, he’s asking if you’re better off than you were five years ago. Apparently, his disastrous 2020 doesn’t count. (If you include 2020, Trump’s four-year job-creation total is negative. The economy lost 2.9 million jobs while he was in office.)

Now, I see the logic in giving Trump a mulligan for Covid-related job losses. (Up to a point. One reason the pandemic hit us as hard as it did was that Trump tried to happy-talk the virus away in the early months, and pushed disinformation about “cures” the whole time. Estimates vary wildly, but it’s easy to justify the claim that the cost of his mismanagement in lives-lost runs into the hundreds of thousands.) But if you give Trump a pandemic jobs mulligan, you also have to give Biden a post-pandemic inflation mulligan. Both the unemployment and the inflation were worldwide phenomena that were driven by external forces. As a Biden supporter, I don’t claim Biden would have created jobs during 2020. But Trump supporters almost universally assert — based on nothing — that Trump would have controlled inflation in 2022-23.

In general, dropping Trump’s fourth year down the memory hole allows him to ignore what crappy shape the country was in when the failure of his coup forced him to hand it over to Biden. And once you’ve ignored that fact, Biden’s performance in office doesn’t look nearly as impressive as it has actually been.

Who could have guessed that the Civil War would turn out to be an issue in the Republican primary campaign? It started a few weeks ago with Nikki Haley’s strange inability to say the word “slavery” when some New Hampshire voter at a post-Christmas town hall meeting asked her about the cause of the war. After suffering a day of ridicule, she backtracked and said, “Of course the Civil War was about slavery.” But the damage was done.

Republicans used to ridicule Democrats about “political correctness” when they’d use some strange circumlocution to avoid saying something that would offend part of their base, or appeared not to know what the currently acceptable terminology was. But now the shoe is on the other foot. White supremacists and Confederate apologists are a key part of the Republican base, and candidates have to speak carefully to avoid offending them by hinting, say, that the Confederates were the bad guys in the Civil War. It’s a weird turn of events for the Party of Lincoln, but here we are.

Anyway, Trump got into the act Saturday, saying that he could have avoided the Civil War through “negotiation”. Now this is laughable in one way and downright hilarious in another. The suggestion of negotiation is itself laughable, because Americans as skilled as Henry Clay and Daniel Webster tried to negotiate the slavery issue, continuing efforts that had been going on since the Continental Congress assembled the Declaration of Independence. But slavery was at the center of Southern identity and was “a positive good” according to John Calhoun. All along, the South was clear that it would go to war rather than give up its slaves. Lincoln came into office offering to let Southern states keep their slaves, but to ban slavery only in the western territories. But that wasn’t good enough for the South. So what offer does Trump imagine they would have accepted?

CNN’s Dean Obeidallah looks at Trump’s record of praising Confederates and pandering to White supremacists, and asks a more interesting question:

The question for me is not whether Lincoln could have made a deal that would have made the slave-owning states happy enough to remain in the Union. What I wonder about is which side would’ve Trump sided with in the Civil War: The Confederacy or the United States of America? The track record of a president facing accusations of attempting his own insurrection, which he of course denies, would seem to readily answer that question.

What’s hilarious is the idea that Trump could have negotiated this. If we learned anything during his four years in office, it’s that Trump can’t negotiate anything. North Korea still has nukes, China is still running a huge trade surplus, ObamaCare hasn’t been replaced, he never got out of Afghanistan, he never got the “better deal” he claimed his rejection of the Iran nuclear agreement and the Paris climate accords would lead to, and the Dreamers still have no legal status, just to name a few issues that his mythical deal-making skill was supposed to take care of.

Trump played a great deal-maker on TV. But he’s a terrible deal-maker in reality.

Thursday, a shooter killed one student and wounded several other people, including the principal, at Perry HIgh School in Perry, Iowa. Friday night at a campaign rally in Sioux City Donald Trump said, “It’s just horrible – so surprising to see it here. But we have to get over it. We have to move forward.”

In the immediate aftermath of a shooting, pro-gun people usually claim that it’s “too soon” to discuss doing something about America’s gun problem, or that using public sorrow and anger to promote solutions is “politicizing tragedy”. But in Trump’s new rhetoric, the very idea that something could be done is taken away. Somebody’s kid died needlessly? Get over it.

I did some googling to see how Fox News covered this quote, but I came up empty. Imagine the channel’s 24/7 focus if Biden had said something half this clueless.

By weeklysift | Posted in Articles | Also tagged | Comments (15)