We haven’t paid too much attention to Rudy Giuliani’s personal bankruptcy since it was filed last December, but the filing yesterday of new details of the bankrupt coup plotters personal finances make it ripe for review.

For months, Giuliani has been cagey with the bankruptcy court and his creditors about his income, representing in public filings and in court—without providing supporting documentation—that his fast-shrinking communications business (mainly a podcast and, until it was cancelled recently, a WABC radio show) received little income and paid him nothing. “The Debtor has not received any compensation from Giuliani Communications as the income is used to pay expenses of the company,” Giuliani’s lawyers said, either at a May 14, 2024 hearing or in a court-ordered follow-up letter describing Giuliani’s income.1 They are quoted in a June 10 letter filed by the Unsecured Creditors Committee raising what they characterize as unanswered questions about Giuliani’s income. Fifteen days later, Giuliani contradicted that claim.

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Since 2015, by my lights, we’ve been groping toward the realization that America is in the midst of an existential confrontation with a 21st century form of authoritarianism—one that puts the United States’s tradition of representative government and even its grasp on objective reality at risk.

For nine years now, Donald Trump has been the personification of this threat of authoritarianism, and the political movement he leads—which has grown to encompass virtually the whole Republican party—has been his instrument for bringing it into being.

Because Trump presents himself as a candidate for president, it’s common to frame opposition to his authoritarianism in electoral terms. To oppose Trump, in this view, is to side with the Democrats and the incumbent president in the election. As Ben Smith wrote introducing his recent interview with The New York Times’s top editor:

“I stopped by Joe Kahn’s modest office in the New York Times newsroom Thursday to ask him what some of his readers want to know: Why doesn’t the executive editor see it as his job to help Joe Biden win?”

With that strawman framework established, Smith and Kahn went on to have a comfortable conversation about how it’s not a newspaper’s job to favor one candidate over the other. A newspaper’s job, instead, is to give the voters information impartially.1 The voters’ job is to make their decision in a free and fair election, and we all then live with the consequences. It’s a tidy little answer.

But this is not a tidy moment. The truth is that no one genuinely expects the newspapers of America to “help Joe Biden win” by overlooking his faults or exaggerating his virtues. Instead, the hope among some readers is that the media won’t quit on the task they set for themselves back in the early days of 2017—keeping democracy alive in America by reporting the truth.2

In any case, defeating Trump at the ballot box is, at best, a piece of the equation for saving democracy. At least as important is resisting Trump’s subversion of the electoral system, overcoming any repetition of his violent attempt to seize power, and preserving the rule of law in the face of widespread intimidation campaigns from his movement.

Experience has shown that Trump and his fanatical followers are not willing to live with the consequences of a free and fair election that he doesn’t win. We saw the proof of this written in blood at the Capitol on January 6, 2021 and in the long campaign of evidence-free 2020 election denial that preceded it, but the pattern was clear long before that. Trump never accepted that Ted Cruz won the Republicans’ Iowa caucuses in 2016. During the 2016 general election campaign, when Trump believed he would lose, he began spreading the same baseless claims of voter fraud that he would deploy to sow chaos when he did lose the 2020 election. Even after his inauguration, Trump refused to accept that he had lost the popular vote to Hillary Clinton, organized a voting integrity commission to investigate his lying claims of 3 to 5 million illegally cast ballots, and refused to accept its conclusions when it found no substantiation. Extensive examinations, prompted by Trump’s denialism, have failed to identify any evidence of fraud that could have changed the outcome of any election that he’s lost, yet his claims of fraud persist. Recently, Trump has once again said he won’t commit to honoring the results of the 2024 election. Trump’s record shows that it’s highly likely Trump’s defeat at the polls will be accompanied by another round of deceitful, unsubstantiated claims of fraud and another attempt to somehow seize power by force or other extralegal means.

The threat of extralegal violence that emanates from Trump is by no means limited to the electoral realm. It menaces anyone who acts against his interests.

Earlier this year, District Judge Lewis Kaplan turned to a panel of jurors in his courtroom in downtown Manhattan with a piece of advice. The jurors had just returned a staggering $83.3 million verdict against Trump in the rape defamation case brought by E. Jean Carroll. Without elaborating, Judge Kaplan told them:

My advice to you is that you never disclose that you were on this jury.

While the judge didn’t provide his reasons, he didn’t really need to. It’s readily apparent to any observer of American life that any identifiable individual who deals a serious setback to Trump—or is in a position to deal one—attracts an extraordinary amount of intimidation, threats, and harassment, often from Trump himself, from the cloud of aides and operatives who do his bidding, and from his most fervent and extreme supporters. Moreover, this intimidation goes far beyond the typical (and already daunting) blowback that anyone who confronts a major public figure is likely to face.

In a recent filing in the stolen documents case in Florida, Special Counsel Jack Smith observed:

There is a clear and demonstrable pattern in which numerous people “have had their lives turned upside down” after being publicly identified as a participant in a proceeding involving defendant Trump.

Special Counsel Smith went on to describe some of the threats the government has observed:

The presiding district judge in the election case [Judge Chutkan] received a racist death threat; the Special Counsel and his staff have been subject to threats and harassment; the chambers of the justice presiding over the civil fraud case in New York [Justice Engoron] “have been inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters, and packages”; and potential witnesses against him are routinely subject to the sort of threats that “pose a significant and imminent threat to individuals’ willingness to participate fully and candidly in the process, to the content of their testimony and evidence, and to the trial’s essential truth-finding function.”

Special Counsel Smith’s warnings have been made manifest in Trump’s ongoing hush money trial in New York, where the presiding judge has found him in criminal contempt ten separate times so far for violating a gag order intended to protect witnesses, court staff, and jurors from threats and intimidation.

What does this all mean for journalism? In my view, one thing it means that covering Trump through the reductive lens of a presidential candidate—albeit an eccentric and troubled one—is essentially a category error.3

Trump is not just a candidate, not just a Republican, and not just a politician. He is objectively the leader of a nationalist, militant, authoritarian movement—one that bears pretty much all the hallmarks of Robert Paxton’s definition of a fascism.4 That movement came intolerably close to casting aside American democracy in January 2021. It threatens American democracy if Trump wins the 2024 election; it threatens American democracy if he loses the election; and it threatens America’s democratic, law-governed social order today, tomorrow, and every day with intimidation and violence no matter what happens this November.

Trump and his movement are in a dark place; they’re threatening to drag us all into the darkness with them; and they deserve to be covered that way.

2

On February 22, 2017, a month after the inauguration of Donald Trump, The Washington Post debuted a slogan beneath the name of the paper, “Democracy Dies in Darkness,” that seemed to recognize the stakes of this struggle and to commit the newspaper to one side of it—to preserving democracy and keeping the lights on.

A few days after The Washington Post’s gambit, The New York Times ran a full page print ad that kicked off its own campaign.

The Times’s ads focused on the truth (“worth defending,” “more important now than ever,” “vital to democracy”). They came in the wake of the newspaper’s self-celebration over its decision to refer to the words of a sitting president as a “lie.” In the early days of his first term, Trump had lied repeatedly about topics large and small—from the size of the crowd that came to see his inauguration (larger than Obama’s in Trump’s telling, smaller in reality) to the defeat he had suffered in the popular vote (never happened in Trump’s telling, a margin of 3 million votes in reality). The Times had labeled the latter claim a lie.

3

Tweets from 2016:

In the process of writing our book, The Truce: Progressives, Centrists and The Future. ofthe Democratic Party, one of the interviews Hunter Walker and I hoped for that remained just out of reach was with Ron Klain, Biden’s long-time Chief of Staff as President and as Vice President, a key architect of his 2020 campaign, and by all accounts a key link between the Biden White House, elected progressives, and progressive activists. While we weren’t able to do it in time for the book, Hunter and I had the opportunity to sit down (over Zoom) for a long discussion with Klain after the State of the Union last week. We wrote a piece together about that interview for TPM, and I’m republishing it here with their agreement.

There were two hours to go before Ron Klain would officially become President Biden’s White House chief of staff, and he was locked out. Klain was about to become arguably the second most powerful person in the West Wing, but he ended up standing alone in a hallway outside the office he was set to occupy after an unsettling and odd saga that unfolded as former President Trump and his chief of staff, Mark Meadows, attempted to hold on to power during their final weeks in office. 

“It was weird,” Klain said of the fraught transition in a wide-ranging interview with TPM and Pawprints last week. “We never met with Trump. I never met with Mark until Inauguration Day.”

Klain’s full story of his bizarre first day on the job has not previously been reported. The spectacle of the incoming White House chief of staff being unable to reach his desk is a particularly vivid example of how Trump and his allies tried to thwart the traditional democratic order. Now, Biden is trying to take on that Trumpian threat on the campaign trail. 

As he runs for re-election, Biden is facing persistent questions about his age, sagging poll numbers, and signs of strain on a vital alliance with progressives that Klain was credited with helping to build. In one of his first in-depth interviews since leaving the White House in early 2023, Klain spoke with TPM and Pawprints late last week about the challenges facing his former boss. Klain also made his case for believing that Biden can hold it all together and defeat Trump a second time. 

Klain is a singular figure in Democratic politics with an extraordinary breadth of experience. After a long career on Capitol Hill, he served in senior roles in every Democratic administration of the last three decades, and in most of the party’s presidential campaigns as well. As Al Gore’s chief of staff and, later, the general counsel of his recount committee, Klain had a front row seat to the contested election crisis of 2000. In the Obama administration, Klain served as Biden’s vice presidential chief of staff and as Obama’s Ebola czar. During the 2016 race, he helped Hillary Clinton prepare for her debates against Donald Trump. 

Much of Klain’s political career was spent in the service of established or centrist Democratic politicians. But along the way, Klain earned a reputation as a progressive voice in the upper reaches of the Democratic hierarchy and as a conduit for more left-leaning elements of the party to reach elected leaders. Klain helped bring progressives on board to pass Biden’s first term agenda — a delicate negotiation we chronicle in our book, “The Truce: Progressives, Centrists, and the Future of the Democratic Party” — even as he faced stringent resistance from Democratic West Virginia Sen. Joe Manchin and other centrists. Klain’s reputation as the left’s inside man is one he talks about somewhat wryly. 

“As Chuck Schumer used to say to me, ‘Ron, I've known you [since] before you were the great progressive hero,’” Klain recalled.

While they clearly take pride in certain progressive policy achievements, Klain and Biden are both emphatic about being capitalists. And while he now sits in a comfortable corporate perch at the vacation rental giant Airbnb, Klain continues to be one of Biden’s most enthusiastic advocates. 

“If people want to stop Trump, they need to rally behind the one guy who has ever stopped Trump, Joe Biden,” Klain said. “Let me tell you something: No generic person is beating Donald Trump. He beat a strong field in 2016 in terms of the Republican primaries. Everyone could have thought, oh, well, all these Republicans could beat Trump. Well, they couldn't. And then, Hillary Clinton couldn't beat Trump, and Joe Biden did. And I think he has a unique combination of assets to do that, and I think he'll do it again in 2024. And that's what will save democracy.”

Communication Breakdown

Key questions in the 2024 race, as Biden runs for a second term, are anchored in the chaos that preceded his first one. Trump’s refusal to leave office and his ardent efforts to stoke the rage of his most fervently delusional dead enders were just some of the pressures facing the country after Biden won the November 2020 election. The COVID pandemic was still in full effect with vaccines yet to roll out and the economy reeling from the impact of the virus. 

In spite of these urgent issues, Klain and his predecessor, Meadows, talked only “periodically” during the period between Biden’s victory and Inauguration Day in 2021. The traditional presidential transition was essentially not happening and, Klain said, Biden lacked access to “information” and even to the “Defense Department.”

Famously, a Trump appointee at the General Services Administration refused to “ascertain” that Biden was the winner of the election until late November 2020, depriving Biden’s team of federal funds, office space, and, crucially, legal authority to begin planning discussions with federal agencies. But according to Klain, the obstruction was even more pervasive. In his conversation with TPM and Pawprints, Klain narrated one of his typical conversations with Meadows to illustrate how the transfer of power ground to a halt. 

“Hey Mark,” Klain said. “This is going really poorly.”

“Tell me your top three things that need to get fixed,” Meadows replied, according to Klain. “I’ll work on them.” 

Despite Meadows’ apparent willingness to help, there was little progress.

“Four days later, nothing would change,” Klain explained. 

Even as Trump fueled false conspiracy theories about Biden’s election victory, Klain said he continued trying to work with Meadows. 

“I'd call him again. I'd go, ‘Mark, we still have these problems,’” Klain recounted, adding, “I kept on saying, ‘Hey Mark, let's get together. I'll come down to D.C.’”

While Meadows indicated willingness, a meeting between the two chiefs never happened. Of course, as we would all learn later on, Meadows was actively working with right-wing activists and officials to overturn Trump’s loss. Those efforts culminated on Jan. 6, 2021, two weeks before Biden was set to take office, when Trump urged his supporters to march to the U.S. Capitol and “fight” as Congress voted on the electoral certification. At that point, communications between Klain and Meadows broke down.

“Of course, Jan. 6 happened,” Klain said. “We stopped talking, and then, a couple of days before Inauguration Day, he called and he said, ‘Hey, I'm sorry we haven't gotten together, why don't you come by early on Inauguration Day and we'll meet in my office, and then you can just stay and be in your office when 12 noon rolls around?’”

Klain agreed, but once again, Meadows’ promises did not pan out.

“About 10 o'clock on Inauguration Day, I show up at the White House, go up to the chief of staff’s suite, it's locked shut,” Klain said. “There's nobody there.” 

Trump had — in a major break from tradition — decamped to his private Florida beach club, Mar-a-Lago, that morning in lieu of attending Biden’s inauguration. But the departing President wasn’t the only one missing as Klain arrived for the last minute transition. 

Klain eventually encountered Cassidy Hutchinson, the former Meadows assistant who would go on to testify about her experience on Jan. 6 before the House select committee that was tasked with investigating the attack. According to Klain, Hutchinson informed him that Meadows couldn’t meet in person, but wanted to speak on the phone in the Situation Room, the secure complex on the lower levels of the West Wing used for urgent operations and high-level intelligence issues. Klain went downstairs and got on the phone with his predecessor. 

“Ron, this is Mark, I’m sorry I’m late, but President Trump’s departure from Andrews [Air Force Base] was delayed and, so, I was with him, so I’m late,” Meadows said, according to Klain’s recollection, adding, “I’ll be there soon.”

Hutchinson offered a very different version of Meadows’ activities that morning in the memoir she released last year. In it, she wrote that, as Klain arrived, Meadows was engaged in a frantic scramble to recover classified documents that Trump had given to right-wing media personality John Solomon as the former President tried to publicize information related to the FBI’s investigation into the role the Russian government played in his 2016 election. Meadows, who did not respond to a request for comment on this story, ultimately managed to make time for a brief meeting with Klain.

“Eventually, Mark showed up. We had about a five minute conversation,” Klain said.

Klain recalled Meadows inquiring if he’d been briefed on various matters before making an abrupt exit.

“Call me if you need me,” Meadows said, according to Klain. “I’m out of here.” 

“That was my entire meeting with Mark Meadows,” Klain said. “He was polite and gracious in the meeting, but it was on Inauguration Day at about 11 o'clock in the morning.”

About an hour later, Biden became President. Due to the dual threats of the pandemic and the violence that unfolded just two weeks earlier, Biden was sworn in before an unusual level of security that included National Guard soldiers deployed in the locked down streets of Downtown D.C. Klain watched the inauguration from the Situation Room.

“We were monitoring events very carefully to make sure we weren't going to have a repeat of Jan. 6th on Jan. 20th,” he said.

Klain and his colleagues soon found there were reasons for the lack of information exchange that went deeper than Trump’s quest to stay in power. 

“During the transition, it dawned on me that it wasn't that they had a great plan to distribute the vaccine and they weren't sharing with us, it's that they didn't have a plan,” Klain explained. “I think part of it was we were looking for things that didn't exist. … They were certainly stiff arming us on some access to information, but otherwise they were just empty file cabinets.”

‘I’m Really Sorry, Bernie’ 

Once the wheels of transition were set in motion, however haphazardly, Biden and his team turned toward his policy agenda. After Biden ran as an expressly moderate alternative to Sen. Bernie Sanders, the self-described “democratic socialist,” en route to winning the 2020 primary, the pair worked together to create a “unity task force” that crafted policy recommendations. In our book, The Truce, we documented how that work helped Biden heal the rift that split the Democratic Party after Sanders’ bitter primary fight with Hillary Clinton in 2016. Vocal support from progressives helped Biden bring together a diverse coalition, including young voters, that was essential to defeating Trump. 

“I think it's more than a ‘truce,’” Klain told us. “I think it's an alliance. A truce means we're not going to be shooting each other and alliance means we're working together. And I think the President and progressives in his presidency have formed an actual alliance to achieve positive policy objectives.”

The alliance extended beyond the campaign. Klain confirmed Biden had seriously intended to bring Sanders into his Cabinet — a plan stymied by Democrats’ unexpected success in the two runoff Senate races in Georgia on January 5, 2021. Those victories gave the Democrats a delicate two-seat majority in the legislature’s upper chamber.

“He talked to Senator Sanders about being Secretary of Labor,” Klain said. “They discussed it in November, December. The President was enthusiastic about it and said, we're going to have to see what happens in Georgia. And I don't know [that] anyone expected us to go two-for-two in Georgia, but we did. And the President called and said, ‘Look, I'm really sorry Bernie, but we're 50-50. I can't take any chances here.’ And Senator Sanders kind of understood that, appreciated that.” 

In an interview for our book, Sanders confirmed he “wanted” the job but understood he needed to stay in the Senate to preserve Democrats’ edge. Since 2017, Vermont has had a Republican governor, Phil Scott, who would initially fill any Senate vacancy created by Sanders’ departure until a special election could be held.

Keeping Sanders in the Senate was part and parcel of the White House’s overall approach to legislating, which perceived progressives on the Hill as indispensable — the President’s most reliable and most numerous allies. Klain noted the progressive caucus is “the most votes” and, during negotiations on Biden’s sweeping and ultimately unpassed Build Back Better package in 2021, they were stronger supporters of Biden’s platform than many centrists. 

“I'd just say that my experience was, it wasn't members of the Progressive Caucus who were going on Fox saying, we're going to kill the President's legislation,” Klain explained. “That was Senator Manchin. And so when people say, why were you more amiable with progressives than with Senator Manchin? My answer is, progressives were going on TV saying, let's pass the President's agenda. And my job as White House Chief of Staff was to get the President's agenda passed. And so they were aligned with us, we were aligned with them. That was pretty simple to me.”

As a testament of the ongoing working relationship, Klain pointed to what he sees as progressive policies Biden has enacted — from “taxing billionaires” to fighting “junk fees.” And he credited Biden’s progressive primary rivals, Sanders and Massachusetts Sen. Elizabeth Warren, with shaping those policies.

“When the President won the primaries,” Klain recalled, “we weren't like, ‘Okay, Senator Sanders, Senator Warren: just endorse him. You're done.’ We sat down and talked to them. … We didn't treat Senator Sanders or Senator Warren as defeated opponents. We treated them as potential allies and built a coalition.”

As much as Klain was eager to tout Biden’s coalition, he also drew a distinction and made clear that the President has ideological differences with more progressive Democrats. Klain described Biden’s truce with the left as a “two-way thing” and credited progressives with being “willing to shift their agenda and rally behind the President's version of these ideas and take half a loaf in many cases.” 

“His personal views on these issues, his political views, are rooted in a very pro-working class, pro-working people, pro-union framework. And so, I don't think it's a surprise that Joe Biden wound up being the first president to walk a picket line. That's who he is,” Klain said. “Yet he also stood there in the State of the Union … and said, ‘I'm a capitalist. I have no problem with billionaires as long as you pay your fair share.’ … And I know Senator Warren has often said, ‘Every billionaire is a policy failure.’ That's not what Joe Biden thinks.” 

Klain also distinguished his own personal ideology from the Sanders wing of the Democratic Party. 

“You definitely did not have a democratic socialist chief of staff. You had a person who spent every day trying to get done what Joe Biden wanted to get done,” Klain said, adding, “My own personal views probably line up very closely with the President’s.”

‘A Particularly Problematic Issue’ 

The separation between Biden and more progressive Democrats has increasingly started to show in recent months, particularly around the war in Gaza. Rep. Pramila Jayapal (D-WA), the chairwoman of the Congressional Progressive Caucus, worked closely with Klain on Biden’s first term agenda. In recent weeks, Jayapal has given a series of interviews where she suggested the Biden coalition had “fractured” over the administration’s support for the Israeli government’s war in the Gaza Strip, which has left over 31,000 Palestinian civilians dead. That support has included military aid. For her part, Jayapal has called for the cessation of offensive aid to Israel along with a focus on a ceasefire, including negotiating the release of Israeli hostages that were captured by the Palestinian militant group Hamas in the brutal Oct. 7 attack that sparked the latest hostilities. 

“We could lose this election over Democrats’ and the President’s position on what is happening in Gaza,” Jayapal told Slate in a podcast interview last week. “I think there needs to be a dramatic policy shift. I believe we can still win, but I think it’s got to come soon.”

There is data to back up her concern. A poll conducted by the New York Times and Siena last December found a majority of voters disapproved of Biden’s handling of the situation in Gaza. Most importantly, the poll found three quarters of people under 30 disapproved of Biden’s Gaza policy. That finding has coincided with Trump improving his standing with young voters, a crucial Democratic bloc who widely favored Biden in 2020, and taking an outright lead in the presidential race in a spate of recent national polls. 

Biden has seemingly responded to those concerns — and the rising death toll in Gaza — in recent weeks. The President, who has sought to block an Israeli incursion into the southern border city of Rafah and pushed for a negotiated ceasefire. Those talks have had various stops and starts in recent weeks. With mounting casualties from Israeli bombing and starvation, Biden announced a plan in his State of the Union address to build a “temporary pier” in the Mediterranean to deliver food aid to starving Gazans in defiance of Israeli restrictions. However, even as he has worked for a peace deal and increasingly put pressure on the Israeli government to curb the violence, Biden has stopped short of ending military aid to the country. 

Klain, who stepped down as chief of staff in February 2023, described Gaza as “a particularly problematic issue for the coalition because many progressives feel very strongly about it and don't line up where the President is.” Citing the pier project, Klain said Biden has taken “some pretty dramatic steps” on that front. 

Klain urged those on the left who are angry with Biden’s position on the issue to consider what would happen if Trump, who is a staunch supporter of right-wing Israeli President Benjamin Netanyahu, were to take office. 

“As I say to my progressive friends, when they raise this with me, I can't think of a person — a better person — you want in the White House if your real goal is to get help and relief to the people of Gaza, I can't think of a person who would understand that better and do a better job of that than Joe Biden,” said Klain, adding, “In the end, people are going to have to choose. The choice is going to be Joe Biden or Donald Trump. That's the choice and anyone who cares about Gaza and the humanitarian crisis there who thinks Donald Trump being President would be better for the people of Gaza, I'd like to meet that person.”

It’s a contrast Klain continually returned to as he discussed the current campaign.

“It's not like I'm saying to progressives, ‘Hey, you have no choice.’ They have a choice, but I think the only choice — alternative to Joe Biden — is a very bad one,” Klain declared.

Klain’s line echoes a common refrain in Biden’s own rhetoric. “I’m often quoted as saying, ‘Don’t compare me to the Almighty. Compare me to the alternative,’” Biden said in a recent campaign appearance.

That might seem like a negative argument to base the campaign on. However, pointing to the progressive policy achievements in Biden’s first term, Klain argued the President has a “very affirmative, positive message” to run on. Biden’s recent State of the Union address, he noted, “was jammed full of meat-and potato-issues.” But, Klain pointed out, the speech also emphasized the threat posed by Trump. 

While some pundits and political reporters have questioned the idea this approach will resonate with voters, Klain said Biden has always “felt very strongly” that framing Trump as a clear threat to democracy should be a central part of his case to the nation.

“Can democracy survive? Yes. I think people go to the polls, they vote for Joe Biden, I think democracy will survive. We'll turn back a threat again,” Klain said.

The Frustrations Of Institutionalism

Faced with that threat and the Trump movement’s established tendency to violently reject an electoral defeat, some Democrats wish Biden had done more to confront Trump — not just as a political opponent, but as a federal policy problem. During Biden’s first term, there was some notable frustration with the deliberative approach Attorney General Merrick Garland took with the federal investigation into Jan. 6 and other cases against Trump. While Trump now faces an unprecedented array of federal charges, they did not come fast enough for the trials to conclude prior to the coming election in November. 

Klain said that, during his time as chief of staff, Biden never considered taking steps to press the Justice Department to move faster. He also said the President was not interested in the other legal remedies that could have prevented Trump from again running for office, such as Constitutional amendments to keep him off the ballot for his role in the effort to overturn the election. 

“I think we’ve always — those of us close to the President — always believed the only way to stop Donald Trump is to beat him at the polls and the person to do that is Joe Biden,” Klain said. “I think whatever legal accountability there is, it should come. It should be what it is … but I never thought we were going to ‘14th Amendment’ him off the ballot or have some deus ex machina. The only solution to protect democracy is democracy.”

Gaza and the approach to Trump are not the only areas where some Democrats — particularly young people — have voiced frustration with Biden. While Biden has cited cooling inflation and job growth to make the case that he shepherded “an economy that was on the brink” during the COVID pandemic through a comebook, polls show voters have lingering financial concerns. Younger voters in particular have expressed frustration with the high cost of living. While some experts have cited the gulf between this anger and the economic indicators to dismiss it as a “vibecession,” Klain suggested the concerns are “fair.” He argued Biden has worked to address them, but, particularly when it came to an ambitious proposal to eliminate some student debt, he was thwarted by the conservative majority on the Supreme Court. 

“It was a big priority of mine, and we got it up, we got it running, it was all good, and the Supreme Court stopped us. So, he has done what he can with smaller chunks of debt relief,” Klain said. “I think the President knows the pain, the economic pain that millennials are going through, and the challenges of trying to get out in the workforce and deal with their debts and try to buy a home and have access to the American dream. And he is fighting for that every day.”

Of course, the Court is another area where Democrats — particularly progressives — are eager to see more aggressive action from Biden. Both Warren and Jayapal’s congressional caucus have called for structural reforms to the Supreme Court in the face of an entrenched conservative majority that was aided by Republicans’ refusal to confirm a justice during the final year of Barack Obama’s presidency, and subsequent scramble to add three during Trump’s. While Biden appointed a commission to look at Supreme Court reform during his first year in office, it ultimately produced a report that SCOTUSblog described as “more of an academic study than anything resembling an action plan.” Klain suggested Biden does not believe there is sufficient congressional support to change the composition of the court. He also suggested that, even if there was, Biden would not be eager to go that route. 

“That's not where the President's head was. He is an institutionalist,” Klain said. Klain went on to say Biden has “grave reservations” about expanding the number of justices on the court.. 

“I think he's read a lot of the democracy literature and, what's happening in some of these countries that have done court expansion, is the court just becomes delegitimized and keeps getting expanded,” Klain explained. “Whoever comes into office adds more judges and the court winds up becoming not an effective institution. So, I think he's concerned that even if he had the votes to take the Supreme Court from nine to 11, what happens when someone else gets in and they take it from 11 to 17, or 17 to 23?”

The Court may be an example of how, for progressives, the Biden administration may be, as Klain put it, offering “half a loaf.” However, Klain is confident that the contrast with Trump coupled with the results Biden has achieved will be enough to keep the coalition from splitting. Klain pointed to Biden’s achievements, including having “successfully managed” a global coalition to confront Russian aggression in Ukraine and pulling the economy out of “free fall” when asked about the question that so often hangs over Biden in campaign coverage: his advanced age. 

“I think what the President believes is, look, people can ask whatever questions they want to ask, that's part of the political process, but there's just a bunch of speculation on one side and there's actual results on the other side,” Klain said. 

“I always say, when people say to me, ‘Is he too old? Is he too old?’ For what?” Klain asked. “I mean, maybe he's too old to compete in the Olympics, but the evidence that he's not too old to be President is the kind of President he's being.” 

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This morning, the Supreme Court handed down a per curiam opinion reversing the Colorado Supreme Court’s exclusion of Donald Trump from the state’s primary ballot for being an oathbreaking insurrectionist—a category of person whom the Constitution’s 14th Amendment disqualifies from holding federal office.

The Court did not quarrel with Colorado’s determination that Donald Trump is, in fact, an oathbreaking insurrectionist. Instead, the Court held—for the first time—that states lack the power to enforce that qualification for federal officeholding in their administration of their elections. (And the Court’s MAGA majority went further, holding that the provision could only be enforced by a particular sort of act of Congress.)

The Court’s opinion, by my lights, is atrocious. It is unmoored from the Constitution’s text, which, without any doubt, expressly commits the election of federal officials to each state’s administration. It misconstrues American history, and it fails to take account of the unprecedented situation the Trump movement’s violent and lawless pursuit of power has thrust upon the union and each and every state.

In a passage that epitomizes the weak reasoning of the decision, the Court writes:

As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3. Such a power would flout the principle that “the Constitution guarantees ‘the entire independence of the General Government from any control by the respective States.’” Trump v. Vance, 591 U. S. 786, 800 (2020) (quoting Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521 (1914)). Indeed, consistent with that principle, States lack even the lesser powers to issue writs of mandamus against federal officials or to grant habeas corpus relief to persons in federal custody. See McClung v. Silliman, 6 Wheat. 598, 603–605 (1821); Tarble’s Case, 13 Wall. 397, 405–410 (1872).

The respondents nonetheless maintain that States may enforce Section 3 against candidates for federal office. But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.

The difference of course is that, while states are given no power anywhere in the Constitution to remove sitting federal officeholders or issue them writs of mandamus, they were given the power to administer the federal aspect of elections in Article I and Article II of the original Constitution and no amendment has ever (wholly or in any pertinent part) taken it away. Because the original Constitution had already conferred this power on the states, there was no need for “the text of the Fourteenth Amendment” to “affirmatively delegate” it all over again to authorize the state to operationalize a constitutional qualification to hold office.

As weak as I may find the reasoning and textual basis of the Court’s judgment, it is immensely strengthened by the concurrence of all nine Justices in the result. There were no dissents noted today. The three liberal Justices filed a concurrence in the judgment that rightly criticizes the court for deciding more than the case before it required. But that concurrence also deploys lamentably weak reasoning to justify the majority’s fundamental holding. Look how the concurrence contorts the word federalism beyond all recognition:

In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case.

But but but federalism is a state-by-state patchwork! That’s the whole idea. We don’t dispatch commissars from DC to dictate how ballots are printed to make sure they all look exactly the same. We have all fifty states run their own elections, often with state-specific quirks, because the federalist parts of the Constitution require it. Indeed, that requirement has led to a lot problems in the past! But we stick to it; we’ve fashioned a whole rickety apparatus, which the court is constantly tinkering with, to let states handle administering their elections within the Constitution’s guardrails. Today, all of as sudden, and according to all the Justices, letting Colorado make up its ballot in accordance with the Constitution’s prohibition on oathbreaking insurrectionists somehow violates the Constitution’s design. It is baffling.

Even more baffling is the lack of even a single dissent that takes issue with the Court’s poor reasoning and the abysmal consequences of dismembering a protection against insurrectionists and traitors taking the reins of the government that was duly written into our fundamental law.

Today’s decision, with its dispiriting liberal concurrences, comes on the heels of last week’s order granting certiorari to Trump to determine the (absurd) question of whether a president can commit any crime he wants while in office and, if he asserts it was an official act, enjoy immunity from prosecution for it.

We don’t yet know the Court’s views on this miserable subject, but we do know that the way it’s managed the issue has greatly benefited the oathbreaking insurrectionist in question.

When the issue of purported presidential immunity arose last year, DOJ petitioned the Supreme Court to decide it right away (without waiting for an intermediate level of appeals to play out) in order to avoid delaying Trump’s trial in the January 6th case and interfering with the election. The Court denied DOJ’s request.

As a result, the DC Circuit heard the appeal—which took months—and issued a decision robustly denying the existence of any such immunity. (And I would challenge you to find a single commentator who isn’t paid by Donald Trump who thinks the DC Circuit got that wrong.)

Then it was Trump’s turn to appeal to the Supreme Court. They took several weeks to think about it, and then—on the exact same issue they’d previously declined to hear on an expedited basis—agreed to hear the case and set a relaxed briefing schedule and oral arguments in late April.

The result of all this procedural folly was to delay Trump’s trial, probably beyond the presidential election—raising the possibility he may retake the oval office before he faces justice for trying to violently steal it.

There were no noted dissents to the Supreme Court’s decisions in the immunity case. Not one Justice picked up a pen to note the lamentable delays or to complain that the Courut’s majority had made an in-kind contribution to Trump’s campaign.

Increasingly, it appears, the popular majority of the United States that believes our presidents are accountable to the law—not just in theory but in actual practice—and does not want to see a violent, oathbreaking insurrectionist hold power again has no voice in the nation’s highest court.

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Earlier this month, it was revealed, the Special Counsel filed a motion that cites a litany of inflammatory statements Trump has made before and after his indictment and asks for a court order “imposing limited restrictions on certain extrajudicial public statements by the parties and attorneys in this case.”

A gag order is a very familiar, if not exceedingly common, judicial measure to restrain litigants’ attempts in civil and criminal matters to try their issues in on the public stage rather than in the courtroom, and a wealth of case law addresses the conflict between the court’s interest in protecting the integrity of its proceedings and the litigants’ rights to free expression. Nevertheless, this motion by the Special Counsel raises the prospect of a U.S. District Court overseeing the public engagement of an active presidential candidate and (almost inevitably) imposing sanctions against him when he oversteps the limitations of the court’s order, which is sure to give Judge Chutkan a degree of discomfort as she considers the future course of this case. The alternative of watching Trump’s inflammatory behavior escalate, threatening phone calls to chambers become more regular, and the judge’s control of the proceedings fade in the event of a denial must also make the court queasy. (The motion also seeks to regulate the Trump team’s engagement with any potential jurors.)

Because the motion included identifying information about potential witnesses and informants whom the Special Counsel contends Trump has targeted and whom his supporters have threatened, the prosecutors sought to file the motion with redactions of that identifying information.

Trump’s lawyers opposed the sealing request. After ten days of legal wrangling over the issue that was largely conducted outside the public eye, Judge Tanya Chutkan published an opinion and order agreeing to the government’s redactions and the text of the motion appeared on the public docket for the first time a short while later.

The motion’s extensive background section revealed how closely the prosecutors have been watching Trump’s online behavior in the weeks since his indictment in the January 6th case. “Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses,” the prosecutors wrote. “Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution—the judicial system—and to undermine confidence in and intimidate individuals—the Court, the jury pool, witnesses, and prosecutors.”

The prosecutors embedded ten of the former president’s posts on his vanity social media platform, Truth Social, to illustrate his inflammatory communications. They also took the opportunity to answer a few of Trump’s allegations about their conduct.

For example, in late August, citing a New York Post story, Trump posted that the Special Counsel’s team had taken a meeting with officials in the White House, concluding that they had been coordinating with Biden politically. The DOJ had given the Post a tight-lipped statement that the meeting had been a “case-related interview,” and a background source (almost certainly speaking for the DOJ as well) had told the newspaper that the interview was with a career staffer who’d also worked at the White House during the Trump administration.

In its motion, the Special Counsel team reveals that the interview was actually with a “career military official” posted to the White House—a fact it contends Trump knew from the discovery provided to him almost a month before his Truth Social post.

Arguing that Trump knows his inflammatory statements lead directly to harassment from his supporters, the Special Counsel’s team also invoked two recent stories to illustrate the threat to judges and jurors. The first story, arising from a criminal case in Texas, concerns a woman who called Judge Chutkan’s chambers to make a series of racist threats against Chutkan and Congresswoman Sheila Jackson Lee, both women of color. The caller threatened to “kill anyone who went after former President Trump.” (At a detention hearing, the woman’s father testified that every day she drinks “too many beers” while watching the news, and then “starts calling people and threatening them.” But, the father said, she “never leaves her residence and therefore would not act upon her threats.”) The second story comes out of a criminal trial for another January 6th defendant, Brandon Fellows, who had famously boasted “I have no regrets” in a round of media interviews after the sacking of the Capitol. During its deliberations, the clearly worried jurors sent a note to the judge asking if Fellows had access to their identifying information (“names, address, etc.”), given that he had acted as his own defense attorney in the case. The judge somewhat sheepishly wrote back that Fellows had been given “limited biographical information” about the jurors, but that the court had collected those papers back from him at the end of the trial.

The jury convicted Fellows anyway.

On Monday night in Atlanta, the national press assembled to witness the occasion of Donald Trump’s fifth1 indictment to date. The charges that arrived in a 98-page indictment around 11 p.m. were the most sweeping yet, charging Trump and 18 of his allies with a vast conspiracy to overturn the 2020 presidential election in Georgia.

The centrality of the Trump’s political career to the criminal jeopardy he finds himself in has, naturally enough, led some of his allies to decry the “criminalization of politics.” We can expect those complaints to grow as the judicial proceedings continue and the 2024 presidential campaign begins in earnest. And simple though it may be, I think it’s worth reckoning with the subject head on.

Each of Trump’s indictments is concerned with his pursuit of political office and his unwillingness to yield it. The first indictment he faces, brought by the Manhattan DA’s office in New York state court, concerns a fairly elaborate hush money scheme that Trump and his then-attorney Michael Cohen allegedly designed to keep word of Trump’s tryst with Stormy Daniels out of the press in the immediate run up to the 2016 election. The second and third indictments, brought by the special counsel’s office in federal court in Florida, relate to vast quantities of classified documents, a piece of the presidency that Trump—for reasons that are still not fully understood—brought home to Mar-a-Lago after his term concluded. The fourth indictment charges Trump in federal court in Washington, D.C. with conspiring to overturn the 2020 election result by illegal means. And as already mentioned, the fifth indictment expands on that theme.

The three indictments Trump faces in the hush money prosecution in New York and the classified documents case in Florida are fundamentally about venal matters—cooking the books of a business and stealing government property—that only reach the realm of political controversy because Trump’s political persona is attached to them.

The other two indictments, in Washington, D.C. and Georgia, come closer to the heart of the matter. Trying to overturn the valid result of the 2020 election is a form of politics. Rather than politician’s the usual bread-and-butter of policymaking and electioneering, Trump’s gambit put the fundamental governing principle of the country at issue. It asked whether the loser of an election could disregard the result and remain in his office through deceit, stubbornness, chicanery, bullying, and—all else failing—street violence. In other words, it’s a type of politics that had not been practiced by any American president in 231 years—revolutionary politics.

The complaints about ‘the criminalization of politics’ proceed from a conception of ‘politics’ as a sandbox within our constitutional system where rival political factions are allowed to compete for the favor of the voters and wield the mandates conferred by those voters with few fixed rules.

American law has developed a hands off approach concordant with this view of politics. The political speech that precedes an election is considered to be the core of type of expression protected by the First Amendment. American courts’ theories of justiciability shield much of the behavior of politicians in office from judicial scrutiny.2 One of those theories of justiciability, the political question doctrine, holds that courts can’t review decisions that the Constitution commits to the political branches.

This conceptual framework makes sense for a huge variety of political questions that exist within our consitutional system: What bills should the House and Senate pass and send to the President? What will taxes be like next year? Will the government pay for people to have health insurance? Should the president be impeached? Will there be peace or war? How much power should the FEC have to regulate campaign finance? Should we propose a constitutional amendment to the states or call a constitutional convention? We have, in the Constitution, a set of previously agreed upon rules for working these questions out, more or less.

But obviously the political system we have established by consensus has its limits. Should Donald Trump be installed as dictator? Should he unilaterally cancel the next election? Should he unilaterally cancel the last election? Can Donald Trump seize upon an invented pretext to terminate “all rules, regulations, and articles, even those found in the Constitution”?

These questions, while theoretically political, are wholly anathema to our Constitution and our democratic society. To place them firmly outside the bounds of quotidian politics, we make every elected official swear an oath to preserve, protect, and defend the Constitution. For believers in a living God, breaking that oath is a mortal sin. And for all Americans, conspiring to overthrow our Constitution has always been an exceptionally grave crime.

Yesterday, a Washington, D.C. grand jury returned and special counsel Jack Smith unveiled a four-count indictment of former president Donald Trump for attempting to steal control of the government of the most powerful nation in the world. While the indictment is well worth reading—it includes a wealth of new and sometimes blood-boiling information—its broad outlines are consistent with the findings of the last Congress’s select committee investigating January 6th and the contemporaneous reporting of events.

In brief, the sacking of the Capitol building by a pro-Trump mob was not simply a spontaneous outburst of violence, but the ultimate result of a months-long effort to delegitimize the 2020 presidential election and the peaceful transfer of power to Joe Biden that was required by its true result. Among other stratagems, Trump tried badgering state elected officials, he tried frivolous lawsuits, and he tried to persuade Mike Pence to use his ceremonial role at the certification to change the outcome. When all this effort seemed to be on the point of failing, he summoned his followers to Washington, prepared them for violent action, and set them on the march to the Capitol. The gathering of the mob and steeling it to action was an exercise of street power directed to the same result as Sidney Powell’s fatuous lawsuits, Rudy Giuliani’s deceitful tour of state legislatures, and Trump’s own infamous phone call with Georgia’s Secretary of State, Brad Raffensberger.

Trump is the first American president to be indicted, the first to be indicted in state court, the first to be indicted in federal court, the first to be indicted twice, and the first to be indicted a third time. These are fitting distinctions for a president who cheated on his way up, repeatedly chose to disregard his legal duties and his oath of office, and preferred to treat the presidency as a treasure chest for himself and his family to plunder.

Trump is to all appearances a career criminal, engaging in alleged or proved financial fraud and abusive sexual misconduct on repeated, varied occasions. However, each of his indictments to date relate to his treatment of the presidency and its perks as a bauble to be possessed by any means. The indictment in New York state court relates to a hush money scheme executed on the eve of the 2016 election to keep a potentially damaging story from affecting the voting. The first federal indictment, in a federal court in Miami, concerns classified documents Trump hoarded and kept from his time in office—refusing to part with them after a year of efforts by DOJ and Archives officials to secure their voluntary return. And the third indictment, in DC, of course, deals with his corrupt effort to keep the White House, Air Force One, the de facto immunity from prosecution the presidency conferred on him, his precious pardon power, etc., despite losing his bid for reelection.

Seeing the presidency as a thing of tangible value that Trump jealously coveted isn’t necessary to sustaining Smith’s fraud charge against him under 18 USC 371. That count alleges that Trump tried to defraud the United States, and it doesn’t require that the deceit be carried out with a pecuniary object in mind; instead, the statute provides that the corrupt object may be impairing, obstructing, or defeating a lawful government function. To that end, Smith’s indictment compellingly argues that Trump sought to impair, obstruct, and defeat the federal government’s process of “collecting, counting, and certifying the results of the presidential election.”

Nevertheless, I think it’s important to keep in mind that the case really is about something tremendously valuable. The peaceful transfer of power from an outgoing president to a newly-elected one is probably the most precious possession of the American people. Trump and his allies, as the allegations in the indictment and all the investigations and reporting that corroborate them make incredibly plain, sought to take it away from us and, necessarily, to dissolve at least that much of the republic and put control of the most powerful government on the planet exclusively in their own hands.

I sometimes worry that the pyramid style of conventional journalism, which emphasizes the new at the expense of the already understood, fits poorly with stories that develop over a long period of time.

Politico’s Supreme Court about Justice Gorsuch reporting might be a good example. Politico’s report, on its face, shows that Gorsuch benefited from a lucrative land deal shortly after he took his seat on the Supreme Court—and shortly before he bought his house—and disclosed very little about it, including that the head of a major DC law firm supplied the money. Even in bare bones form, it’s a really great story.

But in that form, the story has set everyone up to have very formalistic arguments about the requirements of disclosure forms and the intricacies of reporting income distributions from a special purpose limited liability company whose special purpose has come to an end. Those are topics that only a transactional lawyer could love.

But lurking behind it all, and apparent in the very last paragraph of Politico’s report, is a richer story of a Republican-appointed Justice who has never had to account for his close ties to a reclusive billionaire patron. It’s a story that may need to be told from the perspective of memory, because so much of it is old news.

Back in December 2005, the conservative magazine National Review published a friendly, jocular interview its longtime online editor Kathryn Jean Lopez had conducted with a former writer for the magazine, Micheal Flaherty.

Flaherty had made good in the early 2000s. He had cofounded a movie production label with Cary Granat, the former president and Chief Operating Officer of Miramax’s Dimension label, and they had quickly been acquired by a deep-pocketed sponsor. The label secured the rights to C.S. Lewis’s Chronicles of Narnia series, and co-produced The Lion, the Witch, and the Wardrobe with Disney. The former Boston public school teacher and Christian political writer had, in other words, parachuted into Hollywood with a sack of cash. It was, to put it mildly, not a typical career path.

Lopez interviewed Flaherty in the days before The Lion, the Witch, and the Wardrobe opened. (It would be a blockbuster hit.) Towards the end of the brief talk, she jokingly brought up the patron behind Flaherty’s burgeoning film career:

LOPEZ: There's been a lot of attention on Philip Anschutz, your Mr. Moneybags. Tell me the truth. He's really Karl Rove, isn't he? You can reveal it here.

FLAHERTY: Never before has more attention been paid to somebody who could not be less interested in publicity. Hopefully some day a smart journalism professor will look over all of the ink that has been spilled in profiling Phil to show how lazy journalists have become. He never gives interviews, so for the past 20 years people keep recycyling [sic] and rehashing all of the same anecdotes and publishing it even though they have nothing new to say. It is easy to see what people find interesting in him though. He has amazing vision and he can see around corners.

I can’t really account for why this little piece of conservative media fluff—and particularly its stray description of the billionaire oil and railroad tycoon Philip Anschutz from an ideological ally—has stayed with me for all these years, but it tickled something at the back of my mind when I read Politico’s report on Justice Neil Gorsuch’s land deal this morning.

The name of Flaherty and Granat’s production house was Walden Media. In the first two years of its existence—and apparently before it made any movies—it was folded into Anschutz’s sports and media empire for an extraordinary $100 million reported investment. In line with Anschutz’s vision, Walden has pursued a moral mission with its films, and it had returned with a mixed track record at the box office, with “more misses than hits,” as the L.A. Times put it.

For whatever reason, I remembered the name: Walden Media.

And it struck me that when Neil Gorsuch and his two partners in the 40 acre mountain property in Colorado, who also happen to be tied into Anschutz’s business, went to form the limited liability company that would hold the property in October 2005—one month, as it happened, before The Lion, The Witch, and The Wardrobe’s premiere—they named it The Walden Group LLC.

It is no revelation, of course, that Justice Gorsuch has deep ties to Anschutz and his enterprises. As a DC-based lawyer, Gorsuch used to represent Anschutz and his companies. Gorsuch has reportedly been a frequent guest at Anschutz’s dove-hunting retreats at his ranch, “Eagle’s Nest,” on the South Platte River. And Anschutz reportedly lobbied the Bush administration to secure Gorsuch’s first judicial appointment in 2006. The New York Times wrote a sprawling report on those ties in 2017 before Gorsuch was confirmed, and it noted that The Walden Group exemplified them in a number of ways.

Cannon Harvey, one of the co-investors in The Walden Group, is an executive in Anschutz’s venture capital business and was once a Gorsuch client. And Kevin Conwick, the other co-investor in The Walden Group, was a deals lawyer at Bryan Cave who had Anschutz’s sports and media arm as a prominent client.

Anschutz’s connections to the real estate deal may well end there. It may be that the choice of The Walden Group as a name was merely a laconic tribute the three men chose to honor the man whose patronage had helped them to buy a fishing retreat just as his Walden brand was about to make a splash in Hollywood. We may find out that the deal to sell the Colorado property to the DC-based head of Greenberg Traurig within days of Gorsuch’s confirmation to the high court, however shady it looks, was largely coincidental. We may even learn that with enough hair-splitting the way Gorsuch reported the income resulting from the sale on his disclosure forms fits within the four corners of the applicable rules.

But the choice of the name and the web of well-known connections—material and symbolic—that bind another conservative Justice to another secretive billionaire combine to tell a story that can’t be whittled down to nothing. Our Supreme Court, and particularly its Republican-appointed majority, is saturated with the influence of the inapproachably wealthy. The Justices are far more familiar with the country’s tiny coterie of billionaires, and several may well consider themselves in a billionaire’s debt.

Around 9:00 p.m. on Friday February 12, 2016, according to the account of John Poindexter, Supreme Court Justice Antonin Scalia excused himself from a dinner party, explaining it had been a long day and a long week. Scalia retired to his guest room at the Cibolo Creek Ranch, got into bed, and without wrinkling the sheets, he died.

The Republican-appointed Justice’s demise at the 30,000 acre Texas ranch, coming as it did in the last year of a Democratic president’s term, upset the delicate 5-4 conservative tilt that had prevailed on the Supreme Court for decades and it set in motion a momentous series of events.1 With so much at stake so suddenly, the nation’s attention was quickly drawn back to Washington, and only a brief flurry of press coverage dwelt upon the circumstances of Scalia’s passing.

But that context has always been interesting, and it has gained a new relevance in recent weeks with reports of the undisclosed pampering current Justice Clarence Thomas received from the billionaire Harlan Crow. The gatherings where Thomas and Scalia were caught, one by dogged reporting and the other by the cold hand of inescapable death, both show the depth of corruption that plagues the Court.

According to ProPublica’s detailed reporting, Justice Thomas was treated to trips aboard Crow’s private jets and yachts, at a luxury Adirondack resort owned by Crow, and at the famous Bohemian Grove retreat of the San Francisco-based Bohemian Club, where Crow is a member. Thomas also did business with Crow, selling him the house his mother lives in along with two vacant Savannah lots. None of it was disclosed on Thomas’s minimalist annual Ethics in Government Act filings. Crow is a colorful figure who happens to combine an enthusiasm for funding conservative non-profits and publications with a zeal for collecting artwork and objects connected to the leadership of Nazi Germany.

As bad as that all sounds on its own, the photorealistic oil painting commemorating Justice Thomas’s 2018 Adirondack retreat—which ProPublica also brought to light—deepened the impression of corruption. Seated with the Justice and Crow are three other men: Peter Rutledge, the Dean of the University of Georgia’s Law School and a former clerk in Thomas’s chambers, Leonard Leo, the head of the infamous Federalist Society, and Mark Paoletta, a senior White House aide in the Trump Administration. The tableau revealed the trip was really categorically different from straightforward “personal hospitality”—however lavish that might be. This was not two friends having their families meet up at a lake house for a joint vacation; Leonard Leo does not happen by such occasions. It was really a behind-closed-doors gathering between a serving Justice and several people with a professional, vested interest in influencing the federal courts, sponsored by a well-heeled benefactor who picks up the tab.

As the proprietor of the vacation property, Crow’s connection to the event—while concealed—was always potentially discoverable. The presence of the other figures in the conservative legal movement is far more ephemeral, preserved only in a few indiscreet private photographs and daubs of oil made from them.

After ProPublica issued its report, Justice Thomas released a statement saying that he’d consulted with colleagues about his trips with Crow and been assured that he didn’t have to report them—a direct indication that some other Justices have indulged in these corrupt arrangements. I feel pretty confident that one of those colleagues who offered Justice Thomas the advice to leave it off his reports was Justice Scalia.

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About two weeks ago, the New York Times published an article that made a mess of polls it had conducted in four House races around the country. Its dour lede painted the results as “fresh evidence that Republicans are poised to retake Congress.” The paper’s analysis was saturated with gloom:

President Biden is unpopular everywhere. Economic concerns are mounting. Abortion rights are popular but social issues are more often secondary.

A new series of House polls by The New York Times and Siena College across four archetypal swing districts offers fresh evidence that Republicans are poised to retake Congress this fall as the party dominated among voters who care most about the economy.

The only issue was the polls it had conducted contained no such fresh evidence. While historical experience and the prevailing pre-election conventional wisdom certainly held that Republicans were poised to collect the traditional bounty of seats that tends to come to an out-of-power party in the midterm elections, the actual data collected from the “four archetypal swing districts” by Siena College contained not one scintilla of confirmation for those priors. As the article acknowledged dismissively in its third paragraph, none of the polls showed a Republican in the lead. Indeed, some of them were not very close.

The topline poll results Siena obtained:

• Kansas-3: D+14

• Nevada-1: EVEN

• New Mexico-2: D+1

• Pennsylvania-8: D+6

As of this writing on Wednesday morning after the election, these polls look prescient. Where things stand:

• Kansas-3: Sharice Davids (D) 54.7 - Amanda Adkins (R) 43.0, D+12

• Nevada-1: Dina Titus (D) 50.3 - Mark Robertson (R) 47.4, D+3

• New Mexico-2: Gabe Vasquez (D) 50.3 - Yvette Herrell (R) 49.7, D+0.5

• Pennsylvania-8: Matt Cartwright (D) 51.2 - Jim Bognet (R) 48.8, D+2.4

Kansas-3 is the only race to be called for the Democrat so far.

On social media, the NYT’s polling svengali Nate Cohn had called the Kansas-3 poll, which showed the Democrat leading by double digits, a “possible outlier.” He allowed that the poll vastly diverged from his preconceptions.

But there was no reason given, other than conflict with those preconceptions, for why the Kansas poll should be discounted. The Democrat it showed to be leading, Sharice Davids, was the incumbent, after all. Davids had won her 2018 race—flipping a previously Republican-held seat—by a comfortable 10 point margin. Then she had maintained that margin of 10 points in a 2020 contest against her opponent this year, Amanda Adkins. NYT/Siena had even polled the 2018 race, as Cohn acknowledged, and been surprised to find Davids leading the incumbent by 8—a forecast that predicted the election result with reasonable accuracy. It was certainly possible that Davids would suffer a reversal of fortune this year, with an unpopular president and painful levels of inflation, but a poll that showed her holding strong and improving on her performance in prior races should not have been lightly brushed off. That misconception carried straight through to election night, when NYT put her district in the column of races that Democrats were “expected to win narrowly.” As of this writing, that column is littered with blowouts.

In truth, all four of the NYT/Siena polls pointed to a remarkable, and largely unanticipated fact: Despite what appeared to be unfavorable political climate, Democrats were holding their own in House elections in all the “archetypal swing districts” the surveys had measured. The Democrats weren’t simply strong in a handful of unusual places, as Cohn argued when the article came under significant criticism. The Republicans didn’t appear to be breaking through anywhere they needed to. That could and should have an important finding, but instead it was overwhelmed by the newspaper’s preconceived narrative of Democratic weakness.

Pawprints has obtained some of the company’s communications to those employees. Some highlights of the documents, which are included below:

• Twitter “is offering a severance package of one month of base pay (or OTE for commission based employees” in return for employee’s signing a release that would prevent them from suing the company. Relative to most severance packages I’ve heard of, that’s a pretty paltry offer. Moreover, Twitter has made clear that it won’t negotiate either the financial offer or the terms of severance agreement that it will email to laid off employees in about a week.

• The documents include a gesture at compliance with the complex of federal and state laws, known as the WARN Act, that are intended to give employees and their communities time to adjust to the reality of a sudden mass layoff or similar event. The WARN Act requires big employers like Twitter to give prior notice of any plant closing, mass layoff, or similar widespread loss of employment. It’s 60 days almost everywhere in America except for New York, where the state legislature pushed it out to 90 days. Instead of true advance notice, Twitter is notifying the affected employees that “today is your last working day at the company,” but delaying the end of their pay and benefits until after the applicable notice period has run.

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On Friday morning, October 21, 2022, Stephen Bannon appeared in Judge Carl Nichols’ courtroom to be sentenced for defying a subpoena for documents and testimony issued to him by the January 6th Committee. The sentencing happened to fall exactly one year after Congress passed a resolution holding Bannon in contempt. The subpoena itself had been issued by the committee’s chairman a month before, on September 23, 2021, and Bannon had steadfastly refused to provide documents and testimony for all 13 of the intervening months. Judge Nichols, a Trump appointee, imposed a sentence of four months imprisonment, rejecting Bannon’s argument that he should only serve probation, but he granted Bannon an unusual stay of his sentence so that he could appeal the case, adding months or years to the interval between Bannon’s contempt and his punishment.

It’s not the first time the January 6th committee’s investigation has found Nichols’ court a drag. In the last year, Judge Nichols has presided over 11 of the 15 subpoena challenge cases that have been brought in the Prettyman Courthouse in DC but has failed to issue a substantial ruling in every single one of them, according to an analysis of court records by Pawprints. These are cases in which a subject of the investigation has sued to prevent a third party service provider, such as a cell phone company or a bank, from turning over data to investigators pursuant to a subpoena. Typically, when a service provider receives a congressional or law enforcement subpoena, it sends a letter informing its customer and warns that it will start turning over the requested records unless it receives notice of a court proceeding challenging the subpoena by a particular date. If the customer acts promptly to file a lawsuit, whatever its merits, that may well stall the progress of the investigators toward getting the requested records. The third party generally will delay production until the court case is resolved. (Of course, it’s far from foolproof; investigators may still be able to obtain the records from other sources and in other ways.)

Judge Nichols, it appears, hasn’t been very helpful in getting them resolved. Although these 10 subpoena challenge cases before him were filed between December 2021 and May 2022, not a single one has resulted in a decision from him on a motion to dismiss. Half a dozen motions to dismiss are currently pending before him, 5 of which are fully-briefed.1 The oldest of these motions, the January 6th Committee’s motion to dismiss the case the Oath Keeper Connie Meggs filed, has been fully-briefed and awaiting a ruling since mid-April 2022.

Not all of this, to be sure, has been within Judge Nichols control. Lawyers for the Committee, which is represented by the House of Representatives’ general counsel Douglas Letter’s office, have typically proceeded slowly. In cases where they have moved to dismiss, they have waited up to 5 months after the filing of the lawsuit to make the motion. In two other cases filed by the freelance photographer Amy Harris and the powerful Trump lawyer Cleta Mitchell, the Committee hasn’t yet bothered to ask for a dismissal at all; instead, House lawyers have filed for extension after extension rather than make any substantive move, presumably because of some ambivalence about pursuing these subpoenas at all. In another case brought by a mysterious limited liability company, the January 6th Committee wasn’t named as a defendant and hasn’t sought to intervene; the only defendant, T-Mobile, hasn’t yet moved to dismiss. One of the 10 cases has actually been dismissed, but that decision was principally made by the plaintiff, Trump’s attorney John Eastman, who put in for a voluntary dismissal shortly after having his phone seized by FBI agents outside a New Mexico restaurant as part of an apparently-related Department of Justice investigation.

Nevertheless, Judge Nichols’ failure thus far to issue an opinion or order on any of the fully-briefed motions he has to decide is notable. Two other District Judges in the DC courthouse have been able to come to a decision on a motion to dismiss. Judge Timothy Kelly, a Trump nominee, dismissed a subpoena challenge case brought by the Republican National Committee in May of 2022. And Judge James Boasberg, an Obama nominee, dismissed a subpoena challenge case brought by Trump’s spokesman Taylor Budowich in June.2

Nichols has also slow-rolled a similar case involving Trump’s former Chief of Staff Mark Meadows. Meadows has been fighting a Committee subpoena—one he would have to answer himself, not a subpoena to a third party—since late last year on the grounds that he is immune from testifying as a presidential advisor. The Committee filed a motion for summary judgement in April; it was fully-briefed by the end of May. Then, Judge Nichols ordered additional briefing on two issues. That carried on through mid-August. The parties met for oral arguments in early September. And still, in late October, with the Committee’s televised hearings come to an end and the midterm elections two weeks away, there still has been no decision from Judge Nichols—just as there has been no decision from him regarding the third party subpoenas challenged by Ali Alexander, Susanne Gionet, Connie Meggs, Stephen Miller, Roger Stone, and Kurt Olsen.

In much of the world of federal litigation, delays of the length discuussed in this post might not be very remarkable. Some complicated civil lawsuits take years to even move past the motion to dismiss. But for a congressional investigation that is bounded by the political calendar—one that Republicans are almost certain to terminate if they gain control of the House—delays of many months are nigh upon existential. Here, such delays may determine the difference between the public learning the important facts about an attempted coup and those facts remaining out of sight and accountability remaining out of our reach.

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On Saturday, in an apparent effort to prick the momentum generated by the January 6th Committee’s recent public hearings, the New York Times published a story headlined “Despite Growing Evidence, a Prosecution of Trump Would Face Challenges.”

The headline, of course, is substantially true. Any prosecution of a powerful, well-resourced person for a serious crime faces challenges, no matter the strength of the evidence arrayed against them, and those challenges grow geometrically when the person in question is a former president who sits at the top of a fanatical mass movement that’s willing to pursue its goals without ethical or legal restraints and that elevates personal fealty to him over adherence to factual reality or a set of pre-agreed rules. Nevertheless, the story is misbegotten, and I think it’s important to understand why.

The NYT lede frames an implicit argument that’s carried through the piece:

As new questions swirled this past week about former President Donald J. Trump’s potential criminal exposure for seeking to overturn the 2020 election, Mr. Trump issued a rambling 12-page statement.

It contained his usual mix of outlandish claims, hyperbole and outright falsehoods, but also something that Trump allies and legal experts said was notable and different: the beginnings of a legal defense.

On nearly every page, Mr. Trump gave explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available.

The argument, if I’m reading it right, is that Trump’s feelings of justification for acting as he did in the aftermath of the 2020 election (his “explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available”) constitutes the “beginnings of a legal defense.” It doesn’t, but the problems in the piece are worse than that.

As the story goes on, it becomes clear that the New York Times is not thinking of an affirmative legal defense of necessity or something along those lines—the sort of defense that’s offered in the courtroom after the prosecution has proven its prima facie case. Instead, the paper is asserting that any conceivable offense the federal government might charge Trump with would include a particular knowledge element:

If the Justice Department were to bring a case against [Trump], prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal.

This is, not to put too fine a point on it, horseshit.

First of all, it’s simply not possible to talk about the requirements of any conceivable criminal “case” like this. Criminal laws are highly specific and highly varied, so much so that any attempt to paint them with a broad brush quickly founders. The most scholars have been able to say about criminal laws on a general basis is that they set out a list of elements of an offense that the government is required to prove, and those elements generally include an actus reus, a criminal action, and a mens rea, a criminal mental state. Even this is oversimplified, as many jurisdictions define strict liability crimes that include no mental state element.

Second, NYT’s assertion appears to be assembled by stitching together things that sound good with a partial understanding of the issues at play. For intstance, the knowledge formulation NYT uses (“knew — or should have known —”) is commonplace in substantive laws relating to negligence or recklessness, but it doesn’t appear in the laws relating to obstruction, sedition, and conspiracy, which tend to deal with actual knowledge, not duties of care and substantial cognizable risks. Similarly, the first limb of the NYT’s knowledge element—Trump’s knowledge “that his position was based on assertions about widespread election fraud that were false”—appears out of nowhere and doesn’t pass the smell test. (The second limb is a closer question, and I’ll come back to that.)

While the NYT paints with a broad brush, there are two federal crimes that are most clearly in the foreground of the piece—a so-called conspiracy to defraud the United States under 18 USC 371 and obstruction (or attempted obstruction) of a congressional proceeding under 18 USC 1512(c)(2). These two crimes are distinguished by the extraordinary fact that a federal judge, David Carter, has already decided former President Trump and John Eastman likely committed the former and and attempted the latter. (He reached this conclusion in working through Eastman’s legal challenge to a subpoena for his emails from the January 6th Committee.) In order to illustrate some of the issues with NYT’s thinking, it’ll be helpful to focus on the obstruction charge, 1512(c)(2).

Early in its investigation of the violence on January 6th, DOJ zeroed in on 18 USC 1512(c)(2) as the most serious felony charge (short of seditious conspiracy) that it would apply broadly to the people who breached the Capitol building. As a result, that particular offense has now been charged scores of times in relation to the events of January 6th, its legal validity has been challenged repeatedly in motions to dismiss, it has been upheld at least ten times (and dismissed on two occasions by one maverick judge), and numerous defendants have pleaded guilty. And crucially, that offense has been charged against defendants who sincerely believed Donald Trump’s lies about widespread election fraud. In none of the 1512(c)(2) cases to date, so far as I am aware, has it been held—or even asserted—that the government must prove the defendant knew Trump’s election lies to be false in order to win a conviction. So why would prosecutors have to prove that for Trump, the teller of the lies? It simply would not make sense.

As applied to 1512(c)(2), the second limb of NYT’s knowledge test—Trump’s knowledge “that his attempt to block the congressional certification of the outcome was illegal”—has some more basis in the court decisions we’ve seen. The 1512(c) statute reads as follows:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The required mental state for this statute is contained in a single word, “corruptly.” And 1512 is far from the only obstruction statute to boil mens rea down to that one word. Congress did not supply an applicable definition of “corruptly,” so courts have mulled and tweaked their own understandings of its meaning over the years, and settled on a bright line rule that makes for easy cases. As Judge Friedrich, one of the judges who approved 1512(c)(2) charges for Capitol insurrectionists, writes:

In considering the meaning of “corruptly” (or wrongfully), courts have drawn a clear distinction between lawful and unlawful conduct. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court explained, in the context of § 1512(b), that “corruptly” is “associated with wrongful, immoral, depraved, or evil.” Id. at 705 (internal quotations omitted). It noted that persuading someone to withhold testimony or documents from the government is not always “wrongful”—for instance, when persuading someone to invoke his or her right against self-incrimination or the marital privilege, or when pursuing valid document retention policies. Id. at 704. And in North, Judge Silberman explained that a defendant “corruptly” obstructs or influences a congressional inquiry when he uses “independently criminal” means. 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part); see also Matthews, 505 F.3d at 706 (explaining that the word “wrongfully” guards against convicting someone who has a 24 “legal right”—such as the right to avoid self-incrimination—to obstruct or impede).12 By contrast, a defendant who withholds documents or testimony because of a valid privilege, see United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997),13 lawfully lobbies Congress ahead of an official proceeding, or engages in First Amendment-protected protest activity does not act “corruptly” within the meaning of the statute. These real-world examples draw a line that is consistent with the definition of “wrongful”: “[t]hat is contrary to law, statute, or established rule.” Wrongful, def. 3(a), Oxford English Dictionary (2d ed. 1989). The ordinary meaning of “wrongful,” along with the judicial opinions construing it, identify a core set of conduct against which § 1512(c)(2) may be constitutionally applied—“independently criminal” conduct, North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) that is “inherently malign,” Arthur Andersen, 544 U.S. at 704, and committed with the intent to obstruct an official proceeding, see Friske, 640 F.3d at 1291–92. “Corruptly” (or wrongfully) also acts to shield those who engage in lawful, innocent conduct—even when done with the intent to obstruct, impede, or influence the official proceeding—from falling within the ambit of § 1512(c)(2). See Arthur Andersen, 544 U.S. at 705–06.

In other words, it’s easy to say the January 6th insurrections acted corruptly, according to this bright line rule, because they chose unlawful means of interfering with Congress’s work—assaulting police officers, breaking windows and entering, invading offices, stealing items from the Capitol, etc.

By the same logic, Trump and Eastman may also present a fairly easy case because—according to the evidence the January 6th Committee has put forward—they knew and discussed that their plan to strong-arm Vice President Pence into suspending the joint session and sending the electoral votes back to certain states would violate federal law. As Judge Carter wrote:

Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.” But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, “no Vice President in American history has ever asserted such authority.” Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed.

The illegality of the plan, obvious even to Trump (especially after Eastman purportedly told him), would be one way of proving he acted corruptly. But it’s important to note that’s not the only way to prove such a thing. Back to Judge Friedrich:

The Court recognizes that other cases, such as those involving lawful means… will present closer questions. … As courts have noted, difficult questions arise when lawful means are used with a corrupt purpose and with the intent to obstruct, influence, or impede an official proceeding. See, e.g., United States v. Doss, 630 F.3d 1181, 1189 (9th Cir. 2011); North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part). In Judge Silberman’s view, the purpose inquiry should focus narrowly on whether the defendant “was attempting to secure some advantage for himself or for others than was improper or not in accordance with the legal rights and duties of himself or others.” North, 910 F.2d at 944 (Silberman, J., concurring in part and dissenting in part); see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (the “longstanding and well-accepted meaning” of “corruptly” is “[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others”) (internal quotation marks omitted). See also United States v. Kanchanalak, 37 F. Supp. 2d 1, 4 (D.D.C. 1999) (noting that it may be too vague to require only that a defendant “act[ed] with an improper purpose”). This case, which allegedly involves unlawful means engaged in with the intent to obstruct, does not raise these challenging questions.

Ultimately, the potential for these other types of cases is why the second limb of NYT’s proposed legal test is as wrong as the first. It elevates one way of proving a defendant acted corruptly into the only way and confuses what’s available to DOJ prosecutors with what’s required of them.

More broadly, the notion that Trump’s liability for the post-election scheme that culminated in January 6th depends on some fiddly little argument his lawyers might make about how sincerely be believed he deserved to remain in power betrays a crabbed and stilted view of the world. A typical corrupt official might try to steal, by subterfuge, a government contract for a relative. Former President Trump and his allies tried to steal, by deceit and intimidation and eventually by main force, the government of the United States of America. Any prosecution of the man will face numerous difficulties, but we should have no problem proving that’s a crime.

The richest man in the solar system, Elon Musk,1 has been busy.

Horses for Handjobs

On Wednesday morning this week, it emerged, he was contacted by veteran reporter/producer Rich McHugh2 about a story he was working on concerning an allegation made by a SpaceX employee of sexual misconduct by Musk, which had been discreetly settled. Musk had, according to …

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The first draft of an opinion in Dobbs v. Jackson, authored by Justice Samuel Alito and published by Politico last week, and confirmed as authentic by the Supreme Court, probably heralds a final decision next month that will permit states and territories to lawfully ban and criminalize obtaining or performing an abortion before viability for the first time in 49 years.

If that decision comes, the New York Times wrote, “abortion may be banned or tightly restricted in as many as 28 states in the weeks and months ahead.” Through these restrictions, an old tool of patriarchal control of society, and particularly of anyone who has a uterus but lacks the means to travel, will once again1 be wielded by many states and territories.2 In the other 22 states and D.C., obtaining a pre-viability abortion is likely to remain legal for the time being, but it will no longer be a right protected by the federal constitution. It appears, in short, that young people in America will have fewer guaranteed rights in adulthood than their parents and grandparents enjoyed. The imminent reshaping of the legal protections for individual rights, and not just abortion rights, will affect everyone in America.

In the cycle of news that has accompanied the disclosure of Alito’s draft, attention has naturally devolved on easier subjects to talk about than the looming rescission of vital, guaranteed rights. Mainstream news spent nearly a whole week talking about the historic nature of the leak and watching conservatives fulminate about punishing the leaker and convince themselves, without evidence, that the leak must have come from the chambers of the three liberal Justices. Then, last weekend, we learned definitively from a Washington Post report that conservatives have been leaking the details of the private conferences3 where the Justices discuss their views on pending cases. Shortly after that revelation, the main wellspring of attention shifted to the nature of the protests against the pending decision that have cropped up outside some conservative Justices’ houses. Senator Susan Collins (R-ME) even called the police when she found sidewalk chalk outside her Bangor home. Today, Politico reported another leak—that Alito’s Dobbs draft hasn’t been superseded by any subsequent drafts or questioned by any draft dissents.

The large volume of process and protest coverage is inevitable, as the Supreme Court reels from serial breaches of its cherished omerta and American society reacts to a momentous development. However, kaleidoscopic coverage of the impact the draft is having on the Court and the American scene has tended to detract from analysis of the draft opinion and its author. I’d like to try to turn the spotlight back onto Justice Alito and what he wrote.

Back in 1985, before he got to be a Justice or even a Circuit Judge, Samuel Alito messed up. He told the truth exactly once, and he told it on paper. Having reached the fairly exalted civil service position of line attorney in the Reagan Solicitor General’s office, Alito applied for a promotion. He wanted a political position, Assistant Attorney General, which requires a presidential appointment, and Reagan’s appointments office had some questions about the young man’s devotion to Reaganism. This was the key prompt put to Alito:

On a typewritten addendum that would become the centerpiece of his Supreme Court confirmation twenty years later, Samuel Alito answered. I’ve put his full, highly revealing response at the end of this item, but here is the quote that set the world on fire (emphasis added):

Most recently, it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to abortion.

One can imagine the widening eyes of the Senate Judiciary Committee staffer who first read that line in 2005. Alito had written in his college yearbook at Princeton in 1972 that he intended “eventually to warm a seat on the Supreme Court,” but this was a misstep along that path. It was a clear statement of a legal position on a case that might come before the Court seeking to overturn Roe v. Wade—the case, first and foremost, that the conservative movement had been plotting to undo since the ‘70s.

A long tradition holds that judges, even appeals judges on the highest court of the land, should decide the cases that come before them based on the record and the arguments and not by reference to the judge’s preconceived ideological position. In the Supreme Court building, this tradition is honored mostly in the breach, but it held real weight in the Judiciary Committee hearing room in 2005.

Predictably, Alito’s explosive statement in his DOJ application came up frequently at his confirmation hearing. Republicans and Democrats alike asked him if he had a view already inclining him to overrule Roe because, as he had said, “the Constitution does not protect a right to abortion.” Alito had, by my count, three thematic responses to these questions.

First, Alito said that if a case seeking overturn Roe came before him, “the first question” he would consider would be whether Roe ought to be upheld on the basis of stare decisis—the doctrine that “it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.”4 The Supreme Court famously does not always follow its own earlier cases; its overrulings of earlier decisions are often the stuff of legend, the most famous probably being its decision in Brown v. Board of Education (1954) overruling Plessy v. Ferguson (1896). But Alito outlined a number of reasons why stare decisis might apply for Roe. He said Roe was an “important precedent,” it had been on the books a long time, and it had been challenged repeatedly and reaffirmed, both on the merits and, in Planned Parenthood v. Casey (1992), on the basis of stare decisis. “When a decision is challenged and it is reaffirmed,” Alito said, “that strengthens its value as stare decisis.”

Second, Alito said that if he reached the merits of a case seeking to overturn Roe, he would approach the issue “with an open mind.”

Third, Alito said that the DOJ application was not a sincere expression of his beliefs, just telling the Reagan administration what it wanted to hear, and that also, as a judge, he had learned to bury his personal inclinations so deep that it didn’t affect his work. Alito said to Senator Feinstein:

First of all, it was different then. …  I was an advocate seeking a job. It was a political job. And that was 1985. I’m now a judge, you know. I’ve been on the circuit court for 15 years. And it’s very different. I’m not an advocate. I don’t give heed to my personal views. What I do is interpret the law.

There were reasons to doubt the genuineness of these deflections in 2005. As you can see below, Alito’s assertions are in substantial tension with almost every sentence of Alito’s 1985 application. It expresses a sincere and permanent commitment to conservatism, a motivation dating back to his college days to change the law handed down by the Warren Court, a belief that liberal “usurpation” could and should be corrected by “judicial appointments, litigation, and public debate,” and Alito’s “personal satisfaction” when the legal work he does aligns with his own beliefs. In this latter regard, Alito said that arguing for Reagan that there’s no Constitutional protection for abortion (despite the law saying the contrary) made him “particularly proud.” These are the words of a fervent judicial activist, not someone who considers stare decisis first and foremost, approaches every case with an open mind, and divorces his personal convictions from his work.

Now, with the benefit of the leaked draft opinion, we can say definitively that Alito broke his word.

When the issue of Roe came before him, Alito did not consider stare decisis first, as he had promised to do. “We begin,” Alito wrote, “by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion.” (This phrasing mirrors the language Senators found so concerning in his 1985 DOJ application.) Alito goes on to deliberately shunt the analysis of stare decisis to the end, and to criticize the Casey Court for not doing the same. “The controlling opinion in Casey reaffirmed Roe’s ‘central holding’ based solely on the application of stare decisis,” Alito writes, “but as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based.” Under this remarkable reframing of the doctrine, stare decisis means no more than that the contemporary court will not overrule an earlier case so long as it still agrees with it. Alito does not return to the applicability of stare decisis until Section III of his draft.

And when Alito does return to the subject, his analysis of whether to adhere to stare decisis is unrecognizable. Alito makes no reference to the factors he listed in his confirmation hearing: the decision’s age and its record of reaffirmance. Instead, he lists five other factors favoring overruling—the nature of the Court’s error, the quality of its reasoning, the “workability” of the rules imposed on the country, the disruptive effect on other areas of the law, and the absence of concrete reliance.5 Nowhere does Alito discuss that Roe has been on the books for 49 years and Casey for 30 years, or that they have been repeatedly challenged and repeatedly reaffirmed, as factors that weigh in favor of stare decisis. To the contrary, Alito cites each decision’s age only to observe that it has failed, over all those years, to settle the question of reproductive rights in the people’s minds. (The continued political division over abortion, of course, is a signal achievement of the conservative movement that Alito is avowedly a part of.)

Alito’s shotgun approach to attacking Roe and Casey on the merits do not bespeak an open mind or the sangfroid of a disinterested judge. I’ll offer a few examples:

• “Roe was egregiously wrong from the start,” Alito writes at one point, acid dripping from his pen. The dictum has no legal significance.

• “Procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history,” Alito writes. The United States has been a Nation for only 246 years; Roe has been a part of that history for 49 of those years, 20% of the whole.6 But the experience of the two generations of Americans who have grown up with a guarantee of personal autonomy, counts for nothing in Alito’s analysis. Whatever roots have grown downwards for five decades, they still haven’t reached a depth that earns his respect.

• Alito only gives half a bar to a theory advanced in amicus briefs by the United States and Constitutional Law Scholars that the 14th Amendment’s Equal Protection Clause “supplies an additional, independent basis for the constitutional right to an abortion.” Alito simply says that the Court’s earlier cases have decided that regulating abortion does not constitute invidious discrimination against women—coincidentally, it’s one case from the 1970s, Geduldig v. Aiello and one from the early 1990s, Bray v. Alexandria Women’s Health Clinic. However, Alito doesn’t for a moment weigh the assertion that there’s no gender discrimination in abortion regulation against common sense or the lived experience of women around the globe, and he certainly doesn’t apply any of the stare decisis factors he wields against Roe and Casey to Geduldig and Bray to see how they fare. That sort of analysis is reserved only for cases he’s got a preexisting vendetta against.

• Alito is almost entirely silent on the procedural posture of the case. There’s not a word about the court’s jurisdiction or the parties’ standing in the entire draft, and more saliently not even a drop of ink is spilled explaining why it was okay in this case for Mississippi to demand that Roe and Casey be overturned only after Ruth Bader Ginsburg’s death and Amy Coney Barrett’s rushed confirmation, when it had not raised that argument in its June 2020 cert petition. The Court generally does not consider arguments that are omitted from the cert petition. (An unjustly ignored amicus brief explores this issue eloquently.)

Ultimately, all the evidence suggests that Justice Alito is not the even-tempered judge he presented to the Senate in 2005. He’s not a person concerned with hearing and weighing all the arguments. He’s the fervent conservative activist who applied to Ronald Reagan’s DOJ and wrote the words set out below, and he always has been. Justice Alito told the truth seeking that DOJ position, and he lied to get the Supreme Court seat he now holds.

Here is Alito’s “attached sheet” to his 1985 DOJ application in its entirety (the full application is here):

A heavily redacted police report obtained by Pawprints confirms that Susan Collins, the senior Senator from Maine, is the complainant who summoned law enforcement to inspect a message written in chalk on the sidewalk outside her home.

Yesterday, the Bangor Daily News broke the story that the police had been called to Collins’ residence on Saturday evening to check out the water soluble chalk message, which read “Susie, please, Mainers want WHPA ——> vote yes, clean up your mess.”

The WHPA, the report observes, is “the Women’s Health Protection Act, which is legislation set to be voted on in the senate on Wednesday, 5/11/2022.”

The confirmation that Collins made the call to the cops herself is not particularly surprising. The Bangor Daily News included a suggestive quote from Collins praising the police and public works response to what she referred to as “the defacement of public property in front of our home;” however, it did not expressly say who had summoned the local authorities.

While the report obtained by Pawprints appears to be redacted with a general intent to obscure the identity of the complainant and any comments she made to officers, Collins’ name and birth date appear in unredacted form as the “Complainant” on the last page.

The use of chalk to write messages (political and otherwise) on public sidewalks is generally a legal activity protected by the first amendment. Chalk can be washed away easily with water and a brush, or by rainfall.

“I called dispatch and asked that they let Public Works know to come wash the chalk off the sidewalk,” Bangor Police Department Officer Garrett Watt wrote, wrapping up his report.

Dear Subscribers,

Ukraine and Russia

As the UN Security Council met Wednesday night in Manhattan once again seeking to avert war, Russian President Vladimir Putin broadcast a speech—at 5 a.m. Thursday morning Moscow time—announcing that the war would begin. Putin said specifically that he had authorized a “military operation … aimed at the demili…

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In the last two days of this week, a judge in New York ordered former President Trump to cough up documents and sit for a deposition in the state Attorney General’s investigation into his allegedly fraudulent business practices at his real estate c…

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