When It Comes to Trump, the Problem Isn't the Courts Interjecting Themselves Into Our Politics. It's That Our Politics Failed to Deal with Trump in the First Place.
A conscientious political party would have rejected a scofflaw like Trump years ago.
Donald Trump is headed to the Supreme Court this week. This case (yes, it’s hard to keep track of them all) involves whether the Colorado Supreme Court erred when it concluded Trump was not eligible to run for president in the state since he had participated in an “insurrection” on January 6, 2021, an action which, according to the text of the 14th Amendment, prohibits him from “hold[ing] any office, civil or military, under the United States.”
I’m of two minds on this case. One part of me is saying it’s pretty damn obvious Trump engaged in an insurrection on 1/6/21 when he riled up a mob and sent it to the Capitol to upend the certification of the 2020 election and, by extension, the United States’ democratic and constitutional electoral system. Plenty of people—including both Democrats and Republicans—have called what happened that day an “insurrection.” It sure felt like one in the moment. Followed to its logical legal end, Trump would be disqualified.
But I’ll admit there is a lot to unpack there. We would have to figure out if what happened that day was technically an “insurrection” as opposed to, say, a “riot,” and if an “insurrection” is merely violence directed at a civil authority or if it must also include some element of rebellion aimed at not only defying but displacing civil authority. Or maybe that’s just too technical and the idea of “insurrection” encompasses any attempt to fraudulently undermine the will of the people. There’s also the potentially relevant question of whether it was actually Trump’s intent for the mob to turn violent (and thus engage in what could be called “insurrection”) or if he simply wanted it to be present at the Capitol to pressure Republican lawmakers into following through on Trump’s scheme to reverse the outcome of the election. Answering that question raises the issue of how directly responsible Trump is for the actions of the mob.
The other part of me, though, thinks the Colorado Supreme Court really isn’t in a position to ascertain whether Trump is an insurrectionist or not, and that it would establish a dangerous precedent if we allowed states to begin ruling people ineligible to run for president based on a vaguely-defined, rarely-used, and procedurally-unclear provision in a constitutional amendment. A federal court has not found Trump guilty of insurrection. There isn’t an official document (like a signed oath to the Confederate States of America) or law declaring specific affiliations or actions insurrectionary (like enlisting in the Confederate Army) that we can point to that would prove Trump’s guilt.
There’s also the very practical concern about what would happen if the judicial system allowed state authorities to keep Trump off their ballots by citing the 14th Amendment. Trump’s MAGA supporters would scream bloody murder and claim it as proof the Deep State was out to get them. Granted, they’ll scream bloody murder if Biden beats Trump fair and square at the ballot box this November, but at least that can be countered with the Will of the People argument. (All the more reason, by the way, to not just beat Trump, but to beat him decisively.)
My hunch is the Supreme Court isn’t eager to let an obscure section of the 14th Amendment shape the outcome of the 2024 election and will rule in favor of Trump. But that also may serve a convenient strategic purpose for the Court, as they will soon need to weigh in on a dispute stemming from special prosecutor Jack Smith’s election subversion case against Trump about whether presidents are immune from prosecution for acts committed while serving as president. Smith has assembled a pretty solid case, as he has convincingly demonstrated in court filings that Trump conspired to fraudulently overturn the results of the 2020 presidential election. The Supreme Court may be willing to grant a president a measure of immunity from prosecution for actions undertaken while president, but there must be limits, and Smith makes a good argument that what Trump is accused of crossed the line. If the Court agrees with Smith—not a certainty, but my gut says they will—then ruling for Trump in the Colorado ballot access case can provide cover from charges of bias when they rule against Trump in the presidential immunity case. Those split decisions would allow Chief Justice John Roberts to say the Court is just calling balls and strikes, not favoring one team over the other.
That may be enough for some Americans to conclude the judicial system isn’t out to get Trump. But will the MAGAverse accept that ruling? No, they’ll see it not only as proof Biden is willing to weaponize the Justice Department to stop Trump but that the country’s legal establishment is ready to lend a hand. Never mind the high likelihood that at least one Trump-appointed Supreme Court justice will be part of any majority that rules against Trump. Never mind that the Court would probably already have ruled in his favor in the Colorado ballot access case. Never mind that Biden’s own Justice Department is also prosecuting the son of Trump’s opponent. The MAGAverse will scream bloody murder regardless.
Republicans frequently accuse Democrats of weaponizing the legal system to defeat Trump. I highlighted this when he originally said it back in August, but here’s Senator Lindsey “Goose” Graham touching every base after Trump was indicted in Georgia for election subversion:
He’s spending more money on lawyer fees than he is running for office. January 6th, I was there, I saw it, he was impeached over it. The American people can decide whether they want him to be president or not. This should be decided at the ballot box, not a bunch of liberal jurisdictions trying to put the man in jail. They’re weaponizing the law in this country, they’re trying to take Donald Trump down, and this is setting a bad precedent, and what I fear is that you’re changing the way the game is played in America, and there’s no going back. We’re in for a very hard time if this becomes the norm.
Are liberal prosecutors out to get Trump? They’re certainly at least more inclined to prosecute Trump for an alleged crime than conservative prosecutors are. Just as one could accuse Democratic prosecutors of being overzealous, one could also accuse potential Republican prosecutors of letting Trump off the hook. Instead of throwing our hands in the air and writing it all off as a partisan game, however, maybe it’s up to us to actually study the cases and reach our own conclusions on the merits using our own judgment.
Still, conservatives can at least fall back on the claim that these disputes should be treated as political rather than legal disputes and ought to be settled not in a courtroom but in the court of public opinion. Republicans would further argue the reason Democrats keep dragging Trump into court is that they’re trying to kneecap the GOP’s most effective and inspiring candidate. That makes it seem like Democrats are trying to sabotage an unstoppable political force, which gives Republicans all the more reason to support their beleaguered candidate.
There are many good reasons not to prosecute politicians. Forget about the self-interested idea that politicians of both parties want to avoid rounds of tit-for-tat prosecutions, although that’s something we may also want to avoid for the sake of a functioning political system whose members aren’t mired in lawsuits. The more important idea is that the people are sovereign and ought to be the ultimate judge of a politician’s behavior. Prosecutors and unelected judges just get in the way of that democratic process.
It’s true that the people—particularly partisans—sometimes have a high threshold for unethical if not criminal behavior. That concern, as well as a desire for an impartial authority to rise above the partisan fray and arbitrate politically-fraught legal disputes, might incline some to seek recourse for political misdeeds through the judicial system. But partisans will likely spot a political agenda in the prosecution regardless and others will doubt the very notion of “impartiality” to begin with, meaning the association with a political agenda is probably unavoidable. Many judges would likely prefer avoiding such cases altogether to preserve their aura of impartiality. Better for the people to settle such disputes on Election Day.
It’s also worth remembering the law is a powerful cudgel. Usually when someone loses a political dispute, they get to fight another day: They can run for office again, run for a different office, regroup and reorganize, try again at a more opportune time. A legal penalty, however, is often financially or reputationally crippling. It’s one thing to win a debate or an argument; it’s another thing to saddle a political figure with a hefty fine or jail time, or burden them with legal fees they can’t afford. That latter route can completely short circuit the way society normally resolves contentious public disputes, which is through the political process.
Ultimately, it’s best if political disputes are resolved politically. We shouldn’t want courts—certainly not deliberately, but also inadvertently—picking the winners and losers of political contests with their rulings, which may deal with matters that have nothing to do with the underlying political issues animating society. We should want the courts to stay out of politics as much as possible to preserve the legitimacy of the democratic political system. That’s why I argue the best way—and probably the only way—to beat Trump is at the ballot box.
But it shouldn’t have to come to that.
Republicans can complain all they want about the courts interjecting themselves into our politics. The bigger problem, though, is that the Republican Party won’t remove Trump from our politics. A conscientious political party in their role as political gatekeeper would have found a way to do that years ago.
Say what you will about prosecuting political figures, but is it really surprising someone like Donald Trump would end up in court? In a 2016 special report published by USA Today, Nick Penzenstadler, and Susan Page found Trump and his companies had been involved in over 3,500 lawsuits, 1,900 of which were as a defendant. Compared to other businessmen like him, that number is stratospherically high. In the words of Ian Bassin, the executive director of Protect Democracy, Trump uses the legal system—whether as a plaintiff or a defendant—as a “tool” to advance his interests and pummel his opponents. He has a reputation for not living up to his legal obligations and then threatening those who sue him with expensive, drawn-out court battles. That, and Trump’s shady as all get out. Of course this guy is going to run afoul of the law.
Republicans (at least those with a modicum of decency) know Trump is a sleazebag. “Goose” Graham is a prime example: Before he became one of Trump’s most prominent defenders during Trump’s presidency, Graham spent the 2016 primaries warning Republicans about the dangers of nominating Trump. Goose broke with Trump on 1/6 when Graham’s prediction proved correct. But Goose is back in Trump’s camp again, criticizing prosecutors and judges for daring to hold someone who has spent his lifetime flaunting the law accountable to the law. It’s not as though he couldn’t expect that to happen! If Graham is such a master of the political universe, why can’t he find a way to rid his party of this scourge?
Republicans had multiple opportunities over the past eight-plus years to break-up with Trump. After 1/6, they could have easily banded together to say enough is enough and cut ties with him completely. Instead, they ganged-up to banish Liz Cheney from their party, and are now on the verge of re-nominating Trump for president. And we know Republicans have it in them to go after powerful people. They criticize Biden all the time for less. Hell, they unleashed a rain of political hellfire on three university presidents a few months ago for way less than sending a mob high on his supply of misinformation to the Capitol building to undermine an election.
If a political party can’t police their own ranks for scofflaws, the law will inevitably come for the scofflaws. It’s a simple idea, really: If you hire the Hamburglar to manage your restaurant, you can’t be surprised and angry when the police show up to investigate hamburger thefts. And when the Hamburglar gets caught stealing a bunch of hamburgers, you can’t be outraged that the local prosecutor puts him on trial for robbery. You may be mad the legal system has made it difficult for you to manage your business, but the real question is why you hired and continued to employ someone named the Hamburglar at your restaurant in the first place.
When it comes to Trump’s legal problems, the focus on the “weaponization of the legal system” misses the real issue. Trump may be innocent until proven guilty in a court of law, but in the court of public opinion, he isn’t owed the benefit of the doubt. It should come as no surprise Trump has no respect for the rule of law or that he believes he should be able to break the law and get away with it. He’s not the sort of person who should be a major party’s nominee for president, and Republicans have done a major disservice to this country by continuing to tolerate and defend a bad actor. You can say entangling Donald Trump in litigation is bad for our politics. But you know what’s even worse for our politics? Donald Trump himself. His continued presence in our political life is something the Republican Party needs to pay the price for. The problem isn’t that the courts are interjecting themselves into our politics. It’s that the GOP keeps foisting a pathological scofflaw like Trump onto our country.
Signals and Noise
Benjy Sarlin of Semafor writes Nikki Haley’s defense of the jury’s decision in E. Jean Carroll’s defamation case against Don Trump cuts to the core of Trump’s candidacy: That the system is out to get him.
Meanwhile, Trump mistakenly insists he doesn’t owe Carroll any money.
The court-appointed monitor overseeing Trump’s finances in New York’s business fraud case has indicated Trump lied on his financial disclosures by claiming a loan that never existed, allowing him to evade $48 million in income taxes.
Joe Biden’s personal financial adviser during his time as vice president told House investigators he saw no evidence Biden personally profited from his family’s financial affairs.
Fulton County DA Fani Willis has admitted she is in a personal relationship with the outside prosecutor her office hired to handle the Trump case, but she denies the relationship has affected the proceedings.
Marshall Cohen of CNN reports that shortly after the 2020 election, the president of the right-wing television network One America News (OAN) sent an email to Trump lawyer Sidney Powell containing the passwords of employees working for the voting technology company Smartmatic. Smartmatic is suing OAN for defamation after it spread baseless claims that Smartmatic switched votes from Biden to Trump.
“Chair Guy”—a 1/6 rioter who body-checked a defenseless police officer over a barrier outside the Capitol—was sentenced to six years in prison by a Trump-appointed judge.
The House passed a bipartisan $78 billion tax bill that expands the Child Tax Credit. Republican Iowa Senator Chuck Grassley is skeptical of its chances in the Senate though: “Passing a tax bill that makes the president look good — mailing out checks before the election — means he could be re-elected, and then we won’t extend the 2017 tax cuts.”
Sahil Kapur of NBC notes it is perversely easier at the moment for the House to pass bills under rules requiring 2/3 support than it is under rules requiring a simple majority (although, eventually, hardline Republicans will likely put an end to that.)
The Senate’s border bill—which would grant President Biden greater authority to restrict entry to the United States and includes numerous Republican priorities—looks DOA in the House, where Republican members (egged on by Trump) are hesitant to give Biden a win on the issue before the election. Meanwhile, House Republicans are now basically arguing they don’t have a role to play in immigration policy, which should bring into question why they’re even needed in Washington. Republican Rep. Troy Nehls took time off from enjoying a fine cigar to explain all this in clear and candid detail to Rolling Stone: “Congress doesn’t have to do anything to secure our southern border and fix it. Why would I help Joe Biden approve (sic) his dismal 33% [approval rating] when he can fix the border and secure it on his own? He can secure it on his own through executive order.”
Glenn Kessler of the Washington Post looks at claims Biden can just use executive actions to manage the border: “Whether Biden acted too hastily to unwind Trump’s patchwork of fixes and whether Trump’s actions were effective — or ineffective and cruel — is a matter of opinion. But the federal courts repeatedly trimmed Trump’s immigration sails by saying he was overstepping the law — which suggests a new law might be necessary. As Sen. James Lankford (Okla.), the chief Republican negotiator, said on CBS’s Face the Nation on Sunday: ‘Even while [Trump] was president, he was specifically asking Congress to change the standard on asylum to be able to tighten up, to be able to give them additional funds for deportation. All of those things are in this bill.’”
The New York Times takes a deep dive into the Biden administration’s struggle to get ahead of the immigration issue.
Rick Wilson argues Biden needs to put Trump and the Republicans on defense on border issues.
House leaders introduced articles of impeachment against Homeland Security Secretary Alejandro Mayorkas but have failed to supply evidence Mayorkas has committed high crimes and misdemeanors. (Interesting how the House won’t pass a border bill containing many of their priorities but will impeach the Cabinet member they blame for not implementing the policies they want.)
Citing Republican complaints that Biden isn’t enacting Trump-era executive orders that courts ruled illegal and that the House is trying to impeach Sec. Mayorkas for not doing something his department is not authorized to do, Catherine Rampell of the Washington Post offers another explanation for why House Republicans keep dropping the ball on the border: House Republicans have no clue how the immigration system actually works.
Jacob Bogage of the Washington Post has compiled a list of Republican lawmakers who rail against federal spending but have successfully inserted earmarks into legislation to direct money back to their districts. For example, Matt Gaetz secured $50 million to build a helicopter hanger at an air base in his district.
Watch Republican Rep. Maria Elvira Salazar (FL) squirm when confronted by a reporter over claiming credit for federally-funded projects in her district despite voting against the bills in Congress. Salazar’s final excuse was that she couldn’t remember how she voted on these bills.
Roger Sollenberger of The Daily Beast investigates Christian dominionism, a fundamentalist strain of Christianity that questions basic American constitutional principles, and its ties to Republican Speaker Mike Johnson.
Former Democratic Speaker Nancy Pelosi suggested without evidence that pro-Palestinian protestors are connected to Russia.
The Justice Department is investigating Democratic Rep. Cori Bush (MO) for misspending federal security funds.
Republican Rep. Marjorie Taylor Greene of Georgia called for the deportation of Democratic Rep. Ilhan Omar of Minnesota, who is of Somali descent. Omar, of course, is an American citizen.
“Nikki Haley is China’s favorite governor. If she had her way, South Carolina would be manufacturing spy balloons right here in our state.”—Republican South Carolina Rep. Nancy Mace, who, after receiving Haley’s endorsement less than two years ago, called Haley a “great American” and praised the former governor for her leadership of the state.
Kind of makes you question Mace’s judgment since she was so wrong about Haley in 2022…
Unlike the 2012 Obama campaign, which built out its own campaign infrastructure, the Biden campaign is focusing its efforts on building up existing state party operations to tap into local resources and mobilize voters.
Arab and Muslim leaders in Michigan are organizing an “Abandon Biden” movement over his refusal to call for a ceasefire in Gaza.
Maya King of the New York Times reports over 1,000 Black pastors have joined forces to push President Biden to support a ceasefire in Gaza.
According to a new Quinnipiac Poll, Trump has a very serious problem with women voters.
CNN raises the alarm about the potential for deepfakes during the upcoming election. Slovakia’s recent election was rocked by deepfakes.
Robert Downen and Uriel J. Garcia of the Texas Tribune write about the new calls for secession in Texas that have erupted over a Supreme Court decision allowing the federal government to remove concertina wire the Texas government had placed along its border with Mexico. (The wire was impeding the Border Patrol’s ability to access the border.) The dispute is drawing far-right figures and secessionists to Texas, and the anti-federal cause has gained the support of numerous Republican governors.
“I think states have the right to make the decisions that their people want to make. I mean, they do. If Texas decides they want to do that. They can do that. But I don’t think that — if that whole state says we don’t want to be part of America anymore. I mean, that’s their decision to make.”—Nikki Haley, arguing states can secede and proving once again she lacks a basic understanding of the American Civil War and its consequences.
The Nebraska Republican Party, whose leadership has changed hands from those loyal to former governor/now senator Pete Ricketts to Don Trump, has endorsed GOP challengers to Ricketts and two incumbent members of Congress.
The Supreme Court has refused to stop West Point’s race-conscious admission policy.
Alabama executed a prisoner using nitrogen gas. Nicholas Bogel-Burroughs of the New York Times wrote it did not go as Alabama had promised.
Robin McDowell and Margie Mason of AP report on how many of the world’s largest food companies and most popular brands create their products with agricultural goods produced by prison slave labor.
“If you look just at the facts and the body of work of both candidates and both of them, in their own words. Nowhere in history has Donald Trump ever stood for the American worker. He stands against pretty much everything we stand for….We had to look at a lot of things and overall, you know, we decided our contract fight with the Big Three, our most successful contract in history, President Biden stood there with us on the picket line, unlike President Trump back in ’19, when GM was on strike for 40 days and he was completely not existent and silent on the issue. I can go through a list of things, the difference in the candidates. it’s very clear to us who stands with working-class people in this country and who stands against them.”—UAW President Shawn Fain, explaining why his union endorsed Joe Biden for president
No country has emerged in a stronger economic position following the pandemic than the United States, whose economy is performing as though the pandemic never happened.
In fact, the economy is doing so well right now the Fed is unlikely to lower interest rates in March as had been expected.
Oshan Jarow of Vox writes that despite the surging economy, we should still question the fairness of the economic system.
Four years ago, Don Trump said the stock market would crash if Joe Biden became president. Now Trump is complaining the record-setting stock market is only making rich people richer.
Adam Serwer writes in The Atlantic we shouldn’t expect Wall Street to put up much of a resistance to Trump so long as he’s promising tax cuts and is unsympathetic to organized labor.
By Paul Farhi for The Atlantic: “Is American Journalism Headed Toward an ‘Extinction-Level Event’?” (“The decline of the legacy news media has been playing out for decades, exacerbated most recently by the advent of the internet and the explosion of digital platforms, especially the ad-revenue-gobbling tech giants Google and Meta….The latest round of cuts, however, represents a grim new milestone. The Washington Post, NBC News, ABC News, NPR, Vice, Vox, and BuzzFeed, among others, have shed hundreds of journalists over the past year….All told, job losses among print-, digital-, and broadcast-news organizations grew by nearly 50 percent during 2023, according to the consulting firm Challenger, Gray & Christmas.”)
By Adrienne LaFrance for The Atlantic: “The Rise of Technoauthoritarianism” (“The new technocrats are ostentatious in their use of language that appeals to Enlightenment values—reason, progress, freedom—but in fact they are leading an antidemocratic, illiberal movement….Comparisons between Silicon Valley and Wall Street or Washington, D.C., are commonplace, and you can see why—all are power centers, and all are magnets for people whose ambition too often outstrips their humanity. But Silicon Valley’s influence easily exceeds that of Wall Street and Washington. It is reengineering society more profoundly than any other power center in any other era since perhaps the days of the New Deal. Many Americans fret—rightfully—about the rising authoritarianism among MAGA Republicans, but they risk ignoring another ascendant force for illiberalism: the tantrum-prone and immensely powerful kings of tech.”)
David Frum argues in The Atlantic we should un-cancel Woodrow Wilson.
A drone attack launched by Iranian-backed proxies in Jordan killed three American servicemembers in Jordan. The United States retaliated by striking various sites affiliated with Iranian forces and Iranian-sponsored militias in Iraq an Syria.
A new AP poll found 50% of Americans believe Israel has “gone too far” in its war in Gaza, including a majority of Democrats and independents and a growing number of Republicans.
Barak Ravid of Axios reports the State Department is reviewing options for recognizing a Palestinian state as a way forward after the war in Gaza ends.
Biden has issued an executive order targeting Israeli settlers who attack Palestinians.
Ukrainian President Volodymyr Zelensky has fired Gen. Valery Zaluzhny, the popular general overseeing his country’s war against Russia.
And here’s Catherine Kim of Politico interviewing Taylor Swift expert Brian Donovan for a deep dive into the MAGAverse losing their collective shit over a potential Swift endorsement of Joe Biden.