Part I: Trump’s Second Indictment (Over the Cliff Notes) is here.
Part II: Trump has been indicted on federal criminal charges and his case was assigned to Aileen Cannon. Now what? is here.
Welcome to Part III.
* * *
After Trump’s arraignment, he gave a speech in which he said, “Under the Presidential Records Act, which is civil, not criminal, I had every right to have those documents.”
In criminal law, the “I had every right to have those documents” part is known as a confession.
(Remember: Trump was charged with “willful retention” of national security documents and obstructing an investigation. By claiming that he had the right to have the documents, he is acknowledging that he willfully retained them. His stated belief that he was allowed to have them under the Presidential Records Act (PRA) is not a defense because, under the law, it doesn’t matter why he kept them. What matters is that he “willfully” kept them.)
I have said that Trump’s political needs are at odds with his needs as a criminal defendant. As everyone knows, the defendant has the right to remain silent and anything he or she says can be used in court. Trump knows this, but his political needs require that he tell this particular lie.
Trump’s Confession is an example of a Big Lie.
Yale professor Timothy Snyder’s definition of a Big Lie (as opposed to a medium or small lie) comes from Hitler’s Mein Kampf:
“The lie is so big that it reorders the world. Part of telling the big lie is that you immediately say it’s the other side that tells the big lie. . . . The force of a big lie resides in its demand that many other things must be believed or disbelieved.”
As an example of a big lie, Snyder points to Trump’s lie that the 2020 election was stolen from him by means of fraud. To believe that, you have to disregard 61 court rulings that found no fraud. You have to disbelieve experts, government officials (including Republican secretaries of state), and even Trump’s own attorney general (Barr). Anyone who accepts Trump’s lie that the election was stolen views Biden as a corrupt usurper, Biden’s administration as illegitimate, and Trump as the victim and rightful president. Thus the lie “reorders the world.”
Snyder said this:
Trump’s confession has all the markings of another big lie.
On Thursday, Trump posted this on Truth Social:
“PROSECUTORIAL MISCONDUCT AT A LEVEL SELDOM SEEN IN OUR COUNTRY BEFORE!!“
Look at all of the lies Trump managed to pack into those three sentences:
- The Presidential Record Act exonerates him. (It doesn’t. For more on that, click here.)
- The Clinton sock case shows that other people do the same thing. (It doesn’t. For more on that, click here.)
- The prosecution is a witch hunt (It isn’t. To guard against this accusation, the Merrick Garland DOJ announced in March 2021 that the DOJ would follow the facts and the law wherever they lead, and they have been meticulous about this.)
- Joe Biden is “corrupt.” (Trump has been trying for years to make that false accusation stick. His first impeachment was an attempt to strongarm Zelensky into announcing an investigation into the Bidens.)
- The DOJ consists of “radical left, Marxist thugs.” (Don’t make me laugh.)
- The papers were illegally taken from Trump under the Fourth Amendment. (The search was legal.)
- This was election interference. (This lie, among other things, comes from the faulty premise that the Clintons and others have done the same thing.)
Trump packed 7 lies into 3 sentences. Impressive, right?
Essentially, the lie boils down to this: “I had the right to keep those documents and any prosecution of me is a political witch hunt designed to steal the next election.”
Accepting this lie means accepting a world in which top U.S. defense secrets are Trump’s personal property. It means accepting that the PRA means whatever Trump says it means. It means reordering the world so that Trump is the victim and the rightful president. It means rejecting the evidence of our eyes and ears.
It also means ignoring previous court rulings. When the 11th Circuit Court of Appeal ruled against Trump in the Special Master case, the court specifically held that Trump did not have the right to possess these documents.
A reader on Mastodon said this:
It looks like that to me, too. Basically, Trump is saying: You have to pick. You can have the ‘radical left Marxists’ (where the radical left Marxists specifically include DOJ lawyers and that all that rule-of-law business) or you can have him.
In fact, just to make his point, Trump responded to the indictment by vowing that if he is elected, he will appoint a special prosecutor to “go after” his opponents. He is promising to do what he is accusing Biden of doing. The way the big lie works is that he is claiming the moral high ground.
Trump is openly running on a promise to smash the rule of law and to weaponize the DOJ to go after Biden. This will make perfect sense to the people who believe Trump’s lies or who prefer Trump’s style of authoritarianism to the democratic vision for America.
Trump publically confessing his crimes and rejecting the 11th Circuit Court of Appeals ruling may help rein in Judge Aileen Cannon
Last week, I weighed the possible harm that can come from this case being assigned to Aileen Cannon.
Now that Trump has publically confessed to the crimes (and never denied the truth of any of the allegations) it seems to me that this makes it harder for Cannon to go full-on MAGA. Yes, she can still do it, but (in public view) she will have to accept Trump’s big lie and tell the world that she’s cool with him claiming personal ownership of U.S. defense secrets.
It also seems to me that the fact that another criminal case against Trump is pending (and others are expected) may also rein in Aileen Cannon because she will not be the only judge presiding over a Trump criminal trial.
Premise: If Trump wins the 2024 election (by which I mean enough voters vote for him so he wins the electoral college) after inciting an insurrection, claiming that U.S. defense secrets are his personal property, and facing multiple criminal charges in various jurisdictions, all bets are off.
Trump is not the same person in 2023 that he was in 2016. Initially, it took him some time to learn the job. Now he understands the job and, if elected, he will enter the White House fired up to wreak revenge on his enemies. He was thrown out of office in 2020. If he assumes power again, he will start his first day in office making sure that won’t happen again — And he will do so with the claim that he is acting on the mandate of the American voters.
Someone on Mastodon said this:
If I were convicted and was elected president, self-pardon would be top on my list of things to do.
If he is convicted and elected president, he won’t need to pardon himself. He can govern as a convicted felon. Yes, he can be president if he is a convicted felon. [As an aside, self-pardon is unconstitutional, but under this scenario, the Constitution won’t matter.]
Here’s the thing about democracy: At any time, if enough voters want to end democracy, they can do it. All they have to do is elect candidates who promise to smash democracy.
As one of my readers said on Mastodon:
Now, back to Aileen Cannon. Here is one possibility that has been offered:
“Cannon will go full-on MAGA in the hopes that Trump will become president and put her on the Supreme Court.”
In 2020, when people were persuaded that the Supreme Court would rule in Trump’s favor in the election fraud cases (which would keep him in power despite the fact that he lost the election), I made the rather cynical argument that they wouldn’t do that if for no other reason than keeping Trump in power after he lost the election would create an autocrat, and in an autocracy, a Supreme Court has no power.
Why would they want to give up all their power and make themselves vulnerable to the whims of a tyrant?
As a federal judge, Aileen Cannon has had a taste of power, but she derives that power from the fact that we have three branches of government, each with equal power. Should Trump return to the White House, he will do so as an avowed authoritarian, which means he will make sure that all power will be invested in him.
In fact, if she finds a way to help him escape conviction on the document charges, she will have given him the green light to do exactly that.
Judges are supposed to uphold the law, and district court judges are supposed to follow the law as defined by higher courts. She will do this if she wants rule of law in America to survive, and if she wants judges to retain the power they have under the Constitution. (There was an “if” in that sentence.)
Okay, now let’s tackle a few myths.
(I am using the word “myth” in the sense of an “unfounded or false notion.”)
Myth #1: These Indictments (and Trump’s public confession) Will Cause Republican Voters (and possibly the Republican Party) to Reject Trump
Journalists and others are watching the reactions of Republican elected officials to see if any others will follow in the footsteps of Liz Cheney, Mitt Romney, or Adam Kinzinger. They are looking for signs of cracks and fissures in the Republican Party.
When I read stuff like this:
Speaker McCarthy defended Trump storing top secret documents in the bathroom by saying at least “a bathroom door locks.“
Florida Rep. Byron Donalds said, “There are 33 bathrooms at Mar-a-Lago. So don’t act like it’s just in some random bathroom that the guests can go into.”
I hear a version of Cripple Creek in my head:
🎶 If I spring a leak, they mend me,
I don’t have to speak, they defend me,
A grifter’s dream if I ever did see one. 🎶
Surely you’ve noticed by now that Republicans don’t mind if their leaders break laws. Michael Shearer observed in 2018 that conviction can be a badge of honor in “the fight against liberal corruption.” The Republican Party’s behavior since 2018 has confirmed Shearer’s observation.
Examples:
- When Trump was impeached for trying to strongarm Zelinsky into announcing an investigation into the Bidens, the Republican Senators voted to acquit.
- When Trump was impeached for inciting an insurrection, the Republican Senators voted to acquit.
- When the Trump Organization was found guilty of multiple felony counts of fraud and tax crimes, Republicans didn’t care.
- When Trump was indicted in Manhattan for 38 felony counts involving hush money payoffs to influence an election, the Republicans didn’t care.
- When Trump was found liable for sexual assault and defamation and forced to pay $5 million in damages, the Republicans didn’t care.
- When Trump was indicted for willfully retaining government documents and obstructing government attempts to retrieve them–and when he confessed that in fact, he had done this–the Republicans didn’t care.
See a pattern?
I see no signs that this pattern will change. Yes, Republican elected officials may be criticizing him now, but the real question is what happens if he becomes the nominee. Will they close ranks and support him? Or will they advise their supporters to vote for Biden?
If that last possibility has you laughing, this is from How Democracies Die, by Harvard Professors Daniel Ziblatt and Steven Levitsky:
In 2016, Austrian conservatives backed Green Party candidate Alexander Van der Bellen to prevent the election of far-right radical Norbert Hofer. And in 2017, defeated French conservative candidate François Fillon called on his partisans to vote for center-left candidate Emmanuel Macron to keep far-right candidate Marine Le Pen out of power. In both these cases, right-wing politicians endorsed ideological rivals—angering much of the party base but redirecting substantial numbers of their voters to keep extremists out of power. (Kindle version, 67-68.)
This, the authors explain, is the easiest and most efficient way to save democracy from right-wing extremists who promise to smash democratic institutions once in power.
I don’t expect this to happen. I expect the Republican Party to close ranks around Trump, regardless of the outcome of these criminal prosecutions.
This brings me to Myth #2:
Myth #2: Convicting Trump Can Change the Outcome of The Election
I don’t see how.
I mean, come on. Trump publically confessed his crimes. He is not denying the allegations. He is saying he had the right to do as he pleased with U.S. defense secrets.
The public knows what it needs to know. Trials are quirky. Juries sometimes get things wrong. Even good judges sometimes make mistakes.
Did you suddenly decide you liked Kyle Rittenhouse after he was acquitted? No, of course not. Did you change your mind about Martin Luther King, Jr, because he was jailed? No.
This myth that the outcome of criminal cases will change the election comes from Myth #3.
Myth #3: Criminal Prosecutions Can Stop the Rise of Right-Wing Extremism
Hitler spent time in jail before becoming chancellor of Germany. I can rest my case there, but I won’t.
The myth that criminal convictions can stop the rise of right-wing extremists was pushed by lots of well-known commentators on mainstream and social media in 2021 and 2022 who said things like:
- The consequences haven’t been harsh enough and that’s why Republicans keep committing crimes
- Merrick Garland should have filed charges immediately after January 6, 2021. Because he didn’t, right-wing extremism continued to flourish. Garland is therefore responsible for all the damage done to American democracy since 2021.
(I dealt with these on my general FAQ page.)
To take one example out of thousands, Elie Mystal said, “And who’s gonna stop [Republican rule breakers]? Well, the Attorney General is the person who’s supposed to stop them.”
Evidently, Mystal realized that the criminal justice system can’t stop Trump. This week, he published a piece in which he said, “The 37-count indictment against Trump is strong, but if we want him to be held accountable, he must be defeated at the polls.”
I was given an advance review copy of Stuart P. Stevens’s next book, The Conspiracy to End America. Stevens was a Republican political operator for decades before coming to realize that the party he worked for was descending into authoritarianism. He wrote this: “Pain is the best teacher in politics.” He thus concluded that “the only hope for the Republican Party is for it to suffer crushing defeat after crushing defeat so that it is forced to confront its failures.”
The criminal justice system cannot solve a political problem. The rise of right-wing extremism is a political problem and political problems require political solutions. The criminal justice system was not designed to dismantle a political party that chooses to back lawbreakers and authoritarians.
What about the 14th Amendment that says a person cannot hold elected federal office if he led a rebellion against the United States? Isn’t that what Trump did on January 6?
And how will that be enforced if the Republican Party nominates him anyway and if enough people vote for him so that he is legally elected president? Remember the part about how a democracy can be ended at any time if the voters elect officials who promise to smash democratic institutions?
Myth #4: The Republican Party can save itself (and slow its slide into authoritarianism) by nominating someone other than Donald Trump.
Stuart Stevens, in his soon-to-be-published book, also wrote: “It’s possible that Donald Trump will not be the Republican nominee in 2024, but his success in molding the party to his image ensures that anyone who wins will continue down an authoritarian path.” (Page 58.)
Consider that the person running a distant second to Trump is Ron DeSantis. If you think DeSantis would be better than Trump, you haven’t been paying attention.
The Republican Party will continue down the authoritarian path no matter who is the nominee because Republican candidates have come to rely on the votes of white supremacists, Christian nationalists, gun-toting militia kooks, and QAnon devotees.
Therefore, to win a Republican primary (and to draw enough voters in a general election to have any hope of winning) the Republicans will have to cater to white supremacists, Christian nationalists, gun-toting militia kooks, and QAnon devotees.
There are simply not enough traditional conservatives to win a national election in a two-party system. The best explanation was offered by Harvard prof. Daniel Ziblatt, who defined the “conservative dilemma” in this way:
- Traditional conservatives represent the interests of a few wealthy people.
- Their economic policies are unpopular.
The conservative dilemma is how to win elections with policies that are unpopular and will hurt their constituents. After the Civil Rights and women’s rights movement (and the Supreme Court decision in Roe v. Wade) American conservatives solved their dilemma by inviting into their party Christian Nationalists, “social conservatives” (racists and anti-feminists), white supremacists, and gun and militia anti-federal government kooks. They vote for Trump because he speaks directly to them and is one of them.
This worked for a while: Reagan and the Bushes got elected by winking at the white supremacists and vowing to appoint Federalist society judges. They found ways to signal to the crazies that they needed to vote Republican without scaring traditional conservatives.
But there is no more winking at the crazies. The crazies will no longer be sidelined.
Moreover, changing demographics work against white supremacy candidates.
The Republican Party has become the party of white supremacists, Christian nationalists, gun-toting militia kooks, and QAnon devotees (with a few traditional conservatives holding on because they don’t like liberal economic policies.) Nominating someone else will not change this.
Myth #5: Trump’s goal is to delay
This myth springs from Myth #2, that a conviction can help sway the outcome of the election. If you believe that, you want convictions before November 2024 and the idea that Trump can delay trials until after the election will make you very nervous.
Aside: I don’t think it is possible for him to delay all of these criminal trials until after November of 2024, but that is beside the point.
I maintain that Trump will fight the prosecutors every step of the way, not because he wants to “delay” but because he wants to show he is fighting. He wants to put on a good show. He likes to be in the center ring. He wants to feed talking points to his surrogates.
If he rides to his arraignment in a triumphant motorcade, his supporters will cheer because he looks tough and powerful. If he shows an ankle bracelet, his supporters will be enraged that he is the victim of those radical left Marxists who are weaponizing the government to target a political opponent.
The origin of the “it’s all about delay” talking point: While Trump was president, he had a special status under the Constitution and was able to use his power as chief executive officer and head of the executive branch to shut down investigations against him until after the election. He did this, for example, with the Manhattan investigation.
While he was president, he also tried to delay the certification of the election until after January 11, in order to create chaos.
In 2019 and 2020, commentators correctly said, “His goal is to delay.” It became a talking point.
People now apply the talking point to everything he does.
- Did he tell a lie? “The goal is to delay,” comes the inevitable mantra on mainstream and social media.
- Did he file a motion that is sure to lose? “The goal is to delay,” comes the inevitable mantra.
You get the idea. Let’s dispense with old talking points.
What he is doing now is different: He is milking the show, demonstrating that he is a strongman, and feeding talking points to his surrogates.
Remember, he is not acting like a normal defendant. He is acting like a person whose strategy is to use these prosecutions to solidify his power over the Republican Party, which glorifies lawbreaking and can only be stopped at the polls.
Do you want to stop the rise of right-wing extremism in America? There is only one way. At the polls. For what you can do, click here.
The first commenter said this:
“um … not a lot of hope in this blog post. Where can we go for that hope?”
There is not a lot of hope for the Republican Party. As far as hope for democracy surviving, it was always about the next election. The criminal justice system was never going to save us.
This is not to say that the criminal proceedings against Trump are not important. They are vitally important. But they will not save democracy. That is up to us. When you volunteer, you meet like-minded people who are working as hard as you are, and that is where you find hope. Click here. and find a place to start.
Enough Legal and Political Talk. It’s time for Dog Talk.
This is Dog Talk for, “I see you are getting ready to leave. Here I am, by the door. Please take me with you.”
Trump is a sociopathic malignant narcissist and he lives in his own universe. His behavior is nothing new.
A few years back I listened to a great interview with Stu Stevens by Ezra Klein. In that interview, Stevens pointed out that if/when Texas goes blue/Democratic in the presidential election again (the last time it did so was for Jimmy Carter in 1976), it’s THEN that the Republican party will be forced to change, because of electoral college math. Put another way, if the GOP cannot win Texas in the electoral college, it simply cannot win the presidency. It simply needs all those electoral votes in the way the Democrats need California and New York as a reliable base of support in the electoral college. That makes a lot of sense to me. I think the rich people who fund the GOP and expect it to do one thing — cut tax rates for the rich — no matter what else it does, will finally be forced to either change the GOP or start a new party once Texas is beyond their reach. This is why much as I dislike Elon Musk, I sorta applaud his moving Tesla to Austin. That move means lots of highly educated and no doubt Democratic engineers are moving with the company. Take a look at history of the presidential elections in Texas and you will see that it appears Texas may go blue in 2024 or at the latest 2028. Of course, events can intervene, but the trend clearly points in that direction.
In Feb, Elon announced Tesla Engineering was moving back to California. Specific reason cited, none of the engineers wanted to move to Austin.
Teri,
I’ve enjoyed your work for years and love your analysis. You’ve been saying for awhile now that we needed to wait and see what Merrick Garland would do and that no news didn’t mean no action. Well now we know they sat on even looking at what was going on, meanwhile the House was gathering more and more evidence. This explains why the FBI wanted their tapes and findings. Georgia was gathering evidence too, and clearly knew he had broken the law (and it sure sounds like they can get him on RICO).
It sure seems though that the law and order people were once again going to let Trump slide. IMO, this should be grounds for removing Garland. If not for Jack Smith, we’d likely have zero prosecution of Trump, and it’s still hard to tell if they will go after him for fomenting an insurrection.
What are your thoughts here? Yes, I know we can’t rely on institutions to hold Trump accountable, but damnit, then what the hell should we expect from them? I’m getting real tired of watching the DOJ tip toe around this mob boss criminal coup plotting wannabe dictator. Does he have to murder Joe Biden on love TV first?
Respectfully and Frustratingly Your Reader
If there is no big news this week, I plan to address this.
If you are talking about the Washington Post article that came out today, you might want to read it more carefully. If you read outrage about the article, go read the article itself. Carefully.
I read the article, and then went to Mastodon to see your comments there (I’ve been away from the platform while it settled). I see your points about confirmation bias, I can’t disagree. I guess my own fear is driving me to just want to get this guy gone, and to want to remove anyone I see as slowing that down. I know Trump being jailed won’t solve everything either. I shall go back to waiting and seeing and hoping that somehow Trump can be thwarted.
Thank you for all your work, which is very helpful. I take issue with two very small points in the huge amount of information you provide, so please consider these as minor niggles.
1. You say the three branches of govenment have equal power, but it seems to me that even a cursory reading of the Constitution (the only kind of which I am capable!) shows that, as with Jim Crow schools, separate but equal is really separate and unequal: the legislative branch has much more power than the other two branches.
2. I disagree with your dismissal of the argument that more severe penalties would have deterred some of the more recent crimes. I believe that if people such as Nixon, Oliver North, etc., had served some serious time, Republicans would now be much more hesitant to ignore the law. Of course, the counter argument is that they didn’t serve serious time precisely because the system is already broken, so my claim is basically a tautology – yes, that’s a good point you make.
There is no study anywhere that shows deterrence works to deter lawbreakers. All the studies show the opposite.
As far as the Legislative branch having more power:
Perhaps before Andrew Jackson decided that the president has veto powers over laws, the legislature had more power. But this is a tough argument to make given that very few laws get past the president.
Also, perhaps before Marbury v. Madison, giving the Supreme Court the power to strike down laws, the legislative branch might have had more power.
Beware of “cursory” readings of the Constitution. Constitutional law, which is basically how the Constitution has been interpreted by the courts, is a full semester in law school.
Unfortunately, the complexity of our current system means that a “cursory” reading of the Constitution is likely to be wrong.
I don’t doubt that the founders may have intended the Legislative branch to have more power, but the reality is that it doesn’t.
Thanks for the reply. I agree that the reality of power does not always (ever?) align with what’s written in the laws, as can be seen by the fact that the current Supreme Court has taken upon itself legislative powers that it clearly does not have. I’m less convinced by your deterrence argument, because, as far as I know, there are no real-world data on whether stiff prison sentences can deter political crimes; my position is that it would have been nice to run the experiment!
There is an enormous amount of real world data about the ineffectiveness of deterrence. There is an entire branch of scholarship dedicated to this. The DOJ website actually cites to studies about the ineffectiveness of deterrence. I have also written about this in one of my FAQ pages.
Trump isn’t confessing to a crime when he claims the PRA lets him take and keep govt documents as he sees fit, he’s claiming an interpretation of the PRA that is different from what the rest of us believe is the case. This is a bold move for a criminal defendant, as his claim does indeed document willfulness in violating the law unless the courts end up agreeing with him, and reinterpreting the law to make him innocent of violating the law as now reinterpreted.
Why would the courts do that, help this defendant become innocent after committing a crime by changing the law to make him a hero instead? Yes, as argued, the courts in general and SCOTUS in particular, probably don’t want to help Trump win a second term, because, yes, in his second term he will actually make a serious effort to reshape the bureaucracy to make himself dictator for life, a role that SCOTUS sees itself filling.
Well, as you also argue, Trump losing his case and being convicted isn’t going to stop him becoming president again. Why not humor the guy by finding that his interpretation of the law is essentially correct? They may fervently hope that something will turn up to keep him from the presidency, but since their agreeing to send him to jail won’t do that, why do that and earn his undying enmity on the off chance that he does get his second term and become president for life?
The thing about Trump is that he combines freely and openly stated malignant authoritarian aspirations with the astonishing incompetence of a dementia sufferer at achieving his dictatorship. All along the way the smart money has been just humoring him. “He’s an idiot. We can deal later with his being in nominal power because we are so much smarter than he is at working the levers of power.”, is the soothing lie that the powerful under the old regime have told themselves about him, over and over again, at every opportunity they had to end his career in politics.
Nope. His claim is not a defense.
It is a confession for the reasons I explained.
Teri, thank you so much for all your insights and education – I feel I’m getting more ready each day to pass my Twitter/Mastodon bar exam!
Do you think Melania could be cooperating with FBI? In the indictment, only phone call metadata is cited between Nauta and trump, but full text between Nauta and (most likely) Melania.
If Nauta is not cooperating, how would they get those?
This is the most disturbing post I’ve read from you. I don’t doubt what you are saying is true, it just brought the whole current political environment into light. I’m in NC. Last week I wrote my 3 R Congressmen about the indictment and the R response to it; I’ve gotten responses from two and was appalled by one of them. He spoke of political bias and persecution, Hillary, Biden, Hunter, Biden weaponization…..Don’t see any movement on his part; he defend Trump to the death regardless of guilt.
Trump has been successful with his “big lies” and claims of hoaxes, fake news and witch hunts. As you wrote the Party has attracted “Christian Nationalists, “social conservatives” (racists and anti-feminists), white supremacists, and gun and militia anti-federal government kooks”. Seeing this in writing sent chills down my neck. That enough of them could change the complexion of our democratic foundation is frightening. I hope more people begin to pay greater attention to the consequences of a second Trump term, because voters are the only ones that will save us. After writing this, its not just Trump, but Desantis and all the other MAGAs waiting in the wings.
Secondary to these concerns is that, although I think Biden has done a great job, his age is an issue for many people as is Kamala Harris as VP and likely future president. I hope that age is less of an issue come ’24.
Thank you for the reality check.
The political system of “checks and balances”, as designed by our country’s Founders, was intended to prevent the rise of an authoritarian President.
But it fell apart. GOP Congress watched Trump defy our norms, install toadies to do his will and weaken our institutions as he attacked US allies, cozied up to authoritarian leaders, committed impeachable offenses and participated in the planning and execution of a coup in his desperate effort to remain in power.
With the notable exceptions of Liz Cheney and Adam Kinzinger, the only GOP leaders who spoke out against Trump only did so after they’d announced that they wouldn’t be running for reelection.
I have always believed that the GOP legislators had been threatened; kompromat provided by Putin or threats to themselves or their family members.
In any case, our political system failed to stop this.
Third branch, the Judicial system – our Supreme Court – has been stacked and stuffed with corrupt Trump appointees. Though, with the exception of Clarence, they resisted Trump’s efforts to upend the Constitution and declare him President in the 2020 election. As with Barr, it seems that was simply a bridge too far for them.
So, it seems that our criminal and legal systems; DOJ and State Attorneys General are now our best resort for holding Donald Trump accountable. It’s actually come down to this. Talk about the fragility of a system of government that we’d always believed to be safe and secure!
Hi Teri,
Thank you for another deeply illuminating article. I am puzzled by one thing: what happens if Trump is incarcerated? And what is the likelihood of that? If he is jailed before the election date what happens if his name is on the ballot? Seeing as he can hardly act as president from a jail cell I don’t understand this aspect. It would seem to me that he has a motivation to delay just to make sure he’s not in a prison cell when the election takes place.
It’s really hard to guess what will happen. He never acts presidential, though, right? be will be furious and will go on tirades at every opportunity and will rile his base.
> Myth #4: The Republican Party can save itself
>
> Consider that the person running a distant second to Trump is Ron DeSantis. If you think DeSantis would be better than Trump, you haven’t been paying attention.
Even if you can’t rely on my comments about the devolution of the Republican Party, please consider David Corn’s piece in Mother Jones:
https://www.motherjones.com/politics/2022/09/it-didnt-start-with-trump-the-decades-long-saga-of-how-the-gop-went-crazy/
It’s been my mantra since Newt Gingrich made the craziness blatant. Corn starts it with McCarthy (Joe). I date it from when the party was clearly taken over (Nixon, 1968). Either way, both tRUmp and DeSantis are symptoms and the disease goes back decades. There is no saving the party.
> Myth #2: Convicting Trump Can Change the Outcome of The Election
>
> I don’t see how.
If tRUmp wins, it’ll be by the very thinnest of margins. All of the hundreds of people just barely willing to vote for tRUmp could conceivably be dissuaded by a conviction. If several hundred votes in swing states cause him not to be elected after conviction, then I think it will have been shown true.
It’s pretty improbable. I’m not going to get all anxious about it.
I agree, the likelihood of a Trump victory seems pretty small at this point. He lost 2016 by 3M votes and 2020 by 7M and that was before Jan 6th and his indictments. The GOP has cobbled together a coalition of deplorables but they neither have the numbers or influence to sway a general election in my opinion. Right now, the GOP is campaigning on exclusively negative issues none of which are resonating outside of the inner core of their base. The big question is whether voting restrictions implemented in most GOP controlled states will materially affect turnout. My guess is it won’t and is counter balanced by many GOP voters not feeling confident in voting after all of the “election integrity” concerns.
In the spirit of “what can we do to keep our democracy?” and the clear need to educate and motivate possible voters who are not particularly informed for a variety of reasons…Can you discuss the options a democracy has in dealing with a tsunami of outright propaganda (e.g. from the Murdachs’ and others on tv, radio, internet, etc) vs protecting our free speech rights, and in dealing with outright lies by members of Congress vs their speech and debate clause protections? Many many thanks.
Lying is not a crime, so the task is to educate voters and motivate voters who want to save democracy.
In other words, the task falls to the citizens, which is what democracy means, after all.
Would there be any possibility/probability for Congress to pass a law forbidding a convicted felon to become president? Not just for insurrection, as in the 14th Amendment.
There are several reasons this wouldn’t work. First, the Constitution defines who can be president. The law would look as if it is targeting Trump, which would make it unconstitutional. It would also be a bad idea because it would encourage political convictions to keep people out of office.
The Constitution lists the requirements very simply as attaining 35 years of age, being a natural born citizen (i.e., not naturalized), and requiring a minimum of 14 years in residence in the U.S.
Those are the Constitutionally defined basic requirements, but nowhere does it prohibit Congress from refining and adding to those requirements through legislation. I would think at a minimum, a presidential candidate should be somebody who could pass normal security vetting given the information they’d have access to and the risk they pose to the country as a whole if they mess that up. Although the documents case has illustrated just how far afield this can go, this really isn’t about Trump personally. It’s about our national security.
Further, any job for which one has to apply has job requirements that go well beyond this. It’s ludicrous that the most powerful position in our country lacks all by basic age, citizenship, and residency requirements. We clearly wouldn’t want some partisan hack limiting eligibility based on ideological mandates, but given the power and responsibility, it seems like some basic requirements for job fitness could and should be introduced.
In 2017, I wrote a piece on Daily Kos exploring whether a psych eval could or should be instituted to ensure a presidential candidate was of sound mind (https://www.dailykos.com/stories/2017/5/18/1663871/-Presidential-Candidacy-Requirements-Maybe-Add-a-Psych-Eval). Granted, that would raise a huge issue over who would reasonably oversee it and how that might be executed and kept from being corrupted.
Beyond basic mental and temperamental fitness for duty, given the importance of the position it also seems like a basic knowledge of civics would be a reasonable basic requirement.
Granted, with the current “originalist” slant on SCOTUS, I’d expect any such law if passed to be shot down by the high court almost immediately, so we are back to relying on the electorate to do its job responsibly. Education is the only way, but with so much of the country watching a steady diet of propaganda and believing the lies, that’s a pretty tall order. I hope that the awakening we are seeing as a result of the last 40 years tilts in favor of democracy over autocracy before it’s too late.
Nope, Congress cannot add requirements. Before I answered you, I double-checked with Brian Kalt, a professor of constitutional law. He added that it is probably worth noting that Congress could pass legislation that would implement section 3 of the 14th Amendment, which would allow that particular passage to be enforced.
Adding a requirement like that would be problematic, anyway. Would that just apply to federal crimes or state crimes? It seems to me that it would create problems, but as the law stands now, it can’t be done anyway.
There are already direct, on point cases (Powell v. McCormack in 1969 and the term limits cases in the 1990s) that make it quite clear that the only qualifications for office that can be imposed for federal elected offices are those explicitly listed in the Constitution and no others.
Thanks. I didn’t remember the cases. I just knew that no additional requirements could be imposed. It makes sense to me. Right now, people who hate Trump want felons to be unable to run for office because he is about to become a felon. But you have to imagine how a law like that can be abused by extremists and nutso state prosecutors to keep people they don’t like from running for office.
Maybe if US wasnt using a constitution from the 18th century and treating as a holy script…. Im confident your founding fathers would agree if they were brought back to this day
Is insane that you cant vote if convicted but you can be elected.
Having the Constitution define who can run for president while allowing states to decide who can vote may sound insane if you are unaccustomed to the structure of the American government which separates state jurisdiction from federal jurisdiction.
Not all countries are structured the same way. (Your use of the word “your” in “your founding fathers” tells me that you are not American. Certainly things can be improved here, but I’d be careful with calling people from another country “insane” because you don’t like / understand their government.)
He is free on his own recognizance, will likely stay free as long as no trial reaches a verdict.
That looks like plenty of tangible reason to delay as much as possible, his odds of outlasting incarceration are slim.
You are right that T’s Indictment performance is in service to his “Big Lie.” With what most reasonable people would call “insane” claims that the election was stolen, given all the evidence to the contrary, T continues unerringly to claim he won. He doesn’t actually believe he won, in fact the vote count doesn’t matter at all. What he’s saying is that if votes are facts, facts don’t matter. His word is more powerful than fact. The Big Lie has nothing to do with votes or the election per se, it’s all about T’s power to bend reality to his will.
To us his Big Lie is so obviously a delusion, we can barely take it seriously. But to his supporters, or more precisely, his “believers” it’s a promise. T promises that if you believe in him, he will deliver. On that point he’s a bit vague, will it be riches or freedom from wokeness (and the rule of law) or permission to go all Kyle Rittenhouse on the craven Marxists? Without getting too specific on the spoils, what he promises is a Big Win!
Now on to his indictment. In the same way that T cannot ever emit a single suggestion that acknowledges that vote tallies legitimately accounted for his loss in the election, to do so would puncture the fragile balloon of his alternate reality, T cannot ever acknowledge in any way the facts of the indictment for stealing, hiding and sharing national secrets, or that there was anything wrong with what he did. To his believers, his claim is that he’s still president and he has the right to do whatever he wants, and his loose handling of secret papers is proof of his power, not proof of his corruption.
Above all, T is a high stakes gambler. His bet is the indictments won’t disqualify, and may even bolster, his candidacy, with nonzero odds that he could beat them or water them down to look non- serious and witch-hunt-like, and when he wins reelection he’ll be able to impose his reality, where facts don’t matter and what he says, that the election was stolen from him by a criminal president Biden, that his indictment was solely political and he did nothing wrong, and all the other crazy hateful stuff he’ll say will be music to his believers’ ears.
And the end for our democratic experiment. The point is, the Big Lie is not a joke, his confessions of guilt in possessing the documents are not stupid blunders, these are foundational provocations to the way we conduct our civic business through governance. We chuckle at the improbability of his assertions, roll our eyes at his clownish/boorish performances, while he plants explosives throughout the institutions of our civil society. They are all set to detonate upon his reelection.
This is exactly right. People say “He doesn’t have the capacity to do what he needs to do, which is to keep silent.” They are misreading the situation and underestimating how dangerous he is.
Teri. You nailed it. You and Ruth Ben-Ghiat have got the goods. If those same people that voted for Trump because Hillary had too much baggage or, you know, “her emails” and think Joe is too old or feeble or whatever the Right is trying to peddle, they need to think again. Inattention is not an option.
Thank you, Teri
R
Teri,
First, thank you for being such a fantastic educator. I have learned and continue to learn one post at a time. It is very important to me to understand. I also think you understand Trump’s functioning better than most mental health experts. Although, there are some amazing experts who warned us, believed a government solution would not fix a psychopathological problem- but I digress.
Second, I agree based on your view of Trump that he will continue to do what he is doing and so will the Republicans and his base. You nailed it. I think another myth is why publications like The New York Times, and various other pundits etc., continue to scream “he is about to pivot.” He is likely to get more unhinged, but pivoting was never on the table. Not from day one. This has been a march toward power over everyone from the escalator. He is better at it now. If you cannot attach to another human being, you will be profoundly dangerous.
On a happier note, our dog Marais guards our sidewalk too. This is now labeled “doing a JJ.”
Despairing? That is a luxury. First, take your ‘JJ’ out for a walk. Next, get involved – vote! Thanks for the reminder Teri. I needed that.
Teri,
I just recently started to follow you and love your analysis, thoughtful and clearly written!
welcome!
Agreed, IF it is a two candidate race, and IF enough voters recognize the danger of electing Trump or DeSantis, given his attack on individual freedoms in FL (other than the right to carry concealed weapons anywhere). If there is a candidate on the ballot in enough states supported by No Labels (or any credible entity), all bets are off. Spread the word!
Since SCOTUS chose to strike down Roe and send the power to make decisions about reproductive choice back to individual states, we have seen proof that only voters can save our democracy and protect our right to freedom. In several states, women have since mobilized to protect their right to reproductive freedom under their state constitutions, or to defeat constitutional amendments that would have usurped that right. It gives me hope that there will be enough women of all ages now mobilized in this country (and men who love and respect them) to produce an overwhelming democratic wave that repudiates the GOP, vastly diminishing its political power. My fear is that idealistic and disaffected younger voters, confused by “whataboutism” in media, may give up on the Democrats as well as the GOP, should a No Labels candidate be available. By all accounts, that will throw the election to the GOP candidate, presumably Trump. Educating and mobilizing a new generation of voters about how our political system works, and how to identify candidates who can reasonably be expected to protect and strengthen individual freedoms in their states and their country is crucial now. If that goal is not fully realized in 2024, it will be infinitely more difficult–if not impossible–to realize in the coming decades. Teri, thanks for all you do in this essential endeavor to educate Americans about their role in defending our democracy.
We are confronting the 21st Century Confederacy. Period.
Excellent post. Question: How do we deal with the avg Repub voter who sees Trump’s criminality and a party full of dangerous kooks, but (insipidly) argues “well the Dem party is also dangerous and full of kooks”…in other words they don’t (or refuse to) see a difference betw the parties…to justify continuing to support Trump (DeSantis, et al). These types constitute most of the Republican voters I know. Thanks for your work.
this is a good question.
You’re never going to convince them. You just have to convince other people who aren’t nut jobs that their votes matter.
Never attempt to “debate” MAGAS, flat-earthers or Drunk Uncle-at-Thanksgiving. This will often visibly frustrate them because they don’t want truth or solutions. They want conflict. Don’t give it to them. State your position clearly and leave it at that.
I guess he took offence to the joke :
“Trump’s Presidential library would only contain two books, and he hasn’t even finished colouring the second one.”
And was just trying to supplement his library.
Trump’s Presidential Library was de-platformed by Twitter.
Teri Kanefield = National Treasure
I appreciate your insight, Teri!
Teri, I meant to reply to your own blog post, not to Mark Smith’s comment. If you approve my comment can you fix that?
Thx,
Thank you Teri.
I was thinking yesterday that we should be grateful to drumpf for exposing the underbelly of our country so clearly that we know very clearly the work we need to do to make our country stronger in it’s democratic institutions.
Then again it has been horrifying to see that underbelly for what it is.
But only by looking at what is, clearly, can we mount an effective defense.
Yes voting is all we have.
Organizing, Educating and Registering Voters is the answer.
JJ knows you well. I bet he got his wish. 🙂
Great blog post as usual. However, it is not the same thing to say that Republicans will likely nominate him even if convicted as to say that he would be electable if convicted. Independents now comprise 42% of the electorate and will decide the Presidential election, just as they have for decades. The key political question is what percentage of independents would refuse to support Trump if he is headed for a jail term.
I agree. I don’t think he is electable as president.
To paraphrase Shrek, he has the right to remain silent. What he lacks is the capacity
I made the opposite argument in this blog post.
There’s a lot I disagree with here.
First, no, he doesn’t now understand the job any more than he did before. He has no clue as to how the government is designed and works, and never has. He thinks, and has always thought, that he can bark orders and they’ll be obeyed. That doesn’t always work of course, but he couldn’t tell you why. “Learning the job” takes an openness of mind he doesn’t possess. He never learned how to do anything in his life, why would he start now?
It has also been obvious for years that the Republican Party was lost in 2016 and it’s never coming back. What we call the Republican Party now went mad long ago. Which is why no one will, or ever would, beat Trump and get the nomination. That is never a possibility as long as Trump draws breath. (DeSantis is really just a repeat of Scott Walker, and we know how well that worked.)
OF COURSE he’s delaying! He believes if he can get the job again, he can pardon himself retrospectively and prospectively, and everything will be MAGA. Remember, what the law is means nothing: He has always believed he was a king and no one can stop him if he’s in the White House. But he’s legally very vulnerable now, out of the White House, and that does terrify him. He doesn’t want any case to go to verdict before the election, so he HAS to delay. Unfortunately, “delay” is a chronic condition in the courts already, so he has a shot, or at least he thinks he does.
The three branches are not “equal” with “equal power”. They weren’t designed to be. Congress is by design and pride of place the most powerful branch. The presidency is next in power, followed by the courts. Right now the courts pose the biggest threat to Trump, which is why the Republicans have spent so much money and energy on rigging them. But the courts have no guns or butter, and are greatly divided. Worse, they have lost the faith of the citizenry.
That means Trump’s biggest obstacle is the executive, Biden. (Which is how Trump understands it too, hence his outsized mendacity about Biden.) And Biden has played that just right.
I also think there are many signs that Trump is losing his mojo. He demanded that “thousands” mob the Miami court, but the turnout was weak. Donor money is not flowing into Trump, Inc. as fulsomely as before. His rallies are significantly smaller. He is increasingly incoherent.
It’s still odds against for him.
Agreed. Also, according to Michael Cohen, the delay, delay practice in the courts goes back long before the presidency. Trump was forever being sued for nonpayment and other bad business habits and he could afford to keep things tied up in courts until the other party either settled or went broke paying attorneys’ fees and had to give up. This is in no way a political tool for him – it’s just the way he rolls.
I agree he is losing his mojo and the odds against will increase as we go foreward.
Thank you, as always, Teri! ❤️
Questions: Do you know if Trump was ever Mirandized? Does it matter?
Both times he was fingerprinted our local news said he was read his Miranda rights.
Teri,
Thank you for these clear, logical explanations. It is easy for us to lose our moorings in these confusing times. i appreciate your ability to take these legal (and therefore overwhelming to non-lawyer folks) topics and explain them in everyday language. You give us hope . Everybody Vote!
Totally agree with this comment.
I agree he is losing his mojo and the odds against will increase as we go foreward.
Beautifully done, Teri, as usual! Thank you!
Now, I need to know . . . . did JJ go to law school? How did his presentation work? I think he’s got it down pat!
your most important post ever! thanks
I agree, This post is vital reading for not just Americans but for the world entire
Direct, clear, and to the point. Great essay!
Exactly why I want DJT to be the nominee. He will (hopefully) energize those who believe in Democracy and be soundly defeated worse than in 2020. He neutralizes the “too-old” message against Biden and he is a known evil. DeSantis, et al may be able to sell the compassionate conservative message in the General but they are anything but.
I have mixed feelings about this. Mainstream media continues to portray DeSantis as a normal candidate, and that misrepresentation probably makes DeSantis an electable candidate in the general election.
But, as Teri writes, Trump is poised to go full authoritarian the moment he returns to office. American democracy might survive four years of DeSantis, but there is no way it can survive another minute of a second Trump term.
So DeSantis is more electable, but Trump is more dangerous. Both are serious threats to American democracy.
I agree with you regarding Trump. If he wins the Presidency the American Experiment ends. from For good.
However I think DeSantis is equally dangerous. He’ll be so full of himself that from day one he’ll be working to turn America into a White Supremacists Christo-Fascist country. We saw how that worked out in the 1930’s.
Both are mass extinction capable.
As always Teri, you are spot on. Except this time it feels frightening. I know you have the list of what to do to help, and I will do some of your suggestions. But the most frightening is that he’s got a great amount of support, crazy as THAT all is, which will do everything in their power to put him in power again. Because they don’t envision the steps forward. They just think of their here and now. Thank you for explaining all of these events in layman’s terms.
The confessions certainly help the prosecution, and given Trump’s history, it seems like he’d likely confess to the charges in every indictment that comes down the pike with some ludicrous reasoning that it’s his right to do whatever he’s been accused of. The DOJ and the state teams are building airtight cases on so many fronts, even if only some of the eventual juries get it right, he’s likely to be convicted on numerous criminal charges, most likely before the 2024 election.
While a majority of the voting public supports democracy, given the amount of gerrymandering and voter suppression being implemented in GOP controlled states, it may not be enough. The encouraging things here are the recent SCOTUS ruling on Alabama’s redistricting which should have a bearing nationwide and the fact that if the courts abandon the rule of law and elevate Trump, they will lose all of their power should he regain the White House and permanently dismantle our democracy.
That the courts themselves don’t want to become irrelevant should be reason enough for judges and justices, even MAGA supporters like Cannon, Alito, and Thomas, to follow the law where Trump is concerned. The did so with all of his idiotic election fraud challenges, and the 11th circuit court did so to rein in Cannon on the Special Master nonsense. I think the criminal trial judges will follow the law. The only real question is whether the electorate will do its job in 2024. That’s where democracy will survive or not.
um … not a lot of hope in this blog post.
Where can we go for that hope?
I will answer this in the blog post itself.
If Tr*mp is re-elected, he will, ultimately, only be able to carry on as the authoritarian president if he has the cooperation and support of police at all levels and of the military. He needs the power of the state, both as a threat and in action, to implement and enforce his plans and decisions.
Not even massive civil disobedience at all levels of government and society would thwart his “administration” if the police and military are arresting, jailing and, worst case, injuring and killing people who oppose him and do not cooperate.
At what point can or will (sufficient
numbers of, or the leaderdship of) the police and military decide the orders they receive are illegal, unconstitutional or simply wrong and refuse to obey? Their members are drawn from the same citizens who support or oppose Tr*mp’s lawlessness. Will vigilante “proud boys” try to take over if the police and military step back?
Our ordered system and society only function now because most people “believe in it” and “follow the rules”. What will happen when believing and following break down?
Thanks, as always, for your clear and compelling insights into what is happening.