How We’ll Defeat the Federalist Society and Take Back the Supreme Court

The Supreme Court threw normal America a few bones this term, since John Roberts knew the court’s, and his, reputation was down there in Elizabeth Holmes territory. Roberts and Brett Kavanaugh decided not to kill voting rights, and those two and Amy Coney Barrett rejected the independent state legislature theory. Then, as the term drew to a close, the court reverted to the mean by ending affirmative action in colleges and allowing business owners to discriminate against LGBTQ people.

Did they fool anybody? Maybe, to some extent. But the right-wing assault on freedom continues. We already know from California and a couple other states where affirmative action has been reversed that Black enrollment at prestige universities has gone down; a tool that Lyndon Johnson put in place nearly 60 years ago is now blunted.

In future terms, this conservative majority is going to do damage on all kinds of fronts. Already on the docket for the 2023–2024 term are cases that will revisit the question of racial gerrymandering; will consider an important point of criminal due process; will determine whether the funding mechanism for the Consumer Financial Protection Bureau, or CFPB, is constitutional; and most important of all, will seek to strike down “Chevron deference,” which grants executive agencies broad authority to interpret and implement laws passed by Congress. (Striking down the deference, which the conservative majority is widely expected to do, will vastly constrict the federal government’s ability to enforce aggressive regulatory laws.)

So imagine sitting here one year from today. It’s entirely possible, I’d say likely, that the court’s conservatives at the very least will have thrown the existence of the CFPB into doubt and opened the door to endless lawsuits from people and organizations looking to cut the federal government down to size. On the Chevron challenge, captioned Loper Bright Enterprises v. Raimondo, the right will benefit from the fact that Ketanji Brown Jackson has recused herself, as she did in this week’s Harvard affirmative action case, because she participated in earlier oral arguments in the case (some justices do have scruples).

And then, someday—and we can be sure that right-wing activists are already filing the lawsuits they hope will work their way up to the Supremes—we may be saying goodbye, same-sex marriage. Adieu, right to contraception. Auf Wiedersehen, one person, one vote. This last one, which gets a lot less press than the others, will functionally destroy democracy by allowing state legislatures to draw—legally—districts that give rural people far more representation in legislatures than urban people.

The usual liberal narrative here is that this six-member majority is a mighty frigate being skippered by the unstoppable Leonard Leo, former head of the Federal Society, and we are doomed to a generation of right-wing decisions that will take us back to the nineteenth century. That might well be right. But it is not inevitable. There is a crucial distinction between recognizing a likely reality and submitting to it. The former is fine and necessary and says we still have to fight because we never know what the future holds. The latter constitutes giving up.

Joe Biden and his administration are in the former camp. Biden has named more federal judges to the bench in his first 28 months than the previous three presidents—a total of 136 “Article III” judges (federal judges nominated by the president and confirmed by the Senate). And more meaningful than the number is the type, as two-thirds of those nominees are women and two-thirds are people of color. Many are from plainly progressive backgrounds in the law.

In just the last month or so, these judges are among those confirmed:

• Nusrat Choudhury, the first Muslim American woman (and first Bangladeshi woman) to be named to the federal bench; a civil rights lawyer with the ACLU

• Natasha Merle, an African American woman out of the NAACP Legal Defense and Education Fund

• Dale Ho, an Asian American voting rights attorney

• Casey Pitts, an openly LGBTQ labor lawyer

• Hernán Vera, a Latino former staff attorney at the Mexican American Legal Defense and Education Fund

Someday, the high court will have two or three people like this, and the decisions will start breaking our way again. In the meantime, momentum is building for changing the court—at least, say, ending lifetime appointments. Ending lifetime tenure polls well and is hardly the radical measure the right makes it out to be. And most of all, liberals are casting their presidential and congressional votes with the Supreme Court in mind. It took long enough, but after Dobbs, we’re here.

Finally, it’s worth remembering that a Supreme Court decision is not the end of a fight. In many ways, it’s the beginning. Since Dobbs, the states that have moved to restrict abortion rights have dominated the headlines, and quite rightly. But abortion rights are protected in some way, shape, or form in roughly half the states. Pro-choice organizations are active on a range of fronts, working to ensure that women from red states seeking abortions can get to “safe harbor” states. And support for abortion rights has shot up in the polls.

The modern right has achieved its successes knowing that it represents a minority of the country. This is why its leaders lie all the time about their true intent. Before Dobbs, they said overturning Roe and returning the question to the states was their goal. Now we see that that wasn’t true. They want a federal ban. The presidential contenders dance around the question, but it’s pretty obvious where the movement and the base stand—and point me to one high-profile instance where GOP elected officials have defied the wishes of their base.

Pro-choice Americans are the majority. So are Americans who want reasonable voting rights protections for minorities, a fair chance for labor unions to be active, a federal government that can implement laws Congress passes, and more. The iron-willed minority has won a lot of battles, and it will win more, and the consequences will sometimes be devastating. But Dobbs was a turning point. The people have woken up. Progressives are filling the federal bench. This isn’t a story of victory yet. But neither is it one of total despair.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Saturday brings the infamous first anniversary of the Supreme Court’s Dobbs decision. Let’s begin by bearing in mind something that a lot of anti-abortion activists used to say before Roe was struck down: that the mere striking down of Roe was their goal, and all they wanted was to see the matter returned to the states.

This was a lie. As we have seen, the striking down of Roe was just the beginning—a first step in a process that they clearly hope will culminate someday, perhaps soon, in a federal abortion ban. After Dobbs, some Republican could have said: Hey, let’s take a breath here. We got our big win, but we are taking away a 50-year-old right from people, and maybe we ought to see how that shakes out.

Of course, they did no such thing. Many states rushed to pass the most extreme measures they could squeeze through their legislatures. Today, abortions are entirely or mostly banned in 14 states. Nine of those bans, according to The New York Times, include no exceptions for rape or incest. Most of these states are in the old Confederacy, but this list also includes Wisconsin, where Roe’s demise kicked in a draconian 1849 law that is still being adjudicated. 

On the plus side, 25 states and the District of Columbia have passed new protections. This includes most of the states you’d expect, along with Iowa, Kansas, and Alaska. So all is not lost—and as we’ve seen, what the Supreme Court really accomplished with Dobbs, aside from wrecking its own reputation, is to have solidified public opinion in support of protections for abortion rights. Poll after poll shows all-time-high levels of support for abortion rights.

That’s encouraging, but let’s not lose sight of what’s happening. The Times also reports that since Dobbs, 61 clinics and doctors’ offices have stopped offering abortions. Nineteen of those are in Texas (which is not only a no-exception state but also the lone state where private citizens can sue abortion providers and those who assist patients seeking abortions). That’s thousands of women, maybe millions, being denied a right to bodily autonomy that they had for half a century. Taken away overnight.

On top of that, we’re at the very beginning of a new presidential campaign, and Republican candidates are out there on the trail vowing to go even further. This weekend, there’s the Faith & Freedom Coalition’s Road to Majority Conference in Washington, in addition to a Students for Life rally on the national mall. Mike Pence, who is staking out the most extreme position on the issue, is the only candidate speaking to both, reports Politico’s Playbook. We can be sure that stern anti-abortion pledges will be front and center.

And as for the court? The great Linda Greenhouse has an interesting column in the Times today. She tells the story of how, in the 1940s, the Supreme Court switched from having upheld a Pennsylvania school district’s expulsion of Jehovah’s Witness schoolchildren because they would not salute the U.S. flag to reversing itself—while the United States was at war, no less. The composition of the court changed somewhat, but three justices who’d originally ruled against the schoolchildren changed their position on a similar case.

Why did they switch? Because they saw the hatred their original decision had unleashed. Greenhouse: “Mobs attacked individual Witnesses and destroyed their places of worship. More than 2,000 Witness children were thrown out of school, and some of their parents criminally prosecuted.” Most of America agreed that the court had righted a grievous wrong.

But that was before the era of Fox News and the Federal Society and Leonard Leo and right-wing justices flying on private planes and seeing nothing wrong with it. “So no, I don’t think the Dobbs justices are sorry,” Greenhouse writes. “They did what they were put there to do, what they wanted to do, and they were quite explicit in washing their hands of the consequences.”

But consequences are coming for the conservative movement of which those six justices are a part. They were felt already in the midterm elections, and they’re coming in a bigger way still next November. The price that’s being paid by regular Americans is tragic, and the structure of the court is such that it could take 20 years before we have a majority that reverses Dobbs. The six justices, and Donald Trump, and Republicans in Congress will come to pay a mighty price for what they’ve done to America.

The New Republic is trying to raise $10,000 to broaden our coverage of these fights for abortion rights across the country. Please see the box at the top of this article and click on Yes, I’ll Help!

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

One of the right wing’s “skills,” such as they are, is taking one little piece of fresh information that appears and using it to breathe new life into an old and discredited allegation. Those of you with elephantine memories may recall, for example, how the late discovery of private attorney Hillary Clinton’s billing records in a storage box reignited certain questions about Whitewater, producing an orgiastic frenzy of “Aha!” journalism on the right. That these records did more to exonerate Clinton than incriminate her was something the right didn’t usually mention.

This is what is going on now with the Biden “bribery” scandal. The allegation—that Joe Biden took a $5 million bribe from Burisma, a Ukrainian energy company—is quite old. It was revived last month by Senator Charles Grassley’s office, which said a whistleblower came forward with credible information of something or other. Then the indictment of Donald Trump sent Fox and Newsmax into heart attack mode, because, you see, the Deep State indicted Trump only to divert people from the mosh pit of corruption into which Biden was quickly sinking.

Let’s go over some old facts one more time. Clip this out, magnet it up to your fridge, keep it there for Thanksgiving, make Uncle Roy read it. We’ll do this in quasi-catechism form, with three questions.

Question 1. Why did Joe Biden fire Ukrainian prosecutor Viktor Shokin?

Right-wing allegation: Because Shokin was investigating Burisma, on whose board Hunter Biden served, and was fast zeroing in on some epic corruption that had dirtied the young Biden’s hands and probably Biden père’s too.

Real-Earth known facts: Biden was sent to Kyiv to order that Shokin be fired for his failure to launch aggressive corruption investigations—including into Burisma.

Ukraine had, in early 2014, experienced the Maidan Revolution, or the Revolution of Dignity, in which corrupt, Putin-friendly President Viktor Yanukovych was ousted from power. The pro-Western Petro Poroshenko won the subsequent presidential election. He appointed one state prosecutor who failed to pursue corruption cases. That man was fired and replaced by Shokin.

But Shokin too proved lax in pursuing such cases. Ukraine was a pretty corrupt place, and apparently no one would take on the oligarchs. This hardened group included Mykola Zlochevsky, the head of Burisma. According to this report, Ukrainian anti-corruption crusaders were pushing for Shokin to probe Zlochevsky and Burisma; the British government had requested information from Shokin’s office as part of an investigation into alleged money-laundering by Zlochevsky. Shokin, according to anti-corruption activists, ignored the U.K. request and dragged his feet generally.

In other words: Burisma (and Zlochevsky) was one of several fronts on which Shokin was failing to act. Daria Kaleniuk, executive director of the Kyiv-based Anti-Corruption Action Center, was quoted as saying: “Ironically, Joe Biden asked Shokin to leave because the prosecutor failed [to pursue] the Burisma investigation, not because Shokin was tough and active with this case.”

Furthermore, it was this failure to act, not solely on Burisma but more broadly, that convinced the Obama administration, the EU, the World Bank, and the International Monetary Fund that Shokin had to go. Biden demanded Shokin’s firing on a trip to Kyiv in December 2015. Two months later, IMF head Christine Lagarde threatened to withhold $40 billion in aid unless Ukraine took strong steps to fight corruption. Shokin was finally fired the next month.

There’s a lot more, but you get the picture. There is no evidence to suggest that Biden wanted Shokin fired because he was being too zealous in fighting corruption. And there is a mountain of evidence to suggest that pretty much the entire Western world wanted Shokin fired because he was failing to fight corruption. The truth—at least as far as we know it today—is the precise opposite of what Trumpworld contends.

Question 2. Aren’t there still a lot of unanswered questions about Biden’s role?

Right-wing allegation: Oh yes, and the American people obviously need nothing less than a thorough investigation!

Real-Earth known facts: It has been investigated. By Republicans. Twice! They turned up nothing.

One investigation was undertaken by Scott Brady, the U.S. attorney for western Pennsylvania, appointed by Trump. When the FBI first got wind of the bribery allegations in 2020, Attorney General Bill Barr appointed Brady to poke around. He interviewed Rudy Giuliani, who was busy spreading these rumors, for several hours once. But whatever Brady did or didn’t do did not end up amounting to much. He closed up his investigation without so much as issuing a report.

The other investigation was conducted by Senate Republicans. It was a joint production of the Senate Finance and Homeland Security committees, chaired, respectively, by Grassley and Ron Johnson. The report found nothing. Oh, they padded it out to 87 pages with a lot of tissuey suggestions about possible appearances of conflict and such, but they found no evidence of anything involving Joe Biden. The committees interviewed 10 witnesses, Democrats noted in a counter-report, and none of them said they knew of any instance in which Joe Biden sought to alter administration policy toward Ukraine because of his son.

Oh, yeah—this report was released in September 2020. Right before the election. If they’d found something politically useful, don’t you think we’d have heard about it nonstop in the closing weeks of the election? But we didn’t, because they didn’t. Johnson conceded before the report’s release that it would have no “massive smoking guns” and commented on the “misperception on the part of the public that there would be.” Gee, who would have been responsible for that? Ron Johnson? (Among many others.)

Question 3. I seem to recall that Trump got impeached over Ukraine. Does all this have anything to do with that?

Right-wing allegation: Only that that first impeachment was the beginning of the witch hunt of poor President Trump, designed simultaneously to hide the true corruption, which was Biden’s.

Real-Earth known facts: Yes! It’s directly tied, because Trump wanted Ukraine to drum up some phony allegations about Biden. So it is Trump and only Trump who tried to corruptly influence Ukraine.

Before America got to know Volodymyr Zelenskiy as the courageous Putin resister, they knew him as the guy on the other end of the phone line in July 2019, whom Trump tried to blackmail to find dirt on Biden. He was indirect about it; he spoke the way a mob boss speaks, as he always does, you know, Nice little country ya got dere, be a shame if anything should happen to it. But his message was crystal clear. Like: “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution, and a lot of people want to find out about that, so whatever you can do with the attorney general would be great.” And: “The United States has been very, very good to Ukraine. I wouldn’t say that it’s reciprocal necessarily because things are happening that are not good but the United States has been very, very good to Ukraine.” (These are exact quotes.)

No known set of actual facts suggests that Joe Biden shut down an investigation in Ukraine. The man who headed Ukraine’s top anti-corruption unit at the time told Reuters in September 2019 that there was indeed an investigation of Burisma going on at the time, but it was “up in the air, so to speak.” And he also said that the period being investigated was 2010 to 2012—years before Hunter Biden even joined the board.

Is it possible Joe Biden took a bribe? Look, the pope smoking dope on the Cape of Good Hope is possible. But it, like Biden being corrupt, doesn’t match any set of known facts, after a Ukrainian investigation, a Senate investigation, and an investigation by a U.S. attorney all turned up bupkes. We do know, however, that another U.S. president did behave corruptly toward Ukraine. It’s the guy who’s sitting down in Florida awaiting his third and fourth indictments.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

So Donald Trump has been indicted on seven counts related to the classified documents he took to Mar-a-Lago, the charges reportedly including violation of the Espionage Act, making false statements, and obstruction of justice. Here are some other things we know, and some things we don’t know.

We know: This is historic. A never-before development for a 247-year-old democracy that has historically shown extraordinary deference to its presidents and ex-presidents. Trump and his defenders will twist this to suggest that he’s being attacked by a weaponized “deep state.” On planet Earth, it means that Trump singularly may have (even he is still presumed innocent!) violated laws and norms that everyone else followed.

We know: There is a real and undisputed record of Trump ignoring polite requests from the FBI to cooperate in their investigation into the matter, and later stonewalling the bureau when it decided it had to stop being polite.

We know: Despite Trump’s ridiculous protestations, his flagrant disregard of classification laws makes this case very different from those of Mike Pence and Barack Obama and, most saliently, Joe Biden. Biden’s situation has not yet been resolved, and that may take some time. But it seems likely that some aides made some mistakes, and that’s what the probe will find, as it just did with Pence (I’m obviously no fan of Pence, but he, like Biden, is not a blatant lawbreaker). It will be important to keep pounding on this distinction, because Trump will hammer on it.

We don’t know: precisely what these seven counts entail and spell out. Obstruction of justice is reportedly present in those seven counts. And that’s the big deal—if Trump had said okay, you’re right, sorry, and returned the documents? Probably no case.

We don’t know: what’s in the documents Trump kept.

We don’t know: how seriously he may have compromised U.S. intelligence gathering or sources.

We don’t know: when this may go to trial. In federal court in Washington, it takes a year. In south Florida, it could all happen much faster, on the “rocket docket.” The Manhattan judge on Trump’s first indictment, brought by Manhattan DA Alvin Bragg, has already set a March 24 trial date—the thick of the later presidential primaries. What if this goes to trial around the same time? And remember, there is probably at least one more indictment coming, down in Georgia.

The key thing here is what’s in the documents. That’s where public opinion will say: Yes, this was a justified and necessary action by the federal government, or no, this is political. We know that about 35 percent of the country will view this as a witch hunt. I think a bit more, say 45 percent, will view it as justified. But that leaves 20 percent—a 20 percent that includes a lot of Trump voters. U.S. special counsel Jack Smith, who seems like one bad dude, knows what’s in the documents. I doubt he’d uncork an indictment if the documents featured talking points of condolence for the ambassador of Mongolia upon the death of the head of state.

In other words: What Trump did here is alarming, in terms of law and process. It’s also, maybe, an open-and-shut case. Former Attorney General Eric Holder told MSNBC’s Chris Hayes on Thursday night: “This is not a particularly difficult case.” That may be, legally. But politically, the American people will want to see that what Trump did was genuinely reckless. My bet is that Smith has that political horse sense. We’ll soon see.

But the bottom line here, and the One Big Thing that we know above all else? Donald Trump has had this coming. For years. This feels like justice coming.

It’s not just that he mocked and ignored the law for decades when he was in the scuzzy world of New York real estate, although it is that, to some extent. But it’s much more: He became, by means fair or foul, the president of the United States. Presidents have obligations to the people—all the people—that no one else in our system has. They have to, or certainly should, embody the best of our traditions. They should, like Biden does, genuinely and from the heart, venerate the Americans who gave their lives for this country. I have very mixed feelings about a lot of our wars. But I want the president, who by the bye is also the commander in chief, to humble himself before the memory of people who died in them. I do not want him to call them suckers and losers, as Trump did.

And they have to revere the law. This has been a given, throughout our history—until Trump. Well, Dick Nixon, but once he was caught, he, too, admitted he was wrong and surrendered power. Only Trump knows and respects no law. He got away with that when he was in the inherently sleazy business of slapping his name on casinos. But the presidency of the United States is not an inherently sleazy business. Or at least it’s not supposed to be. Trump made it that. If there is any justice left in this country, he will die in a jumpsuit that matches his cratered skin.

This article, which has been updated, first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Donald Trump and Ron DeSantis are laying into each other. Trump makes his juvenile cracks about how to pronounce DeSantis’s name. Dee/DuhSantis counters by calling Trump’s jibes, well, “juvenile,” and had a bus paid for by a super PAC supporting him follow Trump across Iowa, mocking him.

Politico calls this “savagery,” or at least a “path of savagery.” That seems a little overstated to me, at least for now, but this is something new, and it’s worth thinking about: The 2024 GOP presidential primary could get mean and brittle in a way no Republican primary has been since … well, let’s think:

Since 2020? No, that was just Trump.

Since 2016? That race had its moments of bitterness, but the governing dynamic, as you may recall, was that most of the other Republicans refrained from attacking Trump on the assumption that he wouldn’t last and they would gather up his supporters. Marco Rubio notably broke from this mold and lobbed some grenades Trump’s way, but he ended up sounding more like Don Rickles than a candidate for president.

Since 2012? There were some tense moments between Mitt Romney and Rick Santorum. But the bottom line was that you never thought Romney was really going to lose.

And this is why 2024, just maybe, could be different: There just might be actual drama about the outcome.

I know it doesn’t seem that way now. Trump is way ahead. And the more people who join the race—there are seven well-known candidates now (and two no-names), and Chris Christie next week is going to make it eight—the more it favors Trump, because he is presumed to have his 30 percent, which leaves seven people splitting the other 70 percent. Even I can do that math.

But just this once let’s play around with this hypothetical. Trump is indicted by Jack Smith. That’ll be indictment number two. Then he is indicted by Fani Willis in Georgia. That’s number three. The conventional wisdom is that this will merely galvanize his supporters, and that’s surely true of many or probably most of them. But all of them?

Elections are about percentages. Sweeping statements of conventional wisdom tend to ignore this. Some percentage of Trump’s base will, in fascist fashion, adhere to him all the more loyally, and they’ll buy all the deep-state garbage he dumps into the civic bloodstream. Some percentage will basically stay with him but start to entertain some practical doubts about whether he’s the best person to send into battle. And finally, he’ll lose some percentage.

It’s anybody’s guess as to what that number is. But let’s say it’s a quarter of his base. If we’re calling his base 30 percent, that’s 7.5 percent of the electorate. That takes him down closer to 20 percent. That’s a different race.

Now throw on top of the indictments the reality that at least two candidates, DeSantis and Christie, will be attacking Trump directly. People tend to roll their eyes about Christie’s candidacy, and eye-rolling is the right response if the question is “Can he win?” But that’s the wrong question. Nobody thinks Christie can win. I very much doubt even Christie thinks he can win. No—he’s getting in to stop Trump. There’s no other rationale.

Christie’s track record with respect to Trump is a long way from consistent and admirable, and Fox will have no trouble finding clips of Christie sucking up to Trump. But lately, he’s been a consistent critic. He called Trump “Putin’s puppet.” As USA Today reported this week, Christie is basically going to camp out in New Hampshire, ignoring Iowa and other early states. The idea is obviously to try to convince New Hampshire’s sometimes prickly and unpredictable electorate to turn on Trump and stop him.

If that works, and Trump loses New Hampshire, then we have a race. The outcome will actually be in doubt, at least for a while. Christie and DeSantis, and by that time perhaps others, will lay into Trump. This will be new. What will this Trump—thrice indicted, under constant barrage of attack—be like on the campaign trail?

There really aren’t any serious fissures in the Republican Party today. It’s an ethnonationalist, anti-democratic, neofascist, anti-freedom party that really only cares about creating a moral panic over certain Americans it finds threatening to its brittle and reactionary righteousness. There’s no serious disagreement about any of that. There are merely people who are gung ho about it, and people who would prefer for various reasons to soft-pedal it. But they’re all on board with the basic program. If they weren’t, they’d nominate a candidate who opposed all that, but there is no chance of that.

The only fissure is a tactical one, over Trump. Is he the best field marshal to advance the moral panic? That’s what the 2024 primary will be about. The odds still favor it not being much of a fight. But the Trump-DeSantis pre-savagery this week, combined with Christie’s coming entry, means there’s a chance that all this could get desperately ugly next year. Make that nasty. It will already be ugly.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Nearly every week is a bad week for Donald Trump these days, but this week brought developments that, while extremely gratifying from my perspective, are monumentally, roaringly, Wagnerianly bad for the former guy. It now looks somewhere between probable and certain that as he seeks the presidency, Trump will be staring—at not one, not two, but three indictments—as well as at least one criminal trial, which we learned this week is going to happen in the thick of the presidential primary season.

I don’t want to speak too soon. The wheels of justice grind slowly, and they can roll very timidly where presidential office-seekers are concerned. But we’re getting closer with each passing week to being able to say that by running for and becoming president, Trump finally went too far and made his biggest mistake. If you’re a rich private citizen in this country, you can break the law all you want, short of things like actual murder, and the law might never catch up with you. But take a public office, and suddenly an entirely different set of laws applies to you, the scrutiny of your words and deeds—past and present—becomes white-hot intense, and the system takes your misdeeds far more seriously than a mere failure to pay your taxes. This can take a person who became accustomed to ignoring the law over the course of 50 years by surprise—though in fairness, it could be a big reason more white-collar criminals don’t run for president.

Let’s go through the three cases, with which you may have some familiarity. The first is the criminal indictment already unsealed, that of Manhattan DA Alvin Bragg, over the Stormy Daniels hush money and the whole National Enquirer “catch and kill” business. This week, Judge Juan Merchan (by the way, he is a native of Colombia; I’m starting an over-under pool on when Trump starts pointing this out) set the trial date for next March. Also on the schedule for next March: No fewer than 25 primaries—13 on Tuesday, March 5 (Super Tuesday), and another dozen following over the course of the month.

Picture it: It’s Tuesday, March 12. The date of the primary in the crucial state of Georgia, the state Trump most blatantly tried to steal in 2020. Ron DeSantis is in the Atlanta suburbs. Nikki Haley is in Columbus. Tim Scott is in Macon. Asa Hutchinson is in Augusta. Mike Pence is barnstorming his way from Valdosta to Albany to Vidalia. And Donald Trump is in a courtroom in Manhattan testifying, lying his brains out, as will be obvious to everyone watching except the MAGA people.

Case number two is the big one: where special prosecutor Jack Smith enters the chat. Reports came out this week that Smith could be within weeks—some say within days—of bringing charges against Trump. The Washington Post reported Thursday that two Mar-a-Lago employees moved boxes of papers the day before a June 2022 visit by FBI agents (this was not the raid—that was August—it was just a visit) looking to collect classified documents pursuant to a subpoena that May.

It could be a coincidence. (There are a lot more coincidences in this world than people think.) But it looks pretty weird. Legal experts seem to be in agreement that the classified documents situation represents Trump’s biggest legal Achilles’ Heel. And remember—Smith is also investigating Trump’s role in the January 6 attacks. We all saw Trump egg on the violence in a way that meets any human common-sense standard. But meeting a legal standard is a higher bar. So that may be harder to reach.

But the encouraging development along these lines this week? There is renewed speculation about what’s going on behind the scenes with Mark Meadows, the White House chief of staff at the time. CNN reported this week that Meadows is quietly advising the House Freedom Caucus on the debt-limit fight. But that report also noted that Meadows is no longer in touch with Trump, which has led to speculation about whether Meadows is cooperating with Smith. A former Defense Department counsel tweeted the CNN story and wrote: “If he’s cooperating, game over.” Others were skeptical that Meadows would cooperate against Trump. But prosecutors have leverage. If Meadows is cooperating, well, there’s probably no one, not even Melania, who possesses a fuller mental log of the things Trump did and said that day.

We circle back to Georgia to consider the third case: Fani Willis’s probe into Trump’s frantic search for the famous 11,780 votes he called for to be added to his short-of-Biden’s-tally total. Willis appears almost certain to bring an indictment against Trump in August, a date she announced a week ago today. (See what I mean about this being a spectacularly bad week?) This investigation has long seemed the most open-and-shut of all the cases against Trump, given that the whole world has heard him on the telephone instructing state officials to go find him the votes.

So, let’s assume indictments from Smith and Willis. When would those trials commence? In all likelihood these, too, would kick off sometime next year. (Though I suppose that maybe one will have to wait for the other; all indictments answered in the order they are received and all that,) Still, it’s just wild to imagine what this could all look like, what kind of presidential campaign we might have if one candidate is moonlighting as a semi-professional defendant.

We must, of course, admit of the possibility that the GOP will nominate Trump anyway and, by Election Day, he will be thrice acquitted.

But it sure seems more likely that a harsher outcome awaits him. Let’s just look at the post-presidential legal track record. In December 2022, the Trump Organization was found guilty on all charges of tax fraud. Earlier this month, a jury took about three minutes (okay, not literally) to agree that Trump sexually abused E. Jean Carroll. There’s a pattern here.

There remains the question of whether there’s a point at which this all becomes too much even for Republican primary voters. A third indictment may be a bridge too far; they might decide at long last that Trump’s no longer worth the trouble. But he’ll turn this into Armageddon. It will get ugly—perhaps terrifyingly so. But the end times are coming, all right—not for the world, but for Trump. If he’d stayed a private citizen, the law wouldn’t have gone to the expense and trouble of nailing him. But he became a public servant. As corrupt as our country and legal system are in many ways, you just can’t do anything you want as a public servant. The system eventually says enough. Let’s sit back and enjoy every delicious minute of watching him learn this lesson.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

It’s established fact that Donald Trump is deep in the legal soup. The Trump Organization was found guilty of criminal tax fraud. Trump was indicted by Manhattan District Attorney Alvin Bragg over the payment to Stormy Daniels and those “catch and kill” payments that buried negative stories about him. A separate New York jury found that he sexually abused E. Jean Carroll.

That would be reasonably “impressive” for any gangster, but for Trump, it’s just the appetizer. Fani Willis, district attorney of Fulton County, Georgia, is expected to drop the hammer by August. And special prosecutor Jack Smith continues to look like he’s loading the cannon with grapeshot, getting ready to indict Trump on both January 6–related charges and his … expropriation of classified documents.

But this week, we learned that it’s quite possible that none of that is the worst thing he may have done. Noelle Dunphy, who worked for Rudy Giuliani back in 2019, filed a complaint this week alleging all manner of grotesque behavior by her old boss. But even as I waded through that sordid muck, I gasped when I got to paragraph 132:

[Giuliani] also asked Ms. Dunphy if she knew anyone in need of a pardon, telling her that he was selling pardons for $2 million, which he and President Trump would split. He told Ms. Dunphy that she could refer individuals seeking pardons to him, so long as they did not go through “the normal channels” of the Office of the Pardon Attorney, because correspondence going to that office would be subject to disclosure under the Freedom of Information Act. 

What?

This hasn’t gotten nearly the attention it deserves, partly because the bulk of her complaint is far more sensational and gross, as it has to do with allegations of forced sexual service and morning boozing, and partly because the news cycle has been pretty crowded this week.

But think about it. A president selling pardons is morally and ethically right up there with the Catholic Church selling indulgences, a practice that has gone down rather poorly in history—and that led, more or less, to the rebellion against the Church that became the Protestant Reformation. As Trump’s possible crimes go, it may not be quite the equal of trying to orchestrate the overthrow of the U.S. government. But it’s bad. It’s impossible to imagine any other recent American president having contemplated such a thing (Nixon? No, not even Nixon, I don’t think). But with Trump … well, of course this is just an allegation, but who on this earth—this earth, not Jim Jordan earth—thinks he’s above such a thing? And Giuliani? The Giuliani I knew 30 years ago would not have done such a thing. But this Giuliani?

Let me put it to you this way. Bill Barr was on Fox this week. Bret Baier asked Barr if he thought such an allegation could be true. Barr sighed: “Uh, I’m skeptical about that. I don’t think Rudy Giuliani would do that. I hope he wouldn’t, but I don’t know.”

Note that Barr expressed the hope that Giuliani wouldn’t do such a thing. But with respect to Trump, he expressed no such hope. Left unsaid but clearly implied: Of course Trump would do such a thing! And this is the guy who shilled for Trump on several occasions.

There’s reason to suspect there may be some fire behind this smoke because this has come up before. In January 2021, when everybody was obsessing over the insurrection, The New York Times reported on the “brisk market” in fees for Trump allies helping to arrange last-minute pardons for various people. There was the case of a onetime Trump adviser who was paid $50,000 to try to get a pardon for John Kiriakou, a former CIA officer convicted of selling classified information. The Times reported that Kiriakou was “separately told” (by whom, it didn’t say) that Giuliani could help him secure a pardon for … $2 million. Kiriakou rejected the offer. Someone told the FBI about it. Giuliani denied it.

Kiriakou appeared on Democracy Now! this week and told Amy Goodman of a meeting he had with Giuliani and others at Trump’s Washington hotel. Kiriakou said he asked Giuliani about a pardon. Giuliani got up and went to the rest room. Kiriakou asked the aide what just happened. The aide said, “You never talk to Rudy about a pardon. You talk to me about a pardon, and I’ll talk to Rudy.” Kiriakou said OK. The aide said: “Rudy’s gonna want $2 million.”

There it is. So paragraph 132 of Dunphy’s complaint didn’t materialize out of thin air (although the fact that it was public previously could conceivably mean Dunphy’s lawyers included it based on those news accounts).

Now let’s look at some of the folks Trump pardoned, or whose sentences he commuted, just before he left office. It was a long, long list. There were a lot of narcotics traffickers, and while this doesn’t exactly mesh with the Republican Party’s hard-line stance on the matter, let’s be kind and assume that some of those were actually sort of humane.

But there were at least seven or eight people who were involved in Ponzi schemes or other forms of fraud. I’m not accusing these people of anything. I’m just pointing out that Trump pardoned (or commuted the sentences of) people who probably had access to or could rustle up a significant amount of cash.

Trump’s already-known abuse of the pardon system is that he pardoned or gave commutations to so many people who were involved with him—Michael Flynn, Roger Stone, and so on. This constituted a flagrant abuse of power. At the Constitutional Convention, when they were debating the pardon power, George Mason said the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic” (big points for prescience there, eh?). James Madison rejoined that, well, Congress could always impeach such a president. Right.

So Trump has already violated the spirit of the pardon language. Now we learn he might have violated laws too (specifically, these laws). Again, we don’t know it to be true. But surely there’s good reason for the Justice Department to look. And it’s safe to say that this is unlikely to be the last shocking allegation we’ll hear about the man who remains the GOP front-runner for 2024.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

We hardly go a week without seeing yet another example of Republican hypocrisy. They claim to live according to God’s law and family values, and yet some hectoring moralists in their ranks will splash into the tabloids after getting caught in a love nest. They preach about the rule of law and then back every lawless move Donald Trump makes. They natter on about freedom, but when it comes to the freedoms of women and LGBTQ people, well... I could, as you well know, go on and on.

But here’s a particularly hilarious and galling example of Republican hypocrisy, on display in the ongoing debt ceiling fight. Last week, the House Republicans passed their debt-limit budget bill, with all but four members of their caucus voting aye. The bill puts off the debt limit problem for a year, but in exchange, it demands a raft of the usual right-wing priorities—work requirements for poor people getting government assistance, the repeal of student-loan relief, attacks on Joe Biden’s renewable energy priorities, and, just to show us all how proud they are of their hatred of science, boosts for fossil-fuel production.

The bill also would result in massive cuts to most government programs, because it shields the Pentagon, which eats up about 16 percent of the federal budget, from any trimming. Around two-thirds of federal spending goes to things Congress can’t really change like entitlements and interest payments. That places the remainder of federal spending under the guillotine. The White House says most domestic programs would face cuts of 22 percent.

The list of affected programs includes the usual things Republicans hate. But it also includes some things Republicans claim to love.

What am I referring to here? Well, let’s recall how, in the aftermath of George Floyd’s murder, activists introduced the phrase “defund the police” into the public discourse. At the time, Republicans tried to hang that phrase on President Joe Biden and Democrats like stink on a pig. But while a handful of Democrats in deep blue districts took up the call, the rest of the party from Biden on down said no, we don’t support that. (Perhaps they should: If we lived in a world where we could have a rational debate about these things, we might be able to agree that police departments handle some matters that would be better attended to by social-service agencies, but that isn’t our world.)

Institutionally, Democrats have never wanted to defund the police. In fact, last year, Biden sought $37 billion in additional federal funding for police departments. The Republican debt ceiling bill, however, would defund the police! At both the local and federal levels.

Let’s look at the numbers. Federal spending on local law enforcement isn’t a huge program. But there are two categories of federal spending on police that are reasonably significant. The Community Oriented Policing Services program, or COPS, doles out $225 million in grants to local police departments. Another grant program called the Byrne-JAG hands out a little more, around $270 million or so. These dollars are used for personnel, equipment, crime prevention, and so on. A lot of money goes to small-city and small-town departments—which is to say, police departments in red America.

Democrats are more inclined, given their interests and priorities, to make noise about social-service cuts. They should do that—those cuts are unpopular too. Some examples: The Office of Management and Budget estimates that the GOP bill would result in the layoffs of 108,000 teachers, and 30 million fewer outpatient visits for veterans.

Americans generally like teachers and veterans. I have days when I think Biden should just roll over, let the Republicans have their way, and say to America, “Okay, folks, let’s live according to Republicans’ priorities for a while,” just so people can feel the impact of the cruelty and hypocrisy in their daily lives. But as a liberal, I actually give a crap about things like kids having an adequate supply of teachers and veterans getting decent care, so I’d rather not subject ordinary Americans to the full impact of the Republican Party’s grand social experiments, edifying though they may be.

Oh—I haven’t even mentioned the border! The southern border is just about all that Republicans talk about. Whenever there’s a huge story that runs against them in the news, a Trump indictment, or some other scandal, I flip on Fox to see how they’re handling it. And nine times out of 10, they’re handling it by yammering about the border. “Border” is the GOP’s safe word. But their debt ceiling bill would eliminate funding for 2,000 border agents!

Finally, their bill would eliminate funding for more than 10,000 FBI personnel. This no longer counts as hypocrisy, I suppose, since Trump has turned those people into deep staters. But it sure can’t be popular. And it will have obvious knock-on effects that could land heavily on ordinary people.

Biden and the Democrats have two roads they can travel here on the debt limit debate in these next three weeks. One is to highlight Republicans’ heartlessness. The other is to showcase their hypocrisy. I see no reason why they can’t do both, and I sure hope Democrats don’t ignore the hypocrisy angle. That theme would also highlight the fact that Republicans happily passed debt limit increases during the Trump presidency when they controlled the Senate and House—twice when they controlled Congress, and once when Democrats did (and Kevin McCarthy voted for all three, by the way).

Republicans do these things because they’re shameless, and they know that the average person is too busy living their lives to sit down and connect these complicated dots on their own. That’s why it’s the White House’s job to do that for them. It’s how Democrats win this fight.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

As Tucker Carlson begins to slither out of the news cycle, here’s a reminder to keep our eyes on the prize. The prize—that is, the real enemy of standards and decency and integrity—is Rupert Murdoch. Carlson was a symptom. An unusually disgusting and purulent (great word, look it up!) symptom, but a symptom all the same. The disease is Murdoch.

He has been destroying journalism for 50 years. I’ll get into some of that below. But right now, let’s focus on something that’s happening in England, which I can assure you is something that Rupert is worried about—maybe even more worried than he is about Smartmatic.

Don’t know if you’ve noticed, but, a month out from Prince Charles’s coronation, Prince Harry has been out there shredding his father’s reputation. Harry is part of a large group suing Murdoch’s British media empire, News Group Newspapers, over the old phone-hacking scandal, which Harry and other litigants claim went on far longer than known and extended to the Murdoch property The Sun (so far, only News of the World, shuttered after a massive settlement, has been implicated). In papers released Tuesday, Harry alleges that Queen Elizabeth II wanted to go after Murdoch’s media empire legally but that Charles called her off. This was allegedly because he wanted to stay on Rupe’s good side for the sake of Camilla—that is, so that Murdoch media outlets didn’t make any waves about her becoming queen. Charles may have feared another “Tampongate.”

The internal royal squabbling is an interesting curiosity. But what concerns us more over here is Harry’s crusade against Murdoch. Clive Irving explains in The Daily Beast: “Harry’s attack on the ‘grotesque and sadistic’ London tabloids is likely to bring more reputational harm. Murdoch’s lawyers know this. Harry’s refusal to settle out of court—as thousands of other hacking victims have done because they lack his kind of wealth to support protracted litigation—means that damning documents uncovered during discovery would suddenly be made public in court.”

Harry is out for blood. And unlike the thousands of regular-person victims of the phone-hacking scandal, such as the grieving parents of dead children, Harry has the money to go toe-to-toe with Murdoch in the courtroom. He doesn’t want to settle. He wants all the facts out there, and he wants Murdoch crushed.

The target, aside from Murdoch himself, is Rebekah Brooks, the odious former editor of News of the World who ran the tabloid while the phone hacking was going on. Brooks was acquitted in 2013 of the charge of conspiracy to pervert the course of justice, and her lawyers managed to persuade the court that she hadn’t been actively involved in the hacking of people’s phones. Irving reports that Harry’s legal team has discovered new evidence that the hacking happened at The Sun while she was editor there. And they want the British public, and the world, to know. Irving writes that it is estimated in Britain that all this could end up costing Murdoch $1.25 billion.

And now let’s return to Smartmatic, the electronic-voting tech company that’s suing Fox News for $2.7 billion. On Wednesday, CNN reported that Fox agreed to hand over more documents to Smartmatic’s lawyers after the lawyers complained in a letter to the judge about “obvious gaps” in the material Fox had provided. Judge David Cohen is seeking a “broadening of discovery.” One Smartmatic lawyer previously vowed that the Dominion lawsuit had started the demolition of Murdoch’s empire and that Smartmatic would finish the job.

So, in both the United States and England, Murdoch’s ass is on the hot seat in a huge way. The costs still aren’t enough to kill his empire, in all likelihood. But with any luck, the reputational damage will be severe. So severe that pressure builds on cable companies to stop paying the carriage fees that are Fox News’s mother’s milk. These fees, not ad revenue, constitute a majority of Fox’s income. And just last week, Fox asked for a large increase in those fees, Brian Stelter reported. That was after the Dominion settlement but before the firing of Carlson. Fox’s ratings have tumbled since Carlson’s ouster.

I once spent an afternoon in the morgue of the New York Post looking at old papers from late 1976 and early 1977. Why? Because it was January 1977 when Murdoch took over ownership of the paper from Dolly Schiff, the longtime owner of the Post and ardent New Dealer. Schiff’s Post was one of the country’s leading liberal newspapers—and, in those days when there was little tension between liberalism and Zionism, a leading defender of both. And while it was tabloid, it wasn’t supermarket-ish.

Within a month or so, Murdoch’s henchmen had transformed the paper utterly. It was conservative, and it was trashy; whereas Schiff’s Post had shouted, Murdoch’s version screamed at the top of its lungs. Then he took over The Village Voice (just for the money—he didn’t try to change it ideologically), New York magazine, and a local New York TV news channel, and the race was on. It was unheard of at the time that one man should own two newspapers and a magazine. Unheard of and against the laws that then existed. Murdoch just got the laws changed.

He’s been destroying journalism ever since. It’s not even journalism, what his properties do. Oh, they do enough journalism for the purposes of cover. The New York Post has a good sports section. Fox News dayside reports on what happened today. But the point of both properties isn’t to cover the news; it’s to shape and distort and change it. In Britain, by eavesdropping on suffering people. In America, by turning its audience into raging reactionaries who hate their foes so much that they now oppose the democracy they’ve shared with those foes for 250 years. It’s a reign of terror that must end. And now, there is some actual hope that it might.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Last October, jurors in Connecticut ordered Alex Jones to pay nearly $1 billion to the families of the children murdered at Sandy Hook Elementary School. The next month, a judge added another nearly $500 million in various fees. It was described at the time as the largest known defamation award at trial in the history of the United States.

This week, as we know, Fox News settled with Dominion Voting systems for $787.5 million.* This has been described as the largest known defamation settlement in the history of the United States.

Do we see a pattern here, folks? Fox News is the largest right-wing propaganda network in the country. Alex Jones’s Infowars, which includes a website and loads of streamed videos, is not nearly as large as Fox. But it is a “media organization,” or at least gets to act like one under the agreed-upon rules, and it too reaches a hefty audience (around 16 million visitors a month to the website, according to one site I looked at). Indeed Jones, after the 2021 death of Rush Limbaugh but before the defamation award, might have made a plausible claim to being the single most influential voice on the far right (although maybe Tucker Carlson overtook him somewhere in that time frame).

However you rank them, the plain truth is that Alex Jones and Fox News are vastly influential right-wing “media” voices. And now one has been assigned to pay history’s largest defamation award and the other to pay history’s largest defamation settlement.

This is not a coincidence. This is how they roll. Lying is what these people do. Why? A few reasons. Money, mostly, as the Fox-Dominion depositions showed (“It is not red or blue, it’s green,” Rupert Murdoch said). Also, to shock and upset conventional liberal opinion (which is tied to money, of course, because the more shocking they are, the higher the ratings, and the greater the profit).

And finally, for ideological reasons. There isn’t much of an ideological angle in a comment like this one, which Jones made about a grieving parent the night after the shooting: “You know, after you lose your daughter, they put you on some antidepressants or something, but I thought those take a month to kick in. I mean, it’s like a look of absolute satisfaction, like he’s about to accept an Oscar.” But remember that Jones also said this: “Why did Hitler blow up the Reichstag—to get control! Why do governments stage these things—to get our guns! Why can’t people get that through their head?” That’s a clear ideological defense of his lies.

The record would seem to indicate that Fox executives and anchors had no ideological motivation, because said record suggests that they knew Donald Trump was lying about the 2020 election. But their choice to go along with the Big Lie was partly an ideological choice too, and for this reason: They understood the stakes of going along with the lie. They knew very well that if Trump got his way, and states tried to put in substitute slates of electors or Mike Pence refused to certify the electoral votes on January 6, 2021, that would have been the end of more than 240 consecutive years of democratic rule in the U.S. The end! And they went along. It was driven by ratings in the first instance—which is hardly an excuse, by the way—but it was also revealing of the ideology of the place, where democracy takes a distant second to power.

They lie. They lie all the time about practically everything. It’s a strategy. Turn reality on its head. Invert every question. Cherry-pick evidence. Here’s a comparatively benign, wonky example. There’s a recent book out called The Myth of Inequality, co-written by former Senator Phil Gramm, which argues that inequality has shrunk, not increased, over recent decades. One chief claim in the book is that the way we measure inequality doesn’t count transfers of “wealth” to poor people like Medicare and Medicaid. Well … it’s true to some extent that these are resources that are transferred to poorer Americans—but mainly if they get sick! TNR’s Tim Noah demolished this argument last fall, writing: “By Gramm’s logic, the sicker you get, the richer you become.” Gramm and his co-authors also wrote—for real—that Ebenezer Scrooge is misunderstood.

That, as I said, is a more quotidian example of the way they lie, but its very quotidian-ness makes my point: They lie about virtually everything, because reality is at odds with their worldview. Sometimes those lies are merely insidious, with horrible consequences for policymaking and society (that inequality is shrinking; that charter schools do better than public schools). But other times, the lies are vicious and unspeakable, with potentially tragic consequences for society. And they don’t care.

Meanwhile … where are the massive defamation lawsuits against MSNBC, HuffPost, and the like? Funny thing. They don’t exist. It’s not that these outlets, and other mainstream and liberal ones, have never been sued. Everybody makes errors, sometimes fairly bad ones. But we—both the avowedly liberal media and the mainstream media—don’t lie as a strategy. And the right is reduced to trying to catch the mainstream media in lies by … in essence, lying—i.e., sending people like James O’Keefe out to try to dupe people and get them to admit certain things and heavily edit the resulting conversations.

They’ve been lying for years. Reality was bound to catch up. But they still are able to use the cover of the First Amendment to lie—to help destroy, paradoxically, the very democracy that the First Amendment was written to sustain. There is much more to be done to rein them in. Go, Smartmatic.

* This article originally misstated the amount for which Fox settled.