Last week in these pages, I wrote about the longstanding and exceptionally dangerous campaign by the Republican Party to co-opt the American judiciary such that it functions as a column in that organization’s brazen march toward authoritarianism in the USA.

That remains so.

But I would be remiss if I did not note that some elements of that judiciary, including some that Team Trump arrogantly assumed were on its side, stood up this past week and announced that they remain committed to the rule of law. It was a beautiful thing to see. 

We are still a long way from the dream of Trump being held accountable for his actions of the past six years, and indeed his whole miserable life: criminally, civilly, politically, karmically. But these new developments have brought us closer to that outcome. The danger of right wing control of the courts remains; let there be no mistake about that. But it was cheering to see strongholds of integrity and principle making their presence felt. The danger now is that with the legal pincers closing, Trump—desperate, even panicked, and with dwindling options available to him—will lash out in even more extreme and violent ways. Indeed, we have already witnessed that process beginning. Increasingly Trump is finding himself cornered like the rat he is. And there is no more dangerous animal than a cornered rat.

(Caveat: Except a great white shark armed with an RPG.)

DEAR ME

Over a 36-hour period this past week, Trump suffered three significant legal setbacks. 

First, the special master in the Mar-a-Lago documents case, Judge Raymond Dearie, announced that he intended to complete his work by October 7, six weeks ahead of the deadline imposed by Judge Aileen Cannon, the GOP loyalist who granted Trump’s request for his appointment. That was not great for Trump, whose entire spurious plea for a special master was largely just a delaying tactic. 

But things got worse when Dearie got to work and on day one grilled Trump’s lawyers, obliterating their nonsensical argument that there was no proof that the documents seized by the FBI on August 8^th—documents plainly marked as classified, in some cases at the highest level—were in fact classified. Given that this is a civil case and the burden of proof is on the plaintiff, Dearie informed Trump’s attorneys that if they could not offer such proof, he would have no choice but to side with the DOJ. Or as he succinctly put it: “As far as I’m concerned, that’s the end of it.” He also shot down Team Trump’s protest that it didn’t want to say whether or not Trump had indeed declassified any of these documents, as he has repeatedly claimed to the press, because that might compromise a litigation strategy in a potential criminal case. Zeroing in on the inconsistency of these two arguments, Dearie quipped, “You can’t have your cake and eat it too.”

Trump’s lawyers were surely shocked at having to contend with a proper judge, and not a compliant, partisan hack rushed onto the bench by their client in his final days in office. 

In the three days since then, Dearie has continued to deal Trump body blows by demanding that his lawyers back up their client’s outrageous claims that the FBI lied about the documents it seized, and that it planted evidence. Those lawyers thus far have been conspicuously silent, presumably because they don’t wanna be disbarred for lying in court. 

Such straightforward, common sense adjudicating—the polar opposite of Cannon’s openly biased, gymnastically irrational rulings—was bracing to watch. It also made many— myself included—wonder why Trump’s camp proposed Dearie for the job in the first place (and I’ll confess I was equally puzzled why the DOJ was so quick to agree). Now we know: it appears to have been a massive miscalculation about the judge by the gang-that-couldn’t-litigate-straight that comprises Trump’s legal team. (Reportedly, some of those lawyers thought that Dearie’s record of being “tough” on the FBI during certain cases when he was on the US Foreign Intelligence Surveillance Court meant that he would be an ally against the “Deep State.” Once again we see the pitfalls of being venal pricks who can’t conceive of anyone with actual scruples.)

And let’s not forget that Trump has to foot the bill for the work of this special master, who is daily ripping him to shreds. (Show of hands: Who thinks Trump will stiff him? If not, DM me: I have a bridge to sell you.)

It ain’t over till it’s over, but the whole “special master” ploy looks like it is running aground on the rocky shoals of legitimate jurisprudence. It should never have gone even this far—thanks Aileen!—but Judge Dearie seems to be making short work of this obvious time-wasting tactic. 

Score one for the good guys, for a change. 

NEW YORK STATE OF MIND

About 24 hours after that cheering news—which unfolded in a Brooklyn courthouse, Judge Dearie’s home turf in the EDNY, about three stops on the R train from where I am writing this—Trump suffered a second resounding defeat across the river in lower Manhattan. (Three more stops on the R, or one if you switch to the N.)

After a lengthy and thorough investigation—so lengthy and thorough that a lot of anti-Trump folks had given up hope—New York’s Attorney General Letitia James announced that the state is bringing a civil suit against the Trump organization that, if successful, will likely put it out of business forever. The grounds are things that have been eye-rollingly common knowledge for years: that Trump, with the assistance of his adult children Uday, Qusay, and Maleficent, has engaged in a systemic, decades-long fraud, alternately overestimating and underestimating his assets in order to defraud banks, lenders, the US government, and American taxpayers, and illegally line his own pockets. What did Ms. James call it? Oh yeah: “a brazen scheme of staggering proportions.” 

Among the penalties she is seeking, Trump and his kids would be barred from serving as corporate officers in any New York business, while the Trump Organization would be hit with a quarter billion dollar fine and prohibited from operating in the state—which, by the by, is the world’s financial capital—for five years. As a side effect, the organization will likely find it impossible to obtain loans and credit, effectively driving it out of business for good. 

She is also referring the case to the SDNY and the IRS for possible criminal charges against Trump and his kids. 

This case, maybe above all others, hits Trump where it hurts the most, and in fact, maybe the only place he really cares about: his wallet. (Dead heat with his ego.) James will still have to make the case in court, of course, but I’ll remind you that in 2018 she took similar action against the equally bogus “Trump Foundation”—for stealing money from a children’s cancer charity (!), or what she called in that case “a shocking pattern of illegality”—resulting in that foundation being permanently dissolved, and the Trumps barred from running a charitable organization in New York state ever again. And that was while Trump was President of the United States.  

So, yeah: Omar comin.’ 

ELEVENTH HEAVEN

Tish James had already made my day when, that same evening, the 11^th Court of Appeals sided with the Department of Justice in its appeal of Judge Cannon’s ruling, tossing out her decision in less than a day’s labors with a withering opinion that essentially dismissed it as a travesty. Better yet, two of the three judges on the appeals court that heard the case were Trump appointees. (The other was appointed by Obama.)

As a result, the FBI and DOJ will regain access to the roughly 100 classified documents the Bureau seized in its August 8^th search of Mar-a-Lago, which means that the criminal investigation of Trump’s theft of those materials—reportedly including top secret compartmented information about a foreign government’s nuclear capability—can resume. Which, of course, is as it should be: it was outrageous that Trump was able, even temporarily, to claim ownership of US government documents that he stole, and prevent the government from having access to them. Legal experts tell us that a criminal indictment is almost certain to follow, likely just after the midterms. 

As Lawfare’s Ben Wittes likes to say: boom! 

So, yes, Donald had a terrible, horrible, no good, very bad day. And as we know, he faces other legal threats as well. 

Fulton County (GA) DA Fani Willis may well bring RICO charges against him and his henchmen at the state level for their attempts to overturn the results of the 2020 election in Georgia. The Manhattan County DA Alvin Bragg is in the midst of a criminal probe of Trump—although its status is unclear, and Bragg has been criticized for backing off; even so, the Trump Organization will face criminal trial for fraud and tax evasion in NYC beginning at the end of October, with Donald’s longtime former CFO Allen Weisselberg set to testify for the state as part of his own plea deal. And then, of course, there is the high-profile Congressional probe of January 6^th and the Big Lie that led to it, one that is doing significant political damage to Trump with its nationally televised hearings, and may result in further federal charges from the DOJ, which is also conducting its own investigation into the matter. 

Of these various crimes, trying to overthrow the US government would seem to be the most towering, but the complexity of the case may also make it the hardest to prosecute…..not to mention the hand-wringing of those bedwetters who are worried about the alleged damage to the republic from putting a former president on trial. (And yes, they can wring their hands and wet the bed at the same time. #metaphormix) 

I remain more worried about the damage from not putting him on trial.

Moreover, much of that hand-wringing is dishonest and performative, employed by Republican cynics who would like to use the welfare of democracy as an excuse to protect Trump from prosecution, and themselves from facing up to their own complicity. 

By contrast, the Mar-a-Lago documents case seems the most cut-and-dried and both easiest to prove and for the public to grasp. In terms of the damage to the nation, stealing nuclear secrets certainly approaches January 6^th, although I think in the end undermining one of the most fundamental tenets of representative democracy—the peaceful transfer of power—still wins the prize. And Trump seems to have done both. 

Thanks to Judge Dearie and the 11^th Court of Appeals, for once in his life, he may have to pay the piper.

POLITICS BY OTHER MEANS

Which brings us to Trump’s response. 

When it comes to the documents scandal, Don continues to reiterate his absurd claim that he waved his magic wand and declassified all this material en masse while still in office. While that is obvious horseshit, none other than Bill Barrhas pointed out that, if true, it would actually be even worse than stealing classified documents in the first place. And per above, it’s telling that his lawyers are unwilling to make the same claim in a court of law.

Still, Trump seems to think it’s a winner, and is clinging to it. Most recently, he impressed even those long inured to his insanity by telling Sean Hannity, on national television:

There doesn’t have to be a process, as I understand it. You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.

Because you’re sending it to Mar-a-Lago or wherever you’re sending it. There doesn’t have to be a process. There can be a process, but there doesn’t have to be. You’re the president—you make that decision.

The mind reels. 

Many experts, like former FBI special agent turned associate dean of Yale Law School Asha Rangappa, noted that in addition to being batshit crazy, this was also an open confession of guilt—on TV, before an audience of millions—that he knew he was stealing classified documents that he had no right to possess. (Trump also floated the theory—again—that the FBI was really there looking for Hillary Clinton’s lost emails. I shit you not.)

But as we have noted, this whole “classification” thing is a red herring. None of the crimes being investigated as stipulated in the FBI’s August 8^th search warrant hinge on these documents being classified: they are sensitive US government property irrespective of their classification, and their mishandling—not to mention theft, and obstruction of a federal investigation into that theft—is punishable under the Presidential Records Act and the Espionage Act.

In Trumpworld, however, none of that matters, for as noted by Peter Strzok—formerly Deputy Assistant Director of the FBI’s Counterintelligence Division, and a frequent target of Trump’s ire—this is not really a legal fight for Donald at all but a PR one, aimed at rallying his vanishingly small circle of hardcore deadenders and intimidating the GOP mandarins who fear them. In that regard, this legal jeopardy in some ways benefits Trump, allowing him to play the victim card, which is one of his favorite tricks, and one that his grievance-driven suckers—er, I mean followers—lap up like heroin. (Or maybe oxy is a better comparison.) The DOJ case may even drive some of those who have fallen away right back into his arms, and pull in some of the Trump-curious along with them. So be it. We ought not back off adherence to the rule of law just because some assholes don’t like it.

Certainly Trump intends to drag his feet and file pointless timewasting motions and otherwise gum up the legal process. But that legal maneuvering is aimed as much (or more) at running out the clock in hopes of a GOP sweep in the midterms as it is at any hope of a courtroom triumph. In the end, Trump seeks a kind of power that is beyond the reach of the law. He always has, as a businessman and now as a politician and would-be tyrant. 

And there are no depths to which he will not sink in the endeavor.

STAND BACK AND STAND BY: THE SEQUEL

Faced with this kind of legal jeopardy, Trump is becoming more and more radical and desperate—the aforementioned cornered rat. While throughout his life he has, justifiably, always been confident that he can cheat the system, Trump seems rational enough to know that he is in real trouble now, and is therefore resorting to ever more extreme measures to stay out of jail, and keep his ill-gotten gains, and above all regain the presidency. 

Both Trump and his designated bootlicker Lindsey Graham have, in the past two weeks, gone on national television and essentially threatened street violence from MAGA Nation should he be held accountable in a court of law. Graham kicked it off on Fox News’ “Sunday Night in America” when he said: “ If there is a prosecution of Donald Trump for mishandling classified information after the Clinton debacle… there will be riots in the street.” (I already dissected the wildly dishonest and inaccurate comparison to Clinton here, if you wish to review.) Under fire for those remarks, Graham retroactively tried to frame them as mere prediction and not a threat, but that was patently disingenuous, and the damage was already done. (“The jury will disregard.”)

While stopping short of endorsing violence, I want to remind Lindsey that there are also going to be riots in the streets if Trump is not prosecuted. Just a prediction, Lady G.

As for Trump himself, there was no such backpedaling or ex post facto attempt at qualification. Here’s what he said, speaking to his toady Hugh Hewitt, as recounted by The Atlantic’s David Graham, in a piece titled with a phrase that has been on many a pundit’s lips of late: “Nice Democracy You Got Here. Shame If Something Happened To It.” 

“I don’t think the people of the United States would stand for it,” Trump said. “I think if it happened, I think you’d have problems in this country the likes of which perhaps we’ve never seen before. I don’t think the people of the United States would stand for it.”

The implication was clear enough that Hewitt felt the need to throw Trump a preemptive lifeline: “You know that the legacy media will say you’re attempting to incite violence with that statement.”

“That’s not inciting,” Trump replied. “I’m just saying what my opinion is. I don’t think the people of this country would stand for it.”

Stand back and stand by indeed. 

Then there was the instantly notorious rally in Ohio. Ostensibly there to stump for shitbag GOP Senate candidate JD Vance (by sadistically humiliating him for “kissing my ass”), Trump openly embraced the batshit QAnon conspiracy theory. (He had previously shared on social media an illustration of himself wearing a QAnon lapel pin, with the Q slogan, “The Storm Is Coming.”) 

Here are a few excerpts from the speech, as recounted in Rolling Stone, translated from the original German:

“We no longer have a border. Our country is being invaded. It’s an invasion by millions of illegal aliens,” Donald Trump said at his Saturday night rally, using the Great Replacement Theory’s racist “invasion” language, favored by violent white nationalists. “The economy is crashing. Your 401(k) is collapsing,” Trump told the crowd. “Shooting, stabbings, rapes, carjackings are skyrocketing.”

(Trump) complained that Jan. 6 witnesses are compelled to turn on him. “They take good people and they say, ‘You’re going to jail for 10 years … unless you say something bad about Trump. In which case you won’t have to go to jail,’” he said. 

“They spied on my campaign. And nobody wants to do anything about it. Can you imagine if I spied on the campaign of—forget Biden—how about Obama’s campaign? Can you imagine what [the penalty] would be? Maybe it would be death. They’d bring back the death penalty,” Trump said. Later, Trump endorsed punishing drug dealers and human traffickers with the death penalty.

“I don’t know if we’ve had a more radicalized or dangerous time in our country,” Trump said. Returning to his argument that America is falling apart, the former president zealously recited the details of gruesome crimes allegedly committed by immigrants. The hate continued when Trump mocked trans women in sports.

You get the idea. And all of this was set to a QAnon anthem with its own weird history.

The image of hundreds of Q-believing Trump supporters with arms outstretched in a Nazi-like Bellamy salute—with the addition of the Q-specific index finger—was chilling of course. (Conservatives: please cease pearl-clutching over left-wing comparisons of Trump to Hitler. While shit like this continues to go on, Godwin’s Law continues to be in abeyance.) Because as laughable as it is, QAnon is genuinely dangerous. The litany of its believers who have alreadycommitted violence on Trump’s behalf is long and worrying, and it’s likely to accelerate from here. Particular with Donald pouring fuel on the fire. 

(You can watch and listen to the whole bizarro scene here.)

As The Atlantic’s Tom Nichols points out, Trump does know how to stump effectively for a downballot candidate, when he wants to. But that was not what he did in Ohio. What he did there was “play creepy music and present (himself) as the leader of one of the most unhinged crusades of modern times.” 

That kind of rally is not meant to gather voters. Instead, it’s meant to recruit a mob and let the rest of the country see who’s on your side if you are threatened in any way.

Nichols writes that Trump’s “embrace of the QAnon conspiracy theorists represents a new expansion not only of Trump’s cult of personality, but of his threats to sow violence.”

Despite his seeming inability to remember anything from one thought to the next, Trump has a kind of lizard-brain awareness of danger—only to himself, of course—that guides him when he’s faced with threats. His reflex in such situations is to do whatever it takes to survive, including bullying, lying, threatening, and allegedly breaking the law. 

Initially, of course, Trump only winked at the QAnon movement, accepting its support in the same way that he accepted, without acknowledging it, the support of groups such as the Proud Boys. That last microgram of hesitancy is now gone. 

Why is Trump doing this? It would be easy (and reassuring) to assume that he has exhausted all his other reservoirs of narcissistic support, and now all that’s left is to pull in the most conned marks in modern American political history and bask in their adulation while emptying their pockets. I think we have to prepare, however, for a worse possibility: With many of his previous supporters in groups such as the Oath Keepers lying low after January 6, Trump is making a show of recruiting from a movement whose members might include people willing to do violence on his behalf.

Nichols concludes: “I didn’t think American politics could get much darker, but here we are.”

CERTIFIED PUBLIC ACCOUNTABILITY

To reiterate: the legal setbacks Trump suffered this week do not mean that the right wing campaign to obtain a chokehold on the judiciary has failed. On the contrary: they will only spur the authoritarian Republican movement to work ever harder to ensure that in the future the bench is filled with Aileen Cannons and not Raymond Dearies. And they are already prompting Trump and his allies to seek extrajudicial, even violent means to advance his cause.

And Trump might yet beat all these raps, as he has done his entire life, despite a resume of fraud, malfeasance, and other crimes that would impress Charles Ponzi. Even if he is charged, tried, and even convicted, it might not derail his political career. (“I could stand in the middle of Fifth Avenue….”) We might witness the baroque sight of the nominee of one of our two major parties running for president while under indictment, or even after being convicted of major crimes, and or even while incarcerated (presumably wearing an ankle monitor and under house arrest in Mar-a-Lago, given the security considerations surrounding a former head of state). He might even win while under those conditions, making him our first ever Felon-in-Chief.

Anything is possible. 

Alternatively, Trump might just wreak havoc with our electoral system, by running and losing for example, and—again—refusing the accept the results, rallying his Kool-Aid drunk followers to acts of extreme political violence, protected by their cowardly, cynical enablers in Congress. He is clearly laying the groundwork for that possibility right before our eyes. 

I am encouraged that we just saw the justice system function properly and, in some small way, begin to make Donald Trump experience something he never really has experienced in all of his 78 years: accountability for his actions. I remain worried that he has no intention of facing that accountability, and what he will do to avoid it, and of our fellow Americans who will happily abet him.

**************

Photo: “The Trump Rat,” formally known as Castigat Ridendo Mores (“Morals can be corrected with ridicule”), by New York artist and gallery owner John Post Lee, in Dupont Circle, Washington DC, August 2017. Credit: The Hill.

The first part of this story is obvious, and would not even shock Captain Renault:

A judge that Trump appointed sided with Trump in a criminal case against Trump, in a ruling that stunned virtually every credible legal expert. 

Also: dog bites man, water is wet, and the Jets suck. 

Yeah, yeah, there’s a lot of legal mumbo jumbo and dervish-like spin from the right wing trying to explain and defend this decision, the standard GOP tactic when it has shamelessly exploited the system for its benefit and wants us to believe it has not. So before we go into the details, let’s step back and take a one-over-the-world view of the philosophy—and the threat—undeniably underpinning this decision:

That the modern Republican Party does not bat an eye at weaponizing any aspect of American life to advance its own autocratic agenda, no matter how clumsy or hamhanded that effort may be. Amount of fucks they have to give? An Elvis Costello-like less than zero. 

The judicial system is very high on that list. Or in the words of Jason Stanley, a philosophy professor at Yale, and the author of How Fascism Works: 

“Once you have the courts you can pretty much do whatever you want.” 

A ZERO ON ROTTEN TOMATOES

The full array of America’s aforementioned legal experts have already thoroughly summarized the faults with Judge Aileen Cannon’s eyepopping decision granting Trump’s request for a special master in the government documents scandal, so I’ll recap only briefly:

Andrew Weissmann, former general counsel to the FBI and lead prosecutor in the Mueller probe, called it “Nutty. Crazy. Appealable.” His fellow New York University law professor Chris Sprigman said the ruling was “partisan hack judging,” while the prominent attorney Ted Boutrous said “Judge Cannon’s order is riddled with fundamental legal errors and is the opposite of judicial restraint.” Former acting Solicitor General Neal Katyal wrote: “Frankly, any of my first year law students would have written a better opinion.” 

Samuel W. Buell, a professor at Duke University law school, told the New York Times that the ruling was “laughably bad,” adding, “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”

Even Bill Barr thinks the ruling is bullshit—and what Trump did re Mar-a-Lago was outrageous, and that the DOJ is dead right, and that he’s gonna be indicted. (But will he still vote for him? In the same breath Barr said he hopes that there will be no indictment because of the ostensible damage to the republic. No word on his thoughts re the damage from not indicting.)

So from whence comes this not-so-five-star ruling?

Judge Aileen Cannon of the US District Court for the Southern District of Florida was confirmed by the GOP-controlled Senate after Trump lost the 2020 election, part of Mitch McConnell’s mad rush to put as many of Donald’s nominees on the bench as possible while he still could. With only 12 years experience as a lawyer (and only 38 years of age when Trump nominated her for that lifetime gig), Cannon barely met the minimum standards to be rated “qualified” for the job by the American Bar Association. She had also been a long-time member of the radical Federalist Society—and I do think it’s fair to call it radical—which has been on a decades-long campaign to pack the judiciary at all levels with far right wing jurists. 

Beginning to make sense now?

In substance, her ruling allows Trump to pause a portion of the DOJ investigation while a special master reviews the material seized from Mar-a-Lago, predicated on multiple grounds including executive privilege and potential harm to his reputation. In The Atlantic, Andrew Weissmann writes that “Cannon’s ruling is untethered to the law.”

Let’s start with the unequal application of the law. Although Trump wallows in feigned claims of persecution, in fact he has been privileged by the Justice Department, and now Cannon, in a manner unheard of for any other defendant. Every defendant would relish the opportunity to delay a criminal investigation by having a court enjoin the government from investigation, but that never happens. 

Why would others under investigation not have the same claim? Is the extra protection of a special master—and the delay it entails—applicable to all public figures?….And if so, how is a rule that offers special privileges to the most advantaged members of our society consistent with providing equal justice for all? 

The law, it seems, is simply different for Trump and his close allies.

Vox’s Ian Millhiser called the ruling “a trainwreck of judicial reasoning” and “egregiously wrong,” adding that the judge “mangles the law so completely that it’s hard to know where to even begin in criticizing her opinion.”

(Cannon) argues fairly explicitly that Trump is entitled to special rules that apply to virtually no other criminal defendant, because he used to be a powerful person. This opinion is an affront to anyone who believes that all Americans, whether a pauper or a former president, are subject to the same laws. 

The Daily Beast’s Shan Wu, a former federal prosecutor, noted that Cannon “mostly seems concerned with protecting Trump’s reputation” and her fear of “the potential injury to Trump arising from the ‘threat of future criminal prosecution’ is, in particular, poorly thought out.” 

In the judge’s apparent zeal to protect Trump, Cannon seems oblivious to the fact that every single person under investigation could assert this same potential injury, and any competent criminal defense attorney will try to use her decision as a basis for enjoining criminal investigations and prosecutions of their clients. Her opinion could open a floodgate of baseless requests for injunctive relief, which will jam the criminal justice system, even if most of them will be denied in slam-dunk fashion.

She even pointed out the stigma attached to Trump having to suffer the indignity of a search warrant being conducted on his home. But she failed to explain how the appointment of a special master can undo that stigma—given that the search already happened. Her opinion also suggests that a special master is necessary because of leaks to the press about the contents of the seized documents—as though a special master has some magical power to stop such leaks.

(Though Wu doesn’t say so, it bears mentioning that the public only learned of the August 8 search at all because Trump himself announced it. Absent that, the DOJ would surely have been happy for the entire event to remain undisclosed.)

Addressing this “reputational harm” Judge Cannon is worried that Trump will suffer, Yale law professor former FBI special agent Asha Rangappa agreed, tweeting: “The idea that an indictment would cause ‘irreparable reputational harm’ is…literally true for anyone, not just POTUS? Maybe don’t crime in the first place.”

Some, like The Week’s Joel Mathis, noted that it’s not even clear that Cannon can actually halt the investigation. “To my mind, this is one of the weirdest parts of Judge Cannon’s order,” law professor Orin Kerr wrote in a Twitter thread, as it “amounts to a judicial takeover of the executive branch’s investigation. I don’t see how a federal judge has the power to do that.” (More on that here.) 

On Substack, the attorney and incisive legal analyst Jay Kuo notes that there is no record in American jurisprudence of a civil court assessing a question like a special master ever enjoining a criminal investigation. Steve Vladeck, a constitutional law professor at the University of Texas law school, told the Washington Post, “It’s stunning insertion of the courts into what has historically been exclusively executive process. This is just not the way our legal system is set up.” If Cannon’s decision stands, the Post reports, “legal experts said, it would allow the targets of investigations to disrupt law enforcement operations before a case is charged or goes to trial.”

No—not all “targets of investigations.” As Ryan Goodman, an NYU law professor and former Defense Department special counsel, told the Post: “The opinion makes explicit what many of us have understood: There are special rules for former President Trump.”

WHITE HOUSE PRIVILEGE

The issue of executive privilege is another headscratching part of the judge’s ruling. As Vox’s Millhiser writes: “Cannon’s opinion is not simply wrong, it plays with legal concepts, such as executive privilege, which she seems to barely understand.” 

Yes, there is a spurious school of thought that holds that the Supreme Court has “not settled the question of whether a former president could assert executive privilege against the administration of the sitting president.” Cannon plainly bought Trump’s absurd claim on that count, even though he’s not the president any more, which it to say, the person to whom “executive privilege” by definition applies. As University of Baltimore law school professor Kimberly Wehle reminds us, “There’s only one president at a time under the Constitution, and in this moment, it’s Biden.”

And that’s not all. Millhiser:

An even more basic reason why executive privilege should not apply to this investigation is that Trump is trying to assert executive privilege against, well, the executive.

(I)f Congress or a court seeks a presidential document, that might raise executive privilege concerns. But the FBI, and the Justice Department more broadly, are part of the executive branch. And there are no separation of powers concerns raised by one part of the executive branch obtaining documents that allegedly belong to another part of the executive branch. 

Weissmann: 

(Cannon) does not explain how the former president has the power to assert executive privilege; how executive privilege could restrict documents from being shared with the executive branch (which DOJ is part of); how it could apply to any documents at Mar-a-Lago that emanated from agencies like the CIA, NSA, or FBI; or why it would not be outweighed by the fact that the documents are needed in a criminal investigation (an interest that the Supreme Court found would overcome a privilege assertion by former President Richard Nixon). And even if some of the documents are covered by executive privilege, the documents would, by law, still have to go to the National Archives and not be returned to the person who absconded with them.

(In any case, the government has already reviewed all the materials, which—and this is the real rub—Trump does not own and is not entitled to have. Weissmann proposes an analogy in which a bank robber who has a million bucks in his possession when the cops come knocking, then demands the money back and a special master to review the evidence even before he is charged. And the judge halts the criminal case for the duration of that review.)

Even if Trump were allowed to invoke executive privilege, it does not offer blanket immunity, especially when it comes to matters of national security, like stealing top secret documents related to nuclear warfare. (By the by, in arguing that the special master needs a TS/SCI clearance, Trump’s own lawyers give the lie to his own claim that the material in his possession was somehow magically declassified.)

On that front, David Ignatius writes in the Washington Post that “Cannon doesn’t seem to fully recognize the national security stakes here.”

How can the US government conduct a national-security damage assessment about possibly leaked classified documents if FBI criminal investigators can’t look at the documents or interview witnesses to figure out who might have had access to the material? That supposed division of labor—drawing a neat distinction between “investigative” purposes and a “national security” assessment—might make sense to Cannon. But some experienced national security lawyers are puzzled, to put it mildly.

“It is impossible to square these two rulings,” says Jamie Gorelick, a former deputy attorney general under President Bill Clinton. Jeff Smith, a former CIA general counsel, explains: “It’s not clear from Cannon’s opinion that she understands what’s entailed in a damage assessment. I think she must believe that all they have to do is look at the documents and decide what harm would result if they were leaked or given to someone without authority.”

Robert Litt, a former ODNI general counsel, observes: “Typically, when you do a damage assessment … you know who has access to the information: Edward Snowden released information to the world; Aldrich Ames to the Russians. I don’t remember ever seeing one during my time where we knew that information had been mishandled but we don’t have any idea whether anyone had access or who.”

THE APPEAL OF AN APPEAL

So our hostile foreign adversaries are surely cheered by Judge Cannon’s ruling, and the way it exacerbates this ongoing national security disaster. And it’s no coincidence that Team Trump is equally pleased. 

Millhiser hits the proverbial nail on the metaphorical head when he says that this order “could also allow Cannon or other judges to delay this criminal investigation into Trump indefinitely” and that “it’s far from clear that higher courts dominated by Republican appointees will stop her.” Which was very much the intent. 

Of course, the DOJ can appeal, and many—Weissmann prominent among them—have been adamant that it should. But that would only further delay matters, playing right into Trump’s hands, as the case could languish in the system for months or even years, certainly past the 2024 presidential election. More to the point, it is by no means clear that the Department would win that appeal in the Eleventh Circuit, where six of the 11 judges are Trump appointees The same is true if the case goes to the Supreme Court, where Trump will surely take it, with its 6-3 right wing supermajority, half of whom—fully a third of the Court—are Trump appointees. 

Some, like Slate’s Norman Eisen and Fred Wertheimer, have suggested it might just be better to get the special master onboard and get it over with. Others have mused that having a special master might even help the DOJ by inoculating against allegations of partisanship. But that claim laughably assumes that the American right wing will ever behave in good faith, or give up its perpetual claims of Christ-like persecution. And, of course, there is also the risk that the special master could hand down a damaging, Trump-friendly ruling, especially if he or she is yet another MAGA hack.

But Shan Wu argues that the risks of an appeal “are worth taking because Cannon’s decision is so potentially damaging to the DOJ’s ability to investigate and potentially charge Trump (and others) in cases not only arising from Mar-A-Lago, but also any case in which Trump seeks to assert executive privilege defenses—including his actions in Jan. 6-related potential prosecutions.” Millhiser concurs, arguing that by not appealing the DOJ will have given “up its shot to end this highly partisan judge’s supervision of one of the most sensitive criminal investigations in US history.”

Above all, as Eisen and Wertheimer point out, an appeal is necessary to prevent classified US government documents being returned to Trump and his lawyers—perhaps the most mind-blowing possibility, because “the court treated Trump’s request as a motion for the return of property under Federal Rule of Criminal Procedure 41(g)—a completely unacceptable result here.”

[checks GPS to make sure we have not one through the looking glass with Alice]

As this goes to press, the question has been answered, with the DOJ announcing its intent to appeal Judge Cannon’s order. In a separate filing, it also asked her to allow the criminal investigation to proceed while the special master’s review is underway, and to give that special master access only to unclassified documents, and not classified ones. Which makes perfect sense. If the point of a special master is to sort out any personal, privileged materials from the government ones seized in the search, the classified ones are in the latter category by definition. Indeed, it should have been so ordered from the jump. 

How will all this play out in a legal climate which, as we have established, is toxic with Republican malice, mischief, and malfeasance? We don’t know, but it’s encouraging that the DOJ—which appears to have been a step ahead of Trump at every phase of this case—is taking such an aggressive and pro-active approach, with Slate’s Eisen and Wertheimer praising the shrewd nature of the appeal in particular. They are optimistic that it will succeed. I hope they’re right.

Watch this space.

IF I DID IT, VOL. II

In a piece titled, “Trump-Appointed Judge Cuts Trump a Huge Break,” Truthout’s William Rivers Pitt writes:

Donald Trump has caught yet another break. He will get to dig in behind his plans to run for president again, and will use these legal maneuvers as fundraising tools even as he slathers himself in martyrdom. There are hundreds of Trump judges out there now, with three of them on the highest court in the land.

The legal system was built to prop up people like Trump, not to take them down. This is the world we live in, and although it might be enraging, it should not surprise us at all.

The fact that Cannon not only agreed to Trump’s request for a special master, but ordered the DOJ to halt its investigation—a move that not even Trump’s lawyers dared ask for—gives the game away. (Mercifully, Cannon did not grant some of the things they did ask for, like full access to the redacted portions of the underlying affidavit, including the names of witnesses against the Former Guy.) 

Another dead giveaway: Trump praised her decision, saying “it takes courage and ‘guts’ to fight a totally corrupt Department of ‘Justice’ and the FBI.”

In that sense, Cannon did a lot of the work for Trump’s hapless team that it had itself failed to do. Trump’s lawyers didn’t even file their very belated request for a special master until two weeks after the Mar-a-Lago search, at a time when the FBI had announced it had already completed its review of the seized documents. 

In that regard, the good news is that Cannon’s ruling applies only to materials seized in the August 8 search of Mar-a-Lago, and not to the already voluminous incriminating materials that were in DOJ’s hands prior to that, which in themselves ought to be sufficient to prove violations of the Presidential Records Act and Espionage Act, as well as obstruction, particularly by his lawyers Evan Corcoran and Christina Bobb, and possibly even by the micromanaging Trump himself.  In other words, as Kuo says, “the DOJ already has what it needs to prove that Trump was in possession of sensitive government documents he had no right to have.”

But the possibility that a compromised federal judiciary may try to protect Trump remains a very real danger. 

Pitt describes MSNBC’s Joy Reid asking Elie Mystal, justice correspondent for The Nation, “How on Earth could a judge who made it through law school think that Donald Trump can take the property of the government, the federal government, take it home and then have to have a special master decide whether they can investigate him?”

“Because she’s biased and corrupt,” Mystal replied. “I’ve been saying this since he took office. When you allow Republicans to control the courts, you get nothing. Trump judges do not believe in the rule of law. They do not believe in precedent. They do not believe in facts. They do not believe in logic. They just believe in whatever’s going to help Donald Trump and they’ve proven it again and again and again.”

After the Mueller probe was hijacked, distorted, and ultimately neutered by Trump and Barr in March 2019, I compared Trump to OJ Simpson as the wildly undeserving beneficiary “of honorable people following the rule of law—a rule of law that Trump himself holds in utter contempt, constantly besieges, and would deny to everyone else.” But in the Mueller inquiry Trump benefitted from the scrupulous fairness of his foes—overscrupulousness, some might say—and their admirable, almost naive, and ultimately fatal adherence to norms and protocol. In this case, however, it’s the right wing’s dishonest and self-serving exploitation of the judicial system that is helping him.

Increasingly the right doesn’t even try to hide it.

Heather Cox Richardson writes that “Bloomberg News’s Zoe Tillman recently revealed that seven senior officials who served in Republican administrations, including two former governors, a former attorney general, a former acting attorney general, and a former deputy attorney general, asked to send in a ‘friend of the court’ brief in opposition to Trump’s request (for a special master). Cannon denied their request, saying the court “appreciates the movants’ willingness to participate in this matter but does not find…[it]…warranted.’” 

Former US Attorney and Los Angeles Times legal affairs columnist Harry Litman said he didn’t think he’d “ever seen a court reject a proposed amicus brief, especially from eminent amici like the Former GOP prosecutors Cannon just refused to hear from.”

As Millhiser asks: “Why would a judge do this unless they are trying to advertise the fact that they are not open to opposing arguments? Just accept the…brief and then don’t read it if you don’t want to make a public spectacle out of not caring what anyone says.”

A RATION OF SHIT

Famously, the American right has engaged in a determined, methodical, decades-long campaign to gain control of the courts, the same way it has doggedly run candidates in local, county, and state races in order to obtain a chokehold on the US political system at the ground level. I don’t blame them a bit for that very smart and farsighted approach—only for the loathsome policy ends that they intend for those judges and elected officials to pursue. Shame on the Democrats for not being similarly tenacious and strategic, especially once they saw what the Republicans were up to.  

To reiterate: “Once you have the courts you can pretty much do whatever you want.”

While it is true that a large number of Trump-appointed judges ruled against him in his attempts to overturn the 2020 election, there is no guarantee that that pattern will continue going forward. In fact, should the Republicans regain power they are almost certain to do everything they can to reverse that trend by appointing even more slavishly loyal pro-Trump judges who can be counted on to rule as the party wishes and not show even a hint of backbone or principle.

The Washington Post’s Paul Waldman writes:

This is our future as long as Trump judges remain on the bench. In every election, every issue debate, and every controversy, the first thing Republicans will do is prepare their lawsuits and start shopping for Trump judges who will be guaranteed to rule in their favor. They won’t win every case; they did fail to get the courts to overturn the 2020 election, and even the right-wing supermajority on the Supreme Court will rule against them from time to time. But they got the judiciary they wanted, one dominated by hacks whose respect for the law will almost always yield to the GOP’s partisan interests. And they’re going to use it.

The party that once decried judicial activism—when practiced by Democrats—sure is keen on engaging in it itself. 

Friends of Judge Cannon assure us of her integrity. Perhaps they are right, in the sense that she may not be a hand-rubbing, mustache-twirling villain knowingly perverting the justice system to favor her ideological comrades. I don’t know, but I’m willing to take their word for it. At the same time, it’s impossible to square this decision with a picture of her as a nonpartisan jurist unswayed by the benefits that would accrue to her party as a result of her decision, especially given the tortured, precedent-defying logic behind it.

My surmise is that Judge Cannon is a prime example of an educated, intelligent public servant who has nonetheless talked herself into absolutely indefensible, self-aggrandizing behavior. Whether or not she can sleep at night, I dunno; that’s a matter of how high the Kool-Aid content is in her bloodstream. But I do know that rationalization is a powerful drug, one that dwarfs food, sleep, or sex. (As Jeff Goldblum’s character quips in The Big Chill: “You ever gone a week without a rationalization?”)

But young Ms. Cannon is the least of it. A lengthy profile of Samuel Alito in the new issue of the New Yorker makes clear how the new archconservative majority on the Supreme Court feels gleefully unconstrained in its power to remake America along retrograde lines. We are already watching it rapidly unfold, with Dobbs, with West Virginia v. EPA, with Kennedy vs. Bremerton School District, with New York State Rifle & Pistol Association v. Bruen. 

Heather Cox Richardson:

In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now trying to take control of our federal government permanently.

Like Cannon, the conservative justices may have convinced themselves of the twisted correctness of their rulings, which somehow conveniently always favor the right wing position on any given issue. (Except Alito, whose snide opinion in Dobbs sure makes it feel like he relishes tromping on the law, and on the beliefs of those fellow Americans with whom he disagrees.)

Perfect circle: the man who secured Alito’s place on the Court, after George W. Bush’s personal attorney Harriet Miers was laughed out of contention, was Leonard Leo, the founder and CEO of the Federalist Society. Just three weeks ago, a new right wing lobby group called the Marble Freedom Trust organized by Leo was the recipient of an unprecedented, record-breaking donation of $1.6 billion from an anonymous “dark money” donor—by some accounts, the largest single donation of that kind in American history. In a ferocious irony, such a donation, from a source under no obligation to disclose his identity, was possible—and legal—only because of Citizens United, the 2000 Supreme Court decision that the Federalist Society itself methodically engineered. As a result, Leo and the Federalists will now have even more power in our legal system, an ouroboros-like infinite loop in the perpetual motion machine of right wing American political corruption. 

(ProPublica later revealed that the donor was Barre Seid, a 90-year-old electronics mogul who has already given tens of millions to conservative groups. Icing on the cake: the $1.6B donation itself is suspected to do double duty as a tax dodge, as it is the exact price for which he sold one of his companies this year.)

Next up: Moore v. Harper, about which I have written at length, here and here, a case the US Supreme Court is hearing this term, which would affirm the risible “independent state legislature” theory, and conceivably give minoritarian Republican-controlled state legislatures the power to disregard the popular vote and assign that state’s electors to the candidate of their choice. Just this week the chief justices of all fifty state Supreme Courts (I’ll repeat that: all fifty) plus the District of Columbia and various US territories weighed in with an open letter pleading with the US Supreme Court to reject the Republican position in Moore. Just to be clear, that includes the chief justices of such ruby red states as Alabama, Mississippi, Idaho, the Dakotas, Missouri, West Virginia, and on and on. That’s how absurd and dangerous the ISL is. But that doesn’t mean that Alito & Thomas & Gorsuch & Kavanaugh & Barrett won’t endorse it. (Four of them have already intimated that they will.) 

OF AUTOCRATS AND ICEBERGS

In short, Judge Cannon’s ruling on the Mar-a-Lago search is but the tippy top of an enormous submerged judicial iceberg into which American democracy is sailing. How that particular case will play out very much remains to be seen. The appeal is cause for hope. But as Jay Kuo writes, the brazenness of Cannon’s ruling in the first place “should serve as a warning sign that our federal judiciary is deeply infiltrated by Trump loyalists who can act like landmines in our legal system for those seeking accountability by the former president and his cronies.” 

Make no mistake: The GOP intends to install itself in permanent, autocratic, one-party minoritarian rule going forward, and the transformation of the judicial system into a shameless tool of that autocracy is a crucial part of that. 

Let’s say it one last time:

“Once you have the courts you can pretty much do whatever you want.”

*********

Photo of Trump in illustration: Saul Loeb / AFP via Getty Images

Roughly a third of all Americans think the Democratic Party and its fellow travelers are “out to get” Donald Trump, and have been ever since he became the presumptive Republican nominee in the summer of 2016. Might they actually be right?

The answer may surprise you. 

To get there, I’m going to begin this week’s post by asking you to do something very bizarre and difficult and potentially unpleasant, and that is to put yourself into the mindset of a Trump supporter.

Imagine, in this persona, that you have tuned in to MSNBC or CNN—just for shits and grins—and all you see and hear is excited conversation about all the laws Trump broke in taking US government information to Mar-a-Lago, and speculation about him being charged and prosecuted for those actions, and pontification about how terrible he is, and unabashed glee at the prospect that this might be his comeuppance at last. In other words, coverage that sounds very much like what you heard on those channels during the Russiagate inquiry, or his first impeachment over the Ukraine scandal, or the fallout from the January 6^th and his second impeachment over that scandal.

Full disclosure: I myself am a steady consumer of that very coverage. (On MSNBC, to be precise; I have little use for CNN.) I find it, for the most part, quite accurate and admirably representative of the sane viewpoint in our ongoing democratic emergency. But I can certainly imagine how a Trump supporter, tuning in, would snort in contempt and feel that Trump’s claims of endless persecution are legit. 

And why not? Over and over again we have watched the left set its hair on fire over this or that alleged atrocity, convene various institutional bodies to investigate and condemn him, and deliver simultaneously solemn and hysterical Chicken Little-like speeches about how the sky is falling on democracy, how Trump is evil incarnate, and how we must burn him at the stake. But somehow he never gets punished……..which suggests that, gee, I dunno, maybe he’s innocent. 

Is Mar-a-Lago Gate not just more of the same? To MAGA Nation, I have no doubt it looks that way.

But let me offer an alternative possibility, and that is that Donald J. Trump is manifestly criminal in so many ways, and has done so many mind-blowingly terrible things over the past seven years—in fact, over the entire course of his 76 miserable years on the planet—that of course he is going to be mired in scandal after scandal after scandal and subjected to what seem like serial inquisitions. (See also: his history of lawsuits, countersuits, and legal troubles long before he ever ventured into politics.) 

Likewise, his almost perfect record of getting away with everything (so far) is less an indicator of lilywhite innocence than still more evidence of his ability to game the system, exploit good faith, lie, cheat, obstruct, and obfuscate, not to mention the dumb luck of being born into the kind of vast wealth and privilege that makes him feel entitled to do so, and provides the nearly bottomless resources for that effort.  

Accepting the risible self-portrait of Trump-as-victim requires a willful blindness, an almost infinite capacity to ignore demonstrable fact, and a tribalism that goes to the marrow. Yes, the left is tribal too, and the hand-rubbing glee of MSNBC pundits (and their viewers) over a fresh scandal that might finally bring Trump down is real and palpable. But, sadly for MAGA Nation, Trump’s foes also have the facts on our side here in the current scandal, just as we did in Russiagate, Ukrainegate, and the Insurrection before it.

So is that third of all Americans who think the left is out to get Trump actually correct? I told you that the answer may surprise you. 

But only if you think the answer is “Yes.” 

HITTING BEDROCK

If you told me 19 months ago, after Trump incited a violent coup d’état in an attempt to overturn a free and fair election, that he would go on to do something arguably even more outrageously criminal, I would not have believed you. But the one thing I have learned over the course of Trump’s time as a politician, if you can call him that, is that every time we think he has reached rock bottom, he starts to dig.

Once upon a time, I myself had a TS/SCI security clearance, as a lowly company grade military intelligence officer. Like nearly everyone who has gone through that process and who has experience handling classified material, the egregiousness of Trump’s theft of sensitive government documents—don’t call it mere “mishandling”—is almost beyond comprehension. 

The granular details of Trump’s offenses on this front have been well-documented, but a brief summary really puts it in perspective:

Trump deliberately and illegally took to Mar-a-Lago hundreds of pages of classified material—”stole,” in the usual vernacular—representing some of the country’s most closely guarded secrets. Far from being disengaged from the process as some of his apologists have claimed, he appears to have been intimately involved in the transfer of that material and its storage in the basement of his golf resort, in the closet in his office, even in his bedroom, places that do not remotely meet the necessary security requirements. For more than a year he fiercely resisted repeated government efforts to recover those materials, including a subpoena. In the New York Times, Maggie Haberman reports that “the former president repeatedly resisted entreaties from his advisers” to comply, with several of them quoting Trump as saying, “It’s not theirs, it’s mine.”

Only in January 2022, nearly a year after Joe Biden assumed the presidency, did Trump finally return 15 boxes of material to the National Archives and Records Administration (NARA), which opened them to find a “mess of disorganized papers lacking any inventory,” “including some items that didn’t even come from Trump’s time in the White House.“ The Washington Post’s Jacqueline Alemany, Josh Dawsey and Jacob Armsdorf write that “highly classified material was mixed in with newspaper clippings and dinner menus,” some of it unfoldered. (Coming soon to a theater near you: The Unfoldering, a film by Jordan Peele.) 

One hundred and fifty classified documents were found in those boxes, totaling about 700 pages, including material classified as Top Secret/SCI—Sensitive Compartmented Information and others marked as Special Access Programs, the highest classification possible. That number rose to 300 after the FBI search of August 8. One person familiar with the investigation told the Washington Post that the information is “among the most sensitive secrets we hold,” with others stating that it includes nuclear matters, the identity of US spies abroad, and/or top secret technology.

Trump loyalists have claimed that before he left office he somehow declassified all the sensitive documents later found at Mar-a-Lago, even though there is not a shred of evidence to support that claim. The former Trump White House and Pentagon staffer and all-around cretin Kash Patel has argued that there was some sort of “standing order” that automatically declassified material as soon as it was moved out of a secure area—which is to say, the moment it was mishandled. A neat trick.

But as former FBI assistant director for counterintelligence Frank Figliuzzi writes on MSNBC’s website, “While a president certainly has the authority to declassify certain kinds of information, he must still adhere to established processes. Proper declassification would also be evident by appropriate markings on the affected documents. In other words, there would be a paper trail.”

Ironically, some of the arguments and documents that Team Trump have trotted out to defend him only serve to make very clear that he understood very well what the proper declassification process was. Tellingly, Trump’s lawyers did not argue to NARA that Trump had magically declassified the documents before he left office, suggesting that that defense is bullshit.

Moreover, the crimes for which Trump is under investigation do not even hinge of the material in his possession being classified, and the DOJ cleverly did not predicate its search on those grounds. Figliuzzi:

In fact, all the discussion around whether Trump did or could have declassified the recovered documents could be legally irrelevant. The three criminal offenses cited by prosecutors on the Mar-a-Lago search warrant, for which a federal judge found probable cause to have been committed, do not technically require the presence of classified material.

Another “defense” Team Trump has deployed is the claim is that any unauthorized material found at Mar-a-Lago was there purely by accident, as he had to pack hastily, expecting almost up to the day of Biden’s inauguration that the results of the election would be overturned. (Which I guess qualifies as an insanity defense.) 

Likewise, the claim that The Former Guy was ignorant of what was going on is a dog that don’t hunt. Informed sources told the Washington Post that “Trump oversaw the process himself—and did so with great secrecy, declining to show some items even to top aides, who subsequently reported that “they had not been involved with the process and were surprised by the discovery of classified records.”

(FBI) Agents were told that Trump was a pack rat who had been personally overseeing his collection of White House records since even before leaving Washington and had been reluctant to return anything. The FBI became increasingly convinced that the former president continued to hold classified documents in Florida, people familiar with the investigation said.

The mind reels. 

A BURIED LEDE

We’ve long known that Trump was beyond cavalier with classified material: viewing satellite photos in front of the Japanese prime minister over dinner at Mar-a-Lago, handing codeword intel to Lavrov and Kislyak on a silver platter right in the Oval Office, insisting on retaining and using his unsecure personal cellphone, to name just three examples.

In 2018, NARA learned that as president Trump was continuing his lifelong habit of tearing up documents and even flushing them down toilets. (That’s not the kind of suspicious behavior a criminal would engage in, is it? No, not at all.) But the Presidential Records Act, passed as a result of Nixon’s attempts to keep or destroy incriminating documents, “requires the White House to preserve all written communication related to a president’s official duties—memos, letters, notes, emails, faxes and other material—and turn it over to the Archives.” Trump had been told this many times while in office, to no appreciable result. 

In the words of Kate McKinnon, weknowdis. 

But new reportage shows heretofore unheard of breaches of security while Trump was president that set the stage for the current crisis. 

Noting “Trump’s disdain and disregard for the presidential record-keeping system he was legally bound to adhere to,” the Post reports that even as “advisers repeatedly warned him about needing to follow the Presidential Records Act early in his presidency, his chaotic handling of the documents prevailed.” Stephanie Grisham, a senior Trump staffer, is quoted as saying that Trump routinely had boxes of classified data brought to him in his White House offices and private residence, where he rifled through them for no apparent reason. 

“Usually the body man would have brought them upstairs for Trump or someone from the outer-Oval at the end of the day. They would get handed off to the residence and just disappear.”

Boxes of documents even came with Trump on foreign travel, following him to hotel rooms around the world—including countries considered foreign adversaries of the United States.

“There was no rhyme or reason—it was classified documents on top of newspapers on top of papers people printed out of things they wanted him to read. The boxes were never organized,” Grisham said. “He’d want to get work done on long trips so he’d just rummage through the boxes. That was our filing system.”

Nice reporting there, WaPo, but you really buried the lede. Trump schlepped unsecured boxes of classified data with him when he traveled to foreign countries, where his accommodations were anything but secure, and in fact were automatically presumed by US intelligence officials to be comprised? Why is THAT not front page news? Are we really that inured to shock and scandal?

Here’s the list of countries Trump visited while in office: Afghanistan, Argentina, Belgium, Canada, China, Finland, France, Germany, India, Iraq, Ireland, Israel and the disputed West Bank, Italy, Japan, the Philippines, Poland, Saudi Arabia, Singapore, South Korea and the DMZ, Switzerland, the UK, Vatican City, and Vietnam. 

Indeed, NARA had been trying to get presidential records back from Trump even while he was still in office, asking—unsuccessfully—for two dozen boxes improperly held in the residential part of the White House. Trump aides were therefore understandably concerned about what was going to happen to all that material when he left office. But few of them realized how far this issue might go. 

The WaPo again:

(N)ot even some of Trump’s closest advisers anticipated that what they viewed as a bureaucratic dust-up with archivists would snowball into a serious FBI investigation for potentiallyviolating federal law in removing and retaining classified documents without authorization—a felony punishable by five years in prison.

And it may not be over yet. Per the Post again: “Some NARA officials believe that there might still be more records missing, according to a person familiar with the matter.”

ASK AND YE SHALL RECEIVE. OR NOT.

The claim that the search of Mar-a-Lago was politically motivated and outrageous overreach is the heart of the right wing pushback. On April 12 Trump wrote on his preferred social media platform (or at least his second most preferred): “They could have had it anytime they wanted—and that includes LONG ago. ALL THEY HAD TO DO IS ASK.” 

But that claim is unadulterated bullshit. (So much for the ”Truth” in Truth Social.)

As we have seen, the FBI search of August 8 took place “after months of slow-rolling conflict between the former president and law enforcement agencies,” in the words of the WaPo’s Alemany, Dawsey, Carol Leonning, and Rosalind Helderman.  

Trump ignored multiple opportunities to quietly resolve the FBI concerns by handing over all classified material in his possession—including a grand jury subpoena that Trump’s team accepted May 11. Again and again, he reacted with a familiar mix of obstinance and outrage, causing some in his orbit to fearhe was essentially daring the FBI to come after him.

The truth is—social or otherwise—that in these repeated, politely worded requests to comply with the law, Trump got the kind of kid gloves treatment that no private citizen ever would. You or I would receive no such courtesy were we suspected of stealing top secret government documents. I suspect the feds would come kicking in our doors with weapons drawn.

Indeed, Frank Figliuzzi argues that “the National Archives and then the Justice Department gave too much deference to the former president, and for far too long,” saying that “The more appropriate critique of the government is that authorities didn’t move quickly enough to protect our nation’s security against a former president who has proved he was never worthy of classified access in the first place.”

Yet none of this deters the right wing spin machine.

On August 21, before the supporting affidavit was released, Republican Congressman Dan Crenshaw of Texas spoke to CNN’s “State of the Union,” as reported by the arch-conservative Murdoch-owned New York Post:

“When you’re going after an ex-president who may run again—this is automatically political…..You cannot separate the legal aspects of this from the political aspects of it. You can’t. And it doesn’t seem to me like they have acted responsibly as a result of that,” he continued, adding that the FBI should have just asked Trump if there were classified documents at Mar-a-Lago.​​… 

“A​nd so that’s why a lot of us jumped to the conclusion that this was highly politicized, because it was so unnecessary to do an armed raid to resolve this particular issue that could have been resolved very easily otherwise.”

Rep. Mike Turner (R-Ohio) told CBS’s Face the Nation: “(the FBI) had other options besides just raiding the house,” asking “W​hat is it that was at an imminent national security threat that you didn’t just go to court and ask the court to​ ​order that the documents be delivered to them?​” 

Since the release of the affidavit and the revelation of the grave nature of the material in question, and the fact that NARA has been desperately trying to get these materials back for over a year, that the DOJ did go to court and obtain an order that Trump and his people defied, and that his lawyers may have lied to federal authorities about the matter, Dan and Mike have been pretty silent, as have most of their once-voluble colleagues. 

So please spare me the fairy tales about how the DOJ could have just “asked” Trump nicely and of course he would have happily complied. Even as reliable a right wing shitbag as Karl Rove, speaking to Fox News, concluded that Trump has not a leg on which to stand:

“President Trump has said several times, ‘all they had do was ask.’ Well, my sense is they were asking for a year and a half, and why he was holding on to these materials when he had no legal authority to do so under the Presidential Records Act is beyond me.”

When you’ve lost Karl Rove, you’ve lost.

WHERE ARE THOSE DAMNED GOALPOSTS NOW?

Post affidavit, the Republican defense has shifted, as we all knew it would. In the WaPo two weeks ago, not long after the search took place, Greg Sargent presciently wrote:

When it comes to the Mar-a-Lago matter, there will be no appeasing Donald Trump and his most fervent supporters. There will be no point at which they acknowledge that any law enforcement activity related to the court-approved search of the former president’s home is legitimate. The sooner we accept this as a fundamental fact about the situation, the better.

A prediction: If this document is released, Trump and many of his supporters will seize on the redactions as “evidence” that the “real rationale” for the search is being covered up—and that the entire process is irredeemably illegitimate.

Now that we have not only the warrant but also the underlying affidavit that led Judge Bruce Reinhart to approve it, the right is reacting precisely as Sargent predicted. It is highly unusual for an affidavit like that to be made public, even with redactions, and Reinhart obviously did so in part to quell the partisan furor. But perhaps he knew that would be futile. The third ranking Republican in the House, Elise Stefanik of New York, crystallized GOP dishonesty when she told Fox News Digital:

“If Joe Biden and his politicized Department of Justice believes (sic) that today’s release will suffice as justification to raid the former President and Biden’s most likely 2024 political opponent, they are sorely mistaken. The American people deserve transparency and not an outrageously, heavily-redacted affidavit to cover up for and politically protect Joe Biden and the FBI for this dangerous and un-American overreach.”

Once upon a time Republicans would have been the first to shout about keeping our intelligence operations secret and safe, to include both technical capabilities and the identities and indeed the very lives of human assets. But as evidenced by Trump’s attacks on the Intelligence Community virtually since Day One, and on the uniformed US military (“losers and suckers” and “dopes and babies”), not to mention the spectacle of his supporters waving Blue Lives Matter flags while they attacked Capitol police officers, and now cries for the defunding and even outright dismantling of the FBI—it’s clear that this ain’t your grandfather’s GOP anymore, or even your father’s.

As to why Trump took these documents to Mar-a-Lago, I am among those who have speculated, recklessly perhaps, that he intended to sell US secrets or otherwise leverage them to his financial advantage. It has also been suggested that he simply is a venal sonofabitch who wants to take everything he can simply because he can, and even that he is just a pack rat. (NB: Not a legal defense.)

Even short of selling secrets, The Atlantic’s Tom Nichols reminds us of all the ways that what Trump did was incredibly dangerous, given “the possibility that Donald Trump as a citizen is as incompetent and lazy as he was when he was president, and that he could lose control of the materials he was keeping in his house.” 

It has long been known that security at Mar-a-Lago is laughably lax. Indeed, just this week a story broke about a Ukrainian-born woman who conned her way into the resort, even posing for “thumb’s up” photos with Trump and Lindsey Graham, among others. If the place is not crawling with spies from hostile foreign intelligence agencies—posing as tourists, guests, club members, vendors, deliverymen, construction contractors, the cable guy, etc., etc.—it would be professional malpractice on the part of our enemies. The place is a spy’s paradise.

It now seems both prescient and prudent that President Biden denied Trump the usual intelligence briefings that previous ex-presidents routinely received. 

And there is yet another aspect to the GOP dishonesty over the redactions. 

I am quite sure that Trump and his allies would indeed love to see the names of the informants and other witnesses who are cooperating with the FBi in this investigation, some of them presumably from deep inside his inner circle. But would the rest of the information that is redacted from that affidavit exonerate Trump? Not bloody likely. On the contrary: it would almost certainly be massively damning, outlining just how top secret the information was that Trump stole, the grave risks to national security and human life that his theft posed, and the lengths to which he and his people went to obstruct the federal investigation. I say that, because the information in the affidavit—redacted and otherwise—was bone-chilling enough to make a federal magistrate judge approve a search warrant of the home of a former US President, which has never happened before in 233 years of American history. And most Republicans know that, even the ones shrieking in mock horror for the redactions to be removed, a craven ploy, as they know that will never happen, and are privately glad.

At this point, however, the only people left in the Republican Party—which once styled itself the great defender of national security— come in two types: first, the worst Machiavellian cynics and opportunists (looking at you Mitch McConnell, Lindsey Graham, and Marco Rubio), and second, the Kool-Aid drunk members of the cult of personality. Both are beyond rescue.

OF CUTTING IMPLEMENTS

I can’t remember where I heard it but there used to be a time when Republicans were all in favor of punishing people for breaking the rules regarding the handling of classified data. Am I imagining that? 

But what we see as ironic, Trump supporters see as exculpatory. 

In line with the thought experiment above, when Trumpers survey Mar-a-Lago Gate, they inevitably dismiss it as no worse than what Hillary did. Milder, in fact, somehow. He was President! He had the authority to do whatever he wanted—Article II says so! And she wasn’t prosecuted, but now they’re saying he should be? Hypocrites!

Of course it’s unfair even to make the comparison. Hillary’s misuse of a private email server did not even rise to the level of a recommendation for prosecution by the FBI, despite repeated and lengthy inquiries, famously right up to the eve of the 2016 presidential election, amid banshee-like howls for her head from the bloodthirsty right wing. (Oh, and by the way, numerous Trump staffers went on to use private email servers while in office, even after riding to power by attacking her on that count.) 

David French, formerly of National Review, is about as staunch a conservative as they come, and within the world of anti-Trump Republicans, a reliably intelligent observer of such matters. Yet even French makes this false equivalence in an otherwise informative piece in the Atlantic, blithely noting—almost in passing—that the info on Hillary’s private server included “information classified at the same top-secret/SCI level as some documents located in Mar-a-Lago.”

As an attorney and former US Army JAG officer, French ought to know better than to make this sloppy and specious comparison. 

According to the factchecking organization Politifact, of the 30,000 Clinton emails that investigators examined in that case, only 113 contained classified information, and only three of those were marked as classified— I’ll repeat that: three!—and even those markings were ambiguous and unclear according to a 2018 Justice Department inquiry. Politifact: 

FBI Director James Comey said in 2016 that Clinton should have known that some of the 113 were classified, but others she might have understandably missed….Overall, the agency said it was reasonably confident that there was no intentional misconduct. Broadly, it said classified information had been improperly transmitted, but carelessness, not an intent to skirt the law, was the cause.

Please compare that with what Trump did, as detailed above.

Politifact goes on to quote the national security lawyer Bradley Moss, who notes that “(Clinton’s) e-mails were never marked as classified because these were communications from unclassified government accounts.” In fact, some of what was counted against Clinton was open source information that the CIA later said contained classified intelligence, such as one chain that forwarded a front-page New York Times story about a drone strike. And of course Clinton immediately and thoroughly cooperated with the federal investigation once she was informed of it. 

To analogize Clinton’s actions and Trump’s, then, is wildly off-base, if not deliberately misleading, especially as we contemplate potential punishment for Donald. When FBI DIrector James Comey announced that the Bureau was not recommending Clinton be charged, he noted that all the cases the government had prosecuted in the past “involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice,” concluding: “We do not see those things here.” 

French:

If that’s the prudential standard that was applied to Clinton, the same standard should be applied to Trump. This does not mean that he shouldn’t be prosecuted; it does mean that if DOJ chooses to prosecute, it should come forward with clear evidence of the exact misconduct identified above. The distinctions between Clinton’s case and Trump’s case would have to be transparently obvious.

I’ll agree with that. And those distinctions between Clinton’s case and Trump’s case are already “transparently obvious,” except to the willfully blind. 

To his credit, French concludes: “The former president was not giving up top-secret national-security documents. DOJ had no choice but to act. Trump has only himself to blame.” Points off, however, for feeding the MAGA disinformation fire by even suggesting that the Clinton and Trump cases are similar.

Hillary’s sins regarding classified materials are akin to forgetting you had a pocketknife in your luggage and having it seized by the TSA. Trump’s are like boarding a 737 with a boxcutter, hijacking the plane, and flying it into the World Trade Center. 

ONE ORANGE JUMPSUIT PLEASE, SIZE XXXL

This entire scandal, and the fact that somehow circumstances conspired such that Donald Trump had occasion to have stolen, ultra-sensitive national security documents in his bedroom at Mar-a-Lago, just takes me back to the mind-blowing fact that a D-list celebrity wannabe and psychopathic game show host ever had access to those secrets in the first place….which is itself an indictment of our electoral system, and a measure of the sickness of our nation.

Writing in The Atlantic, Quinta Jurecic, of the Lawfare blog and the Brookings Institution, notes that all of Trump’s scandals flow from his “refusal to divorce the office of the presidency and the good of the country from his personal desires.” In that regard, she calls the sensitive documents matter “the most Trumpy scandal of all.”

Trump’s apparent squirreling away of classified documents at Mar-a-Lago, and his outrage over the Justice Department’s investigation of that conduct, speaks once more to his vision of his own absolute authority—even after he has departed the presidency. It’s a vision that places Trump himself, rather than the Constitution and the rule of law, as the one true source of legitimate political power.

Jurecic writes that “Again and again during his presidency, Trump did his best to transform executive power into a resource from which to extract personal benefit”—precisely the sort of thing that is anathema to a representative democracy: 

The approach of separating the presidency from the individual president evolved for a good reason: The vision of the man inextricable from the office he holds tips quickly into monarchy. The idea that law enforcement cannot and should not be the tool of the leader’s individual whims is central to the divide between the president and the institutional presidency, and therefore to the idea of “rule of law.” 

Citing Trump’s habit of referring to any investigations of his wrongdoing as a “hoax,” a “scam,” or a “witchhunt,” she astutely notes that this mentality “followed naturally from his own understanding of absolute presidential power. After all, if the president’s authority is total and unbound by law, then how can the DOJ investigate him?” 

The additional twist of the Mar-a-Lago scandal, though, is that Trump is now implicitly claiming that total authority even out of office. If, before, Trump was furious that Special Counsel Robert Mueller could investigate him even when he was the president, now he is outraged that the DOJ would investigate him even though he is Trump. 

So it must be asked: Is this the thing that finally calls Trump to account and results in criminal punishment for at least one of his many crimes against the republic? The hypothetical Trump supporter I conjured up at the top of this piece would say that the very fact that that punishment is Left Wing America’s Holy Grail confirms his contention that he is the target of Javert-like persecution. 

But it is not wrong to want to see a habitual offender who is responsible for a cornucopia of egregious crimes over the course of his life and always escaped consequences brought to justice. More to the point, that accountability is essential in order for our democracy to survive. On that front, punishment for Trump’s theft of government secrets will not be a substitute for accountability for his other crimes, such as fomenting the Big Lie and the Insurrection. But it’s a start. 

In short: Lock him up. 

One of the chief tactics of terrorist groups is to create conditions after the fact to justify their atrocities. 

Terrorists routinely insist that their foes are brutal oppressors who are deserving of the violence visited upon them, and can be defeated by no other means. They then provoke those foes—typically sovereign states—with horrific acts like bombings and assassinations and hijackings, hoping, in part, for a draconian overreaction in response—mass arrests, torture, abrogation of civil liberties, etc—which the terrorists then point to as proof of their original allegation.

This kind of carefully engineered self-fulfilling prophecy is very much what the Republican Party is doing when it comes to the effort to hold Donald Trump and his enablers (which is to say, the GOP itself) accountable for its myriad sins. 

For decades, long pre-dating the rise of the Orange One, conservative politicians have spoken to their constituents in apocalyptic terms, fearmongering that liberals—“socialists!”—intend to destroy everything real ‘Mericans hold dear. In the Trump era, Fox, Newsmax, OANN, and their fellow travelers kept up this steady drumbeat of paranoia, arguing to their audiences that the “Deep State” was persecuting their God-Emperor and weaponizing the mechanisms of state power for use against him—and them.(Miraculously, this Deep State somehow never included any Republicans, even though the intelligence, military, and law enforcement communities skew heavily conservative, to say nothing of the political bureaucracy full stop.) 

It was a savvy ploy, given that at the same time, Trump and the criminal cabal atop which he sat were themselves weaponizing state power for their own venal ends, brazenly committing crimes that would have made Nixon blush, and might even have caused Nero to stroke his chin in admiration. 

Now that the grownups are back in power—for the moment—and correctly pursuing well-deserved accountability for Trump & Co., the American right is cashing in on the groundwork it so diligently laid, howling that this is precisely the leftist police state in action that it has so long foretold. 

The Aug 9^th search warrant served at Mar-a-Lago marked an exponential escalation on the front. 

Since that day, we have been inundated with hysteria over the idea that—gasp!—the FBI and DOJ would actually investigate criminal activity! (“Dystopian nightmare! FBI obtains warrant, conducts search!” wrote the Washington Post’s resident satirist, Alexandra Petri, giving Borowitz a run for his money.)

Here my analogy to terrorism breaks down, in that instead of the kind of “draconian overreaction” of which I spoke, what Trump and the GOP have provoked with their criminality is simply the legitimate exercise of the criminal justice system. But that is sufficient for the American right to screech that Biden’s jackbooted stormtroopers are marching toward your door.

POLICE STATE

 A brief survey:

The Washington Post’s Hannah Knowles reported that Republican “lawmakers and candidates likened the (Mar-a-Lago) investigation to ‘Third World’ political persecution and even Nazi rule—underscoring Trump’s grip on the party and raising concerns about stoking the kind of anti-government fervor that preceded the deadly Jan. 6, 2021, attack on the Capitol.”

Lawmakers throughout the party continued to cast the search at Trump’s Mar-a-Lago property, without evidence, as the act of a tyrannical regime, using terms such as “dictatorship” and “banana republic.” Sen. Rick Scott (R-Fla), the chairman of the National Republican Senatorial Committee, said the federal government has gone the way of “the Gestapo.” The New York Young Republican Club issued a statement calling for the arrest of anyone involved in the search or other alleged persecutions, suggesting the suspension of normal legal processes if needed “to secure our Republic from the insidious monsters that have wrenched it from the American People’s control.”

Maryland Republican gubernatorial nominee Dan Cox on Tuesday called the FBI search “criminal” and said that if elected, he would use the full force of government—including the state police and Maryland National Guard—to oppose President Biden’s administration.

Betsy McCaughey, former New York lieutenant governor and New York Post columnist, tweeted that “When Republicans take back Congress, they should abolish the FBI, shut every field office, fire all staff, and start anew. #Trump #FBI #Newsmax.” Rep. Paul Gosar (R.-Ariz.) called the FBI’s G-men “democrat brownshirts,” and called for the “complete dismantling and elimination” of the Bureau. 

Josh Hawley—presumably while doing his Tommie Smith impression—called for Merrick Garland to resign or be impeached “at a minimum,” and for FBI Director Chris Wray—a Trump appointee, by the by—to be removed. Anthony Sabatini, a Florida state representative and candidate for Congress, went even further, calling for the entire federal government to be torn down, and suggested that the Sunshine State “(s)ever all ties with DOJ immediately. Any FBI agent conducting law enforcement functions outside the purview of our State should be arrested upon sight.”

In case you didn’t get it from watching Trump supporters scream at Capitol Police that they are “traitors” and beat them with Blue Lives Matter flagpoles, the self-proclaimed “party of law and order” now subscribes to an outré definition on how best to Back the Blue.

Kevin McCarthy  claimed that the Justice Department engaged in “an intolerable state of weaponized politicization.” Ron DeSantis  tweeted about the “weaponization of federal agencies against the Regime’s political opponents.” Steve Bannon—himself recently convicted of contempt of Congress and awaiting sentencing—claimed that “We’re at war,” called the FBI “the Gestapo,” and said, “We need to choke down the FBI and choke down the Justice Department.” Former Trump administration official Michael Caputo  called the search a “military-style raid” and equated the FBI to the KGB. Fox’s Laura Ingraham threatened that “when we get power back, it’s time to hold everyone accountable,” while right wing shock jock Mark Levin said, “This is the worst attack on this Republic in modern history, period.” (News to Admiral Yamamoto and Bin Laden.) 

But hyperventilating tweets from ambitious Republican backbenchers and self-serving con men—er, I mean, media personalities—are the least of it.

Mona Charen at The Bulwark notes, “For some in the wooly precincts of the MAGA right, the call to arms was literal. As Vice reported, some Trumpists were explicit: ‘‘’Civil War 2.0 just kicked off,’ one user wrote on Twitter, with another adding, ‘One step closer to a kinetic civil war.’ Others said they were ready to take part: ‘I already bought my ammo.’” 

There have been death threats against Judge Bruce Reinhart, the magistrate judge for the Southern District of Florida who approved the Mar-a-Lago search warrant. (“I see a rope around his neck,” wrote one Trump supporter on a pro-Trump message board previously called TheDonald.) A Shabbat service at the judge’s synagogue subsequently had to be canceled over security concerns. Most obviously, not two days after the search, a Trump supporter armed with an AR-15 and a nail gun—who appears to have been at the rally ahead of the attack on the Capitol on January 6^th—launched a violent attack on the FBI’s Cincinnati field office, before being killed by police. 

Indeed, among the right wing, calls for violence, civil war, the murder of Democrats and law enforcement officials are rife. NBC News’s Ben Collins, an expert on right wing extremism, reported that the posts he was tracking following the search of Mar-a-Lago were “as violent as I’ve seen them since before January 6th. Maybe even more so.”

Yet predictably, Republicans pooh-poohed the dangers of such rhetoric and “dismissed suggestions the GOP reaction could fan extreme responses,” resorting to the usual dishonest and factually unsupported bothsidesism. 

“That’s like saying everyone who has a ‘Save the Planet’ bumper sticker is going to blow up an oil tanker,” said Rory McShane, a Republican strategist. “There’s extreme rhetoric on both sides of the political spectrum.”

Right. And Trump will go quietly if he loses, and there will be no attempted coup.

PERSECUTION SIMPLEX

The Republican outrage over DOJ’s perfectly reasonable actions also shines a light on the dishonesty and cowardice of the GOP’s behavior during Trump’s second impeachment. Here’s  Catherine Rampell, also in the Washington Post:

Many Republican lawmakers have also somehow forgotten that they opposed impeaching Trump after the Jan. 6 insurrection because they said any Trump-related criminal allegation was a matter for the justice system to decide. The most appropriate way to maintain law and order, some argued, was to punt to the courts: “Let history, and if necessary the courts, judge the events of the past,” Sen. Marco Rubio (R-Fla.) said in February 2021 when he voted to acquit. Yet a year later, Rubio has decided that when a court deems a search warrant for Trump’s property appropriate, that means we’re becoming a “banana republic.”

(“Breaking News: Florida Man Stunned to Find That Laws Apply to Him, Too” tweeted the actress and singer Lynda Carter, giving Andy Borowitz, a run for his money. Don’t mess with Wonder Woman.)

And, as usual, the propagandizing of MAGA Nation and the right wing media is being abetted by the tedious faux “objectivity” of the allegedly liberal MSM, which still hasn’t learned its lesson from 2016.

In the Washington Post, Perry Stein had an article last week titled “FBI’s Search of Mar-A-Lago Lands Merrick Garland in a Political Firestorm,” with the subheading, “The partisan outcry was the opposite of what Garland, a former federal judge, has sought in his 17 months on the job.”

In the Washington Post, Perry Stein had an article last week titled “FBI’s Search of Mar-A-Lago Lands Merrick Garland in a Political Firestorm,” with the subheading, “The partisan outcry was the opposite of what Garland, a former federal judge, has sought in his 17 months on the job.”

AYFKM? That header might have been dictated directly from Breitbart. The article itself is a fairly bland recap of the talking points from both sides, but it gives the final word to Stanley Brand, a former House counsel who represents some of the January 6th defendants and witnesses:

(Brand) called the FBI search of Trump’s property a huge escalation in the investigation of documents improperly taken to Mar-a-Lago. If investigators don’t recoup materials that showed that there were serious national consequences for the materials he potentially kept, Brand said, it could tarnish the Justice Department’s reputation.

“If they are trying to rebound from the perception that their decision-making was skewed from the Trump era, this is not going to help that,” Brand said. 

I’m not sure what to make of reportage like that, except that it doesn’t exactly reflect honor on  the WaPo or its slogan, “Democracy dies in darkness.” Unless that is meant to be aspirational. 

Also in the WaPo, the twentysomething conservative writer Jason Willick, formerly of the WSJ, had an op-ed recently suggesting that even if the DOJ search of Mar-a-Lago was justified and righteous, it was tone deaf to the inevitable political fallout, and therefore ill-advised. Wow. Either that is shameless and disingenuous misdirection, or a deeply Machiavellian and unappealing vision of the kind of society we want to have. (Not clear if Mr. Willnick is similarly critical of all the things Republicans have done that infuriated Democrats.) 

Of course, Trump’s cries that he is being persecuted by a politicized DOJ are especially rich in light of his own behavior, as the New York Times’ Peter Baker writes:

Throughout his four years in the White House, Mr. Trump tried to turn the nation’s law enforcement apparatus into an instrument of political power to carry out his wishes. Now as the FBI under Mr. Wray has executed an unprecedented search warrant at the former president’s Florida home, Mr. Trump is accusing the nation’s justice system of being exactly what he tried to turn it into: a political weapon for a president, just not for him.

But Mr. Trump has a long history of accusing adversaries of doing what he himself does or would do in the same situation….

Michael R. Bromwich, a former Justice Department inspector general, told Baker: “Trump may actually believe that Merrick Garland is serving a political agenda because he has trouble processing anything else. Trump simply doesn’t understand people like Garland and the top leadership of DOJ and the FBI because their values are so alien to him.”

The Bulwark’s Mona Charen concurs:

Trump is a sick soul who cannot imagine a world in which people act on principle or think about the welfare of others. While in power, Trump wanted to use the FBI to punish his political opponents (“Lock her up”) and reward his friends (“Go easy on Michael Flynn”). He projects his own corrupt motives onto others and assumes that the FBI investigation is nothing but a Democratic power grab. It would be pathetic if he had not dragged an entire political party into the fever swamps with him.

This experiment in self-government requires a minimum amount of social trust to succeed. With every tweet that spreads cynicism and lies, with every call to arms that welcomes civil conflict, Trumpist Republicans are poisoning the nation they so ostentatiously claim to love.

In The Atlantic, the intrepid Adam Serwer writes that Trump’s claim of political persecution reflects the Republican view of who and who is not subject to the rule of law in America:

There are people against whom law-enforcement action or abuse is always justified, and there are people against whom it can never be justified. 

That is, if law-enforcement officials want to murder an unarmed Black man in the street, brutalize protesters against police misconduct, or investigate a Democratic presidential candidate, conservatives will insist that such officers are infallible and that any criticism of their conduct is outrageous. But when the law is used to investigate or restrict the conduct of people deemed by conservatives to be above its prohibitions, that is axiomatically an abuse of power.  

DON’T FEAR THE BACKLASH

Ever since January 6, 2021, I have written repeatedly in this blog about the absolute necessity of accountability for the events of that day and all that led up to it. (You can read it here and here and here and here.) This is not, ahem, a unique insight or position. But now that we are beginning to see concrete examples of the beginnings of that accountability, we are also seeing the pushback from Big Lie America.

Threats of violence, per above, are but one part of that effort. Another almost insidious, if less dramatic, part is the steady chorus of conservative voices telling us, Brer Rabbit-like, how pursuing accountability for Trump will backfire, and only make him stronger, and be “divisive” for the country.  

Numerous pundits dutifully noted how Trump’s grievance-driven base will be wildly energized by the Mar-a-Lago search, such that it could actually help him in the 2024 campaign. Statistically speaking, they are not wrong: Trump’s support among conservatives is up since the search took place, he is fundraising off it, and talk of rivals for the 2024 GOP nomination has withered on the vine. 

But at the risk of stating the blindingly obvious, that is not a reason to forgo holding him accountable—for January 6^th, for stealing classified documents, or anything else on his unholy CV. 

In the pursuit of justice and the defense of democracy, we cannot give in to threats of violence aimed at cowing us, nor to the fear that our efforts will energize our foes, even if that is so. To do so would be to hand those villains a victory by default, as this is exactly the kind of meek acquiescence at which their efforts at intimidation are aimed. That remains true even if we someday face a second Trump administration (gulp), or a similarly venal one led by one of his acolytes. 

And we’ve been here before. 

In both impeachments of Trump we knew that the Republican-controlled Senate would never convict him, no matter what evidence was presented. Yet the Democrats and other defenders of the rule of law pursued it anyway, on principle, knowing that not to do so would be an insanely self-destructive signal to the next would-be autocrat and coup plotter. The same may prove true of any criminal prosecution of Trump, although the events of last week dramatically raised the chances of a conviction there, not to mention indictment in the first place. 

This is well worth remembering, because allegedly “respectable” voices on the right are going to continue to try this scam on us. 

In the wake of the Mar-a-Lago search, the usually sensible Damon Linker of The Week wrote on Substack, “Rather than healing the country’s civic wounds, the effort to punish Trump will only deepen them.” The Washington Post’s Hannah Knowles quoted a “GOP strategist who spoke on the condition of anonymity” as sharing “deep concerns about what could come next. ‘If the president is prosecuted for crimes committed while in office, I am very concerned that this country could erupt in civil war,’ the strategist said.”

Oh, we’re going to have a civil war because some people believe the president is above the law and can do whatever the hell he or she wants—like a dictator, or a king—while others think that the president ought to, ya know, obey the law, and be held accountable to it?

Well, that is indeed a very stark difference of opinion, one that might well force us to reckon with whether or not those two views can co-exist in the same country. But as an attempt to scare us away from investigating Trump? Sorry—no. 

It’s especially rich that the very voices warning us about the risks of civil war belong to the same conservative community that is recklessly fanning the flames of that war. 

I was especially dismayed to read a piece by The Atlantic’s Tim Alberta, a superb reporter, but way off base with his warning of how the Mar-a-Lago raid will infuriate the Trumpian base: 

Ours is a government of laws, not of men, as John Adams once observed. Nobody, not even a president, is above those laws. So why did I feel nauseous yesterday, watching coverage of the FBI executing a search warrant at Trump’s Mar-a-Lago estate?

We don’t know exactly what the FBI was looking for at Mar-a-Lago. We don’t know what was found. What we must acknowledge—even those of us who believe Trump has committed crimes, in some cases brazenly so, and deserves full prosecution under the law—is that bringing him to justice could have some awful consequences.

Is that justice worth the associated risks? Yesterday, the nation’s top law-enforcement officers decided it was. We can only hope they were correct.

What is it with this handwringing over how the pursuit of justice hurts Trump voters’ feelings so maybe we shouldn’t do it? For nigh on seven years now we’ve been told how we must walk on eggshells lest we anger the great MAGA horde. Puh-leeze. 

I prefer the take of Dana Millbank, again in the WaPo, who rightly puts the blame for any such violence and civil unrest squarely where it belongs: on the right itself. 

Are we really going to back off these investigations and the pursuit of righteous accountability for the people who tore small children from their parents and caged them, who leveraged foreign aid for personal political gain, who gladly accepted the interference of hostile foreign powers in our elections, who tried to violently overturn a free and fair election, because we’re afraid it will make them mad?

It is true that the Mar-a-Lago search has tightened Trump’s hold on the GOP, which by some accounts, had been slipping. (We’re always being told that it’s slipping, and yet it never really does.) But as David Frum recently wrote in an epic Twitter thread, “An ex-president doesn’t deserve impunity for crimes just because he leads an anti-democratic faction who will capsize democracy rather than accept accountability for their leader’s misdeeds.” 

It ought to go without saying that giving into that sort of intimidation is a political suicide pact. I can’t believe it is even being seriously considered. It’s one thing for conservative politicians and pundits to propose this foolish notion, either cynically or because they’re far right partisans who believe everything is OKIYAR. It’s quite another to hear it from ostensibly reasonable observers in the legitimate press.  

MICHELLE, MA BELLE

Perhaps the best obliteration of this impulse toward timidity came from the New York Times’ Michelle Goldberg, in a piece called “The Absurd Argument Against Making Trump Obey the Law.” It’s so good, I want to quote it at length. 

She begins by reminding us of the disastrous results of a previous case of worrying about making right wingers mad: James Comey’s excessive concerns “about what Trump’s supporters would think of the resolution of the investigation into Hillary Clinton’s emails.” Goldberg notes that in his own memoir, Comey “admitted fearing that concealing the new stage of the investigation—which ended up yielding nothing—would make Clinton, who he assumed would win, seem ‘illegitimate.’(He didn’t, of course, feel similarly compelled to make public the investigation into Trump’s ties to Russia.)”

Comey’s attempts to pre-empt a conservative firestorm blew up in his face. He helped put Trump in the White House, where Trump did generational damage to the rule of law and led us to a place where prominent Republicans are calling for abolishing the FBI.

This should be a lesson about the futility of shaping law enforcement decisions around the sensitivities of Trump’s base. Yet after the FBI executed a search warrant at Trump’s beachfront estate this week, some intelligent people have questioned the wisdom of subjecting the former president to the normal operation of the law because of the effect it will have on his most febrile admirers.

The former president relishes his ability to stir up a mob; it’s part of what makes him so dangerous.

We already know, however, that the failure to bring Trump to justice—for his company’s alleged financial chicanery and his alleged sexual assault, for obstructing Robert Mueller’s special counsel investigation and turning the presidency into a squalid influence-peddling operation, for trying to steal an election and encouraging an insurrection—has been disastrous.

What has strengthened Trump has not been prosecution but impunity, an impunity that some of those who stormed the Capitol thought, erroneously, applied to them as well. Trump’s mystique is built on his defiance of rules that bind everyone else. He is reportedly motivated to run for president again in part because the office will protect him from prosecution. If we don’t want the presidency to license crime sprees, we should allow presidents to be indicted, not accept some dubious norm that ex-presidents shouldn’t be.

No doubt, Trump’s most inflamed fans might act out in horrifying ways; many are heavily armed and speak lustily about civil war. To let this dictate the workings of justice is to accept an insurrectionists’ veto. The far right is constantly threatening violence if it doesn’t get its way. Does anyone truly believe that giving in to its blackmail will make it less aggressive?

WHEN PERFORMANCE BECOMES REALITY

In some ways, many of these warnings of right wing outrage, and even violence, are purely performative. Like all bullies and cowards, Trumpists are seeking to intimidate their foes with threats of retribution. A perfect case in point is that of Kevin McCarthy, that great believer in cooperating with Congressional investigations (note: applies to Republican investigations only), who sanctimoniously warned Merrick Garland to prepare to be Benghazied. 

Such portentous statements are also performative in the sense of GOP politicians pandering to the aptly-named base. This is criminally reckless to say the least, but also proof of how beholden the Republican leadership is to the most radical faction of its demographic. So please spare me the platitudes about how Ron DeSantis—or Tom Cotton, or Nikki Haley, or any other Republican presidential aspirant you care to name—will be “better” than Trump in terms of red-meat-throwing, should Donald not win his party’s nomination in 2024. 

Of course, some threats are not merely performative. We ought to be painfully aware, after the murder of Heather Heyer, after the plot to kidnap and murder Gretchen Whitmer, after the acquittal of Kyle Rittenhouse, after multiple politically and racially motivated mass murders by gun-wielding right wing maniacs, after the brazen rise of white nationalist militias like the Proud Boys and the Oath Keepers, and of course, after January 6^th, that there are those among us who have no compunction about using violence to achieve their loathsome ends. 

But in many ways, the civil war that so many fear, as I suggested in the immediate wake of January 6, 2021, is already here—a low-intensity conflict , to use the ‘90s-era US military term of art, in which a white nationalist, Christian supremacist right wing insurgency is attempting to take permanent control of American governance, with the eager assistance of one of our two political parties. (Not clear which is the tail and which is the dog.) The American epidemic of mass shootings, many of them with right wing political motives, is certainly part of that and should be seen that way.

The Atlantic’s Tom Nichols, who is also a professor at the US Naval War College, writes:

The United States now faces a different kind of violence, from people who believe in nothing—or at least, in nothing real. We do not risk the creation of organized armies and militias in Virginia or Louisiana or Alabama marching on federal institutions. Instead, all of us face random threats and unpredictable dangers from people among us who spend too much time watching television and plunging down internet rabbit holes. These people, acting individually or in small groups, will be led not by rebel generals but by narcissistic wannabe heroes, and they will be egged on by cowards and instigators who will inflame them from the safety of a television or radio studio—or from behind the shield of elected office. Occasionally, they will congeal into a mob, as they did on January 6, 2021.

There is no single principle that unites these Americans in their violence against their fellow citizens. They will tell you that they are for “liberty” and “freedom,” but these are merely code words for personal grudges, racial and class resentments, and a generalized paranoia that dark forces are manipulating their lives. These are not people who are going to take up the flag of a state or of a deeper cause; they have already taken up the flag of a failed president, and their causes are a farrago of conspiracy theories and pulpy science-fiction plots.

JUST MY IMAGINATION (RUNNING AWAY WITH ME)

Nichols cautions against inflating our expectations of an ultimate comeuppance for Trump (see also: Lucy and Charlie Brown), and also against wild speculation about exactly what he has been up to with the stolen classified material:

I am concerned, in particular, by conversations I have seen (and some in which I have participated) on social media that suggest to me that Trump’s critics are letting their imaginations run away with them, including accusations that Trump has, or soon will, sell these secrets to America’s enemies.

I am certainly aware that I could readily be accused of that sin, having openly speculated about the possibility that Trump might be selling nuclear secrets to—oh, I dunno—Saudi Arabia. 

I’m not saying Trump has done something like that, or is doing so now. But is it beyond the pale to consider that he might? On the contrary: it’s advisable to imagine the worst case scenario as we pursue the demonstrable truth. 

I am a blogger, by avocation, and a screenwriter, by trade, paid to indulge my imagination in the wildest, most dramatic scenarios possible. I used to be a military intelligence officer, where part of the job was doing the same. If the New York Times were to give me a column, I promise I would rein it in. Here on The King’s Necktie, however, where I have no adult supervision and answer to no one, I will continue to let my mind—and fingers—roam freely. 

And what does it say that that’s the first thing that leapt to the minds of many people when it was revealed that he may have stolen documents pertaining to nuclear weapons? Notice that even as Republicans defend Trump with every fiber of their collective being, not one of them has dismissed the idea of him selling nuclear secrets out of hand as patently absurd, or something he would never do.

Because we all know that he would. And Republicans know that too. 

Can you imagine someone accusing Jimmy Carter, or Gerry Ford, or either of the George Bushes, of such a thing? It would not even be dignified with a response. But as the writer Tom Scocca memorably tweeted at the very dawn of the Trump era, in 2016: “Nothing about Trump has ever looked kinda bad at first but turned out OK. He’s always worse than you thought.”

Nichols clearly understands this:

Nothing can ever be ruled out where Donald Trump is concerned, and it’s certainly possible that Trump—whose history suggests that he never does anything for reasons other than profit or to service his debilitating narcissism—thought he could use America’s secrets for his own financial or political gain. But there’s no point in trying to pin this kind of intent on the former president, thus setting up impossibly high expectations of prosecution that will likely be dashed in the near future—especially when Trump may have already committed severe violations of a law that he himself signed in 2018 that makes his current actions a potential felony.

I’ll settle for that. 

WHERE TO NOW?

It’s still early days, but all of us who have been frustrated with Merrick Garland’s opaque, slow-moving, institutionalist style may soon have to eat some crow and ought to do so gladly. I know I will. (Fried, please, with a side of my hat, and humble pie for dessert.) His rollercoaster career is already proving to be the stuff of Hollywood, from the gutting disappointment of having his nomination to the Supreme Court unconscionably blocked by Mitch McConnell, to the drama of the decision now on his plate, to potentially being cast as savior of the republic. Or its goat, and not the good Tom Brady kind.

Other advanced democracies have rightly prosecuted corrupt former heads of state without their republics collapsing. Ask France, or Italy, or South Korea. Attorney General Garland may well come to the conclusion that the United States ought to do the same, and that the greater danger lies in not prosecuting. Count me in that camp. 

But it’s true that where that path may lead is uncharted, and potentially surreal.

On MSNBC’s Deadline White House, guest host John Heilman has been asking all his guests, among them Punchbowl’s Jake Sherman, the Bulwark’s Charlie Sykes, and veteran conservative strategist Stuart Stevens, now of the Lincoln Project, if the GOP might actually nominate someone who was under indictment for espionage. All of them immediately answered yes. 

Sykes: 

Which seems extraordinary, except that I’m afraid that it is now self-evident. Of course they would. Who would stop them, as Trump waves the bloody shirt of his martyrdom?

If there is eventually an indictment and prosecution, depending on how long the case takes, it is even conceivable that we could have a convicted felon elected President. 

Well, at least the security in the Oval Office at ADX Florence Supermax federal penitentiary will be good. 

In any event, the controversy over the Mar-a-Lago search demonstrates very clearly that even jail time for Trump, satisfying—if unlikely—as that would be, will not be the end of Trumpism.  

Nichols one last time. 

When enough Americans decide that a cult of personality matters more than a commitment to democracy, we risk becoming a lawless autocracy. This is why we must continue to demand that Trump and his enablers face the consequences of their actions: To cave in the face of threats means the end of democracy. And it would not, in any event, mollify those among our fellow citizens who have chosen to discard the Constitution so that they can keep mainlining jolts of drama from morning until night.

We are going to be living in this era of political violence for the foreseeable future. All any of us can do is continue, among our friends and family and neighbors, to say and defend what is right in the face of lies and delusions.

The last word goes to Michelle Goldberg, who for my money has been the (wo)man of the match on this topic:

(T)hose in charge of enforcing our laws should remember that the caterwauling of the Trump camp is designed to intimidate them and such intimidation helped him become president in the first place.

Trump shouldn’t be prosecuted because of politics, but he also shouldn’t be spared because of them. The only relevant question is whether he committed a crime, not what crimes his devotees might commit if he’s held to account.

********

Illustration: Shutterstock

Remember when August was traditionally a slow news month?

This week I had a whole essay about Donald Trump’s theft of classified documents ready to go when even bigger news on that front broke. The kakistocracy, apparently, is a fast-moving train. A shinkansen even. 

I’m sure Republican hypocrisy will still be going strong next week, so no worries about wasted effort or the perishability of that story. In the meantime let’s dive into the latest breaking news. But first, let’s be clear about our terms, because the media largely has not been. 

What’s being investigated here is not merely “the unauthorized possession of classified material,” as it is often coolly described. Trump hasn’t been caught holding, like a kid with a joint. He actively and illegally took classified documents containing state secrets—some of them, evidently, highly classified—from secure government facilities to his personal post-presidency residence at Elba-Lago. That’s called theft, and is subject to laws regarding espionage and worse. And it is not a mere allegation; that part of the story is already established fact.

What remains to be explained is why he did so and what he intended to do with that material…especially if, as alleged, it contained top secret information regarding nuclear weapons.

TODAY IN CONJECTURE

At the risk of pulling a muscle patting myself on the back, earlier last week, before the apocalyptic, atom-splitting part of this story broke, I asked online:

Since the right wing is roiled with conspiracy theory over Raid-a-Lago, let’s indulge in some wild speculation of our own. 

What sort of classified material do you think Donald Trump illegally took out of the White House and down to Florida? Stuff that was incriminating about his own activities, re Jan 6th or anything else? Maybe. But why? Why not just destroy that stuff?

OK. So more likely he took documents and information that were otherwise valuable to him….and in his world, “valuable” can equate only to something he can monetize. (The man buried his first wife on his golf course for a tax break, after all.)

Talking Points Memo‘s Josh Marshall has written that it’s likely that this search was ordered because “a serious crime about which we do not yet know has occurred.” I certainly agree. 

Would we be shocked to find, for example, that Trump has been selling top secret US government information to hostile foreign countries, such as Russia? Do we put it past him? We have no evidence whatsoever that this is the case—yet—but it’s a scenario that fits the facts available thus far, which few other theories do. I would not be shocked if this turns out to be so. 

I said this was going to be wild speculation, didn’t I?

Turns out the speculation wasn’t so wild after all. The day after I wrote that, the Washington Post revealed that among the material the FBI was seeking at Mar-a-Lago was information regarding nuclear weapons, a revelation that—for everyone outside the Cloud Cuckooland that is the American right wing—quickly dispelled any questions about why the DOJ felt this matter was serious enough to merit a search warrant.

And it makes sense. As I said in that Facebook post, does anyone really think that it would be beyond the pale for Donald Trump to sell or otherwise leverage access to US nuclear secrets for personal gain, financial or otherwise? Of course not. He would do it in a New York minute.

In this scenario, the smart money is now on the Saudis, rather than the Russians, as the buyers. Riyadh has long been desperate to get the Bomb, and Trump has deep financial ties there—and Jared even more so. He is even part of the Saudis’ new LIV pro golf venture, the so-called “Bonesaw Tour.” The Russians would still love to have TS/SCI intel about the US nuclear arsenal, of course, or learn what we know about theirs, and Donald’s man-crush on Putin keeps that in the running for sure. But for now the House of Saud seems the most likely candidate.

It’s important to note for the record that we do not yet know for certain that Trump stole nuclear secrets, let alone sold them, so let’s hold off measuring him for his orange jumpsuit just yet (and blowing up the balloons and lighting the sparklers). But it is certainly within the realm of possibility, with enough credible evidence—more likely than not, from an inside source who flipped on the Donald—that the DOJ felt it needed to obtain that warrant, and a federal magistrate judge agreed, especially after (we would later learn) Trump had already defied a subpoena on that front.

A few weeks ago in this blog, I published a two-part essay about Moore v. Harper, a case that the Supreme Court will hear next term, metaphorically calling it “the atomic bomb of election subversion.” I did not think that, nineteen months after he was chucked out of office, Trump would be threatening American security with actual atomic bombs. I really thought that attempting a violent overthrow of the government was as bad as it could get. But now we find that, even from exile, Trump has—possibly—managed to do something arguably even worse than that. Reasonable people can disagree about which is the greater sin. But how about a dude credibly accused of both?

HOAX DU JOUR

Trump’s first response to the news about nuclear materials was to claim that it was a hoax perpetrated by his enemies, the same defense he used against allegations of collusion with Russia. Needless to say, MAGA Nation did not need any convincing on that point; it ate it up with a spoon. 

(Trump may not be exactly a one trick pony, but it does appear that his repertoire is limited to two. The other move, also deployed in this same scandal, is to claim there was nothing untoward about what he did, which was what he did over Ukraine and the “perfect” Zelenskyy call. More on that in a moment.) 

Trump also claimed that FBI agents planted evidence while they were at Mar-a-Lago. Per Politico, he shrieked on Truth Social:

“Why wouldn’t the FBI allow the inspection of areas at Mar-a-Lago with our lawyer’s, or others, present,” Trump wrote on Truth Social. “Made them wait outside in the heat, wouldn’t let them get even close – said ‘ABSOLUTELY NOT.’ Planting information anyone? Reminds me of a Christofer [sic] Steele Dossier!”

But, with apologies to Mary McCarthy, by now we ought to know that you can’t believe a word that leaves Trump’s lips—or fingers—including “and” and “the.” His claim that his lawyers were not allowed to observe the search was quickly contradicted by those very lawyers, one of whom told the press that she was in fact present. (Trump lied—stop the presses.) That same lawyer also let slip—to Laura Ingraham of all people, and her millions of viewers—that the Trump family itself was able to watch the search in real time, remotely, from Manhattan, via closed circuit TV. 

The only guy with worse lawyers than Trump is Alex Jones.

More to the point, his suggestion of planted evidence was a telling pre-emptive strike, implying that Trump knows bad shit is going to come out. As The Atlantic’s Peter Wehner writes, “Already, Trump is laying the groundwork for his followers to dismiss any evidence of wrongdoing that the FBI may have uncovered.” And because the material in question is classified, the DOJ will never be able to make the evidence 100% public, which of course will allow Trump to continue to claim that the accusations are a frame-up. 

Of course, Trump’s defenders, from redhatted MAGA minions in the street like that radio caller to the tippy top leadership of the GOP, will be utterly unmoved by any evidence that comes out of this investigation, even if were to show that Trump was selling US nuclear secrets, or the names of American spies, or pictures of Lindsey Graham dressed like Little Bo-Peep. They will parrot Trump’s claim that it’s a hoax, or say that the proof is insufficient or fake, that the Deep State has been out to get Donald since day one, and on and on. They will rationalize and excuse anything and everything, and whether that loyalty to the man is driven by Kool-Aid drunk near-religious belief or merely cynical opportunism matters not a whit, nor makes it any more defensible either way. 

We have long since passed the point where any reasonable person thinks, “Aha! This, at last, is the scandal that will finally break the fever that has possessed these people!” I eagerly await some right wing apologist (top candidate: Marc Thiessen) to argue that Trump was right to sell nuclear secrets to the Saudis—if something like that proves to be case—because of moves by the Biden administration to rejoin the JCPOA. 

In this regard, the fealty of Trumpworld continues to astound. 

In a recent piece called “Why Trump Has To Sell A Fantasy of Collective Persecution,” The Washington Post’s Paul Waldman quotes a tweet from the Republican members of the House Judiciary Committee in the wake of the Mar-a-Lago search, and the Inflation Reduction Act’s provisions for cracking down on corporate tax evasion:

The IRS is coming for you. The DOJ is coming for you. The FBI is coming for you. No one is safe from political punishment in Joe Biden’s America.

Here in miniature we see a perfect example of how Trump has deftly welded his own personal interests to those of his followers, scamming them into believing they are one and the same, and that any misfortune that befalls him—even if it is in fact his own fault, and well-deserved—is an attack on them. 

(A) sense of oppression has become central to motivating conservative voters, a way of keeping them engaged, angry and feeling that they have a personal stake in the outcome of every political event, no matter how remote it might seem. So it’s being repeated overand over.

You’re not just an ordinary person with an ordinary job and an ordinary life. You’re a freedom fighter waging war against forces of darkness to secure liberty’s future. The more grubby and personal Trump’s misdeeds are, the more important it is to keep telling the base that story so its allegiance won’t waver.

So every absurd Trump story will have to be presented this way: He took those classified documents for you, he cheated on his taxes for you, he tried to steal the election for you, and if, heaven forbid, he should face accountability for his wrongdoing, you will be the one who pays the price.

To any reasonable person, it might sound absurd. But the MAGA devotees believe it with all their hearts.

When a man has pulled off a trick like that, he can get away with damned near anything.

STAY CLASSY, SAN DIEGO

Setting aside the nuclear issue, we do know that Trump took classified material of some significant kind from the White House to Mar-a-Lago. Not even he or his acolytes dispute that, only that there was anything wrong with it—per above, the same defense they deployed over Ukraine.

A common, if dishonest, argument already being floated by Trump’s defenders, and one that we are sure to hear a lot more going forward, is that the President can declassify anything he or she wants, at will. Already it has been made by such cretins as Stephen Miller, Ric Grenell, and Kash Patel (also the author of a children’s book promoting the Big Lie called The Plot Against the King). On Truth Social, Trump himself declared, “It was all declassified.”

Of course, these claims cannot be taken seriously because they are all made in the worst possible faith. It goes without saying (but let’s say it anyway!) that these very people would hardly be so cavalier if a Democratic chief executive behaved thus. Their outrage over even the tiniest breach of the protocol for handling classified material by Democrats is volcanic  (#LockHerUp!), while their own record on that count is eyepoppingly awful, and hypocritical beyond belief.

So let’s just say that Messrs. Miller, Grenell & Patel are hardly the authorities on this matter.  

The practical reality regarding declassification is much more complicated, because the classification system, like many mechanisms of our constitutional democracy, was never intended to reckon with a commander-in-chief who was openly malevolent.

Dareh Gregorian and Marc Caputo of NBC News write:

Richard Immerman, a historian and an assistant deputy director of national intelligence in the Obama administration, said that, while the president has the authority to declassify documents, there’s a formal process for doing so, and there’s no indication Trump used it.

“He can’t just wave a wand and say it’s declassified,” Immerman said. “There has to be a formal process. That’s the only way the system can work,” because otherwise there would be no way of knowing who could handle or see the documents.

“I’ve seen thousands of declassified documents. They’re all marked ‘declassified’ with the date they were declassified,” Immerman said.  

Surprise, surprise: none of the documents returned to the National Archives from Mar-a-Lago earlier this year were so marked. (On the contrary: Gregorian and Caputo write that “Archivist David S. Ferriero, an Obama appointee, said in a letter to the House Committee on Oversight and Reform in February that his agency had ‘identified items marked as classified national security information within the boxes’ from Mar-a-Lago.”) Nor presumably were any of the ones the FBI seized this week.

Laughably, Trump’s minions insist he did in fact declassify those materials, they just didn’t get around to marking them. 

And the dog ate my homework. 

(The sneering contempt for the entire classification and declassification process displayed by Miller especially renders this already ridiculous claim even less plausible.) 

Prof. Stephen Vladeck, a national security expert at the University of Texas School of Law, notes that “President Trump had the power to declassify whichever documents he wanted to while he was president, but not any longer. So I’m not sure it’s at all obvious that he could now claim that he declassified documents while he was still in office if there’s no evidence to support it.”

The idea that a president could declassify intelligence and not tell anyone except his toadies is absurd, of course, as a matter of functional policy. Gregorian and Caputo again:

A source who had discussed the matter with Trump but was not authorized to reveal those conversations said the former president wasn’t concerned with formal protocol.

“We’ve told him there’s a process and not following it could be a problem but he didn’t care because he thinks this stuff is dumb,” the source said. “His attitude is that he is the president. He is in charge of the country and therefore national security. So he decides.” 

The authors quote the national security lawyer Bradley Moss, as saying, “That’s not how it works. Trump could say we’re declassifying this until he’s blue in the face, but no one is allowed to touch those records until the markings are addressed.” 

18 U.S. Code § 793, for instance, pertains to “gathering, transmitting or losing defense information,” and penalizes anyone who “through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed,” or “willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it.”

That means that not only Trump but also any of his aides who participated in the removal of this information from its proper locations and transfer to Mar-a-Lago could also face criminal charges.) NBC again:

Immerman said given the information that’s already emerged from the National Archives, it’s likely any classified information that went to Mar-a-Lago was mishandled en route. “When they’re moved you can’t just put them in a briefcase—they’re put in pouches that are double locked,” he said. “When I worked in national intelligence I could not carry documents by myself—I had to be accompanied by someone,” Immerman added.

Moreover, Vladeck notes that “some of the criminal statutes that are being discussed apply whether or not the underlying information is classified…..The Presidential Records Act and other similar statutes constrain President Trump’s ability to do what he wishes with at least some of the official documents from his tenure, regardless of whether those documents include sensitive national security information.”

In other words, even if this material were declassified, the documents are still US government property, and you’re still not allowed to have them in your private possession. 

Hey, as a Military Intelligence officer I used to have a Top Secret/SCI security clearance. How come nobody told me I could take my work home with me?  (“You can,” an old Army buddy of mine recently quipped in response. “Once.”) Anyone who has ever worked with classified materials understands the gravity of what Trump has done, and caused others to do, acts that are to Hillary’s emails as murder is to jaywalking. Claims by Trump and his surrogates that any mishandling of classified material was purely accidental and therefore innocent are risible. 

People get kicked out of government service, have their careers and reputations ruined, and even go to prison for less. 

Ironically, in 2018, by way of grandstanding over Hillary’s actions, then-President Trump increased the penalties for “unauthorized removal and retention of classified documents or material” raising it from a misdemeanor to a felony, punishable  by one to five years in prison. When it comes to the Espionage Act, Trump could be facing ten years in prison. Heretofore most legal experts have said that even if he is indicted for felonies and subsequently convicted, he will never do any prison time. But that was before these new accusations emerged.

It would, of course, be the height of irony if, after railing ad nauseam over Hillary’s infinitesimally less serious mishandling of classified documents, Donald Trump is finally taken down over this very issue. 

DUKE NUKEM

To be fair, there are credible experts who take the more expansive view of presidential authority regarding declassification  One is J. William Leonard, who led the federal government’s Information Security Oversight Office under George W. Bush. Leonard told The Atlantic‘s Graeme Wood that the president’s declassification power is pretty much unlimited, and requires no protocol; Trump could have “waved his hand over a U-Haul trailer” full of classified data “as it headed out the White House driveway and down I-95 toward Florida, and there would have been no classified material in there to mishandle.” (Although that U-Haul could be reclassified by a subsequent president.) 

This is not far off from the disingenuous claims made by Trump’s yes-men. But Leonard echoes Vladeck, Immerman, Moss, and other critics in noting that “Trump’s power to declassify ended with his presidency,” and there is no proof he declassified anything before leaving office, except his word that he did so. 

(Pause for laughter.)

But when it comes to nuclear matters, there is yet another wrinkle to this week’s events and the chaos they have triggered, which is why Wood’s Atlantic piece is bluntly titled (bottom line up front), “Not Even the President Can Declassify Nuclear Secrets.”

There are certain materials that presidents cannot classify and declassify at will. One such category of material is the identity of spies. Another is nuclear secrets.

(Under) The Atomic Energy Acts of 1946 and 1954….Anything related to the production or use of nuclear weapons and nuclear power is inherently classified, and Trump could utter whatever words he pleased yet still be in possession of classified material. Where are our nuclear warheads? What tricks have we developed to make sure they work? This information is “born secret” no matter who produces it. 

The restrictions on documents of this type are incredibly tight. In the unlikely event that Trump came up with a new way to enrich uranium, and scribbled it on a cocktail napkin poolside at Mar-a-Lago early this year, that napkin would instantly have become a classified document subject to various controls and procedures, and possibly illegal for the former president to possess. Of course if he did so, no prosecutor would pursue him. A certain amount of leeway is crucial to the system.

If Trump was keeping nuclear secrets in the storeroom of his country club, without even the benefit of a padlock, and resisted attempts to secure those secrets against infiltrators and spies, a prosecutor might reasonably take more interest.

In other words, we are back to where we started in this essay: with the possibility that Donald Trump stole nuclear secrets—and the mind reeling at what he intended to do with them, or has already done—and not even the faintest sliver of a reason to which he can cling by way of explaining or defending it. 

How that unprecedented, almost unfathomable situation ultimately plays out remains to be seen. In addition to legal consequences for Trump, one hopes that a couple of other positive things that might come out of this scandal would include measures to address the insane overclassification of intelligence within the US government, and new limits on presidential authority to declassify it, now that a presidential figure has arisen that the Founding Fathers—for all their fear of monarchs—failed to contemplate even in their worst nightmares. 

Another thing we might consider reforming is how we pick those presidents in the first place.

ANNUS HORRIBILIS (READER’S DIGEST VERSION)

Trump really did have a terrible, horrible, no good, very bad week. It began Monday with the search of Mar-a-Lago, and continued with the publication of an article in The New Yorker that same day revealing that he told John Kelly he didn’t want wounded veterans at his big parade. In that same piece we also learned that he complained to “his” generals that they did not give him the same slavish loyalty as Hitler’s (minus the assassination attempts). 

Then on Wednesday, in a scene that must have resembled avant garde performance art, Trump took the Fifth a reported 440 times in a deposition for New York state AG Letitia James’s investigation of potential real estate fraud by the Trump Organization. (“If you’re innocent, why are you taking the Fifth Amendment?”—Donald Trump, on the campaign trail, 2016.) And then on Thursday Merrick Garland made a rare public appearance, asking a federal court to unseal the Mar-a-Lago search warrant, resulting in an avalanche of press coverage over just how serious the DOJ allegations against Trump are that prompted Monday’ search of his home. 

And yet, informed sources reported that the muckity mucks in Trumpworld felt they were “winning” this week (bigly) because they were successfully able to cast all that as more persecution of The Former Guy, feeding the aforementioned perpetual grievance machine that is the very engine of Trumpism and indeed the entire contemporary GOP. 

That gleeful, counterintuitive view is deeply disgusting, and ignores the grave legal—and political—jeopardy that Trump is in. But it is not entirely wrong. Several savvy observers from Earth 1, including former federal prosecutor and Mueller team member Andrew Weissmann and the New York Times’s Katie Benner, noted Team Trump’s astonishing success in controlling the Mar-a-Lago narrative, such that tout le America was talking about whether the FBI and DOJ acted properly and not what the fuck Donald Trump was doing stealing classified material and taking it there in the first place…..and more to the point, what exactly was in those documents that made him do so.

That began to change with the revelations of just how classified those materials were, especially the part that relates to mushroom clouds. All praises due Merrick Garland for his brilliant jiujitsu in turning Trump’s demagoguery against him, effectively calling his bluff, if you will excuse the mixed metaphor. 

Where this goes from here is anyone’s guess. But just the headline that a former US President is under investigation for violation of the Espionage Act is gobsmacking, and even more so at a time when most of us thought our capacity for being gobsmacked was maxed out. The efforts of the January 6^th Committee have already heightened the chances that Trump will be indicted and prosecuted by the Department of Justice for various crimes. If the allegations prove credible about nuclear secrets in the classified documents that Trump stole and illegally took to Mar-a-Lago, it will be impossible to imagine that he will not be. (Conviction is a separate question.) In that case, all the speculation about which is worse for the republic, to prosecute a criminal ex-president or not to do so, will be moot. 

One would think that attempting a violent coup d’état would merit indictment, but apparently there is a debate about that. There can be no rational debate about the necessity of punishment for stealing nuclear secrets. 

Or so one would think. 

********

Photo: Mar-a-Lago, Donald Trump’s private club and residence in Palm Beach, Florida. It is not yet clear if one of the things the DOJ is investigating is crimes against architecture. 

Credit: Associated Press

How bad was life in Zimbabwe under Robert Mugabe, the brutal kleptocrat who held power in that sorrowful nation for almost 40 years? This bad: When the British mercenary Simon Mann tried to break out of Zimbabwe’s infamous Chikarubi prison in 2007, he had a queue of guards whispering in his ear, asking if he would please take them with him.   

From the end of white minority rule in 1980 until the military coup that removed him in 2017, Mugabe was the only head of state that Zimbabwe had ever known. But he wasn’t much of an improvement for the country formerly known as Rhodesia, so named for Cecil Rhodes, the white supremacist mining magnate who also lent his name to the Rhodes Scholarship. Over the course of his four-decade reign, Mugabe robbed his nation blind, leaving a trail of corruption, famine, political violence, and even mass murder that marks him as one of the most terrible dictators in the history of the continent (which is saying something). 

But clearly, a despot who blithely sports a wispy Hitler mustache is not a man who cares much what the rest of the world thinks.

Mugabe’s successor was his own vice president and longtime deputy, Emmerson Mnangagwa, who had led the 2017 putsch against him. A year later, Zimbabwe was to hold an election to decide its next president, with Mnangagwa facing off against the opposition leader Morgan Tsvangirai of the Movement for Democratic Change (MDC). But less than four months before election day, Tsvangirai died of cancer, leaving a forty-year-old attorney, party official, and former member of Parliament named Nelson Chamisa as the MDC’s candidate.

The Danish filmmaker Camilla Nielsson’s 2021 documentary President is a gripping vérité account of that election that tells a riveting tale—and a cautionary one—about how elections are stolen in the modern era. You’ll have to read to the end of this piece to learn how it turns out, but I’ll offer a spoiler right here, one that ought not to surprise anyone who’s been paying attention for the last five years: her film provides a disturbing echo of what we Americans encountered in our own presidential election of 2020, and a chilling preview of what we may well face in 2024.

(President will have its US broadcast premiere nationwide on “POV” on August 8th. Check your local listings, as local airdates and times do vary.)

MR. SMITH GOES TO HARARE

Were Nielsson’s documentary a Hollywood film, people would complain that the casting is too absurdly on-the-nose. Handsome, charismatic, and eloquent, Nelson Chamisa is full of gravitas, intelligence, and integrity, inspiring rock star-like adulation from a Zimbabwean public that sees him as its only hope for ending decades of corruption. Initially dismissed by some as too young and inexperienced, he quickly proves to be a transformational politician, one who made his bones in the most dramatic manner. (Nielsson shows us BBC file footage of him after being beaten nearly to death in 2007 by goons from the Zimbabwe African National Union–Patriotic Front, Mugabe’s party, and now Mnangagwa’s.)

MDC’s signature gesture is the “open hand,” held aloft to represent honesty and transparency. ”Show me your hands!” Chamisa cries out to his adoring campaign crowds, who respond with arms held high and palms forward, a stirring sight. Throughout the film, Nielsson’s up-close-and-personal access to the candidate and his team is astounding, speaking to the level of trust the pro-democracy opposition has for the filmmaker, after 12 years of working with her.

Meanwhile, Mnangagwa oozes menace as he assures the international press that his government will conduct a “free, fair, and credible election.” Asked if he will abide by the result, Mnangagwa swears that he will…. easy to do, because he knows that he controls that process and will personally determine the winner. 

Mugabe himself had come to power by democratic means, winning the presidency in a landslide in 1980 ahead of the country’s final emancipation from white rule. His commitment to that form of governance did not last long. Under his leadership, ZANU-PF had a long tradition of rigging elections, including those in 2002 and 2008 that pitted him against Tsvangirai. Bobby did not win the presidency time and time again because he was beloved, and it is clear in the film that Mnangagwa embraced the same strategy in 2018. 

ZEC—the Zimbabwean Election Commission—which is responsible for overseeing the election and counting the vote, proves to be a shameless tool of the regime, even as Mnangagwa’s ministers risibly insist they have no control over it. ZEC begins printing ballots without MDC’s participation, and denies the opposition access to the voter rolls. In a country roiled with hunger, ZANU-PF distributes food at its rallies in exchange for votes and threatens to cut off that sustenance if support wavers.

Just two weeks before voters go to the polls, Chamisa contemplates pulling out of the race over these and other howling irregularities, but he and his advisors soon realize that ZEC is deliberately trying to provoke that very response. For Mnangagwa, it is a win-win. Chamisa ultimately stays in the race, betting that he can still prevail, and counting on an overwhelming numerical victory that would be impossible to deny. But he and his team vastly underestimate Mnangagwa’s willingness to commit armed robbery in broad daylight and get away with it.

When election day finally comes, turnout and passion are on Chamisa’s side. As the MDC tallies the numbers and sees that it has definitively won, ZEC delays releasing any official results—an ominous sign. While the vote count carries on behind closed doors, with only ZANU-PF allowed access to the process, the MDC’s offices are raided by the police, its computers seized, and its staffers arrested. Chamisa himself is forced into hiding due to death threats. When angry Zimbabweans spill into the streets, Nielsson films the violence as the army puts down the protests via truncheon and gunfire, killing six and wounding many more. Her matter-of-fact documentation of that brutality is executed with the same lack of sensationalism as the rest of the film, giving the lie to ZANU-PF’s attempts to downplay the violence.  

After several days of highly suspicious delay,  ZEC declares Mnangagwa the winner by a scant 32,000 votes—a brazen theft papered over with only the thinnest veneer of legality. Chamisa and the MDC denounce the process as rigged and the case eventually winds up in the Zimbabwean Supreme Court, which—surprise!—is also controlled by ZANU-PF. The justices inevitably announce that MDC has not produced any evidence of fraud and pronounce Mnangagwa the winner. 

NOTHING TO SEE HERE, FOLKS

Maddeningly, Western coverage of the election largely bought into the ZANU-PF narrative. 

The BBC announced Mnangagwa’s victory in anodyne, unquestioning terms, noting only that “The chairman of Mr. Chamisa’s MDC Alliance said the count could not be verified.” Even the reliably liberal Guardian wrote blandly that Mnangagwa “has won the country’s historic and hotly contested presidential election,” and reported ZEC’s official, rigged numbers without comment. It then quoted (and reprinted, in an enormous color illustration) Mnangagwa’s victory tweet that he was “humbled to be elected President,” and that “This is a new beginning. Let us join hands, in peace, unity & love, & together build a new Zimbabwe for all!” Though it did mention his implication in Mugabe’s crimes and the killing of protestors, in passing, the paper didn’t get around to noting any allegations of fraud until the sixth paragraph, and then only in a manner that suggests sour grapes: “Chamisa called the results ‘fake’ and said the electoral commission should release ‘proper and verified’ numbers.”

The New York Times took at face value the Zimbabwean Supreme Court’s subsequent decision affirming Mnangagwa’s win, writing that “international and domestic observers….described the election campaign as free and peaceful,” and “not marred by the widespread fraud alleged by the opposition.” Wikipedia’s entry on the election presents the election as completely unremarkable, barely mentioning fraud at all. 

To be fair, the credulousness was not universal. The Times’ editorial board railed against the election, as did the political scientist Vasabjit Banerjee, who wrote in the Washington Post that international acceptance of ZANU-PF’s “latest dubious win….would confirm yet another Zimbabwean election as a successful performance by authoritarian rulers to satisfy international audiences.” But by and large, the reaction of the mainstream Western media was largely uncritical.

Looking back, Nielsson remains astonished by this willingness to go along with the charade.

“Mnangagwa was Mugabe’s henchman,” she told me when we spoke recently. “He was his spy chief, his defense minister, his minister of justice. So how the international community was sort of made to believe that he was a born again democrat, even though he had just conducted a military coup against his own president, and had been in the same corrupt system for 40 plus years? I’m still puzzled by the naivete.”

But perhaps it was more than naivete. 

“I think the West just wanted to believe Mnangagwa was legitimate so they could do business with Zimbabwe, which had been a pariah state for forty years. If they called it a stolen election, somebody would have to do something about it.”

REMATCH

Chamisa will challenge Mnangagwa again in presidential elections set for July 2023, just one year from now. In parliamentary races this past March, the new opposition party he has formed now, the Citizens Coalition for Change, won a resounding 19 of 28 seats in the national assembly even as ZANU-PF engaged in its same old tricks. Whether he can translate those gains into a victory for the presidency remains to be seen. 

“I’ve filmed and worked in Zimbabwe since 2009,” Nielsson told me, “and I think right now it’s the worst situation I’ve ever experienced on all levels: financially, in terms of human rights abuses, political suppression—worse even than under Mugabe. It’s just stunning. I think the Mnangagwa government is so threatened now by Chamisa and the popularity of the opposition in general that they are just arresting people all over the place. I honestly haven’t seen the situation this bad ever.”

Chamisa has embarked on a massive voter registration campaign in the rural parts of the country, engaging young people who have otherwise been apathetic and apolitical, given the country’s long history of stolen elections. That effort has been highly successful….and therefore threatening to the Mnangagwa regime. Nielsson reports that Chamisa is more popular than ever, with the Gallup polls showing him winning in a landslide in 2023 if the election isn’t rigged. 

A big if.

“Naturally ZANU-PF is trying to do everything it can to get him off the playing field,” she said. “It shut down the offices where eighteen-year-olds go to get the ID cards necessary to register to vote, as well as the ZEC registration offices themselves in the regions where Chamisa was holding voter registration campaigns.” It has also appointed a new chairperson for the electoral commission who is the daughter of Mnangagwa’s former vice president Kembo Mohadi, in violation of the constitution, which ZANU-PF wants to amend to make 50 the minimum age to run for president. (Chamisa is 45.) In a nation roiled with famine, ZANU-PF also continues to leverage food aid, so that citizens must present proof of ZANU-PF party membership in order to get a bag of corn or seed or cooking oil.

But most of the regime’s actions are far more violent. 

ZANU-PF has jailed dissidents and kidnapped and murdered opposition leaders, particularly in those rural areas that are its traditional stronghold, and where Chamisa is gaining strength. (One regional chairperson who had complained too loudly about ZANU-PF abuses was abducted by state security agents in an unmarked car and later found dismembered, with her intestines in a plastic bag.) There were two assassination attempts on Chamisa himself just this past October, prompting a massive grass roots fundraising campaign in the Zimbabwean diaspora to buy him a bulletproof car. 

“They just don’t care,” Nielsson says. “There’s this sense of entitlement and impunity which I’ve never seen anywhere else. You couldn’t write this, because it would look like really bad kind of B-movie about an African dictator.” 

THE THIN VENEER

The prognosis, then, for Chamisa’s chances in 2023 is not very good, despite his popularity, so long as Mnangagwa controls the electoral process. Nielsson believes that without robust oversight from international observers—far more robust than in 2018—ZANU-PF will simply steal the presidency again. After all, they have 43 years of practice. 

“In 2018 there were election observers present on the ground from about 40 different nations, including the EU and the US, with former presidents and ambassadors and all kinds of people, and they did a lousy job.” And having feckless international observers is worse than not having them at all, because their complicity helps legitimize and cover up the theft, as evidenced by the largely credulous reaction of the Western media in 2018.

But therein lies one possible point of vulnerability: Mnangagwa’s desire for credibility in the global community—what Nielsson calls “the thin veneer of democracy”—which is the only reason ZANU-PF has allowed outside monitors in the past. When those monitors act as lackeys for Mnangagwa, he gets the stamp of approval he craves. But if that team consists instead of forceful and bold observers who call out fraud and corruption, there is a chance for a free and fair election to be forced upon the regime. 

The other promising avenue, Nielsson notes, is economic pressure, as Zimbabwe is in much more dire financial straits than in 2018, making it far more susceptible to Western leverage. “The US has actually been a lot tougher on Mnangagwa than the EU or UK.”

But she believes even that will not be enough. “I think the only chance for a fair election in ‘23 is if they get rid of the Zimbabwean Electoral Commission altogether and there’s an international body that takes over and actually runs the election.” 

She also believes that waiting for voting to begin before calling out irregularities is doomed to fail. “The opposition need to stop the election right now because the preconditions for a free and fair election are not there. There’s no official voters’ roll. The media landscape is completely biased. The ballots are being printed on state printers, and the opposition isn’t allowed access to them, or told how many are being printed, or where they are stored. The international community should be able to say, even from the start, it’s not free and fair, and it will never be free and fair, and then put on pressure financially, because half of the country is living on food aid at the moment.”

“But it doesn’t help to fly in three weeks before the election and have a lot of garden parties. ZANU-PF is too smart for that. They’ve been rigging elections since 1980.”

BRINGING IT ALL BACK HOME

After a lengthy bureaucratic delay that served ZANU-PF’s interests, President has recently been banned by the Mnangagwa government on the grounds of “inciting public violence and undermining state security”—two reliable autocratic go-to’s. (Nielsson’s previous film, Democrats, from 2015, about the writing of a new democratic constitution for Zimbabwe, had previously been banned as well.) 

To that end, also underway is a public relations campaign to get President in front of influential eyes in the US, Britain, and Europe. 

“Basically, we’re trying to screen the film now in the run-up to ‘23 and try to engage with the EU, the US Senate, everybody with an interest in maintaining a democratic Zimbabwe, to try to put some force on the observers next time, and insist on greater transparency, and also have a bunch who have more balls to call the correct shots. And hopefully the journalists will also stay the course, because in 2018 I just saw the whole circus jump on the next plane as soon as the election was over and something was happening in Somalia the next week or whatever.” 

The short attention span of Western media is especially unfortunate when one considers the lessons that the Zimbabwean crisis holds at a time when representative democracy is imperiled worldwide.

Once upon a time Americans looked down our collective nose and snickered in snotty superiority at such electoral fiascos in the developing world. Now they are upon us here at home. 

In Zimbabwe, all the classic trademarks of a rigged election in a corrupt, faux democracy were there: a ruthless political party with a chokehold on the electoral process; a compromised elections bureaucracy under that party’s thumb; a false claim of victory and deliberate misrepresentation of the vote count; a shameless attempt to spread disinformation; feckless international observers who equivocate in calling out the fix; and venal politicians willing to use violence to suppress dissent and intimidate the opposition. 

It is chilling to observe how perfectly Mnangagwa’s attempt to hold on to power in Zimbabwe in 2018 presaged Trump’s attempt to do the same in the US two years later. And the GOP has made it clear that going forward it intends to emulate the Mnangagwa regime even more overtly, by controlling the key levers of the electoral process itself, just as ZANU-PF did with ZEC. Most disturbing of all is the way that the mainstream media accepted the ZANU-PF narrative, largely unquestioningly. 

The question for Zimbabwe is whether it can overcome its decades of oppression and corruption, both from within and without, and at last install its first truly democratic regime….and whether it will get the assistance from the international community it needs to do so. As Nielsson says, “Either we’ll have the happy ending to the trilogy, and Chamisa will be in power, or the shit hits the fan and it’s important that we are there as witnesses to something that—I fear, to be honest—is actually gonna go really, really bad.”

For the US, the question is whether the American people, once so proud—sanctimonious, even—of the strength of our own taken-for-granted constitutional democracy, are going to go down the same grim road as the former Rhodesia. 

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An earlier version of this essay originally appeared in Consequence Forum in June. Thank you Matthew Krajniak, Katherine Hollander, Peter Brown, and Alexandra Marshall. 

Diligent copy editing, as always, by the intrepid Gina Patacca. 

Photo: Pro-democracy candidate Nelson Chamisa greets supporters with his party’s trademark “open palm” gesture, on the campaign trail in Zimbabwe, 2018.

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Last week in part one of this essay, we examined Moore v. Harper, the North Carolina case that the Supreme Court will hear next term, which—among other things—could give state legislatures unchecked power to deliver presidential elections to the candidates of their choice, irrespective of the popular vote. 

Given that 30 of the 50 state legislatures are controlled by the GOP, the Court’s upcoming ruling could be the coup de grâce in the ongoing Republican campaign to install itself in power permanently. Thanks to extreme gerrymandering that gives the Republican Party an all-but unbreakable hold on those bodies, that 30 state majority is unlikely to change, meaning that this case might serve as a fast-burning, fuel-on-the-fire accelerant toward the establishment of lasting, autocratic, one-party right wing rule in the US going forward.

Harper—sometimes called Moore; the hive mind can’t decide—hinges on the so-called “independent state legislature theory” (ISLT), a dubious legal concept concocted essentially for this purpose. (I refer you to the previous installment of this blog for the hideous particulars.) It is a theory that Vikram Amar, dean of the University of Illinois College of Law, calls “rubbish” and “as wrong-headed as it is treacherous.” In The Daily Beast, Wajahat Ali calls the ISLT “nonsense,” describing Harper explicitly in terms of the Supreme Court’s “Christian nationalist agenda” and part of an attempt to “implement minority rule.” He also notes that it is “exactly the crazy plan outlined by Trump-allied right-wing attorney John Eastman in his six-point memo, which a federal judge concluded was a ‘coup in search of a legal theory.’”  

The question before us now is: Will the US Supreme Court allow this to happen? Indeed, will it play the crucial part of executioner delivering this death blow to anything resembling legitimate representative democracy in America?

I’ll save you a bunch of time, if you’re not in the mood to read on:

Of course it will. 

READING THE TEA LEAVES

Last March, when the Court declined to hear an emergency request on Harper, four justices—Alito, Gorsuch, Thomas, and Kavanaugh—indicated that they would likely affirm the ISLT, should the opportunity arise. The first three voted to hear the case; Kavanaugh thought it was too close to Election Day, but suggested that the Court should consider the matter in its next term, which it has now agreed to do. And when it does, it’s almost certain that Barrett will join them in a 5-4 ruling for the GOP.

As Vox’s Ian Millhiser writes, “it’s hard to imagine why the (US Supreme) Court would agree to hear this case unless it is at least considering” endorsing the ISLT, and “rolling back decisions like Davis and Arizona State Legislature,” two landmark cases that rejected it, the former dating back to 1916, the latter reaffirming it in 2015.  

Yet the whole Republican argument in Harper is dishonest from top to bottom. As the North Carolina state department of justice points out in its brief arguing against the GOP position, the NC General Assembly itself granted state courts the authority to review redistricting—the predicate for the suit—in a law it passed more than twenty years ago. It’s unlikely that Tar Heel Republicans would be bringing this case and challenging that precedent if Democrats controlled the Assembly.

Strike that. Replace “unlikely” with “laughable to imagine.”

Does anyone doubt that this far right cabal now in control of the Supreme Court will abet this travesty? Witness its recent rulings on guns, on abortion, on the once-inviolable separation of church and state, on the right of the EPA to regulate carbon emissions. This Court obviously relishes its power to remake America as Gilead, the will of the American people—and a reasonable interpretation of the US Constitution—be damned. The very demographic that once howled about “judicial activism” (when practiced by the left) has suddenly seen its advantages and become zealous converts to the idea.

I kid, of course—they’ve known it all along. These was no conversion, only subterfuge. IOKIYAR. 

BECAUSE I SAID SO

When it comes to those recent decisions, many legal scholars, such as former acting Solicitor General Neal Katyal, noted the hypocrisy of the Court saying in the same week that the federal government can’t tell individual states to keep abortion legal, as it has been for 49 years, but it can tell New York state that it has no right to limit concealed carry of firearms, as the Empire State has done for 109. 

The right wing pushback, of course, is that the Constitution specifically protects the right to bear arms but not the right for a woman to make her own healthcare decisions. 

But it ought to be blatantly obvious that this argument requires a tortured interpretation of that Constitution. To cite just one example, so-called “originalists,” with their faux adherence to a specious, creationism-like legal philosophy, are forced to tie themselves into pretzels in order to convince us that “a well-regulated militia” does not mean “a well-regulated militia.” 

And just because that grotesque distortion has become the accepted—if batshit—interpretation of the Second Amendment ever since Scalia (a pox upon him) laid it down in DC v. Heller in 2008 does not make it a rational one. Once upon a time the Supreme Court said that Black people were only 3/5ths human, too. 

In Dobbs, Alito rejected the right to abortion as “not deeply rooted in the nation’s history.” (You mean the way slavery is?) Meanwhile, he and the other conservative justices have no problem extrapolating the Second Amendment’s definition of “firearms”—which in 1787 meant a flintlock that took a minute or more to load a single round of black powder ball ammo—to include a modern AR-15 with a cyclic rate of 400 rounds per minute (even without a bump stock), firing high-tech ammunition that can vaporize human flesh into a pink mist. 

To say that the Founders meant to include such weaponry when they wrote the Bill of Rights is a Carl Lewis-like leap of arrogance, not to mention madness.  

As for unenumerated rights, as Jill Lepore points out in The New Yorker, are we surprised that there is nothing “about abortion in a four-thousand-word document crafted by fifty-five men in 1787”? Nor “about pregnancy, uteruses, vaginas, fetuses, placentas, menstrual blood, breasts, or breast milk”? That “There is nothing in that document about women at all”? 

Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.

But with the current Court and the right wing extremism that it stumps for, we are well beyond the realm of good faith and sound reasoning.

Those same yogi-like contortions are in play in Moore v. Harper in order to find that state legislatures are above their own constitutions, and their will takes precedence over fundamental principles of representative democracy as it is understood in the 21^st century.

But we ought not be surprised, for these days, The Atlantic’s Adam Serwer writes, “The Constitution is whatever the right wing says it is.”

GOOD GRIEF

One of the most galling things about Moore v. Harper is that it mimics Dobbs in being another instance of the Court’s right wing justices assuring us that there is no cause for worry over whatever travesty they are perpetrating that week, then pulling the football away just as Charlie Brown approaches. 

In a piece for the Washington Post, the Professors Carolyn Shapiro of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, Leah Litman of the Michigan Law School, and Kate Shaw of Cardozo Law Schoolwrite: 

Just three years ago, a 5-to-4 Supreme Court prohibited federal courts from addressing whether extreme partisan gerrymandering violates the Constitution. But don’t worry, the court said, state courts can curb the practice if they conclude it violates state constitutions.

Harper invites the Supreme Court to go back on that promise.

Less than a decade ago, the court eliminated the Voting Rights Act requirement that jurisdictions with histories of racial discrimination in voting preclear changes to voting rules with the Justice Department or federal courts. And in July of last year, the court weakened what remained of the VRA, making it harder for plaintiffs to challenge voting regulations that impose disproportionate burdens on minority voters.

The Washington Post’s Editorial Board writes:

(With Harper) the Republican-appointed Supreme Court majority would complete a nasty bait-and-switch by neutering state courts when it comes to elections: Chief Justice John G. Roberts Jr. wrote in a 5-to-4 decision three years ago [Ed.: Rucho v. Common Cause] that federal courts could do nothing to prevent the same sort of extreme gerrymander. But never fear, he insisted, state courts could step in to protect citizens’ rights. Now, it seems, he and his colleagues on the right, with Justice Amy Coney Barrett a possible swing vote, are poised to go back on that promise. 

That could lead to chaos if legislatures set burdensome rules for voting in federal contests that conflict with less restrictive rules for state contests. It could also create manifold opportunities for mischief of the sort then-President Donald Trump and his allies attempted in 2020: Legislatures might remain restrained from deciding to ignore the popular vote and appoint their own slates of electors after the fact of a lost presidential race, but they could plausibly pass laws ahead of time establishing a process that allows them to do just that.

Is it a coincidence that far right ideologues would like to install electoral power in state legislatures that they control, while undermining voting rights, keeping people away from the polls, and ensuring that their votes have as little impact as possible if cast at all? Or that they have spent decades packing the federal judiciary with jurists who will support just such efforts? Or that they are keen on legally codifying that sort of scheme, one that would have kept Trump in power, or could put him (o a fellow traveler) back there?

Rhetorical question. But just to be clear: no, it is not a coincidence. Not at all.

ON DECK

In the wake of Dobbs, many people wondered what rights are next to go? 

In his concurring opinion on that case, Clarence Thomas explicitly rejected the flimsy reassurance offered by Alito and Kavanaugh, among others—“We’re only taking away abortion! We’ll stop there!”—proposing that the legality of contraception, same-sex marriage, even certain sex acts between consenting adults in the privacy of their own homes ought all be reconsidered. 

And that will be only the beginning. In addition to birth control, marriage equality, and the Kama Sutra, we can look forward to a nationwide ban on abortion, which was immediately proposed even before the metaphorical ink was dry on Dobbs (so much for states’ rights), as well as prosecutions of Americans who try to cross state lines for such purposes, and the weaponization of technology to surveil anyone contemplating doing so. 

Texas AG Ken Paxton has already said that, should the Court strike down protections under Lawrence v. Texas, he will begin enforcing Texas’s antiquated and currently unconstitutional law against sodomy. Fwiw: that’s the same Ken Paxton who is under federal indictment for securities fraud, who filed a Big Lie lawsuit trying to overturn the 2020 results in Pennsylvania (!) and three other battleground states, who said the Uvalde shooting was part of “God’s plan,”and proposed arming teachers in the future. Most recently, the Washington Post reports that just this week Paxton has “sued the Biden administration over federal rules that require abortions be provided in medical emergencies to save the life of the mother, even in states with near-total bans.” 

So he’s obviously a pariah to Texan voters, right? Uh, no: he just beat George P. Bush, scion of the Lone Star State’s once-preeminent but now apparently defunct political dynasties, in the GOP primary for re-election. Because, Texas.

Not a few observers noted that in his wish list to Right Wing Santa, Justice Thomas left out interracial marriage. Hmmm. 

Conservatives were quick to retort that, like Roe, Griswold and Lawrence—the contraception and sodomy cases—were decided on grounds of substantive due process, which is to say, privacy, while Loving was premised on the Fourteenth Amendment’s guarantee of equal protection. (RBG and others have long felt that from the start abortion ought to have been protected the same way, for a more durable judgment. She proved tragically correct.) 

Obergefell, however, was very much decided on equal protection, just like Loving. Yet Clarence is still keen to overturn the former and not the latter. Hmmm again.

In truth, the broader troglodyte / slash / religious fanatic right wing of which Thomas is part would surely love to end interracial marriage too, and this Court could easily concoct a pretext to do so, even if Clarence personally isn’t onboard for his own selfish reasons. He is certainly super keen to strip away similar rights in every other area that doesn’t directly affect him.  

Gee, if her own marriage becomes illegal, how will a cult-susceptible, government-overthrowing-curious, religious wacko like Ginni (Lamp) Thomas leverage access to the Supreme Court going forward? 

Justice (and Mrs.) Thomas clearly want to take us back to a deeply regressive vision of America, and while his proposals once seemed outlandish and unlikely to succeed, Dobbs ought to have convinced us otherwise. Lest we forget, his “outlier” thinking has triumphed before. Way back in 1997, Thomas was the first justice to embrace the aforementioned, then-fringe theory that the Second Amendment guaranteed an individual right to own firearms. Eleven years later, his view became settled law in DC v. Heller. 

But as Corey Robin writes in The New Yorker: “A society with no rights, no freedoms, except for those you claim yourself—this was always Thomas’s vision of the world. Now, for many Americans, it is the only one available.”

WE RESERVE THE RIGHT TO REFUSE SERVICE

With this radical Supreme Court wantonly stripping away a constitutional right (by some accounts, for the first time in history), in defiance of overwhelming popular opposition, while implying that more rights may soon go too, people are understandably upset. But to hear Fox Nation tell it, the real crime is that Brett Kavanaugh had to duck out the back door of a Washington DC steakhouse to avoid protestors out front. 

Speaking of the Constitution, the First Amendment protects freedom of expression and assembly. Violence, threats of violence, intimidation, and harassment will always be out of bounds. But as Pete Buttigieg cogently and calmly schooled Fox’s Mike Emmanuel, who tried to bait him on the matter, being subjected to criticism and peaceful protest is part of the bargain for being a public figure. Especially if you’re gonna piss off 60% of all Americans by endorsing the ideology of forced birth.

(Height of irony alert: the Fox News exchange was prompted by Stephen Miller complaining that a tweet from Buttigieg’s husband Chasten—“Sounds like (Kavanaugh) just wanted some privacy to make his own dining decisions”—amounted to an endorsement of “mob intimidation tactics” and was “wildly irresponsible.” I’ll repeat that: That gripe came from Stephen Miller.)

Personally, I hope Kavanaugh, Alito, Thomas, Gorsuch, and ACB never have a peaceful meal in public ever again. But that’s just me. As the meme goes, Brett can always eat at a restaurant in another state. (Hope they have a liquor license!) But really, he shouldn’t have let himself get hungry in the first place.  

OF A-BOMBS AND ANALOGIES

Writing in The Intercept, Naomi Klein describes the Court’s recent actions as “a shock-and-awe judicial coup,” which she correctly reminds us “is by no means over. Contraception, same sex marriage, integrated lunch counters—it is terrifyingly easy to imagine all of them vanishing from the American landscape. Few people, however, have thought that the very concept of one-person-one-vote would be on the chopping block. Until Harper. 

But mark my words: Dobbs was the Sudetenland. 

When it comes to handicapping the Court’s thinking on Harper, Klein also writes: “There is no reason to believe that a group of people whose very presence on the bench required grotesque abuses of democracy would somehow draw the line at thwarting it.”

She adds (and this is the important part): “The moment to stop them from getting the chance is right now.”

Following the Court’s disastrous ruling in West Virginia v. EPA, restricting that agency’s authority to limit carbon emissions, Klein suggested that this flurry of appalling decisions offered a rare opportunity for progressives, on the principle of never-let-a-crisis-go-to-waste:

History contains crossroads when a single set of decisions can alter the trajectory of a people—or even a planet. The Biden administration’s response to the Supreme Court’s 6-3 EPA ruling, hot on the heels of the other outrageous power grabs, is a moment like that. No juncture offers greater opportunity for courageous, transformational leadership, should such a thing be on offer anywhere in Washington, DC.

But she wrote that on June 30, almost three weeks ago. The moment for such bold action may have now passed. If not, we need to get Biden to act immediately, as the window narrows daily. 

The first rule of an emergency is that you do what it takes to end the emergency and get to safety. You don’t throw up your hands because the task is too hard. You certainly don’t let a gang of unelected, lifetime appointed political operatives—several of whom only have their seats because of trickery and lies—get in your way.

But it is not enough that we leave the counterattack to Joe Biden, and tut-tut if he falls short. We have to act, ourselves, as concerned citizens.

It’s hyperbole of course, to use the metaphor of an atomic bomb to convey the damage that Harper can do. But I stand by it, poetically speaking. The Republican campaign to undermine American democracy has been a slow and grueling struggle of island-hopping, like the war in the Pacific (loath as I am to cast them in the role of the Allies), from gerrymandering to packing the American judiciary with far right judges to sabotaging voter access with neo-Jim Crow-like restrictions. But Harper is like the atom bomb at the end of that campaign, putting a definitive end to resistance once and for all. 

I have written elsewhere about the myth that the Bomb won the war, and the same applies in this analogy. Japan was ready to surrender before the nuclear attack on Hiroshima. Is blue America similarly already defeated, even before the Supreme Court drops the Bomb? Or will we stand our ground and resist the rise of autocracy, even with five black-robed bombardiers in a B-29 overhead?

**********

Illustration: Artist’s rendering of American democracy after Trump’s Supreme Court gets through with it.

As summer winds on and the House Select Committee on January 6^th continues to lay out its evidence against the disgraced, twice-impeached 45^th president of the United States, any doubt that Donald J. Trump attempted to defraud the US by trying to overturn a free and fair election is being methodically and definitively obliterated. Soon only the most fanatical Trump deadenders will be left insisting otherwise—histrionically, in hopes that the rest of us will believe that day is night, up is down, and urine is rainwater if they say it long and loud enough.

There will surely be more jawdropping moments before that drama plays out to its conclusion. (Stock up on Diet Dr. Pepper.) But while that is unspooling, another grave threat to representative democracy in America is quietly occurring out of the spotlight, one that is far less theatrical, but presents an equally worrying emergency.

Get used to the name “Moore v. Harper.” Because it might soon join the likes of Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, Citizens United v. FEC, and others in legal infamy.  

CAUTION: OVERTON WINDOW IN MOTION

Narrowly speaking, Moore involves the right of North Carolina’s Republican-controlled state legislature to redraw voting districts for its 14 seats in the US House of Representatives after state courts stuck down the old map for its blatant pro-GOP gerrymandering. (A court-drawn map is temporarily in place for the midterms.)

But the implications of a decision for the Republican plaintiffs could go far, far beyond that. As NPR reports, in their appeal to the US Supreme Court, “the Republican lawmakers argue that the US Constitution’s Elections Clause gives state legislatures the power to determine how congressional elections are conducted without any checks and balances from state constitutions or state courts.”

I’ll repeat that. “Without ANY checks or balances from state constitutions or state courts.”

In other words, if the US Supreme Court rules in favor of the GOP in this case, a Republican-controlled state legislature could enact even more extreme gerrymandering to maintain its majority, could pass draconian voter suppression measures, could even pre-emptively give itself the authority to ignore the popular vote entirely and award the state’s electoral votes to whomever it wishes. 

And I say “Republican controlled state legislature” very deliberately, because while a Democratic-controlled state legislature could theoretically do likewise, it is the Republicans who have, through the aforementioned gerrymandering, secured unbreakable control of the state legislatures in 30 of the 50 states. More pertinently, it also is the Republicans, not the Democrats, who have shown the most interest in implementing an outrageously anti-democratic, countermajoritarian system that would ensure permanent, unchallengeable control of US presidential elections going forward, in perpetuity, irrespective of the popular vote. 

Indeed, Moore v. Harper is part of a long, deliberate scheme to achieve just that. 

But wait, you say. How can such an insane concept possibly be legal?

Well, it’s questionable that it is. The argument for it hinges on something called the “independent state legislature theory” (or doctrine), often shortened to ISLT. 

Ethan Herenstein and Thomas Wolf of The Brennan Center give a clear explanation, beginning with the Constitution’s delegation of power to the states to administer federal elections:

There are two relev­ant clauses. One is the Elec­tions Clause, which reads, “The Times, Places and Manner of hold­ing Elec­tions for Senat­ors and Repres­ent­at­ives, shall be prescribed in each State by the Legis­lature thereof; but the Congress may at any time by Law make or alter such Regu­la­tions.”

The other is the Pres­id­en­tial Elect­ors Clause, which reads, “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”

As the progressive radio journalist Thom Hartmann  notes, advocates of the ISLT consider this plain and simple and airtight. “Article II, Section 1 of the Constitution lays out the process clearly, and it doesn’t even once mention the popular vote or the will of the people… It’s not particularly ambiguous, even as clarified by the 12th Amendment and the Electoral Count Act of 1887.” 

But Herenstein and Wolf note that there is “disagree­ment about how much power is deleg­ated and to which state actors exactly,” beginning with the definition of the word “legislature.” 

The long-running under­stand­ing is that it refers to each state’s general lawmak­ing processes, includ­ing all the normal proced­ures and limit­a­tions. So if a state consti­tu­tion subjects legis­la­tion to being blocked by a governor’s veto or citizen refer­en­dum, elec­tion laws can be blocked via the same means. And state courts must ensure that laws for federal elec­tions, like all laws, comply with their state consti­tu­tions.

Proponents of the inde­pend­ent state legis­lature theory reject this tradi­tional read­ing, insist­ing that these clauses give state legis­latures exclus­ive and near-abso­lute power to regu­late federal elec­tions. The result? When it comes to federal elec­tions, legis­lat­ors would be free to viol­ate the state consti­tu­tion and state courts could­n’t stop them. Extreme versions of the theory would block legis­latures from deleg­at­ing their author­ity to offi­cials like governors, secret­ar­ies of state, or elec­tion commis­sion­ers, who currently play import­ant roles in admin­is­ter­ing elec­tions.

You may be saying to yourself, “But how can a state legislature be above the constitution that created it?” That is a good question. One that a lot of constitutional law scholars have asked, too.

Carolyn Shapiro, a law professor and founder and co-director of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, says the theory “doesn’t make any sense at all.”

The legislatures are created by constitutions. Their powers are defined by constitutions. The way those powers interact with other branches of state government is defined by state constitutions. Limitations on those powers are defined by state constitutions. The idea that there’s some kind of legislative power that is separate and apart from the ordinary constitutional limitations is really quite remarkable and lawless.

You may, dear reader, already be beginning to get the idea that the ISLT is not so much a coherent legal theory as it is a wildass gambit for the justification of autocracy by a group that, say, has diminishing popularity with voters, but control of a majority. And you’d be right. 

ORIGINS AND ORIGINALISM

The independent state legislature theory was first floated in a 1916 case called Davis v. Hildebrant, and was soundly rejected by the Supreme Court. As Vox’s Ian Millhiser explains:

Davis reasoned that the word “legislature,” as it is used by the relevant provisions of the Constitution, does not refer exclusively to the elected body of representatives who make up the state’s legislative branch. Instead, it refers more broadly to any individual or body that possesses some part of the power to make laws within a state—what the Court referred to as the “legislative power.”

Herenstein and Wolf echo this rejection of the ISLT’s “narrow approach to the Consti­tu­tion’s text,” pointing out “that the term ‘legis­lature’ does­n’t neces­sar­ily mean ‘exclus­ively the legis­lature.’” 

The First Amend­ment, to draw a paral­lel, liter­ally prohib­its only “Congress” from discrim­in­at­ing on the basis of speech and reli­gion. But we under­stand the amend­ment to apply to the federal govern­ment in its entirety, includ­ing the judi­cial and exec­ut­ive branches. That’s why, to take one example, a judge can’t close off her courtroom to athe­ists.

Millhiser again:

This is the only reading of the relevant US constitutional provisions that makes sense because, as legal scholars (and brothers) Vikram David Amar and Akhil Reed Amar explain in a recent paper, “state people and state constitutions are masters of state legislatures,” and not the other way around.”

The Court’s decision in Davis has been upheld many times in the 106 years since then. In 2000, during the Florida recount debacle, Chief Justice William Rehnquist raised it in his concurrence in Bush v. Gore, but it was almost uniformly dismissed as kooky and not worthy of serious consideration. 

Back then, so was Donald Trump. 

Also working against the ISLT is the matter of the framers’ intent—generally of great veneration by so-called “originalists,” but only when it aligns with their agenda. Herenstein and Wolf again:

(T)he framers did not trust state legis­latures to run fair elec­tions. They empowered state legis­latures to admin­is­ter federal elec­tions only with great hesit­ancy.

This mistrust comes through in the Elec­tions Clause, which reserves to Congress the power to over­ride the abuses of power that Madison and his colleagues expec­ted. Given the low regard in which the framers held state legis­latures, it’s diffi­cult to imagine they would want to free those lawmak­ing bodies from the exist­ing constraints of the gubernat­orial veto, the state consti­tu­tion, and judi­cial review.

In a piece Shapiro co-authored for the Washington Post with Professors Leah Litman of the Michigan Law School and Kate Shaw of  Cardozo Law School, the co-hosts of the podcast “Strict Scrutiny,” she and her colleagues write:

Since 2020, a mountain of scholarship has emerged thoroughly debunking the ISLT. Its historical bases are nonexistent. The Founders understood well that states could choose to have constitutions that constrain state legislatures, and that view has held sway in practice and law ever since. And state executive officials have also enjoyed considerable discretion to operate federal elections since the founding.

The ISLT is also wildly inconsistent with federalism. In our federal system, state courts have the final say over the meaning of state law; states also have considerable latitude in structuring their governments. The ISLT could transform cases about interpreting or applying state election laws into federal constitutional cases to be decided by the federal courts.

The theory would lead to a chaotic system in which states could not reliably hold unified elections for state and federal offices. Common state constitutional provisions guaranteeing that elections be “free,” “free and equal,” or “free and open” would not apply to laws governing federal elections, but would still apply to laws governing state elections. So, for example, if a state court relied on a state constitutional provision to strike down burdensome registration or voter ID requirements, those requirements would nonetheless remain in place for federal elections. The state would end up with two systems—one for federal elections and one for state elections.

Vikram Amar, dean of the University of Illinois College of Law, has even argued that ISLT is contrary to the originalists’ own view of the Constitution. (Not that they are ever bothered by a little thing like intellectual or ideological consistency.) Even if it were not, the question of why we feel biblically bound to a verbatim reading of a 234-year-old document drawn up by a bunch of white men—many of them slaveholders—who lived in a time when women were chattel, child labor was routine, and leeches figured heavily in modern medicine, is a much bigger one. 

Even if one does believe that ISLT is constitutional, there remains the little matter of reconciling it with its obvious contradiction of the fundamental democratic principle of one-person, one-vote….which of course, the Founders did not really provide for, in a document that enfranchises only white male landowners, and establishes other anti-democratic institutions like the Electoral College and the US Senate. 

As Thom Hartmann writes, the ISLT “literally gives state legislatures the power to pre-rig or simply hand elections to the candidate of their choice.” What could possibly be more un-American? In the Los Angeles Times, Laurence H. Tribe and Dennis Aftergut write: “Adopting the independent state legislature theory would amount to right-wing justices making up law to create an outcome of one-party rule.”

But this, of course, is precisely the kind of lasting authoritarian control that the contemporary GOP has long been seeking, with the eager support of three out of ten of our countrymen (and three out of four Republicans), and which I—and others—have been foaming at the mouth about for months. With Moore, they may find a quasi-legal way to achieve it, as effectively and bloodlessly and permanently as possible.

Vox’s Millhiser notes that the Supreme Court’s repeated rejection of the ISLT over the past hundred years is a pattern that changed only “after Republican appointees gained a supermajority on the Supreme Court at the end of the Trump administration.” In other words, the hidden agenda here ain’t really hidden at all. 

This was the very heart of Trump’s scheme to overturn the 2020 election, by having state legislatures send their own (pro-Trump) electors, rather than those chosen by the popular vote in that state. But Trump’s act was retroactive; if the Court rules in favor of the GOP in Moore, the usurpation will happen in advance, making it much easier to execute and defend and much harder to prevent or reverse. It will also have the imprimatur of the Supreme Court.  

WANTED: FIG LEAF

When Rehnquist raised it in 2000, the independent state legislature theory was correctly considered the province of the batshit political fringe. But you may have noticed that that fringe has lately taken control of the country.

Sen. Sheldon Whitehouse (D-RI) told the Washington Post: “This phony ‘doctrine’ is an anti-democratic Republican power grab masquerading as legal theory. It was cooked up in a right-wing legal hothouse by political operatives looking to give state legislatures the power to overturn the will of American voters in future elections.”

The theory, Whitehouse said, was wielded by Trump attorney John Eastman as he sought to “overturn the last presidential election, and it could plant seeds of chaos in time for the next one. The fact that the Court is even considering a case involving such an extreme idea shows how beholden it is to the right-wing donors who got so many of the justices their jobs.”

Among the most outspoken advocates of the independent state legislature theory is the Honest Elections Project, an alias of the 85 Fund, a conservative nonprofit linked to Leonard Leo, the former longtime head of the Federalist Society. The 85 Fund reported revenue of more than $65 million in 2020, according to a tax filing, and its relationship with the Honest Elections Project is made clear in corporate records in Virginia.

In the WaPo, Colby Itkowitz and Isaac Stanley-Becker write that the ISLT would “erode basic tenets of American democracy” by giving state legislatures “virtually unchecked power over federal elections,” and “(t)his immense power would go to legislative bodies that are themselves undemocratic, many advocates say, because they have been gerrymandered to create partisan districts, virtuallyensuring the party-in-power’s candidates cannot be beaten.”

The Week’s Grayson Quay notes that in states like Wisconsin, “Democrats can still win statewide elections—say, for governor or US Senate—but state legislative districts are hopelessly gerrymandered in favor of Republicans. If the Supreme Court sides with Moore, GOP-controlled legislatures in states like Wisconsin would have full authority to rig not only their own states’ legislative elections, but elections to the US House of Representatives as well.”

As Shapiro, Litman, and Shaw note, “there could not be a worse time for making our democratic process less democratic.”

Herenstein and Wolf again:

State consti­tu­tional bans on gerry­man­der­ing in Flor­ida, Ohio, North Caro­lina, and other states could die, as could inde­pend­ent redis­trict­ing commis­sions in Arizona, Cali­for­nia, Michigan and other states. Other state consti­tu­tional provi­sions—like the right to a secret ballot in many states—could also be wiped out. Deleg­a­tions of author­ity would also be ques­tion­able, robbing elec­tions commis­sions and secret­ar­ies of state of the power to make decisions, includ­ing in emer­gen­cies. And only federal courts would have the power to review gerry­man­der­ing or voter suppres­sion claims relat­ing to federal elec­tions.

The night­mare scen­ario is that a legis­lature, displeased with how an elec­tion offi­cial on the ground has inter­preted her state’s elec­tion laws, would invoke the theory as a pretext to refuse to certify the results of a pres­id­en­tial elec­tion and instead select its own slate of elect­ors. Indeed, this isn’t far from the plan attemp­ted by Trump allies follow­ing his loss in the 2020 elec­tion. 

Not surprisingly, advocates of the ISLT, like Jason Snead, the executive director of the Honest Elections Project, are eager to distance themselves from January 6, and even from Trump and the Big Lie full stop, though that is plainly just a ruse. They are keen to present a faux reasonable, placidly academic face to their plotting, as when Snead argues that the ISLT “should be taken out of the context of Jan. 6 and what happened that day, which was absolutely terrible.” He also agues that the theory “is not a novel idea. We’re talking about first principles and constitutional text.” 

Right. Except that it accomplishes the exact thing that Trump was trying to do on January 6^th and in the months leading up to it—blatantly ignoring the will of the voters—only this time pre-emptively and with the veneer of legality. 

CNN’s Zach Wolf is kind enough to link to a scholarly article that lays out the argument for the ISLT as made by Professor Michael Morley of the Florida State Law School. That article is cited multiple times in an amicus brief that The Honest Elections Project submitted to the Supreme Court in Harper. Morley himself, it should be noted, is contributor to the Federalist Society.

The Week’s Ryan Cooper writes that the ISLT “is quickly becoming dogma among Republican legal apparatchiks.” The article he links to, in the right wing Washington Times, is headlined, “State Legislatures Have Absolute Authority To Select Electors,” and begins with the Big Lie-friendly sentence: “The public has begun to appreciate the extent of election irregularities and vote fraud in the Nov. 3 election.” 

So much for distancing from The Former Guy.

A WORD FROM THE JUDGE

The much respected retired federal Judge J. Michael Luttig, a conservative icon who gave compelling testimony before the January 6^th committee, has been among the most eminent voices raising the alarm about Moore v. Harper. In a recent piece for CNN called “The Repub­lican Blueprint to Steal the 2024 Elec­tion,” he wrote: 

From long before Election Day 2020, Trump and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular and Electoral College vote. 

Republicans had every reason to believe there were at least five votes on the Supreme Court for the doctrine in November 2020, with Amy Coney Barrett having just been confirmed in the eleventh hour before the election. 

If that is so, and it surely is so, the rush to get ACB on the Court takes on a new and chilling significance in hindsight. (She was confirmed just seven days before Election Day, while early voting was already well underway.) As does Trump’s replacement of key Pentagon officials in the closing weeks between Election Day and the certification of the results of the Electoral College. 

But that was then. With Moore, Luttig argues, “Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.” 

He adds: “The last presidential election was a dry run for the next.” 

“Today,” Luttig writes, “(Republicans) are already a long way toward recapturing the White House in 2024, whether Trump or another Republican candidate wins the election or not.”

The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be. 

And then comes the thunderous warning:

Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.

NIGHTMARES ALL AROUND

Millhiser calls the ISLT “perhaps the gravest threat to American democracy since the January 6 attack.” 

CNN’s Wolf calls it “a complete re-imagining of American democracy” under which “state lawmakers could, in theory, have new power to ignore voters and pick presidents.” He also notes that many on the American right are fine with that….so long as those lawmakers are politically aligned with them.

A complete re-interpretation of the Constitution to give legislatures superpower over elections would be extreme. But there is an increasingly open opposition to the idea that voters should be calling the shots. Politicians seem to have no problem favoring the idea that only voters they agree with should be calling the shots and voters they disagree with should be blocked.

Doug Mastriano, the GOP’s Big Lie-espousing, far right candidate for governor in Pennsylvania—who paid for buses to bring rioters to the Capitol on January 6^th, and was present there himself—is one who has openly endorsed the notion of electors being appointed in defiance of the popular vote.

In a piece for The Bulwark titled “Ranking the Nightmares,” Jonathan V. Last writes that the right will surely—and correctly—argue “that we have never conducted a nationwide popular vote contest for president….But it’s also true that the right would never tolerate the reverse scenario—namely, the system repeatedly rewarding political power to their less popular opponents.”

Some federal protections would remain in place to preclude that; states are constitutionally prohibited from throwing out votes that have already been cast, for example, and a ruling for Republicans in Moore would not change that. But there is nothing to prevent a state legislature—in conjunction with a friendly governor—from doing that before votes are cast. In fact, even better, from the GOP’s point of view. 

As The Washington Post Editorial Board notes, much-needed bipartisan reforms to the Electoral Count Act of 1887 could also mitigate the danger and provide some protections. But the prospect of Moore passing might also make it harder for the few remaining reasonable members of the GOP to go along with those reforms when the prospect of gaining a chokehold on governance is within the grasp of their more extreme comrades.

In an epic Twitter thread, Thom Hartmann lays out what he calls “The Nightmare Scenario SCOTUS is Plotting For the 2024 Election Takeover.” In it, he envisions Biden beating DeSantis (though it could just as easily be Trump) in both the popular and Electoral College votes. But then the GOP-controlled Georgia state legislature awards its 16 electoral votes to DeSantis anyway. North Carolina (with 15 electoral votes), Wisconsin (with 10), Michigan (16), Pennsylvania (20) and Arizona (11)—all states Biden won in 2020—quickly follow suit. 

The movement of those 88 votes prompts CNN to declare DeSantis the winner. Massive street protests are met with violent attacks and even gunfire from right wing militias who are primed for just such a scenario. The police and military—rife with right wing sympathizers and allies (and even members of those militias I would add)—decline to intervene. Law enforcement agencies subsequently round up the “instigators,” who are charged with seditious conspiracy for resisting the Republican legislatures of their states. DeSantis is sworn in and declares a state of emergency, suspending future elections. 

Hartmann argues that if the Supreme Court rules for the GOP in Moore, which it likely will, “the scenario outlined above becomes not just possible but very likely, and “the unwillingness of the Democratic governors of Michigan, North Carolina, Wisconsin and Pennsylvania to sign off on the Electoral College votes becomes moot.”

Under this circumstance DeSantis becomes president, the third Republican president in the 21st century, and also the third Republican President to have lost the popular vote election yet ended up in the White House. 

GOP-controlled states are already changing their state laws to allow for it, and Republican strategists are gaming out which states have Republican legislatures willing to override the votes of their people to win the White House for the Republican candidate. Those state legislators who still embrace Trump and this theory are getting the support of large pools of right wing billionaires’ dark money. 

Trump’s January 6th effort failed because every contested state had laws on the books requiring all of their Electoral College votes to go to whichever candidate won the popular vote in the state. That will not be the case in 2024. As we are watching, the Supreme Court—in collaboration with state legislatures through activists like Ginni Thomas—are setting that election up right now in front of us in real time. 

We damn well better be planning for this, because it’s likely coming our way in just a bit more than two short years. 

STAY TUNED

Next week in part two of this essay (can you believe it? I got more to say), we will look at the chances that the Supreme Court will actually affirm this crazy, un-American, democracy-destroying theory.

Spoiler alert: It will.

It’s been a blockbuster week, from the overturning of Roe (imagine if we hadn’t been warned) to the explosive testimony of Cassidy Hutchinson, former aide to Trump’s fourth and final chief of staff Mark Meadows. While seemingly distinct, those two tentpoles are actually holding up the same canvas, which is to say, the ongoing Republican attempt to lockdown permanent minoritarian control of life in these United States. 

The GOP is happy to do that through a violent attempt to overturn an election—an act that a large chunk of its current crop of political candidates continues to both defend and deny—or through a quasi-legal exploitation of structural weaknesses in our democratic system that give a determined neo-fascist insurgency the ability to hold the rest of the country hostage. 

Lest we forget: on abortion, on gun control, on the environment, on gerrymandering, on the increasing co-mingling of church and state—to name four right wing victories from just this week alone—the GOP continues to dictate policy, despite the fact that the Democratic Party controls the Presidency, the House and the Senate….for now. 

(Somehow, when the roles are reversed, the Democrats are unable to pull off the same trick. Discuss.)   

I have written at length about the urgent need to push back against this GOP crusade for permanent control of American governance before it’s too late. It may already be. But a major part of that effort is the quest for accountability for January 6th. Common sense tells us that if we fail on that front, if there are no significant consequences for an attack on the US Capitol and an attempt to murder the Vice President and sitting members of Congress by way of stealing a presidential election, it will only embolden the perpetrators of those acts going forward. As the popular meme goes, a failed coup with no repercussions is just a dry run. 

And the necessary consequences almost certainly include criminal prosecution of Donald Trump, among others, for those crimes. Since the Republican-controlled Senate refused to convict Trump on those counts during his second impeachment, what other punishment remains available to us? Indeed, in passing the buck of responsibility back in February 2021, a characteristically weaselly Mitch McConnell explicitly said as much in declining to find Trump guilty. “He didn’t get away with anything yet,” quoth Moscow Mitch, overtly suggesting that Trump could still be held to account in the criminal and civil court systems. 

You don’t hear many Republicans saying that now, except Cheney and Kinzinger. Certainly not McConnell.

Instead, predictably, a chorus of conservative voices has arisen insisting that no matter how grave his sins, prosecuting a former US president is a terrible precedent—so terrible that it outweighs even the need for justice. Wouldn’t it be better just to let him get away with it?

As it happens, we don’t have to look too far back in our history for a case study in that exact dilemma.

 PARDON ME BOY, IS THAT THE CHATTANOOGA CHOO-CHOO?

Gerald Ford always said that he pardoned Richard Nixon because he felt that the country had been through such angst as a result of Watergate that a criminal prosecution of his predecessor would only further traumatize the nation and do more harm than good. 

He may well have genuinely believed that. But at the same time, it may also have been a kind of willful blindness that conveniently allowed him to let a fellow Republican off the hook, and spare further damage not to the country, but to the GOP. That’s sure how it looked. (Ford also always denied that he was named to the vice presidency, succeeding Spiro Agnew, who had been forced to resign in a separate corruption scandal, in a quid pro quo for that eventual pardon.)

In February 2021, in the immediate wake of the January 6th Insurrection, I wrote in these pages:

Ford’s logic that a trial would only extend America’s suffering and be even more divisive was ludicrous. Try it the next time you’re on trial: “Your Honor, it does appear that I robbed that bank. Yes, there’s video of me sticking a six-gun in the teller’s face. But wouldn’t putting me on trial just cause everyone more grief and suffering?”

I humbly submit that far from “sparing the nation more trauma,” “healing the country,” allowing us to “move on” from our “long national nightmare,” Ford’s excusal of Nixon’s crimes did grievous harm. It legitimized the hustle. It told America that you were a sucker if you played by the rules. It said that if you were rich enough and powerful enough the laws didn’t apply to you—that there was one set for those folks and another for the rest of us in the hoi polloi. It was a giant fuck you to ordinary Americans who were expected to obey the law and could bet their bottom dollar that Johnny Law would come after them if they didn’t.

(In fact, it is my view that, in addition to Watergate, Nixon could well have been impeached for violations of the Logan Act and other war crimes in his prosecution of US involvement in Vietnam, a conflict he unnecessarily prolonged—at the cost of some 21,000 American lives and hundreds of thousands of Vietnamese—for his own partisan political gain.)

In the years that followed, many journalists confronted Ford over the pardon, and specifically the fact that, after receiving it, Richard Nixon never once admitted any guilt. On the contrary: asked about the illegal things he had done, he famously told David Frost, on camera, “When the president does it, it’s not illegal.”

Ford grew so used to these questions, and so defensive, that he began carrying around a dogeared copy of the Supreme Court’s 1915 decision in Burdick v. United States, in which the Court ruled that accepting a pardon was by definition “an admission of guilt.” Ford was even known to pull the clipping out of his wallet and show it to those interlocutors (Bob Woodward among them).

Well, that’s all fine and good. But it does not make up for the fact that Richard Nixon walked off into a well-feathered retirement distinguished by expensive homes in San Clemente and Upper Saddle River, and lucrative book deals, and banquets thrown in his honor by his plutocratic admirers, instead of an orange jumpsuit, a metal bunk bed, and a job making license plates. And he never once admitted his crimes. 

The good news is, despite the pardon, almost everyone today thinks of Nixon as a miserable crook who was driven out of office in disgrace. Yes, there are some archconservative deadenders who still admire the bastard, almost out of sheer transgressive contrariness it would seem. For that matter, there are some cretins who still admire Sen. Joe McCarthy, too, and even worse monsters. But the overwhelming consensus on Nixon, and history’s verdict on him, is set, and it ain’t kind. 

(Ironically, his reputation has risen a little of late thanks to comparison with Trump, whose grotesquerie makes Tricky Dick look like a saint.)

But that is not to say that Ford’s pardon came without a price.   

If Nixon had been prosecuted and punished for his crimes, how might it have altered the trajectory of the post-Watergate GOP? We can never know. But just six years after Nixon departed the South Lawn in Marine One, an even more right wing Republican won the presidency, ushering in a conservative counterrevolution that sought to roll America back to the pre-New Deal era, if not the Puritan one. Over the course of its forty year run (and counting), that movement has gone a long way to achieving that goal. A patient, methodical plan to take control of the judicial branch has been a huge component of it, and we witnessed some of its repercussions even this past week.

The butterfly effect renders it impossible to say something like, “Without Nixon, there would have been no Trump.” But I know this much: Nixon getting off scot free didn’t help.

Absent prosecution, the GOP was able to portray Nixon was as an unfortunate aberration, a power-mad paranoid who brough shame upon Republicanism, rather than the natural son of a party that gave us the Great Depression, McCarthyism, and John Birch. Since then, the GOP has carried on with its shameless grift of the American people, and even been rewarded for its efforts. 

And that party has descended only further into the depths since then. 

WHAT’S GOOD FOR REPUBLICANS IS GOOD FOR THE COUNTRY

It is little wonder that Trump’s apologists are making the same Ford-like argument now about the risks of prosecuting a former head of state. We should give those arguments all the credibility that Trump supporters deserve when they talk about integrity and principle. 

After Ms. Hutchinson’s testimony, a number of esteemed legal analysts across the ideological board are now convinced that Trump’s criminal exposure is severe, including many on the conservative side, from Sol Wisenberg, a former deputy to special counsel Ken Starr in the Clinton impeachment, to Commentary’s John Podhoretz, to former National Review editor David French. While acknowledging how much uncertainty remains, Alan Rozenshtein, a former Justice Department official and now a professor at the University of Minnesota Law School, said, “I have gone from Trump is less than likely to be charged to he is more than likely to be charged.”

More to the point, the magnitude of Trump’s crimes, and therefore the danger of letting him get away with them, is exponentially greater than Nixon’s. “We have never seen anything like this in this country,” said former Democratic Senator Doug Jones of Alabama, himself a former prosecutor, referring to the Big Lie and the Insurrection. “Watergate pales in comparison.”

The charge of conspiracy to defraud the US is an easier case to make than incitement to violence, although both cases are plenty strong—likely slam dunks, in fact, against anyone other than a man who was the sitting president when he committed them. (In ordering Trump to turn documents over to the January 6^th committee, Federal Judge David Carter has already ruled that it’s “more likely than not” Trump committed both of those felonies. Which is not the same as a conviction, but also not cause for high-fiving in the halls of Mar-a-Lago.)

Yet still the right wing’s legal front is trotting out the tired old “bad for the country” excuse. 

Give me a fucking break. These are the same people that wanted to lock Hillary Clinton up over some mishandled emails.

In The Atlantic, the consistently brilliant Adam Serwer reminds us that Republicans disingenuously trotted out this “too traumatic” rationalization during Trump’s second impeachment, and over this same offense:

Republicans, including Senator Marco Rubio of Florida, insisted that seeking accountabilityfor an attempted coup would be “incredibly divisive,” and was therefore not worth doing. “The notion that we’re going to spend a week or two weeks on a trial on somebody who’s not even in office—it sounds to me like a waste of time,” Rubio told Politico in 2021.

The Week reports that even Ty Cobb, Trump’s top legal adviser in the Mueller probe and his lead lawyer during his first impeachment trial, has said that if what his old boss did on January 6^th “isn’t insurrection, I don’t know what is.” And yet, Cobb also told CNN that “I am not convinced prosecuting Trump is in the best interests of the country in the long term.”  Which is exactly what you would expect a Trump supporter to say. 

Andrew McCarthy, a former federal prosecutor who is now a contributing editor at the pro-Trump National Review, recently published an opinion piece in the Washington Post that embodied this scam perfectly. In McCarthy’s view, prosecuting Trump “would polarize the country and set a dangerous precedent (in) having the current administration go after its predecessor and chief political opponent.”

To be sure, no one is above the law, even the president; but neither do we prosecute every provable crime. Other considerations often apply, such as preserving domestic tranquility and institutional integrity.

Oh yes: “domestic tranquility and institutional integrity.” Two things that immediately leap to mind when one thinks of Donald Trump. 

McCarthy’s cred plummets further as he goes on to equate the Mueller and Benghazi probes as examples of “politically fraught investigations” proving that the “intrusion of prosecutors into electoral politics has a corrupting effect on the democratic process and the Justice Department itself.” Such an assertion is laughable on its face, but also betrays McCarthy’s howling bias. (He goes on to give us other examples of that bias, like his repetition of the Fox News gaslighting that the January 6^th committee is partisan—after Republicans blocked an independent commission, and pulled all their loyalist members of this one; and the never-ending attempt to equate January 6^th with the protests in the wake of George Floyd’s murder.) Perversely, he also claims that Trump’s apparent desire to seek the presidency again should be a factor mitigating against the DOJ charging him. 

But it gets worse. Even as he acknowledges the power of Hutchinson’s testimony, McCarthy ultimately dismisses all the evidence against Trump as much ado about nothing, since—wait for it—a significant part of the country is cool with what he did:

There should be no place in political cases for charges involving vague offenses based on abstruse legal theories—such as an obstruction charge based on Trump’s promotion of the bogus theory seeking to derail Congress’s counting of state-certified electoral votes. 

If there is not a public consensus, cutting across ideological and partisan lines, that Trump has committed grave crimes deserving of prosecution and likely imprisonment, an indictment would be perceived as invidiously selective prosecution by much of our deeply divided country. 

In other words, since 30% of Americans believe the Big Lie and think Trump actually won the 2020 election, and was therefore justified in trying to have his own vice president murdered and the electoral votes thrown out, we best not punish him for those crimes. 

I don’t know about you, but I am REALLY tired of the Republican Party talking to us like we are the biggest suckers who ever walked the Earth. But if we let them get away with this bullshit, the way we did in 1974, we will be proving them right.

THE ONLY THING WORSE THAN PROSECUTING

No one is disputing the enormity of the decision that faces Merrick Garland. Duke University criminal law professor Samuel Buell told the Associated Press that “It will be one of the hardest issues that any US attorney general has ever confronted.” 

However, as the Washington Post’s Eugene Robinson wrote, echoing a great many others, “It will set a disturbing precedent if Attorney General Merrick Garland prosecutes former president Donald Trump for alleged crimes. But I believe it will set a worse precedent if Garland doesn’t.”

It’s true that having an incoming president try to put the previous one in prison is a favorite trick of banana republics, but it’s hardly unprecedented, even in the most stable and advanced Western democracies. Ask Silvio Berlusconi, the proto-Trump Italian prime minister of the Nineties and Ohs who in 2013 was convicted of tax fraud by an Italian court, or Nikolas Sarkozy, the former French president who just last year was convicted of two counts of corruption by a French one. (Berlusconi got four years, three suspended, and served the other under house arrest, doing community service. Sarkozy got a year of house arrest for one conviction and three years for the other, two suspended and one in prison, which he is still appealing.)

It’s also true that, because of the partisan divide, a prosecution of Trump by the Biden administration’s DOJ would be even more fraught than a red-on-red prosecution of Nixon by Ford’s. Ford would not have been accused of simply trying to destroy the leader of the opposing party, as Biden inevitably will be. In that sense, as I also wrote in early 2021, “Ford missed a tremendous opportunity to reinforce the rule of law (and) set an important example by insisting Nixon answer for his crimes, rather than granting him a get-out-of-jail-free card.”

But no sane country would let a high-powered group of its citizens attempt a violent coup d’état—led by a deposed head of state no less—and let them off with no consequences. Unless that country was keen to have them do it again.

Adam Serwer again:

(M)ake no mistake: If those who collaborated with Trump’s attack on American democracy escape accountability, the calculus of high-ranking administration officials next time will be that there is a greater price to pay for opposing a coup than supporting one.

SHRUGGING OUR WAY TO AUTOCRACY

Even if the January 6^th hearings do not bring about a criminal prosecution of Donald Trump by the DOJ, they have clearly damaged him severely. (He sure thinks so; check out his Truth Social feed.) According to a Politico-Morning Consult poll taken shortly after Ms. Hutchinson’s testimony, 66% of Americans thought Trump’s effort to overturn the last presidential election’s results was a crime and he should be prosecuted for it. Only 19% said it was not a crime while 8% thought it was a crime but Trump should not be prosecuted.

(Of course that still leaves roughly a third of our countrymen who believe the Big Lie in some form or another, which is terrifying. But the less said about them the better.)

But have the hearings damaged him enough to keep him from getting the GOP nomination next summer? Maybe, maybe not. Anyone who can’t imagine the hearings backfiring, let alone a prosecution, and Trump weaponizing the perpetual grievance machine that is his base yet again and riding it to victory in 2024 even while under indictment—or even after a conviction—has not been paying attention. 

Or maybe the hearings will indeed damage him enough to end his political career at last. And then President Ron DeSantis will pardon him. 

For the real danger is not that Republican voters won’t accept that Trump tried to steal and election, and was even willing to use violence to do so. The real danger is that they don’t care.

In The Bulwark, the always insightful Charlie Sykes writes:

We know that the nation can survive insurrections and even attempts at obstruction of justice. But can it survive a shrug? 

Polls continue to show that the majority of Republican voters still believe the Big Lie, and support Trump. So what happens if one of the nation’s two dominant political parties decides that it doesn’t care? And is rewarded by the voters for its cynicism and moral nihilism?

Why? Because the lies don’t matter. Only the outcome counts. 

The Big Lie is the pretext for the refusal to accept the peaceful transfer of power to political opponents who are seen as evil and dangerous.

A subtext of right-wing politics now is that the other side simply cannot be allowed to win. They hate America, they hate God, and they will destroy everything you hold dear.

It’s the Flight 93 election forever. It’s Jan. 6th . . . forever.

When that is the ethos of the Republican Party, anything and everything can be justified in the name of its self-interest, including the use of violence against fellow Americans, including overturning an election, including seizing power of the electoral process full stop.

On that front, while you’re still digesting Dobbs, get ready to remember the name Moore v. Harper, which will go down in infamy. The Supreme Court has agreed to hear this case, involving the so-called “independent state legislature” doctrine, and will surely deliver a 6-3 decision that paves the way for Republican state legislatures (they control 30 of 50, as of this writing) to disregard the will of the people and the popular vote and send Republican electors to the Electoral College on no authority but their own. 

In other words, exactly what Trump and his crime syndicate wanted, retroactively, in 2020. No Capitol-storming necessary.

Heather Cox Richardson writes that retired Judge Michael Luttig, a highly esteemed conservative icon who gave searing live testimony to the Jan. 6 committee, “has been trying for months to sound the alarm that this doctrine is a blueprint for Republicans to steal the 2024 election. 

In April, before the court agreed to take on the Moore v. Harper case, (Luttig) wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”

And what are the odds that the 6-3 far right wing majority on the Supreme Court will reject that doctrine, which is tailor-made to deliver electoral victories to the GOP in perpetuity?

That’s a rhetorical question, folks.

IT COULDN’T BE SIMPLER

It has by now become wearying to say that the Insurrection did not end on January 6, 2021 but is still going on, in the multipronged Republican attempt to hijack the electoral process and institute itself in permanent, countermajoritarian rule. 

Donald Trump must be held criminally accountable for his actions or we will be dooming ourselves to the success of that effort. Even that may not be enough, but without it, the Republicans will surely achieve their insidious goal.

So while Trump’s apologists continue to trot out their tired, old Nixonian misdirection about letting criminal presidents skate “for the good of the country”  let’s heed the words of Jan. 6^th committee member Rep. Adam Kinzinger (R-Ill.), speaking to Stephen Colbert on “The Late Show”:

We never want to get in a position where we’re just prosecuting the last administration—that’s another thing you see in failed democracies—but when you try to overthrow the will of the people, and you try a coup in the United States government, you have to pay for that. Period.

Mic drop.

********

Photo: Dick and Jerry, laughing all the way into ignominy.

As the January 6 hearings commenced, an old and trusted friend commented to me that he thought only the production of a smoking gun would be likely to change any minds in our current calcified, hyperpartisan political climate. Many pundits have echoed that opinion. 

Yes and no, say I. 

We all understood going in that for the roughly 30% of Americans who would push their own mothers off a cliff if Donald Trump told them to, nothing—nothing!—will change their minds about the Insurrection or The Former Guy’s culpability for it. Not even a smoking gun. In his hand. On video. With Trump shouting, “I did it.”

Because the fact is, there has been a smoking gun in plain view ever since that tragic afternoon itself—a smoking cannon, in fact. A 155mm self-propelled howitzer. A Gerald Bull-style Supergun that can launch a Volkswagen-sized satellite into outer space.

We’ve known all along that the Insurrection was no spontaneous riot, no church picnic that got out of control, no false flag operation, but a well-planned, coordinated attempt by the Trump campaign to use political violence as part of an effort to stop the count of electoral votes and steal the election for their guy. And it came at the end of a months-long (even years-long) Republican effort to undermine confidence in the results of the election full stop, thereby creating circumstances that would enable Trump to stay in office. That was all painfully evident to anyone who lived and breathed in America during the last presidential campaign, and who watched events unfold that January afternoon, and who was not guzzling Fox Brand Kool-Aid. As was Donald Trump’s fundamental responsibility for all of it.

To use the legal formulation, if not for Trump, those people who stormed the Capitol do not come to DC, do not mass on the Ellipse, do not get worked up into a foaming-at-the-mouth frenzy, do not march on the People’s House, do not erect a gallows to lynch Mike Pence, do not beat law enforcement officers with Blue Lives Matter flags, do not breach the building, do not roam its halls chillingly calling out Nancy Pelosi’s name in order to murder her, and so on and so forth. As the Internet meme goes, on January 6, 2021 a frantic Kevin McCarthy knew who to phone to try to call off the attack, and it wasn’t the antifa or BLM or the FBI. Because he knew who was responsible then and he knows it now.

Man-on-the-street interviews with Trump supporters provide anecdotal evidence of their maddening—but unsurprising—refusal to face the facts. They’re not watching the hearings; they think they’re a witchhunt; the Democrats aren’t interested in the truth, only in hurting Trump; I got better things to do with my time; blah blah blah. Their comments remind me of testimony we heard during the hearings themselves, from reasonable Republican officials describing colleagues who continued to insist that the Democrats had stolen the election even when every claim to that end was definitively refuted, saying, “Yes, but I just know in my heart that they cheated.” 

There is no reasoning with such people. This obstinate refusal to reckon with one of the darkest moments in all of American history is sheer tribalism and willful blindness, and all the more dangerous because the emergency is not over but continues to unfold, with the ongoing right wing attempt to sabotage our representative democracy.  

What’s that you say? I am obviously deeply tribal myself? Guilty as charged. Except that my tribe has the facts on its side. Check back with me when Biden supporters storm the Capitol to try to overturn an election. 

So, yes, not even a smoking gun produced by the January 6^th committee will change the minds of a third of America, but these hearings were never intended to persuade Trump’s immovable deadenders. What the committee has done with the hearings, however, is a public service of the absolute highest order nevertheless, one whose repercussions are three-fold. Let’s take them in reverse order of importance. 

First, the hearings will likely sway a small sliver of middle-of-the-road voters, who were crucial in 2020 and will be again this November, and again in 2024, and convince them that Donald Trump and indeed the whole GOP have no business holding power in this country. (That is, if Republicans have not by then succeeded in gaining a total chokehold on the electoral process.)

Secondly, the hearings have made the case for history, and before you scoff at the alleged uselessness of that, let us remember that history’s verdict will be the most enduring, with consequences for future generations that reverberate far beyond the next few short-sighted news or election cycles. 

And lastly, and perhaps most crucially, the hearings have made it all but impossible for the Department of Justice not to bring charges against the architects of the Insurrection, in the interest of the long-term good of the republic. After hearing the case so powerfully laid down by the House committee, if a violent attempt to overturn an election—carried out by a defeated president marshaling the full powers of his office—is not a crime worthy of prosecution, what is?  And if we do not pursue its perpetrators and bring them to justice, are we not opening the door for an imminent sequel?

A BRIEF REVIEW

Before the hearings commenced, defeatism was in the air in anti-Trump circles. The cake-taker may have been David Brooks’ much-discussed New York Times piece titled “The Jan. 6^th Committee Has Already Blown It,” which ran even before the very first hearing. 

In his defense, Brooks was arguing that treating the investigation of the Insurrection as an exercise in ordinary political campaigning was thinking way too small. But it turns out that the House committee had no such weak tea in mind. 

The January 6^th Committee has calmly, cogently, and methodically laid out a powerful case that there was an extensive, coordinated Republican effort to overturn the election, culminating in the attack on Congress on January 6^th, and that that effort was directed by Trump himself. (Per above, “culminating” is not quite right, of course, as the effort to seize control of the American electoral process continues.)

It has produced eye-popping evidence that even dedicated watchers of the case—among whom I count myself (ask my wife)—were completely unaware, and heart-rending testimony from the likes of Capitol Police officers and innocent election workers like Shaye Moss and her mother Ruby Freeman. 

We have seen evidence of Trump’s direct involvement in some of the most egregious aspects of this criminality, including RNC Chairwoman Rona Romney McDaniel’s admission that the RNC helped orchestrate the fake elector plot in coordination with the White House. We learned of how callously Trump handed down a de facto death sentence for his own vice president (“Maybe he deserves to be hanged”), and terrorized frontline election workers. We learned of the extent of the coordination between Trump and GOP officials and brownshirt-style street goons like the Proud Boys and the Oath Keepers to bring physical violence to bear on Congress. We were told of the extraordinary pressure put on state officials to overturn the will of the people, and the scope of the legal maneuvering to try to justify the rejection of the electoral vote.  We also learned that Trump’s staunchest advocates on Capitol Hill and within the White House—Gaetz, MTG, Gohmert, Biggs, Gosar, Eastman, et al—sought preemptive pardons, indicating that they knew that their actions were highly illegal. 

And on and on.

After the first couple of televised hearings, Washington Post’s Max Boot spoke for many when he wrote:

I admit to having been skeptical, ahead of time…. What more is there to be said, I wondered? The evidence of Donald Trump’s guilt in inciting an insurrection was already so obvious that it was hard to imagine that the committee would have much to add. 

I am happy to say I was wrong. The committee’s hearings are exceeding expectations, because it is not behaving like a typical congressional committee. There is no grandstanding and no preening. There are no petty partisan squabbles. There is not even the disjointedness that normally occurs when a bunch of politicians are each given five minutes to question each witness. There is only the relentless march of evidence, all of it deeply incriminating to a certain former president who keeps insisting that he was robbed of his rightful election victory.

The committee’s reliance almost entirely on Republican witnesses—from revered right wing figures like retired Judge Michael Luttig, to many many Trump appointees and former members of the administration itself who finally reached a line even they could not cross—was a stroke of genius. To hear a loathsome Trump accomplice like Bill Barr dismiss the Big Lie as “bullshit,” “crazy stuff,” and “complete nonsense,” and report that for Trump there was “never an indication of interest in what the actual facts were” carries more weight than a thousand speeches by Adam Schiff, with all due respect to the highly honorable gentleman from California. 

Boot opined that the testimony of these former Trump’s aides has been “the committee’s most potent weapon.” 

One could not script a better scene than the one described by former Trump attorney Eric Herschmann—a member of Donald’s odious legal defense team during his first impeachment—describing his Sorkinian exchange with John Eastman over the plan to mount a coup: “Are you out of your effing mind? I only want to hear two words coming out of your mouth from now on: orderly transition.”

(Close second: Acting Deputy AG Richard Donoghue telling environmental lawyer-turned scheming would-be Attorney General Jeffrey Clark: “We’ll call you if there’s oil spill.”)

But let us not lionize some of these former Trump officials; many of them could have acted much earlier and forestalled this whole chain of events, Mike Pence above all. This testimony would have been quite useful in late January 2021, for example, when Trump was impeached over these very crimes. But credit where it’s due, and two cheers. 

(The fact that some of these people, including Barr, Brad Raffensperger, and Rusty Bowers, even now say that they would vote for Trump again in ‘24—or at least would not rule it out, in Raffensperger’s case, like Susan Collins’s—is a mind-blowing matter for another day. Though mere partisan politics is not the point—per Brooks—one can only hope that this shocking litany of Trump’s crimes will convince other less benighted Americans that they ought not vote for him ever again, should the chance arise. For many Republicans, some wit noted, the hearings are playing like a six-part infomercial for Ron DeSantis.)

But worth remembering: the integrity of these officials was the only thing that stood between Trump and a second, illegal term….and is therefore the precise thing that the GOP is dead-set on obliterating as an obstacle to permanent, predetermined electoral victories going forward. 

DO THE RIGHT THING

So the case against Donald J. Trump and his disciples has been powerfully made. The question now is, what the Department of Justice will do with it? 

For as David Brooks rightly noted (see? I’m defending him), these hearings have not been merely an exercise in damaging the GOP ahead of the midterms and 2024, or even in establishing the case for posterity, important as that is. They have been an attempt to hold a criminal head of state accountable for his sins for the sake of the country’s health and well-being going forward. 

So over to you, Merrick. 

It is encouraging that even as the hearings unfolded, the DOJ began issuing subpoenas and interview requests to key GOP officials and fake electors in Michigan, Pennsylvania, and Georgia, and raiding the homes of people like Jeff Clark. The signs do point to an aggressive DOJ investigation, even if it is being conducted with Mueller-like operational secrecy, and not coincidentally ramping up with each revelation by the committee. We shall see where it goes. (“I can assure you that the January 6 prosecutors are watching all the hearings,” Garland told the press.)

I want to say that I cannot imagine that after seeing what all of America has seen—evidence that it likely already developed itself, and more—the Department of Justice will not bring indictments at the highest levels.

But I can imagine that. I can readily picture the painfully cautious, “institutionalist” Mr. Garland deciding that it would be too politically incendiary and damaging for the country to indict and prosecute a former president—the same rationale Gerald Ford used to justify his pardon of Richard Nixon, a travesty for which we are still paying today.

It is inconceivable to me that John Eastman, who relentlessly promoted a scheme that by his own admission he knew was illegal, will not be indicted. And Eastman, we all know, served merely at the pleasure of his boss. But I’ve been wrong before.

I can also see Garland electing not to indict Trump on the grounds that he doesn’t think he can get a conviction. That is the kind of strategic decision prosecutors make all the time, and he may even be right about that. But in this case, and in this layman’s humble opinion, it would be a woefully misguided decision with terrible consequences for the republic and the rule of law we flatter ourselves that we live under. 

Like Trump’s impeachments—both of them—a criminal prosecution of Donald Trump is an essential duty of the body politic, even if the chances of a conviction are not as airtight as prosecutors would like in normal circumstances. But hell, in normal circumstances, with evidence like this, a conviction would be nearly a slam-dunk. The only reason it ain’t necessarily so in this case is the uncharted waters in which we would be venturing in putting a former president on trial, and the Bizarro World / up-is-down / day-is-night hyperpartisanship of America as we now know it, such that getting twelve jurors to agree that puppies are cute is a longshot if Donald Trump is weighing in with his opinion. 

Lest we forget, acquittals in both of Trump’s impeachments were all but certain. Yet despite those nearly foregone conclusions, we wisely went through with them anyway. What was the alternative? To throw up our hands and say, “Oh well, no point even trying, since the GOP’s gonna stonewall us. What are you gonna do?”

If I am not mistaken it was former US Attorney Harry Litman who quipped that, when faced with an ex-president credibly accused of crimes on the scale of Trump’s, the only thing worse than trying him would be not trying him. (The Washington Post’s Eugene Robinson makes that same point very well here.) 

SMOOTH JAZZ, OBVIOUSLY

As the evidence against Trump accumulates, a great many observers have seized on the possibility that he is, in effect, fucking crazy, and therefore his actions—while terrible—were not motivated by criminal intent, because he truly believed that the won the election. As a legal defense it’s a stretch, but was given a handhold by the testimony of Bill Barr, who opined that Trump had “become detached from reality if he really believes this stuff.”

On that front, many wags have cited the gospel according to George Costanza—the Picasso of liars—before his pal Jerry undergoes a polygraph in an attempt to prove (falsely) that he has never seen “Melrose Place”:

“Jerry, just remember: It’s not a lie if you believe it.”

Luckily, numerous legal scholars have already demolished that specious argument, under which almost no criminal behavior is possible whatsoever. 

“Willful blindness” is not exculpatory. You cannot rob a bank and be excused because you felt it was within your rights to do so. You cannot steal the Stanley Cup and run around Manhattan with it just because you don’t accept that the Rangers got beat in the Eastern Conference finals. You can’t pilot an airplane with five martinis in your bloodstream, crash it into a mountain and kill everyone onboard but yourself, and be acquitted because you were genuinely convinced that alcohol didn’t affect you. 

(In The Bulwark, Will Saletan argues that it’s actually worse if Trump really did believe his own bullshit. I would agree it might be more dangerous, unpredictability wise—pressing the nuclear button wise—but it’s not worse, morally speaking.)

The fact is, the committee made a compelling case that Trump was not in fact that self-deluded, that he had been repeatedly told by his own advisors that there was no election fraud, that Biden had won fair and square, and that his continuing push of the Big Lie was both incorrect and illegal. Under the law, Trump cannot then turn around and in good faith claim simply not to believe it and employ that as a get-out-of-jail-free card. 

When it comes to intent,  don’t you think telling the acting Attorney General ““Just say the election was corrupt and leave the rest to me and the R. Congressmen” covers it? (After all, exploiting a fake investigation is one of Trump’s favorite moves, from Comey to Kyiv.) 

But all of that sort of misses the point, as beautifully argued, also in The Bulwark, by Mona Charen. 

Charen notes that, “in our age of post-truth politics,” the crucial Watergate-era query—What did the president know, and when did he know it?—“shrivels into a dry cinder.” Asking whether Trump sincerely believed he had won the election, she argues, is “the wrong way to look at it.”

In the first place, the tangle of loose wires, celebrity gossip, Putin-worship, grade school taunts, and world-class vapidity that forms Trump’s mind is impossible to penetrate. We are, to our sorrow, quite familiar with his indifference to truth. When it comes to a person who has lied about American Muslims celebrating the fall of the Twin Towers; told the country that COVID was like the common cold and was “disappearing;” lied about why he fired James Comey; and lied even about the paths of hurricanes, we are dealing with someone whose lies are a constitutive part of his psychology. And everyone knows this.

Charen reminds us that all along, “Part of Trump’s project was to obliterate the truth, to ‘flood the zone with shit,’” in the memorable words of professional troglodyte Steve Bannon. In contrast to Nixon, “absolutely everyone in (Trump’s) circle and everyone in the Republican party who made their peace with him as leader had been lied to repeatedly. Trump had so warped the people around him that there was no expectation of honesty or integrity.”

Did he know that the election was not stolen or did he sincerely believe that it was? What does it matter? What is sincerity in the mind of a man who lies with every exhale? Asking whether Trump knew the election was free and fair is like asking whether a komodo dragon prefers smooth jazz or hip hop. It’s a category error.

ADULT SWIM

As many have observed, in retrospect, it was a horrific own goal by Kevin McCarthy in refusing to have GOP participation in the January 6^th committee, notwithstanding the excommunicated Liz Cheney and Adam Kinzinger. Even Trump knows that. Nancy Pelosi wisely refused to let Kevin put human hand grenades like Jim Jordan and Jim Banks on the committee, so Kevin petulantly took his ball and went home. (After scoring the own goal. Or maybe that was the own goal. Before the hand grenades went off. I’m still working on the metaphor.) 

Let’s just settle on calling it political malpractice. 

In any case, the net result is that this has been a sober, grownup proceeding, laser focused on demonstrating the irrefutable truth, rather than the usual audience-alienating partisan food fight. To that end, the complaints of “onesidedness” by Trump, right wing pundits, and even those aforementioned men-and-women-on-the-street inadvertently reveal the weakness of Trump’s position. 

In the WaPo, Greg Sargent notes that “It’s darkly amusing that Republicans see McCarthy as their problem here,” pointing out that Republican complaints about McCarthy are themselves “a pernicious form of spin (implying) that there exists an alternate set of facts being suppressed by Democrats, one that would weaken the revelatory force of what we’re learning about Trump and his co-conspirators.”

“What’s really irritating Republicans,” Sargent writes, “is that they’ve been deprived of the opportunity to pollute the media environment and muddy up the harsh truths coming to light with obfuscation, misdirection and lies.”

Everyone is entitled to a defense, of course. But we are not required to pretend there is an alternate, possibly exonerating set of facts that is being suppressed when there isn’t one. The very suggestion is itself more gaslighting. And because news accounts don’t state this plainly, coverage of Trump/GOP criticism of McCarthy unwittingly advances GOP spin about this supposed alternate story that isn’t being told.

Sargent argues that “Many—or even most—Republicans have simply ruled out the option of grappling straightforwardly with what Trump did.” What, he asks, would they have said if they had been on the committee?

Would they have said Trump wasn’t actually informed that the scheme he was pressing for was illegal? That he really believed he had won in 2020? That he didn’t know the mob was violent before pointing it like a howitzer at his vice president? That he actually believed exactly enough ballots could be “found” in Georgia to allow him to prevail by precisely one vote?

Here’s a better guess: Because the case against Trump on those fronts is so strong, Republicans on the committee wouldn’t have even tried to “defend” him against it. Instead, they would have engaged in endless obfuscating antics.

Lastly, Sargent reminds us that before the hearings we were assured “that Trump allies would ‘counter-program’ them. Yet they’ve been largely silent. If there were a genuine fact-based defense available to them, we’d be hearing it.” 

I FOUGHT THE LAW

In the end, the question is very simple: Did Donald Trump conspire to defraud the United States and interfere with a legitimate federal proceeding, which is to say, the certification of the results of the Electoral College? 

The only credible answer is: Hell yes. 

Short, perhaps, of recklessly bringing on a nuclear war, there can be no greater crime for a President of the United States. If we allow it to go unpunished, we will have written our own death sentence as a democracy.

In a piece for The Atlantic bluntly titled “The January 6^th Committee Is Not Messing Around,” Quinta Jurecic of the Lawfare blog duly notes that the committee knows that part of its job is to put pressure on Garland and the DOJ. But she also reminds us that “the select committee’s work is itself a reminder that the Justice Department is not the final arbiter of accountability when it comes to the Insurrection.”

There’s a tendency to treat the elusive possibility of a criminal probe or prosecution of Trump as the ultimate prize—the achievement by which investigatory success can be measured. The select committee, though, is doing something different. Congress can’t bring a legal case against Trump—but it can build a case for liability in the moral and political sense. That is its own worthy project, and it’s one that the January 6 committee is proving itself more than capable of carrying out.

She is quite right of course. Irrespective of what Garland and the DOJ eventually do or don’t do, the American people have been presented with a thoroughly corroborated and indelible portrait of Donald Trump as the worst president in US history, a man who should never have been allowed anywhere near the Oval Office in the first place. (“But her emails.”) That in itself has been a great public service, but it is not sufficient in terms of the consequences Trump ought to suffer—not out of vengeance, but in the interest of the long term well-being of the republic.

Establishing moral liability will not be sufficient to preserve the integrity of our democracy going forward, nor does it mean that we ought to stop pursuing the Holy Grail of accountability within the criminal justice system. In a New York Times piece called “Donald Trump, American Monster,” Maureen Dowd  writes: “In his dystopian Inaugural speech, Trump promised to end ‘American carnage.’ Instead, he delivered it. Now he needs to be held accountable for his attempted coup—and not just in the court of public opinion.”

In that same piece, published after only the first night of televised hearings, she also compared The Former Guy to the iconic creation of a certain fictional mad scientist:

Shelley’s monster, unlike ours, has self-awareness, and a reason to wreak havoc. He knows how to feel guilty and when to leave the stage. Our monster’s malignity stems from pure narcissistic psychopathy—and he refuses to leave the stage or cease his vile mendacity.

The House Jan. 6 committee’s prime-time hearing was not about Trump as a bloviating buffoon who stumbled into the presidency. It was about Trump as a callous monster, and many will come away convinced that he should be criminally charged and put in jail. 

We are about to find out whether or not crime pays, and whether future presidents will feel free to behave like a creature from a horror movie.

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Photo: Former Fox News digital politics editor Chris Stirewalt, who was fired for calling Arizona for Biden on election night 2020, is sworn in before the House select committee on the Insurrection.

Credit: Jabin Botsford/Pool/The Washington Post via AP.

Copy editing by the intrepid Gina Patacca.