Tag: supreme-court

As I wrote last week, President Convicted Felon Donald Trump’s first five days in office were a grim augury. It has only gotten worse in the ensuing three.

The most alarming incidents were the Friday Night Massacre of the critical mass of IGs, the suspension of virtually all foreign aid; and a freeze on all domestic federal funding, including monies already duly authorized by Congress. Like the previous week’s attempt to end birthright citizenship, all are deeply worrying, not just because of the specific policies in question (though those are plenty worrying), but because they represent a brazen power grab—that is, illegal attempts to vastly expand the power of the executive branch by fiat. They are also very obviously probes of our democracy’s beleaguered defenses to see if anyone—the GOP, Congressional Democrats, the judiciary (especially the Supreme Court), as well as the press and the general public—will push back in any substantive way.

So far, few have. More on that in a bit.  

But we’ve seen this movie before, in country after country that has come under assault by aspiring autocrats. We know how it ends, and it’s a lot like Old Yeller.

We are in a crisis like none before in American history, not even from 2017 to 2021, when unprecedented national emergencies became as regular as the firing of Jets head coaches. Yes, we have faced daunting external enemies from the Wehrmacht to Al Qaeda. But not since the Civil War have we faced a homegrown threat of this magnitude, and never one in this form.

The American people willingly elected as our president the most wantonly criminal and openly immoral public figure in our country. In his first week and a half in office, with all the levers of power at his disposal and virtually no checks on his bluntly announced intention to abuse them, he has set about rapidly dismantling American governance domestically and destroying our foreign policy globally, while preparing to enrich himself and his cronies through graft and corruption on a scale never before seen in a US president. Are we surprised?

No one in his craven party is willing to stand up and stop him, even when they know that vast damage is being done. The oligarchs of the business community are taking his side in hopes of benefiting themselves. Major outlets in the mainstream media are sanewashing his efforts. The opposition party by and large is acting as if this is politics as usual and bringing its customary featherduster to a flamethrower fight.

Every rational observer knew that this was where we were headed with his election (or re-election, I should say, to make it even more bitter). But few thought it would happen so fast or to such extremes. Donald Trump is the moral equivalent of the California wildfires, and in just a month or two, American life may well resemble that same sort of smoking wasteland.

PENNSYLVANIA AVENUE FREEZE-OUT

You can learn a lot about military terminology —and the French language, and a little Spanish too—by watching Trump. January 6^th and the maneuvers that led up to it were an autogolpe—a self-coup, or at least an attempt at one. What we’re seeing now is more of a coup de main.

Trump has long signaled his infantile desire to be a dictator: in his shameless fanboying for foreign tyrants like Putin, Orbán, Xi, Erdoğan, and Duterte; in his fondness for a neo-autocratic system (“I have an Article II where I have the right to do whatever I want”); and most brazenly, in his overt declarations to that end, like musings about a third term, or worse. Thanks to the justice system’s failure to move swiftly and hold him accountable, and to the Supreme Court’s despicable, openly dishonest willingness to pronounce him above the law, we are now seeing those factors bear poisonous fruit.

Trump infamously said he’d be a dictator only on “day one.” That appears to have been a pretty severe underestimation of how long he’d like that gig. As the blogger Robert B. Hubbell wrote this week:

He is no longer operating within the pale of the law. On Monday, January 27, Trump dropped all pretense of being a “president” within the meaning of Article II of the US Constitution and began wielding power for his own benefit and without regard for constitutional restrictions.

Some bonus authoritarian moves, also carried out yesterday: Trump also fired more than a dozen prosecutors who worked on investigations into his criminal activities, and had the acting US Attorney for Washington DC open an investigation of the prosecutors who worked on Special Counsel Jack Smith’s J6 team. As Hubbell notes: “While some presidents have secretly used the FBI, IRS, and DOJ to investigate their political foes, no president in the history of our nation has publicly ordered the DOJ to investigate his perceived political enemies, much less fire them.” By contrast, his threat to invade the sovereign territory of a NATO ally barely moves the needle. It’s a sliding scale of outrages these days.

But let’s drill down a little more on the federal funding freeze.

Slate’s Mark Joseph Stern reports that the “scope of this power-grab is impossible to overstate, as are its devastating ramifications.” He also notes that this is actually the same “impoundment” process that Trump used to illegally block funds allocated for Ukraine, an action that got him impeached the first time, in 2019.

The list of programs that would have been affected is nearly endless: It appeared to include Medicaid, children’s health insurance, HIV/AIDS care, addiction treatment, nutrition assistance, housing vouchers, education funding, law enforcement, farmers’ aid, infrastructure projects, early childhood education, disaster relief—and that’s just the start. Millions of Americans, especially in low-income communities, rely on these programs for food, shelter, health care—in short, survival.

But we know that for Trump the cruelty is incidental—if not the point. (Can we make that a permalink? Because Adam Serwer’s formulation appears in almost every issue of this blog.) Stern again:

(T)he upshot is clear: President Donald Trump wants to seize control of the spending power from Congress in order to paralyze large portions of the government, canceling duly enacted appropriations by executive decree. This move is flatly illegal, a flagrant breach of federal law as well as the president’s own constitutional obligations.

As Ed Kilgore writes in New York Magazine, “Letting Trump delay or cancel any appropriation he doesn’t like really would abolish Congress’s constitutionally enumerated spending power, and give the president the kind of power only true dictators enjoy.” That is precisely the idea, and as Stern writes, deliberately “tees up a massive legal battle that will test whether this Supreme Court is willing to put any restraints on a president who seeks to rule as a dictator.”

On that front, there have been a couple of mildly encouraging moments.

Late today a federal judge temporarily blocked that federal funding freeze from going into effect, much as, last week, another federal judge temporarily blocked the attempt to end birthright citizenship. Indeed, these brave acts by the oft-maligned federal judiciary constitute the most robust resistance thus far to Trump’s aggressive Adolf-like campaign to consolidate power. So let’s say those federal judges’ names, because they deserve the honor. In the funding case, it was US District Judge Loren AliKhan; in the birthright case, US District Judge John C. Coughenour, who called Trump’s edict “blatantly unconstitutional,” adding, “I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind.” 

But the danger remains. What happens when those cases get up to Trump’s handpicked SCOTUS? Will these lower court rulings ultimately be mere speed bumps on the road to a fascist autocracy? Trump’s legal team has apparently constructed a tortured Rube Goldberg-style “originalist” rationalization for the funding freeze, but Stern wonders whether even the bought-and-paid-for right wing supermajority on the Supreme Court will go along with it, as the Constitution is so clear on the matter of Congress’s ultimate authority in this area.

Trump could have created a more favorable test case to press his theory, targeting some arguably wasteful spending with little impact on people’s lives. Instead, he swung one of the biggest axes he could find…..And the justices do not appreciate being treated like a rubber stamp.

Then again, until last July no one thought they’d rule that Trump was a king, either.

Stern assigns some of the blame to the Court itself for this current mess:

In their zeal to create a “unitary executive,” the conservative justices issued a series of opinions abolishing traditional restrictions on presidential power. It was inevitable that Trump would push this precedent to the limit, then keep going; given how much he had already gotten away with, why not swing even bigger this time?

If the court does not draw the line at impoundment, it is difficult to envision what checks remain on the presidency. This is a five-alarm fire for American democracy. And even if the Supreme Court extinguishes it, the conservative justices will bear some responsibility for the scorched earth left behind.

The question is whether they will care.

APPEASEMENT, COLLABORATION, AND FECKLESSNESS, LLP

One thing we learned in Trump 1.0—or should have—is that It Always Turns Out Even Worse Than We Feared. And we feared it would be pretty bad in Trump 2.0. You can’t see me sitting here at my keyboard, typing this, but I’m doing an audible cartoon gulp at what that portends for the next four years.

Only nine days ago, on the eve of the inauguration. I wrote a blog called “Twenty-One Months,” aimed at boosting our morale by noting how short the timeline is for Trump to enact his agenda, and how soon we will have the opportunity to constrain him legislatively in the midterms. Now that feels naïve to say the least. If this brazen power grab continues, there may be no midterms in 21 months, or ever, except Potemkin ones.

Things are going on in this White House that in 2017—or, indeed, at any previous time in American history—would have prompted outraged protest in the streets and aggressive pushback within Congress. But this time, largely crickets. Well, not crickets, but certainly not a deafening swarm of cicadas.

With relatively few exceptions, like AOC, the Democratic Party is completely useless. Even otherwise heroic figures like now-Senator Adam Schiff seem unable to navigate this treacherous new terrain. Yes, voting to confirm Rubio to preserve capital to oppose RFK and Tulsi and Drunken Pete and Ka$h might have been reasonable in past administrations, , but it’s inconceivable that past administrations would have nominated a rogues’ gallery like that, or proposed that the villains to run Gotham City. In this moment, obstructionism should be absolute, IMHO. (I’m sorry, sir! I’m still a fan, but please make thick your blood and screw your courage to the sticking place.)

And don’t even get me started on Fetterman.

The Fourth Estate is no better. This week on the Internet, I watched the otherwise sane and savvy policy expert Ian Bremmer spend a half hour discussing Trump’s foreign policy (such as it is) as if he were just another conventional politician, and pooh-poohing the idea that he poses a threat to democracy. The Washington Post, which is run by billionaire Jeff Bezos when he’s not dressed in a French maid’s outfit and cleaning the toilets at Mar-a-Lago, has lately run a series of fawning pro-Trump columns including a recent one  by Shadi Hamid that reads like it was ghost-written by the doctor who once proclaimed Trump to be more or less superhuman. I won’t link to any of that trash, because Trumpist propaganda doesn’t need any more help, but you can seek it out if you wish. It won’t fill you with confidence that the MSM is going to save us.

Among journalists, one of the most clarion voices calling out the danger has been Rebecca Solnit. It is via her that I came across the aforementioned Robert Hubbell, who writes, “It is time for the institutions fighting for democracy to drop the niceties and begin calling Trump for what he is.”

Many institutions are still treating Trump as though he is a “normal” president, albeit one subject to making impulsive, ignorant statements. Criticizing his actions is not enough. The story of his first week is not that ‘Trump has shaken things up,’ or that he is “flooding the zone.” It is that Trump has begun to ignore the law at whim.

(But) Trump is unable to act like a dictator unilaterally. He needs the consent, acquiescence, and apathy of enough people to frustrate the normal operation of constitutional and legal checks and balances. We must not grant that assistance to Trump. We must resist. We must say in plain language that he is acting like a dictator who holds himself above the law. Whether he gets away with the audacious gambit is up to the people from whom all constitutional power flows.

This is it, as our British friends like to say. As experts from Masha Gessen to Tim Snyder to Gene Sharp have observed, even in the worst police states, most power is freely given to the authorities…..and we collectively are freely giving this tinhorn Mussolini license to become the despot he so plainly longs to be. There is an old adage that a nation gets the government that it deserves. Unfortunately, that collective “nation” includes lots of innocent folks who vehemently oppose Trump and Trumpism, but are caught up in this monstrosity foisted upon us by a vile far right minority, and an apathetic, low-information majority.

But the corollary, then, is that if the people alone can give power to a tyrant, we can also take it away again.

BULLET TRAIN TO PALOOKAVILLE

The backbone shown by some federal district judges is encouraging. Maybe they’ll inspire the Mudville Nine a little higher up the chain, though I’m not counting on it. Likewise those stalwart voices in the press: might they shame the Post and the Times and others who are currently bending the knee to the White House? In the words of Brian Wilson, wouldn’t it be nice?

But ultimately the pressure has to come from us, the public. A few brave judges and a few bold journalists and one Bronx congresswoman cannot carry the load alone.

Is the time for a general strike fast approaching? Maybe. It’s an option of nearly last resort. But the death train to totalitarianism is traveling a lot faster than even the most pessimistic among us predicted. Last week, I concluded by saying how worried I am that we are drifting toward an Orbán-style autocracy. Let me correct that. Turns out we are not “drifting” toward it so much as rocketing there on a shinkansen.

I’m almost afraid to see what next week will bring.

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Illustration: Seen on Etsy; artist unknown. But it might just be a picture of Dorian Gray situation.

Here at The King’s Necktie we are in the middle of a two-part essay about the incoming Trump administration’s horrific plan for mass deportations, but we interrupt our regularly scheduled programming for a bonus blog post.

I rarely devote a whole essay to commenting on someone else’s work, and I’ve never done it before to push back, only to praise. But a recent opinion piece in The New York Times really caught my eye. It was by Tom Goldstein, the highly accomplished attorney and much-respected founder of SCOTUSblog, the premier online journal about the US Supreme Court. It was called “End the Criminal Cases Against Trump” and that title pretty much says it all.

Goldstein writes:

Democracy’s ultimate verdict on these prosecutions was rendered by voters on Election Day. The charges were front and center in the campaign. The president-elect made a central feature of his candidacy that the cases were political and calculated to stop him from being elected again. Despite the prosecutions, more than 75 million people, a majority of the popular vote counted so far, decided to send him back to the White House.

I know, right?

And this was not the usual gaslighting from a Trump bootlicker, like Tom Cotton or Lindsay Graham or Victor Davis Hanson (or Marc Thiessen, or Jason Willick, or Hugh Hewitt….stop me anytime). Goldstein is a Democrat, a deeply experienced litigator specializing in cases before the Supreme Court, and has taught for many years at both Harvard and Stanford law schools. When it comes to Democratic bonafides, he was even second chair (as they call it) for Laurence Tribe and David Boies in Bush v. Gore in 2000. He is held in great esteem in the legal community and among people on both sides of the aisle.

And who am I? Just an regular shmo. My credentials, such as they are, are in other fields.

Still, as an ordinary citizen, I respectfully submit that Mr. Goldstein is dead wrong. Worse, I would contend that his argument represents a dangerous example of voluntary submission to autocracy at the very beginning of (at least) four years in which the rule of law and the republic itself are already in grave danger.

I CAME HERE FOR AN ARGUMENT

Let’s look at some of the arguments in Mr. Goldstein’s brief but explosive piece. He writes:

A central pillar of American democracy is that no man is above the law. But Mr. Trump isn’t an ordinary man. Moreover, the state cases against him invoke legal strategies that had never been used to criminalize the behavior that prosecutors charge. Rightly or wrongly, they carry the stench of politics and, if pursued, could lay the groundwork for political prosecutions of future presidents.

That paragraph covers a hell of a lot of ground, with some Coltrane-like giant steps.

It’s true that Donald Trump is not “ordinary”—and neither was Jeffrey Dahmer. (Or maybe a better comparison would be Trump’s favorite cannibal, Hannibal Lecter, even though he’s fictional.) But since when is that exculpatory? Is Trump’s position as president the thing that elevates him above accountability? That is literally the opposite of what democracy is supposed to be about. I think you’re thinking of a monarchy, Tom.

The novelty of the prosecutors’ approach is also not reason to dismiss the cases, and it’s a rather ironic tack for Goldstein to take, as he made his name crafting cases specifically aimed to reach the Supreme Court and set precedents.

As for carrying “the stench of politics,” that qualifying clause “rightly or wrongly” is doing a lot of work. Stench or no, it matters a helluva lot if the charges have legal legitimacy or are purely political. We can argue about that, and even disagree, but Goldstein jetés over that distinction completely, suggesting that it doesn’t matter if the charges are legit, because they still look bad to some. But there will always be some people who feel that way about any case. By that standard, we could never charge anyone with anything without an overwhelming plebiscite. And even a plebiscite can result in a decision that is unjust and immoral.

The idea that the electorate rendered the final verdict on Trump’s alleged crimes is especially galling. So if—to take a totally random and not at all deliberately pointed example—I stand in the middle of Fifth Avenue and murder someone, but the American people still like me, I should get off? Worked for OJ I guess.

(Side note: that majority of which Goldstein speaks has already been trimmed to a plurality, and is continuing to decline. So as Gil Scott-Heron says, “Mandate my ass.”)

And lastly, we shouldn’t prosecute Trump because some hypothetical future regime might later take that as reason to exploit and abuse the law? Again, by that logic, why prosecute anyone for anything, as that is always a risk?

Goldstein asks us to imagine charges “brought in Texas and Alabama against Joe Biden using novel and untested approaches challenging how he spent money while campaigning,” cases that would be “brought by hard-core Republican prosecutors, before juries and judges in deeply Republican counties.” Gosh, I sure can imagine that, because the new president-elect has all but promised that very thing.

And I hasten to point out that the charges in Georgia, for example, are not about how the defendant “spent money” but his blatant effort to pressure a state election official into tampering with the vote count, recorded on tape. Obviously, there are genuine banana republic–style pitfalls for an administration that pursues legal action against its predecessor. But when we are dealing with an attempted coup, the greater danger is not pursuing accountability.

POLITICALLY DRIVEN (TO TEARS)

Goldstein comes back several times to the reasoning behind the charges in New York and Georgia (though not the federal cases), and I know he is not alone in that critique.

In both cases, the prosecutors’ legal theories were and are unusual, to say the least. Their premise is that financial shenanigans and political strong arming in hard-fought battles for the presidency are serious felonies that can be pursued by local prosecutors in local courts. But these are fundamentally federal, not state, concerns.

To describe a fascist takeover of the US as a “hard-fought battle for the presidency” betrays a blinkered view of what is going on in the United States, reminiscent of the GOP’s own characterization of an attack on the US Capitol as “legitimate political discourse.” And to begrudge the states any recourse when the federal government is gridlocked by right wing obstructionism feels pedantic and shortsighted to say the least.

Above all, Mr. Goldstein seems to side with those who believe that the prosecutions of Trump were politically driven and without legal merit. (So when he wrote disingenuously of that stench earlier, there was really no “rightly or wrongly” about it, in his view.)

(T)he Constitution trusts the judgment of the American people to decide whether the cases against Mr. Trump, as he has argued, were political and calculated to stop him from being elected. The people had plenty of opportunities to hear both sides, and they have spoken. That judgment is the critical check we have against the possibility of politically driven prosecutions of presidential candidates.

In truth, support for the cases among many Democrats doesn’t seem to be based on confidence in the prosecutors’ legal theories and evidence. Instead, it seems to be driven by politics and hatred of Mr. Trump. That reinforces why they must be dismissed.

You know who disagrees? Twelve impartial jurors chosen from the people of New York, who listened to the arguments in open court and returned a unanimous verdict in 34 felony counts. But Goldstein would have us believe that they are all rabidly consumed with Trump Derangement Syndrome.

Some people will always be convinced that dismissing the charges will let Mr. Trump get away with crimes.

(Uh, that is precisely what that means.)

But the Constitution isn’t concerned with preserving a couple of criminal cases. It is concerned with having a system of government that can hold our democracy together for centuries. So far, it has worked, even if our deep disagreements make that hold seem tenuous right now. Inviting prosecutors of the opposing political party to pursue these kinds of charges in the wake of a presidential election can only make things worse.

“A couple of criminal cases”? A violent attempt to overturn a free and fair election is about the most serious crime of which a head of state can be accused. This week I got a $65 ticket from the city of New York because a rubber gasket on my car’s bicycle rack partially covered a portion of my rear license plate. I’m glad justice is being served!

In all the pending cases Trump’s lawyers employed the Roy Cohn-bred delaying strategy he has used throughout his long, litigious life, which successfully stalled three of the cases against him—forever, it now seems. In the fourth—the Florida documents case, which many national security lawyers saw as airtight—he got his handpicked judicial lackey to dismiss the charges outright. In the most serious federal case he even got the US Supreme Court to protect him with an eye-popping assertion of sweeping, emperor-like immunity that no reputable legal scholar believed possible. At the same time, Trump was also conducting a weapons-grade political campaign of disinformation and demagoguery to regain the presidency, the ultimate safeguard against prosecution and conviction. To reward Trump for all that with a shrug of the shoulders and a cry of “Whaddaya gonna do?” while at the same time perched on the high horse of the Constitution’s broader purpose feels pathetic.

I am quite confident that, armed with all the powers of the US presidency, including some new ones he intends to seize, Donald J. Trump and his nominee for attorney general Matt Gaetz are more than capable of defending him in court. There’s no need for anticipatory obedience by dropping the charges. Indeed, the ultimate refutation of Goldstein’s argument will be when a reinstalled President Trump quashes all the criminal and civil cases against him, including those at the state level in New York and Georgia. Will that be part of “a system of government that can hold our democracy together for centuries”?

On that point, it is especially ironic that Goldstein seems so sanguine about the sturdiness of the Constitution even as the man he would let off the hook is poised to obliterate that document, and has openly suggested that he will. On the cusp of wielding unprecedented (if usurped) quasi-royal power, Trump has brazenly promised to weaponize the full power of his office and the justice system against his political enemies. Goldstein is worried about setting a bad precedent? Trump doesn’t need a precedent: he has told us bluntly that he intends to go after Schiff, Cheney, Smith, Kinzinger, et al, and maybe even Biden, Clinton, and Obama.

So cancel my subscription to SCOTUSblog. (I am leaving Starlink, too.) It would be unfair to say that, like the Supreme Court itself, that much-admired blog has been captured by the right wing, though this piece sure reads like it has. But with all due respect, Tom Goldstein’s absurd and dangerous argument is a measure of how far the US is slipping into willful submission to autocracy.

HOLD THE BASTARDS ACCOUNTABLE

In my book Resisting the Right, I wrote about the importance of legal accountability, even for high-ranking politicians….especially for them, some might argue. That importance has only increased in the months since I published it, and especially since the events of November 5.

It ought to go without saying that a social system cannot function if it doesn’t hold criminals accountable for their crimes. Is there flexibility and discretion involved? Sure. But since we have done it with rank-and-file seditionists who beat police officers and stormed the Capitol and spread excrement in its halls, it is even more imperative to take on those who spurred them to those deeds. If there are no significant consequences for the leader of an attempt to murder the vice president and sitting members of Congress, it will only embolden the perpetrators of those acts going forward and inspire others. 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—without consequences, unless that country was keen to have them do it again.

To the extent that they admit Trump did anything wrong at all, Republicans argue for giving him a pass on the grounds that America needs “unity,” and that holding him accountable will somehow prevent us from “healing” and “moving on.” But such appeals for “unity” usually come from the guilty in an attempt to escape repercussions for their misdeeds. Cries for the Democrats to heal the breach are also ironic coming from the party that plunged this country into some of the most bitterly contentious years in contemporary American history under the thumb of the most hateful, bigoted, and divisive president in modern times, who even now continues to insist that the Biden administration isn’t legitimate, and was readying its hockey sticks and fire extinguishers (and guns) for the next attack on the federal government.

Even some Democrats and independents called for Biden to pardon Trump in the interest of this “national healing,” much like Goldstein now calls for the cases to be dismissed. Earlier in the Biden administration, Michael Conway, counsel for the House Judiciary Committee during Watergate, argued that a pardon would free Biden from allegations of pursuing a partisan vendetta, unlike Trump, who wanted to jail his political enemies and was unable to do so only because they’d committed no crimes (the clever bastards). But Republicans certainly never care about the bad optics of their actions. More to the point, Trump’s fans would cheer a pardon as exoneration, and weakness by the Democrats, encouraging further wrongdoing in the future without fear of consequences.

Trump of course has claimed that he will go so far as to pardon the January 6^th insurrectionists, and he very well might. He might also forget, which he’s been known to do with his promises. Will his Kool Aid-drunk followers forgive that, even the ones sitting in stir, counting on him? They might. That Kool Aid is strong.

The anxious Mr. Conway writes that “American democracy cannot tolerate the prosecution of political opponents.”[i] But it can and should when they’ve committed unconscionable crimes. What American democracy cannot tolerate is looking the other way when violent, sadistic, openly corrupt kleptocrats hijack it, and then sitting on our hands and hoping it doesn’t happen again.

And guess what? It is, by other means.

Andrew McCarthy, a former federal prosecutor turned contributing editor at the pro-Trump National Review, argues that “Other considerations often apply, such as preserving domestic tranquility and institutional integrity.” Yes—two things that immediately leap to mind when one thinks of Donald Trump.

Other advanced democracies have rightly prosecuted corrupt former heads of state without collapsing, including Silvio Berlusconi, the proto-Trump Italian prime minister who was convicted of tax fraud by an Italian court in 2013, or Nikolas Sarkozy, the former French president who was convicted in two separate corruption cases by French courts in 2021. Two of the harshest punishments were in South Korea, which in 2018 convicted and imprisoned two successive ex-presidents—Lee Myung-bak and Park Geun-hye—for various corruption charges, sentencing them to fifteen and twenty-five years, respectively, after having previously convicted two other former presidents. That is not necessarily a model the US wants to emulate, but it is further evidence that other countries do not consider this sort of thing taboo, nor descend into chaos as a result. Peru has a special prison just for ex-presidents, with three of them incarcerated there currently.

PARDON ME, BOY

We’ve been here before, of course. When Gerald Ford pardoned Richard Nixon in 1974, the reasons he gave had to do with healing the nation and sparing the country further trauma and damage. (Try that logic the next time you’re on trial for bank robbery.) I humbly submit that far from allowing us to move on from our “long national nightmare,” Ford’s excusal of Nixon’s crimes, even if well-intentioned—and it’s not clear that it was—did grievous harm. It told America that you were a sucker if you played by the rules; that if you were rich 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. It was a giant “fuck you” to ordinary Americans who were expected to obey the rules and could bet their bottom dollar that Johnny Law would come after them if they didn’t.

In fact, Ford missed a tremendous opportunity to reinforce the rule of law, as it would have been Nixon’s own party punishing him, rather than the opposition. Instead, Richard Nixon walked off into a well-feathered retirement distinguished by expensive homes in San Clemente and Upper Saddle River, lucrative book deals, and banquets thrown in his honor by his reactionary admirers. He never once admitted his crimes. 

(Decades later, it emerged that Ford also acted out of what he told Bob Woodward was his friendship with Nixon, saying, “I looked upon him as my personal friend, and I always treasured our relationship, and I had no hesitancy about granting the pardon….I didn’t want to see my real friend have the stigma.” So much for the “national healing” theory.)

It will be even worse if we let Trump slide on crimes that make Nixon look like a jaywalker.

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 we do know that 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 continues to this day.

Sound familiar?

Absent prosecution, the GOP was able to portray Nixon—at worst—as an unfortunate aberration rather than its natural result. Since then, the Republican Party has carried on with its unabashed grift of the American people, and has even been rewarded for its efforts.

We can go back even further, if we wish, to the 1869 decision not to proceed with trials of Jefferson Davis, Robert E. Lee, and thirty-eight other leading secessionists for fear of public furor, and concerns that the defendants would not be found guilty in the Southern states where the trials were scheduled to take place. This abdication created, as the Civil War historian Elizabeth R. Varon writes, “the myth that the southern cause had been so noble that even the conquering northern armies had been forced to recognize it.” It is little wonder that Trump’s apologists are making the same Br’er Rabbit argument now about the risks of prosecuting a former head of state. 

The New York Times quotes former US Representative Tom Perriello of Virginia, who was a special advisor for the war crimes tribunal in Sierra Leone, that countries that have suffered national trauma and “skip the accountability phase end up repeating 100 percent of the time—but the next time the crisis is worse. People who think that the way forward is to brush this under the rug seem to have missed the fact that there is a ticking time bomb under the rug.”

But there is another kind of accountability, a more abstract and intangible one. In their 2020 book Surviving Autocracy, Masha Gessen recounts the early years of post-Soviet Russia, under Boris Yeltsin, when the country deliberately avoided a reckoning with the crimes and trauma of the USSR in that same sort of misplaced interest of healing, as well as reluctance to deal with the practical implications such a reckoning would unleash. The result was that within a decade a new autocrat came to power. We didn’t even take that long, nor bother with a new one when the old one was still around and eager for an encore.

“The goal of reckoning,” Gessen writes, “is moral restoration.” The Back Row Manifesto’s Tom Hall made that same point to me in the immediate aftermath of Trump’s departure from office in January 2021: “After years of gaslighting and the demolition of belief in the ability of our institutions to stand up to their debasement at the hands of Trump, we need more than just the truth,” he told me. “Without a fundamental agreement about the impacts of Trumpist criminality on the country, and on us as a people, the will and pretexts for justice become impossible. How will we ever tell the truth about the past and build a future if there is no priority given to really grappling with trauma, with using every avenue to tell the story of what happened truthfully? That is the narrative that can deliver justice.”

Preach. What will not deliver justice by any definition is the idea that we should let the most criminal president in American history get away scot free just because lots of people don’t care, or because he might behave badly in seeking retribution.

This just in: He’s gonna behave very badly indeed, regardless.

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So let me get this straight. One party is running a presidential candidate who has been convicted of 34 felonies, is an adjudicated sex offender, summoned a violent mob to try to overturn a free and fair election, and has promised to be a dictator who would openly shred the Constitution, to list just a few items on his CV. And it’s the OTHER CANDIDATE who is facing cries from his party to step off the ticket?

Now, that may seem like the start to a “Stick with Biden” plea. It’s not. The pro-democracy movement in this country is in a five-alarm emergency. But it is a good starting point for a survey of an absolutely terrible week for the prospect that we will be able to keep the dark night of fascism from descending upon these United States.

IRONY DIED IN ATLANTA

There is no denying what happened on the CNN debate stage in Atlanta last Thursday night.

For many months the Republican Party has been painting an outrageous portrait of Joe Biden as doddering and infirm and not mentally sharp enough to be leader of the so-called Free World. I have long been among those dismissing that as pure propaganda. But Biden’s performance was an enormous gift to Trump and GOP, confirming their caricature of him in front of some 51 million viewers in a display far worse than even the most pessimistic Democratic strategist could have imagined.

There’s no need to rehash it here in yet another agonizing post-mortem. We’ve seen them all, and from all the most respected pundits.(But if you want to wallow, I recommend David Remnick, Mark Leibovich, Tom Nichols, Jennifer Rubin, Ronald Brownstein, Jeet Heer, Fintan O’Toole, Melissa DeRosa, Matt Yglesias, and even an institutionalist like Peter Baker.)

In an already razor-close race, it felt like a death blow. Biden had one job and he blew it, giving the worst debate performance ever in what some rightly called the most important US presidential debate ever. Personally, I have not felt that sick to my stomach since Election Night 2016. And it’s hard to imagine that the memory of that horrific performance will be forgotten. “It’s like seeing your grandma naked,” James Carville later said, with characteristic élan.. “You can’t get it out of your mind.”

Like many people, I felt terrible for Biden, as honorable a man as there is in American politics, subjected to this humiliation in the twilight of his career. But in terms of its implications, I feel more terrible for the republic. The United States is in danger of collapsing into an autocratic white nationalist theocracy, and thanks to a confluence of factors, the pro-democracy forces working against that outcome have mustered a champion who is not up to the challenge.

Joe Biden is a national hero. He was probably the only Democrat who could have beaten Trump in 2020, and thank god he got the nomination. Once in office, he pulled us out of a historic pandemic that had been homicidally botched by his predecessor, revived a moribund economy and brought it roaring to life better than ever, restored sanity to US foreign policy and repaired our badly damaged reputation abroad, and enacted the most progressive and successful legislative agenda since FDR, despite outrageous Republican obstructionism and a defeated opponent who had convinced some 30 percent of the electorate that Joe wasn’t even a legitimately elected chief executive. Hats off, people.

But the cold hard fact is that we need a candidate who can beat Donald Trump, a world class grifter at the head of a fanatic fascist cult that poses an existential threat to American democracy and the stability of the whole wide world. As Mark Leibovich of the New York Times Magazine and The Atlantic has long been saying, if Biden insists on running for re-election and loses—a loss that seems more likely than ever now—he will be remembered only for his RBG-like stubbornness, and the fascist darkness that he allowed to settle over the country. And we will be complicit because we didn’t demand better.

FRANK SINATRA HAS A COLD

Setting aside Biden’s performance, David Frum made the salient point that the whole premise of the debate was a farce. Why did we let Donald Trump stand up there like he was any other legitimate candidate for the White House, and not a seditionist who had led a violent effort to overturn the last election, a crime for which he is awaiting trial, and yet has the gall to ask for his old job back? (Shades of CNN’s disgraceful Trump Town Hall last year. And I thought they’d fired Chris Licht.)

Why was the first question not, “Mr. Trump, considering what you did on January 6^th, not to mention leading up to it and continuing after, why should any American trust you with the presidency a second time?”

I dunno. But it wasn’t.

After the debate the Democratic Party immediately cleaved into two camps—stay the course and dump Biden—who were at each other’s throats as bitterly as the intra-party divisions over Gaza. (Just what you want in the run-up to an election.)

When it comes to the Biden loyalist argument, there are two sub-groups.

One is naïve: “Trump is awful! And Joe is right on everything substantive!”

That is the kind of statement that begs for the reply, “Bless your heart.” In other words, it’s sweet and kind and innocent, and above all, true as the day is long….but it is also utterly irrelevant. If the issue were Trump’s personal ghastliness and horrific record versus Biden’s inherent decency and policy accomplishments over the past three years, we wouldn’t be in this mess in the first place. Joe would be cruising to re-election by a thirty-point margin. But reason is not in play here.   

Yes, absolutely, Trump is the one who should be under pressure to step down. Yes, Biden stumbled but Trump spewed outrageous lies with the force of a firehose (Everybody wanted Roe overturned?) which the CNN moderators, Jake Tapper and Dana Bash, didn’t bother to challenge. But too many Americans gladly buy his snake oil, not to mention the fact that he is the head of a party of craven, power-mad bootlickers who collectively don’t have an atom of integrity among them and wouldn’t stand up to him even if he called their wives ugly and claimed their dads shot JFK. 

“Anybody can have a bad night!” the stick-with-Joe camp says. Sure. But when Obama had an infamously bad debate against Romney in 2012, he was not already being relentlessly accused of suffering from dementia.

“Joe had a cold!” Please. And the dog ate my homework, and my girlfriend lives in Canada, and Tonya Harding broke her bootlace. You think that carries any weight with the voting public?

DREW BLEDSOE REDUX

Which brings us to the second “stick-with-Biden argument,” which is a pragmatic one: “There’s no realistic way to move Biden aside for another candidate, trying it would do more harm than good, and even then that mythical replacement would probably do no better.” As Joy Caspian Kang wrote in The New Yorker (in a piece called “The Case for Joe Biden Staying in the Race”), the backup quarterback is always the most popular man in town.

This is a somewhat more persuasive argument, but not necessarily correct. It’s true that there’s never been a change at the top of the ticket this late in a presidential race. But there’s never been an opposing candidate who staged a self-coup, who was a convicted felon, or who promised to be a dictator and build concentration camps either. It’s also true that there is no obvious heir, except Kamala Harris, who presents problems of her own given the racism and misogyny she already faces, as well as logistical and procedural hurdles concerning campaign finances and such. But none of those are reasons for mulishly sticking with a losing candidate, especially when the stakes are this high.

One voice calling for course-staying has been that of Rick Wilson, of the Lincoln Project, who argued that Democrats were being weak-kneed, and that Republicans would lock arms and defend Trump even if he had shat himself on live TV. He went on to ask what would have happened to Great Britain if the British people had given up at the first sign of Nazi bomber planes over that green and pleasant land in 1940.

I like and respect Rick Wilson a lot, but I think he’s dead wrong here. Sure, if Trump had explosive diarrhea onstage Republicans would still say it was the greatest debate performance in human history……but they are speaking to an audience of Kool-Aid drunk cultists. The same Jedi mind trick does not work in the reality-based world of the left, or for swing voters. To minimize the disastrousness of Joe’s performance is suicidal denialism. And for what it’s worth, the Battle of Britain analogy is flat-out wrong. No one I know is giving up the fight against Trump—on the contrary. A better analogy would be to ask: what if Britain had no RAF in 1940, only slingshots, and still thought it could beat the Luftwaffe, and opted to stick with that plan instead of upgrading at least to rifles.

And here’s the proof: The Trump campaign seems privately terrified Biden will drop out, which is why they are acting as if it’s impossible. Republicans were crowing with delight as soon as the red lights went off at the end of the debate, but they won’t be crowing if a more electable candidate takes over as the Democratic nominee. Lara Trump told Fox News that the Dems can nominate only Kamala, which is a tell that they would love that, rightly or wrongly. She went on to say that skipping to another candidate would be a violation of “the democratic process”—which is quite a statement from the people who tried to storm the Capitol in 2021.

Of all the Joe-steps-down scenarios, an abdication in favor of the Vice President might actually be the most plausible. There have even been calls for Biden to resign before the election, which would give Kamala (some) of the advantages of incumbency. Adam Serwer made a cogent case for that in The Atlantic, as did Jeannie Suk Gerson in The New Yorker, Lydia Polgreen in the New York Times, and her fellow Times columnist Jamelle Bouie. Tellingly, Rep. Jim Clyburn, the South Carolina eminence grise who saved Joe’s nomination in 2020, tactfully told MSNBC that he would support Kamala as the nominee were Joe in fact to step down.

Will Biden be convinced to step aside, perhaps as the result of a somber, come-to-Jesus intervention by the likes of Obama, Bill and Hilary Clinton, Clyburn, Schumer, Klain, et al, not to mention Dr. Mrs. Jill, who so far seems to be very much inside the bubble? I don’t know. God knows what’s going on behind the scenes even as Democratic leaders put up a brave front. Maybe they’re awaiting the polls, which are beginning to come in and are not good. Maybe negotiations are ongoing.

Or maybe the Democrats will just move on in hopes that the debate will have little impact and be soon forgotten, that the two sides are already calcified and it won’t matter (much), that Trump’s impending sentencing will further change the conversation, that it’s all about turnout, etc etc. That strikes me as self-deluding madness, but hey, what do I know? I do know, however, that Biden’s lack of public urgency on the matter, and his all-is-well bonhomie, is reportedly making top Democrats even more concerned, as a sign of detachment from reality.

So we shall see. But I’m worried anxious nervous scared terrified.

If Joe will not stand down, I will be by his side and do everything I can to re-elect him. But in this life-or-death crisis for the republic, we progressives and Democrats and others on the left have made our task far more difficult than it had to be by running a candidate with such liabilities, and it got exponentially harder last Thursday night.

Which brings us to the other front on which American democracy—already hanging on by its fingernails—took a baseball bat to the ribs this past week.

WITH AN ASSIST FROM THE POTOMAC SIX

Trump had a very good week not just with the debate, but because the bought-and-paid-for legal arm of his campaign—er, I mean the Supreme Court—finally handed down a pair of decisions that helped him immeasurably, both in his effort to stay out of prison, and in terms of the hell he will be able to unleash should he manage to regain the presidency.

The first was  the Court’s decision in Fischer vs. United States striking down an obstruction charge used to convict hundreds of January 6^th insurrectionists, and at the heart of two of the four charges Jack Smith has brought against Trump in his own J6 case. We already knew that case would not come to trial before the election, thanks in part to SCOTUS’s feet-dragging, and now, when it does, half of the charges will have been wiped away. Unless Trump is already president by that time and orders it dropped altogether.

The statue in question, 18 U.S.C. §1512(c)(2), clearly states that 20 years in prison await anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so.” Sounds like January 6^th to me. But the court twisted itself into knots to find a way to argue that that’s not really what it says. Even Amy Coney Barrett thought that was ridiculous, and dissented. (Oddly, KBJ joined the majority, temporarily trading lunchroom chairs with ACB.)

But the second and far more reaching was the Court’s decision in what election expert Richard Hasen called “the most important case in this Nation’s history,” aptly named Trump vs. United States. That case addresses The Former Guy’s absurd claim that he is a once-and-forever king who has total immunity for everything he ever did or will do.  

Seems like a no-brainer, right? To say that the president is above the law defies the fundamental democratic principle on which this country was founded, as I wrote last March, in a piece called “History Will Shake Its Damn Head”:

It boggles the mind that the highest court in the land is even bothering with this ridiculous appeal, one that has been thoroughly debunked by lower courts, and the consideration of which poses vast dangers to the republic. But bothering it is….

At the time, the chief consequence of the Court granting cert seemed to be the delay it caused.Michael Waldman, president of the Brennan Center for Justice at New York University Law School, called it “the approach that helps Trump the most while appearing not to,” tweeting, “The Court effectively granted Trump immunity for his alleged crimes, regardless of whatever ruling they make later.”

But few observers thought the Supreme Court would actually endorse Trump’s imperial claim. One who did was the highly respected retired federal judge and conservative anti-Trump icon Michael Luttig, who back in March argued that the only plausible reason the Court took the case was because at least one or two justices (read: Clarence and Sam) believed Trump was in fact immune. Now Judge Luttig had been proven right, and the delay has turned out to be a sideshow compared to the astonishing decision itself.

The Supreme Court has said that a sitting US president has total immunity for any official acts he or she undertakes, no matter what the motive and even if for a corrupt purpose. That is a tectonic reinterpretation of the Constitution. (Originalism rocks, amirite people?)

The devil is in the “official acts” part. The SCOTUS’s right wing cabal knew it could not say “Presidents have total immunity.” A sixth grader knows that’s unconstitutional. So it has seized on this fig leaf, opening the door for Trump and any criminal successors (Don Jr.? Ivanka?) to claim that any given act was “official,” no matter now criminal or corrupt, and therefore beyond the reach of the law, even when those acts are patently NOT official. Good news for fans of the Unitary Executive Theory!

Back in March, my friend Scott Matthews predicted that SCOTUS would rule this way, allowing Trump to claim that his actions regarding overturning the 2020 election were part of his duties as chief executive, or at least sufficiently close, placing them in an area where presidential immunity is already settled law. (That was what—hold onto your red baseball hat—the Wall Street Journal thought, too.) Of course, it’s risible that trying to overturn an election would fall under a president’s official duties, but not inconceivable that a Supreme Court with a right wing supermajority would rule that way. It wouldn’t be the first time those folks in black robes reached in and decided a presidential election.

Here’s what I wrote back in March:

If the Court makes an honest assessment of Trump’s immunity argument, I’m betting on a 7-2 ruling against him, delivered at the very end of its term, in early July. But if the majority takes the coupmaking-is-an-official-act position, it could go 6-3 the other way.

So two cheers for me and my own prognosticatory skills.

In an incredible two-fer, the Court not only handed down this endorsement of monarchy, but with it also managed to create further delays in the Trump case by sending it back down to Judge Tanya Chutkan of the DC District Court to distinguish between immune and non-immune presidential conduct in this matter, which (ahem) is something else I predicted last March. So having already gifted the GOP by taking that case at all, when it could easily have let the lower court’s decision against Trump stand, and by taking as long as humanly possible to decide it, the Court’s right wing supermajority has now continued acting as an arm of the Trump campaign by kicking the case back down, creating further delay. Even Trump’s state-level conviction for electoral fraud in the Stormy Daniels case is now in question, with sentencing—which was supposed to take place next week—now pushed to September, so his lawyers can claim that the SCOTUS decision somehow applies to actions he took even before he was president. Chutzpah, thy name is Donald…..but who can blame him and his Republican allies when these batshit claims have consistently gone their way? (Look for Aileen Cannon to find a way to throw the Florida documents case out, too, even though much of what Trump is charged with was post-presidency.)

That is why Leonard Leo and the Federalist Society spent forty years getting control of the US justice system in the first place.

HAIL CAESAR

The impact of the SCOTUS decision on Trump’s January 6^th case and other legal troubles is one thing. But the implications for a corrupt president in terms of the havoc he can wreak in office are far more chilling.

Writing in The American Prospect, Robert Kuttner called the decision “an invitation to dictatorship,” noting that “Had the Supreme Court ruled similarly on Richard Nixon’s claims of being above the law, Nixon never would have been forced from office.” Kuttner also called it another cost of Trump’s having been allowed to name three justices, writing, “The Court is now a corrupted institution and a shameless enabler of a corrupt president.”

I quibble only with the word “now.”

In her dissenting opinion—joined by Kagan and Jackson, which pointedly did not include the adjective “respectfully­— Justice Sonia Sotomayor wrote: “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.”

Here’s the legal scholar Kim Wehle, in The Bulwark:

We don’t need to imagine the threats that Sotomayor is foreshadowing here. We lived through a president who acted with the mindset of a tyrant, one who stoked a bloody insurrection after other machinations to steal an election failed. At the end, even the Republicans who had tired of Trump were making the case that the legal system would serve as a check on him. 

Now, that guardrail has been significantly diminished. And the American people will be left to rely on the delusional belief that future presidents will choose to act in good faith with their own conscience as a guide rather than abuse the virtually unlimited power the radical majority just gave them.

Republicans, naturally, praised the decision, scoffing at the risks. Speaker of the House Mike Johnson actually said with a straight face: “No one who is elected (president) is going to be prone to this kind of crazy criminal activity. What the court is saying here follows common sense and, of course, our Constitution as well.”

(Pause to take in crippling irony.)

The obvious question is: Would the Court or its right wing amen corner give Biden the same immunity? Of course not.

It did not take long for progressives to seize on that idea by suggesting—in jest—that Biden should just order SEAL Team Six to assassinate Trump, since the Supreme Court had just ruled that that was totally kosher. Less tongue in cheek, some called for Biden to test the limits of this eyepopping expansion of executive power he has been given, say, by appointing ten new Supreme Court justices (we control the Senate, right?) and daring the GOP to stop him.

Or hell, he could just call the election off altogether, right?

For his part, Trump doesn’t need SEAL Team Six when he’s got six toadies on the highest court in the land happy to do his bidding and kneecap his political opponents and shield him from criminal accountability for his actions.

The Court—painstakingly bought and controlled by the American right—is shameless in abetting the march of fascism. And why wouldn’t it? A third of the justices owe their jobs to Trump, and two others who pre-dated him are even more radically in his camp. The sixth, John Roberts, seems to flatter himself to believe he’s a moderate and an honest broker (“Balls and strikes!”) while consistently bowing to the wishes of his archconservative fellow travelers, making him either a coward or so deep in his own self-delusion that he’s feckless.

If Trump regains the presidency, the Supreme Court has already given him the “steal home” sign to do whatever the fuck he wants, secure in the knowledge that he will never be prosecuted. Don’t doubt for a second that he will. You think you saw criminality and corruption and neo-fascism in his first term? The second will make that look like a garden party.

Adam Serwer, in The Atlantic:

If Trump wins, he will have the presidency Nixon wanted, one in which nothing the president does is illegal. Kevin Roberts, the president of the Heritage Foundation, which aspires to staff a future Trump administration, has made clear that the MAGA right contemplates using this newfound imperial power to employ political violence against its opposition. “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be,” Roberts told the far-right network Real America News. Trump’s supporters seem less to wish to govern than to rule indefinitely by force, and they believe that the Court has given them its blessing.

Eight years ago this month, the joke around Great Britain was that England just had its worst week since 1066, with the Brexit vote and a loss to Iceland (Iceland!) in the 2016 Euros. Someday we may look back on this week as the worst one America’s had since….well, the week of November 8, 2016.

KICK SAVE AND A BEAUT

Earlier this spring, Bill Kristol wrote in The Bulwark that we should not expect the courts to save us from Trump, any more than Bob Mueller or the House J6 Committee did, let alone the Senate in his two impeachments. Only we can save ourselves. “After all,” he wrote, “here the people rule.”

For now.

But we are not asking the courts to “save” us. We are simply asking them to apply the law fairly, and not act as Trump’s personal law firm.

As I wrote last March, “Maybe Kristol is right. Maybe even if all the trials are delayed, Biden will beat Trump anyway….But the ‘system’ is sure giving Donald every possible advantage to avoid that fate.”

And that is why Biden’s disastrous debate performance is so worrying. The Supreme Court has again helped Trump’s re-election prospects, and on top of that, laid the groundwork for a horrific far-right wing autocracy should he win. Are we going to throw up our hands and let that happen?

I don’t know the right path forward re the election, and smarter people than me presumably are at work on that even as we speak. But I do know that we appear to be on the verge of allowing an entirely preventable tragedy to unfold out of sheer incompetence, inertia, and unwillingness to get up and do what needs to be done.

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Photo: Six key members of the Trump campaign, Legal Division.