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The Trumpification of the Supreme Court

To say that I hold the current right wing majority on the U.S. Supreme Court in low regard would be underplaying the level of dislike I have for these individuals who pretend to support the rule of law but in reality are fixated on furthering their extreme agenda that ranges from gutting the Voting Rights Act to enhance white power, to reversing a nearly 50 year precedent on abortion, to seeking to erase the concept of separation of church and state to grant special rights and privileges to Christofascists, and to now seemingly striving to protect Donald Trump from prosecution for crimes that would already have placed the rest of us behind bars for many years. When Trump's attorneys argued that a president while in office could not be prosecuted for the assassination of political rivals or engaging in a coup, the far right justices yawned and seem to forget about the actual events on January 6, 2021, and instead gasp for ways to delay Trump's trials or to trivialize the threat Trump poses to the nation.  The oral arguments underscore how badly Trump has skewed the court towards supporting authoritarianism and the power of a reactionary minority of the population.  A piece in The Atlantic looks at where the nation finds itself.  Here are highlights:

The notion that Donald Trump’s supporters believe that he should be able to overthrow the government and get away with it sounds like hyperbole, an absurd and uncharitable caricature of conservative thought. Except that is exactly what Trump’s attorney D. John Sauer argued before the Supreme Court yesterday, taking the position that former presidents have “absolute immunity” for so-called official acts they take in office.

“How about if a president orders the military to stage a coup?” Justice Elena Kagan asked Sauer. “I think it would depend on the circumstances whether it was an official act,” Sauer said after a brief exchange. “If it were an official act … he would have to be impeached and convicted.”

“That sure sounds bad, doesn’t it?” Kagan replied later.

The Democratic appointees on the bench sought to illustrate the inherent absurdity of this argument with other scenarios as well—Kagan got Sauer to admit that the president could share nuclear secrets, while Justice Sonia Sotomayor presented a scenario in which a president orders the military to assassinate a political rival. Sauer said that might qualify as an official act too. It was the only way to maintain the logic of his argument, which is that Trump is above the law.

“Trying to overthrow the Constitution and subvert the peaceful transfer of power is not an official act, even if you conspire with other government employees to do it and you make phone calls from the Oval Office,” Michael Waldman, a legal expert at the Brennan Center for Justice, a liberal public-policy organization, told me.

Trump’s legal argument is a path to dictatorship. That is not an exaggeration: His legal theory is that presidents are entitled to absolute immunity for official acts. Under this theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president. Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it.

The conservative justices have, over the years, seen harbingers of tyranny in union organizing, environmental regulations, civil-rights laws, and universal-health-care plans. When confronted with a legal theory that establishes actual tyranny, they were simply intrigued. As long as Donald Trump is the standard-bearer for the Republicans, every institution they control will contort itself in his image in an effort to protect him.

The Supreme Court, however, does not need to accept Trump’s absurdly broad claim of immunity for him to prevail in his broader legal battle. Such a ruling might damage the image of the Court, which has already been battered by a parade of hard-right ideological rulings. But if Trump can prevail in November, delay is as good as immunity.

If they wanted, the justices could rule expeditiously as well as narrowly, focusing on the central claim in the case and rejecting the argument that former presidents have absolute immunity for acts committed as president, without getting into which acts might qualify as official or not. Sauer also acknowledged under questioning by Justice Amy Coney Barrett that some of the allegations against Trump do not involve official acts but private ones, and so theoretically the prosecution could move ahead with those charges and not others. But that wouldn’t necessarily delay the trial sufficiently for Trump’s purposes.

“If they write a grant opinion, saying no president is above the law, but it comes out too late in the year, they will have effectively immunized Trump from prosecution before the election while pretending not to.”

Trump’s own attorneys argued in 2021, during his second impeachment trial, that the fact that he could be criminally prosecuted later was a reason not to impeach him. As The New York Times reported, Trump’s attorney Bruce Castor told Congress that “after he is out of office,” then “you go and arrest him.”

[S]ome of those who voted to acquit did so reasoning that Trump was subject to criminal prosecution as a private citizen. The catch-22 here reveals that the actual position being taken is that the president is a king, or that he is entitled to make himself one. At least if his name is Donald Trump.

The only part of Trump’s case that contains anything resembling a reasonable argument is the idea that without some kind of immunity for official acts, presidents could be prosecuted on a flimsy basis by political rivals. But this argument is stretched beyond credibility when it comes to what Trump did, which was to try repeatedly and in multiple ways to unlawfully seize power after losing an election. Even if the prospect of presidents being prosecuted for official acts could undermine the peaceful transfer of power, actually trying to prevent the peaceful transfer of power is a much more direct threat—especially because it has already happened. But the Republican-appointed justices seemed much more concerned about the hypothetical than the reality.

Trump has the conservative justices arguing that you cannot prosecute a former president for trying to overthrow the country, because then they might try to overthrow the country, something Trump already attempted and is demanding immunity for doing. The incentive for an incumbent to execute a coup is simply much greater if the Supreme Court decides that the incumbent cannot be held accountable if he fails. And not just a coup, but any kind of brazen criminal behavior. . . . Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

What the justices—and other Republican loyalists—are loath to acknowledge is that Trump is not being uniquely persecuted; he is uniquely criminal.

This case—even more than the Colorado ballot-eligibility case—unites the right-wing justices’ political and ideological interests with Trump’s own. One way or another, they will have to choose between Trumpism and democracy. They’ve given the public little reason to believe that they will choose any differently than the majority of their colleagues in the Republican Party.

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Much of the Media Is Again Failing Americans

If Donald Trump wins re-election and American democracy ends, much of the blame and responsibility will fall on the mainstream media which continues to make the same mistakes - and perhaps even worse mistakes given what is now known about Trump - as were made in the lead up to the 2016 and 2020 elections.  Trump has never been a normal candidates and the media's continued false equivalency, desire for "horse race" reporting, and fear of exposing and calling out Trump's and MAGA's never ending lies is putting democracy and America's standing in the world at severe risk.  Would that more "journalists" had the courage for honest reporting and understood the importance of not acting as if we were in campaigns like in the 1980's or even 1990's.  A long piece at Salon looks at the failure of much of the media to do its job and to realize that it needs to be a bulwark against lies and open calls for fascism and worse.  The growth of the right wing media and its endless efforts to distort the truth has made the duty of the rest of the media to exposes lies and outright threats to democracy all the more urgent.  Here are column highlights:

The American news media is facing an extreme challenge as it prepares to celebrate itself tonight at the White House Correspondents' dinner. During normal times covering a presidential election is hard work. But the Age of Trump and the larger democracy crisis have made reporting and commenting about the news and current events even more difficult. How has the American mainstream news media as an institution met the challenge?

On one day the elite agenda-setting news media such as the New York Times and the Washington Post will publish excellent investigative reporting on subjects such as Donald Trump and his regime’s crimes, Jan. 6, and the authoritarian playbook of Project 2025 and Agenda 47. But as has been widely documented, in the interest of “balance” and “fairness” and a “diversity of opinion," those same elite media outlets will the next day feature op-eds and other commentary from Trumpists and MAGA people and others who oppose multiracial pluralistic democracy – the effect of which is to mainstream and normalize their anti-democratic beliefs.

“Many reporters across the traditional news media are struggling against institutional tics and timidities that make ‘balance’ a false idol.” The consequence: “The inadvertent normalization of existential threats to democracy and public health by one party and its right-wing media echo chamber.”

There is a focus on President Biden’s occasional lapses in memory – which mental health and other experts have concluded are normal for a man of his age. However, Donald Trump’s worsening and much more severe challenges in memory, speech, cognition, and behavior which may be indicative of an actual brain disease are often downplayed or ignored. Alternately, the mainstream news media tries to create a false equivalency between President Biden and Donald Trump’s challenges with memory and speech when they are in fact very different.

Slate magazine’s Alicia Montgomery recently reflected on her time working at NPR and how its leadership dismissed the mounting evidence that Donald Trump could win in 2016 and enforced a policy of normalizing his candidacy: For most of 2016, many NPR journalists warned newsroom leadership that we weren’t taking Trump and the possibility of his winning seriously enough. But top editors dismissed the chance of a Trump win repeatedly, declaring that Americans would be revolted by this or that outrageous thing he’d said or done. I remember one editorial meeting where a white newsroom leader said that Trump’s strong poll numbers wouldn’t survive his being exposed as a racist. When a journalist of color asked whether his numbers could be rising because of his racism, the comment was met with silence.

Public opinion polls and other research show that the American people have low levels of trust in the news media. This is in part a function of how malign actors such as Donald Trump and others on the right have for decades used disinformation and other propaganda tools to systematically undermine faith in the news media and other democratic institutions as part of their authoritarian campaign to create an alternate reality where the truth and the facts no longer exist.

But there is another compelling explanation for these declining levels of trust: The mainstream news media as an institution has been criminally late in consistently sounding the alarm about Donald Trump and the existential dangers that he and the MAGA movement represent to the country.

On this, philosopher Jason Stanley, author of "How Fascism Works," told me in conversation here at Salon:  It's surreal. No amount of reality will change them. I'm shocked, by the way the media is reacting to every new claim that Trump is a fascist as if this were news. Those like me, you, and a select group of others have been saying for years that Trump was a potential fascist dictator and there is a movement behind him. They dismissed us and laughed at us. Now instead of turning to those of us who were accurate and sounding the alarm years ago, the media is turning to people, supposed experts, who only now are realizing that we're facing a fascist, social and political movement. Such people should not be the ones turned to by the news media to be talking about the near-term future of Trump and this fascist movement and the danger. Why? They have quite clearly demonstrated total unreliability.

Can the American mainstream news media fix itself?

Charles Sykes offers the following suggestions in his new essay at the Atlantic:

Are we going to get it right this time? Have the media learned their lessons, and are journalists ready for the vertiginous slog of the 2024 campaign? My answer: only if we realize how profoundly the rules of the game have changed…. The media challenge will be to emphasize the abnormality of Donald Trump without succumbing to a reactionary ideological tribalism, which would simply drive audiences further into their silos. Put another way: Media outlets will need all the credibility they can muster when they try to sound the alarm that none of this is normal. And it is far more important to get it right than to get it fast, because every lapse will be weaponized.

The commitment to “fairness” should not, however, mean creating false equivalencies or fake balance. (An exaggerated report about Biden’s memory lapses, for example, should not be a bigger story than Trump’s invitation to Vladimir Putin to invade European countries.)

Sykes concludes with a much-needed corrective about the dangers of political coverage as theater criticism:

In the age of Trump, it is also important that members of the media not be distracted by theatrics generally. (This includes Trump’s trial drama, the party conventions, and even—as David Frum points out in The Atlantic—the debates.) Relatedly, the stakes are simply too high to wallow in vibes, memes, or an obsessive focus on within-the-margin-of-error polls. Democracy can indeed be crushed by authoritarianism. But it can also be suffocated by the sort of trivia that often dominates social media.

Mark Jacob, former metro editor at the Chicago Tribune, has also been trying to hold the mainstream American news media to a higher standard in the Age of Trump. In a particularly sharp essay at his newsletter Stop the Presses, which merits being quoted at length, Jacob takes on the dictates of “neutrality” and “objectivity.”

Journalists aren’t bystanders in a democracy. Democracy relies on them to take action – to fact-check political lies, expose wrongdoing, explain the issues, and warn the public about the consequences of their votes.

Our political system cannot survive without an informed citizenry that’s equipped with shared, verified facts. That means journalists are not passive members of the audience – they’re supporting actors in the drama.

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