There’s a dangerous backlash against free speech brewing this week, in which a vindictive Twitter user, backed by mobs of followers, seeks to cow open discourse and instill fear in people who disagree with him.
Wait—don’t go! I’m not talking about The Letter! I’m talking about a missive from President Donald Trump Friday morning, which as of writing has more than 80,000 likes and more than 30,000 retweets:
… and/or Funding, which will be taken away if this Propaganda or Act Against Public Policy continues. Our children must be Educated, not Indoctrinated!
The president’s message provides an interesting counterpoint to a raging controversy in journalistic and academic circles over the state of liberal (in the nonpartisan sense) debate. If you are lucky (but who is, these days?), or if you are living under a rock (and who isn’t, these days?), and you have avoided Twitter this week, you may have missed it. I won’t weigh in on the debate itself, which you can find amply explored elsewhere, or characterize the views of the (generally) opposing sides, but the dispute is about the culture of speech, and whether there is a healthy forum for openly debating ideas.
By contrast, what Trump is doing is making a bona fide threat against First Amendment speech itself, trying to use the power of the government to punish people whose expression he finds objectionable. The signers of The Letter acknowledge that internecine debate is not the most pressing political issue of the moment: “The forces of illiberalism are gaining strength throughout the world and have a powerful ally in Donald Trump, who represents a real threat to democracy.” Here’s proof that’s true.
With this threat, as often, it is difficult to tell whether Trump is serious or just throwing ideas out. As his poll numbers sour, the president has taken to tweeting even more frenetically than usual, voicing ideas that seem designed to bind his base more closely to him and ratchet up the temperature of politics, both of which he thinks will help him in November. But just this week, the federal government embarked on another astonishing quest in higher-education policy, as ICE announced that international students whose American institutions are holding classes only online in the fall, because of the coronavirus pandemic, must leave, and will not be permitted to enter the United States. That makes it hard to dismiss even wild-eyed threats as idle.
Fights over progressivism on campus are nothing new in American politics. For decades, conservatives both inside and outside academia have complained about liberal bias in education, noting (correctly) that the faculty of elite colleges leans decidedly to the left. Alumni of the crusade against liberal bias include figures such as the Trump backer and Silicon Valley billionaire Peter Thiel and the White House speechwriter and Svengali Stephen Miller. These were largely, however, arguments about speech within institutions. (The government has occasionally punished universities for what they say—as when the president’s own Trump University was shut down. But then again, that wasn’t really a university, and the speech was fraudulent.)
Trump is doing something different here. He is not merely complaining about liberal professors, nor is he complaining (as some of his antecedents have) that politics has no place in the classroom. He does not charge that colleges are using their tax-exempt status to make generically political speech; that would be politically incoherent because Trump has also allowed tax-exempt churches to engage more freely in political activity. (Incoherence has seldom been a barrier for this president, of course.) In the past, he has also threatened to block funding to colleges that don’t allow conservatives to speak. But this isn’t about what speech is allowed either.
Instead, in his habit of never leaving anything as subtext, Trump is explicit that the problem is that schools are engaging in political behavior he deems excessively leftist. Or, put differently, Trump wants the federal government to punish the speech of private institutions based on the specific content of that speech.
Ironically, this is exactly what conservatives warned that the Obama administration was up to when it questioned the tax-exempt status of some conservative groups. (Investigations found no wrongdoing, though the Trump administration settled lawsuits over the matter.) Trump doesn’t have some secret agenda he’s hiding, though: He’s very plain about it.
The ICE order regarding international students fits with the White House’s long-running effort to tighten legal immigration, spearheaded by Miller, but that decision and Trump’s latest tweet also fit together as part of a war on higher education. They come in the context of what appears to be a major realignment in the electorate. Historically, white, college-educated voters were the core of the Republican base. Every GOP candidate from Dwight Eisenhower in 1956 to Mitt Romney in 2012 won that group.
Now it is deserting the Republican Party. Exit polls from 2016 showed Trump eking out a 48–45 edge among white college graduates, a major erosion. The Pew Research Center’s study of validated voters actually found that Hillary Clinton won the group 55–38. (Trump made up for these losses by dominating among non-college-educated whites, historically the backbone of the Democratic Party, but now replaced in that coalition by Black voters.) Whether Trump narrowly won college-educated whites in 2016 or lost them, the shift was clearly underway. It has continued: According to a recent New York Times/Siena College poll, Democrat Joe Biden has a 28-point edge among such voters.
It’s not a coincidence that as Trump and college-educated voters diverge, he’s more willing or eager to attack colleges and universities. As I wrote in 2017, the beginning of the Trump administration also coincided with a huge shift in Republican attitudes, as they aligned against institutions of higher learning.
Whether the president can make much headway here, assuming he even tries, is unclear. Much depends on whether he wins reelection, because a large-scale political inquisition against colleges is unlikely to be completed and ratified by January 2021. Similarly, the ICE order seems certain to be entangled in litigation that will push it past the start of the fall semester, and it might ultimately not stand up in court. But the specter of the federal government trying to punish universities for the content of their speech is still jarring. To borrow from another context, “This stifling atmosphere will ultimately harm the most vital causes of our time.”
“The Americans he is targeting with his messages of racial resentment and cultural backlash are uniformly a smaller share of American society now than they were [in 1968],” our polling expert Ronald Brownstein notes.
In the summer of 1945, for 17 days, the newspaper deliverers of New York City went on strike. As hundreds of thousands of city residents found themselves temporarily deprived of their daily papers, the behavioral scientist Bernard Berelson saw an opportunity: He wanted to understand what it felt like for people to suddenly lose their primary sources of news. So he set about interviewing them. Asked what the absent papers had meant to them, the interviewees often responded with bromides about news’s crucial role in a government of the people. With more pressing, though, their responses deepened. What they really missed, Berelson came to realize, wasn’t the news as a noun so much as the news as a verb: the daily rituals of the reading, and the connection that reading made them feel to their communities and to the wider world. News is a product and a service and a foundation of any functioning democracy; what it is also, though, is an anchor—a tether to other people, woven of words and arguments and daily discoveries. Without it, people felt adrift.
Many Americans now find themselves in the situation those New Yorkers did all those decades ago: The papers have stopped arriving. The absence, however, is permanent. Even as the news writ large has expanded its reach, through cable networks and talk radio and the internet, local journalism is in grave danger of dying out. That fact, with its dire implications both for individual communities and for the fragile democracy that contains them, is the premise of a book-length warning: Margaret Sullivan’s Ghosting the News: Local Journalism and the Crisis of American Democracy. Sullivan travels across the country, to observe papers in the process of shuttering and new enterprises that hope to fill the void left in their place, and makes an argument that is as plain as it is worthy of panic: The journalism that Americans need to function—the institutions that provide people with the information they require to make decisions for themselves and for the country—is in the midst of a mass extinction.
Ghosting the News, as the bearer of very bad news about the news itself, adopts an aptly funereal feel. But Sullivan—a media columnist at The Washington Post, a former public editor at The New York Times, and a longtime chief editor of The Buffalo News—is also offering an opportunity: to recalibrate our vision. To think of “the news” not as so many Americans are conditioned to, as the stuff of Fox and CNN and The New York Times, but instead as an intimately local proposition. Pay attention to the problems of the national news, certainly. But don’t ignore the crisis at the local level: the news deserts, the information vacuums, the truths that will never be revealed. To write a book like Ghosting the News is to take on the challenge of proving a negative—to make a case for the urgency of the known unknown. Sullivan succeeds. Her book is an ink-bound alarm bell. The threat Americans face, she argues, is not just the news that lies. It is also the news that will never exist in the first place.
Here are just some of the dire statistics. Between 2008 and 2017, American newspapers cut 45 percent of their newsrooms staff—and the following years, for many outlets, brought even deeper contractions. From 2004 to 2015, the United States lost more than 1,800 print outlets—some because of corporate mergers and others because of simple closures. Fewer than one in six Americans subscribes to a local newspaper, in either print or digital form. Over the past two decades, the revenue sources that once made newspapers lucrative enterprises—in particular, the money that flowed in from local and classified advertising—have dried up as sites like Craigslist have proliferated and as advertisers have shifted their dollars to digital platforms.
Papers adjusted to those shifts, many embracing the new affordances of online news, but a digital ad will never be worth what a print ad once was. And while some outlets experimented with transferring the logic of the subscription to the web—micropayments, regular payments—most simply gave away their news products for free. The decision conditioned generations’ worth of American news consumers to expect that, online, news was not something to be paid for—the product of journalists and their labor—but instead something to be taken for granted. The news industry, and the American public, is living with the consequences. It is further contending with the power of mega-publishers like Google and Facebook, which give platforms to news “content” with only grudging acknowledgement of the economic or civic value of journalism. And, particularly with the current economic contraction, the problem is getting worse. That makes the predicament of local news akin to other slow-moving crises, among them climate change, the erosion of democratic norms, and the erosion of constitutional rights. They happen gradually until they happen suddenly. The sickness is chronic until the sickness becomes, finally, incurable.
And yet many Americans, Sullivan notes, are unaware of the gravity of the emergency—and unaware of the existential threat to the country’s informational ecosystem. A recent survey from the Pew Research Center found that 71 percent of Americans believed local news was, in fact, doing well financially. And it is indeed possible to watch the local news or listen to the local radio—or even to read the local newspaper, if you are lucky enough to have one, still—and be ignorant of the scope of the problem. Local news, or a version of it, is still being produced. Skeleton staffs at hollowed-out papers are doing tireless work to inform their audiences about their communities. And because of the amount of information being churned out nationally, every day, on the air and on websites and podcasts and social media, and in national papers and magazines, the cracks at the foundation can be difficult to perceive. If the news is a verb, its movements, now more than ever, can feel frenzied and relentless. There’s already so much; why would you want more?
Sullivan interviews Nate McMurray, a 2018Democratic candidate for Congress. McMurraywas fighting an uphill battle: He was running as a Democrat in a largely Republican district of western New York State. But he did, Sullivan notes, have one distinct advantage: McMurray’s opponent, the incumbent Chris Collins, had recently been indicted on charges of insider trading. The Buffalo News, Sullivan’s former paper, broke the story of the indictment; and some TV stations picked up the News’s reporting. Readers and viewers in areas that had strong local news presences, Sullivan notes, learned of the indictment and, armed with that information, voted accordingly. But many in the sprawling district were not so equipped. “I’d be going door to door,” McMurray tells Sullivan, “or meeting with people at a diner or a fair, for example, and in the most isolated areas, a lot of people had no idea that their own congressman had been indicted.” He notes that Orleans County, a rural area of the district classified as a news desert, was “one of the toughest places.” People there, according to McMurray, had “gossip, conservative radio, or social media.” They had echo chambers. They did not, however, have news.
And so, by a razor-thin margin, Chris Collins—who would go on to plead guilty to two felonies, be sentenced to prison, and resign from Congress—won the election.
There are a few—a very few—bright spots. New, digital-first and digital-only sites have sprung up in recent years with a focus on accountability journalism, both at the national (ProPublica) and the local (Voice of San Diego, MinnPost, The Texas Tribune) level. Efforts like Report for America, which places young reporters, Peace Corps–style, in local communities, stanch some of the bleeding. News organizations that once thrived on market competition—sometimes to redundant effect—have found power in partnering with each other for both the work of investigative reporting and the distribution of the results. Paradigms are shifting, slowly.
But the current replacements for the perished local papers, Sullivan argues, are insufficient to fill the vacuums. What newspapers have been consummately good at—and what TV news and radio news, even at the local level, have not been as focused on, traditionally—is the kind of watchdog reporting that holds public officials to account. As the papers fall away, corruption flourishes. Government efficiency plummets. (“Following a newspaper closure,” a 2018 Hutchins Center working paper found, “municipal borrowing costs increase by 5 to 11 basis points, costing the municipality an additional $650,000 per issue.” The paper added: “This effect is causal and not driven by underlying economic conditions.”)
And injustices of a more complicated strain can go unchecked. Jeffrey Epstein was arrested last year because Julie K. Brown, reporting for the Miami Herald, refused to let the breadth of his alleged abuses go unreported. Larry Nasser, the former doctor for USA Gymnastics, is in prison for sexual assault of minors because of survivors who risked their careers to tell the truth about him, but also because a team of reporters at The Indianapolis Star turned that truth into public knowledge. There are so many other examples—so many ways Americans are better off when the facts of our lives are made legible through the workings of news. And there are the examples in the other direction, as well: the phantom stories that will never get published because the erosion of journalism’s labor force has led to an erosion of everything else. The truism, after all, is also a truth: You don’t know what you don’t know. We are in the midst of a crisis defined by the darkness of all that has never—all that will never—come to light.
Americans often talk about the news using the language of nutrition: news as something to be consumed. The array of outlets and the sources people rely on for their sense of the world is summarized into “news diets.” Good information is that which nourishes; bad information is akin to junk. That language is apt. News really does function like food: It is fuel—for people, for communities, for bodies politic—that can either contribute to health or compromise it. When scholars talk about “news deserts”—an informational counterpart to “food deserts”—there is aptness in that, as well. A democracy is a living thing. It requires quality news to sustain it.
Sullivan offers a miniature profile of Alice Dreger, a former professor at Michigan State University, who responded to the stark reduction of news coverage of her home, East Lansing, by creating a community “news brigade” that grew into the nonprofit news site East Lansing Info. Here are some pieces of information revealed by ELI, through the work of a small group of staff reporters and more than 100 community volunteers:
East Lansing had an undisclosed pension debt of $200 million.
The East Lansing waste-water treatment plant mishandled a mercury spill at the plant.
A retaining wall, built at public expense and with federal funds, had been benefiting the city attorney’s personal property.
The city of East Lansing was selling off a piece of municipal property on eBay.
“People used to tell us, ‘There’s no there there, in East Lansing,’” Dreger tells Sullivan. ELI’s discoveries, however, suggest otherwise. And the existence of the site, Dreger says—its stories produced by city residents, and for them—has slowly changed public views of what news is, definitionally. “People didn’t see news as a service, they saw it as a product,” Dreger notes. Now they feel invested. That is a small, but crucial shift—for East Lansing, and potentially for other communities. During a time when Americans’ trust in national news is plummeting, their trust in local news is (relatively) high. And another crisis—a pandemic whose toll has varied greatly across American regions—has served as yet another reminder of how desperately important accurate local information can be, not just as a matter of civics, but also as a matter of public health.
Local news is extremely easy to take for granted. It is, by definition, narrow in its interests. But even beyond serving as the core of America’s news ecosystem, local news can be the glue that connects people in a given community. “It’s the way a local columnist can express a community’s frustration or triumph,” Sullivan writes, “the way the local music critic can review a concert, the deeply reported feature stories, the assessment of a new restaurant, the obituaries, the letters to the editor. The newspaper ties a region together, helps it make sense of itself.”
And when the paper dies? When the news—hectic and loud and silly and messy and urgent and teeming with life—fades away? What then? The bonds that connect the people to their places will loosen. The facts that anchor citizens to their communities will dissolve. It will happen gradually until it happens suddenly. There will be time, until it’s too late. And when it’s all over, a country whose government is predicated on an informed citizenry will give way, finally, to its yawning ignorance of itself. An unmoored ship may stay afloat; it has nowhere to go, however, but away.
Palm Springs is set during a never-ending day. Sorry to give away the big plot point, which comes some 15 minutes into Max Barbakow’s wonderful new comedy, but that premise feels pertinent today in a way that it didn’t when the movie premiered at Sundance six months ago. The film belongs to the growing canon of time-loop stories, which ensnare their characters in a repeating cycle from which there’s no discernible escape. Life proceeds normally enough, but its rhythms are unchanged; the monotony is comical and then unbearable. It’s not hard to view all art through the focus of the pandemic right now, but in Palm Springs, the subtext is practically text: We are all trapped.
That may sound terrifying, but what’s most impressive about the movie (out today on Hulu) is how charming and genuinely funny it is. It keeps all the beats of a salty-sweet romantic comedy without ignoring the crushing implications of having to wake up to the same morning over and over again. Where other time-loop movies (Groundhog Day, Edge of Tomorrow, Happy Death Day) were about their characters gaining some karmic sense of self-improvement, Palm Springs is about how reality can feel endless, and how being an adult involves cherishing the truth that a lot of things will never change.
The film is set in the titular California desert resort town, where Nyles (played by Andy Samberg) and Sarah (Cristin Milioti) are apathetic guests at a cloyingly cheerful wedding. Sarah seems haunted by her past, while Hawaiian-shirt-clad Nyles is terminally over it; at night, she foolishly follows him into a magical cave and gets sucked into a time loop, one that he’s long been trapped in. Nyles is happy to have someone to share his curse with, but Sarah, being new to the experience, is more motivated to find a way out.
Early on, they take a drive to get away from it all, weighing the predicament they’re in, and Nyles sums up his take on the situation. “The only way to really live in this is to embrace the fact that nothing matters,” he says. “Well, then what’s the point of living?” Sarah counters. “Well, we kind of have no choice but to live. So I think your best bet is just to learn how to suffer existence,” he replies. He’s been doomed to nihilism by the Twilight Zone rules he has to live under—if he falls asleep or dies, he just wakes right back up where he started the morning. But it’s a conversation with all kinds of implications about how we approach our lives.
The central pair in Palm Springs are in their early 30s, relatively indifferent to their accomplishments in life so far, and struggling to figure out their path forward. The situation laid out in the screenwriter Andy Siara’s terrific script is fantastical, but he understands that it can double for every sense of feeling stuck that comes with adulthood. There’s the ennui of being romantically miserable at a picturesque wedding, then there’s the recursive nature of being in a relationship and settling into a routine, which Nyles and Sarah start to do as the days repeat.
Then, of course, there’s life itself, and the age-old question of what we’re all supposed to do with it. To Nyles, it’s become simply something to endure; to Sarah, there’s still the chance that she might be able to break out of certain harmful cycles. The film is only 90 minutes long but somehow manages to wrestle all those ideas into an airy, silly comedy filled with terrific laugh lines and fizzy chemistry between Samberg and Milioti. It’s tough for a film to be heady and hilarious, but Palm Springs does it beautifully.
When I first saw the movie at Sundance, I had expected little more than a zany wedding comedy and was fascinated by its complexity. On rewatch, months into a pandemic, Palm Springs is even more trenchant. For many, existence has felt limited and monotonous of late, with no obvious light ahead; there’s a strange satisfaction to seeing a highly entertaining film that speaks to that specific anxiety without even meaning to. In Palm Springs, the journey the central characters go on isn’t just about trying to escape the loop—it’s about understanding that no matter how tedious life might seem, there are always ways to find joy in living it.
Seven Supreme Court justices ruled yesterday morning that Donald Trump is not a king.
But Trump still got what he wanted.
Since Trump announced his candidacy for president in 2015, he has vowed to release his tax returns, and has also refused to release his tax returns. After the 2018 midterms, Democrats in the House sought to subpoena financial institutions for Trump’s records, and Manhattan District Attorney Cy Vance sought Trump’s financial records for a grand-jury investigation into whether Trump broke the law when he concealed hush-money payments to hide past affairs during the 2016 election. In one opinion, Trump v. Mazars, the Court affirmed Congress’s subpoena power but sent the case back to lower courts for further litigation; in Trump v, Vance, it affirmed Vance’s authority to seek the records but sent the case back to the lower courts for further litigation.
In other words, what is apparently a defeat for Trump is still a victory for his presidential campaign: The public will not see the financial records that he has been promising to reveal for the past five years, and voters will remain in the dark about the president’s potential entanglements and conflicts of interest as they go to the polls for the second time.
“In our judicial system,” Chief Justice John Roberts wrote in Vance, quoting an old legal maxim, “‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States.” Nevertheless, Roberts wrote, while Trump does not have absolute immunity to Vance’s subpoenas, he can continue to contest particular subpoenas individually on various grounds in the lower courts, including arguing “that compliance with a particular subpoena would impede his constitutional duties.” Vance’s grand jury may ultimately get its hands on the president’s documents, but the public will not see them anytime soon, if at all.
In Mazars, Roberts acknowledged that “the standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities,” but he also rebuked the House for its own argument, which would leave “essentially no limits on the congressional power to subpoena the President’s personal records.”
The exalted language of Roberts’s opinions conceals their results, which are, to paraphrase Saint Augustine: Give me oversight, and give me transparency, but not yet.
In fairness to Roberts, there is a public interest in preventing Congress from simply trying to impede presidents’ ability to do their job, and the chief justice was likely averse to having the Court appear to be interfering in a presidential election. But Roberts’s decisions will ultimately shield Trump from necessary public scrutiny.
The president is subject to no meaningful oversight if the executive branch can simply run out the clock by litigating the minutiae of each request—and a president need only hold out for the two years between congressional elections, allowing the subpoenas to expire—but that is the situation Roberts has produced: the president who is nominally not immune to such requests but has clear avenues for avoiding them—at least, as long as he can retain a friendly majority on the Court.
The decision is disastrous for the public, but a grand victory for the Roberts Court as an institution. After all, in both cases, Justice Brett Kavanaugh, who vowed revenge on the left at his confirmation hearing, and Justice Neil Gorsuch, who was presented by Trump as a reward to conservative activists for putting him in office, joined the majority, showcasing their independence without actually defying the president in any meaningful way. They ruled against the Trump administration’s claim of absolute immunity, while paving a path for Trump to avoid releasing the requested information until after the election. The independence of the Supreme Court’s conservative majority is affirmed, while still granting the president the outcome he desired.
And the Court’s Democratic appointees have their own incentives to join such a ruling. Affirming that the president is not above the law, even if only in principle, is a better outcome than a ruling that favors Trump and also credits his claims of absolute immunity. A Pyrrhic victory perhaps, but preferable to one that inscribes Trump’s autocratic view of the presidency into the law.
Roberts has repeatedly rebuked the Trump administration for its bureaucratic dishonesty, ruling against it on the grounds not that the president exceeded his powers, but that his administration failed to follow proper legal procedure. Here, it is Roberts who is playing games, shielding Trump from accountability and gilding the Court’s image, asserting a bravery and independence that it has not actually displayed. The Roberts Court has completed Trump’s cover-up, while cloaking its reasoning in majestic language about the rule of law.
Although the decision encourages future presidential administrations to simply delay future legal fights over disclosure indefinitely, Democratic presidents should not expect the same treatment from the Roberts Court. A Court that wishes to compel timely disclosure can avail itself of the legal standards set forth by the chief justice, while a majority that wishes to protect a president can use the restrictions Roberts laid out to shield him or her from scrutiny.
The Supreme Court has decided that the president is officially not above the law. But only officially.
Saturday marks the 60th anniversary of the publication of Harper Lee’s To Kill a Mockingbird. The novel was widely beloved, in part, for the character of Atticus Finch. As a lawyer defending a falsely accused Black man, Finch fit neatly into thenarrative of a white savior enacting racial justice. Lee’s second book, Go Set a Watchman, controversially published in 2015,revealed the depths of Finch’s racism and further unsettled the already-fraught hero worship of the character and the author.
To Kill a Mockingbird is far from the only classic whose legacy readers must grapple with. Laura Ingalls Wilder’s Little House on the Prairie books are marked by problematic depictions of Native and Black characters. The Hardy Boys series was revised after its publication to remove racist content. In the realm of science fiction and fantasy, H. P. Lovecraft’s xenophobic beliefs have repulsed many writers: In 2016, the World Fantasy Awards stopped using Lovecraft’s image for its trophies.
Books that revisit stories excluded from the literary canon can provide a kind of corrective. The Silence of the Girls, which reimagines The Iliad through the perspective of Briseis, a princess taken as a slave by Achilles, tells just one story that history overlooked. Zora Neale Hurston’s Barracoon, which is based on interviews with the last living survivor of the transatlantic slave trade, tells another.
Every Friday in the Books Briefing, we thread together Atlantic stories on books that share similar ideas.
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When I was 21, the United States experienced a national trauma: the planes crashing into the World Trade Center, the nearly 3,000 people killed in that day’s terrorist attacks, the ruins left smoldering for months at Ground Zero, and the unnerving knowledge that sooner or later, al-Qaeda would almost certainly strike again. Thoughtful deliberation is never so difficult as in such moments. Like tens of millions of other Americans, I felt fear, anger, anxiety, flashes of moral righteousness, and a desire to fight and vanquish evil as I thought about what had just happened and how America ought to respond. With hindsight, though, I can see that thoughtful deliberation is never so vital as in the aftermath of national traumas. The country would have been well served then by a better debate with less aversion to dispassion and dissent and fewer appeals to moral clarity at the expense of analytic rigor.
Recall the national determination to punish not only Osama bin Laden and al-Qaeda, who carried out the thousands of murders, but also the regime in Afghanistan, which harbored the terrorist organization; the dictator of Iraq, who had nothing to do with the attacks; and more abstractly, the tactic of terrorism, the ideology of Islamofascism, violent extremism in general, and terror itself. Eventually, President George W. Bush asserted that the ultimate goal was “ending tyranny in our world.” The utopian zeal he stoked portended avoidable catastrophes. But anyone who raised prudential concerns at the time was suspected of being disloyal or insensitive, or of lacking moral clarity.
No two eras are exactly the same. No analogue to Bush himself exists in our present moment of national trauma, no mistake as catastrophic as the Iraq War is yet apparent on the horizon, and the advent of social media has transformed the way that social and cultural orthodoxies are enforced. But the problem of egregious police killings has been thrust back into the national spotlight by video of the white Minneapolis police officer Derek Chauvin kneeling on the neck of George Floyd, a Black man––and the nation now faces complicated, consequential questions about who or what to fight. Americans are protesting not only killer cops, the colleagues who abet them, and the unions that protect them, but also policing itself, Confederate statuary, “white fragility,” neo-colonialism, microaggressions, systemic racism, neoliberalism, and capitalism.
As a hearteningly broad coalition embraces policing reforms, a distinct, separable struggle is unfolding in the realm of ideas: a many-front crusade aimed at vanquishing white supremacy, hazily defined.
That crusade is as vulnerable to mistakes and excesses as any other struggle against abstract evils. Some of the most zealous crusaders are demanding affirmations of solidarity and punishing mild dissent. Institutions are imposing draconian punishments for minor transgressions. Individuals are scapegoated for structural ills. There are efforts to get people fired, including even some who share the desire for racial justice. There are countless differences between the Bush and Donald Trump eras, including the way our politics is shaped by Trump’s incompetent brand of authoritarian cruelty. But in the stifling, anti-intellectual cultural climate of 2020, where solidarity is preferred to dissent, I hear echoes of a familiar Manichaean logic: Choose a side. You are either an anti-racist or an ally of white supremacy. Are you with us or against us?
The range of institutions affected by recent excesses is remarkable. Here I can note only a small sample of what’s been reported. The University of Chicago economist Harald Uhlig tweeted that Black Lives Matter “torpedoed itself” by supporting calls to defund the police. “Time for sensible adults to enter back into the room and have serious, earnest, respectful conversations about it all,” he wrote. “We need more police, we need to pay them more, we need to train them better.” In response, other academics organized a campaign to remove him from the editorship of a scholarly journal; and the Federal Reserve Bank of Chicago, a quasi-governmental institution, cut ties with him, asserting that his views are incompatible with its “commitment to diversity, equity and inclusion.” Yet the beliefs that defunding the police is a bad idea, and that protesters who advocate for it will lose political support, are common. Many at the Fed surely hold them. All political litmus tests in public institutions are fraught. That litmus test is farcical.
At UCLA, Gordon Klein, a lecturer who has taught at the institution since 1981, dismissively declined an emailed request to alter the requirements of his final exam for Black students during the George Floyd protests. “Are there any students that may be of mixed parentage, such as half black-half Asian?” he wrote. “What do you suggest I do with respect to them? A full concession or just half?” He concluded the email, “One last thing strikes me: Remember that MLK famously said that people should not be evaluated based on the ‘color of their skin.’ Do you think that your request would run afoul of MLK’s admonition?”
Denying the student’s request was within his discretion, as UCLA’s Academic Senate’s Committee on Academic Freedom affirmed. Nevertheless, a petition calling for his dismissal accrued 21,000 signatures, and he was suspended pending an investigation. “This investigation is almost certainly based on the tone or viewpoint of his email, which was—however brusque—protected expression on a matter of profound public interest,” the Foundation for Individual Rights in Education argued. “Klein must be immediately reinstated, and UCLA’s leaders must make clear that their commitment to academic freedom is stronger than an online mob.”
In Vermont, a public-school principal posted her thoughts about Black Lives Matter on Facebook:
I firmly believe that Black Lives Matter, but I DO NOT agree with the coercive measures taken to get to this point across… While I want to get behind BLM, I do not think people should be made to feel they have to choose black race over human race. While I understand the urgency to feel compelled to advocate for black lives, what about our fellow law enforcement? What about all others who advocate for and demand equity for all?
Her school board quickly announced that despite the principal’s “meaningful and positive impact,” her “glaring miscomprehension” of Black Lives Matter would damage the school and its students if she remained in charge. They removed her for speech that is clearly protected by the First Amendment, engaging in viewpoint discrimination. That is an unlawful violation of her civil rights.
A respected data scientist, David Shor, tweeted a link to Princeton Professor Omar Wasow’s recently published academic paper concluding that violent protests diminish the electoral prospects of the Democratic coalition. As a result, he was banned from a listserv of left-of-center data analysts and appears to have been fired from his job at Civis Analytics. (Emerson Collective, the majority owner of The Atlantic, is a minority investor in Civis Analytics.) “For those of you who don’t realize what makes the tweet problematic,” one member of the listserv wrote, “try not to overanalyze the statistical validity of the research paper and think about the broader impact it will have if people perceive it to be true.” That standard demands that people self-censor the truth.
A group of policing-reform advocates identified eight use-of-force policies that are statistically associated with fewer police killings. Then they successfully lobbied dozens of cities to adopt their “8 Can’t Wait” measures, such as banning chokeholds, mandating de-escalation, and requiring cops to intervene to stop excessive force. In a sign of the times, their website now leads with a mea culpa. “Even with the best of intentions, the #8CANTWAIT campaign unintentionally detracted from efforts of fellow organizers invested in paradigmatic shifts that are newly possible,” they wrote. “For this we apologize wholeheartedly, and without reservation.”
Because even insufficient radicalism from allies draws ire, many may feel tempted to keep quiet and observe. But “silence is violence,” some insist. That phrase is chanted on the streets, and its logic is being applied to individuals and institutions. In TheNew York Times, the author Chad Sanders urged shunning of the silent, advising his white friends to text their relatives and loved ones “telling them you will not be visiting them or answering phone calls until they take significant action in supporting black lives either through protest or financial contributions.” Those are cult tactics.
The theater producer Marie Crisco created and circulated a Google Doc titled “Theaters Not Speaking Out” naming and shaming more than 400 performing-arts venues that “have not made a statement against injustices toward black people.” The Los Angeles Times reported that many theaters then posted messages of solidarity with Black Lives Matter. Crisco told the newspaper that the words seemed to come from a place of shame and “felt slapped together and hollow.”
How could they not? Before this month, no one expected theaters to release statements on worldly injustices or for theater staffers to be skilled at drafting them with the right tone and substance. Yet many institutions are treated as if a failure to quickly publish something that conforms absolutely to highly contested interpretations of anti-racism renders them deserving of opprobrium.
A Denver bookstore, The Tattered Cover, felt compelled earlier this month to explain why it had not released a statement on protests in its city. “We want to make a statement of support and take a moment to explain why we’ve been quiet,” the book store’s owners declared. “We agree with, embrace, and believe that black lives matter. We reject the statement ‘All Lives Matter’ as an either valid or helpful response … We stand in solidarity with our black friends and neighbors, and grieve the senseless and brutal loss of life; not just of George Floyd and other recent victims, but of all lives lost from centuries of oppression and abuse. We believe there must be systemic change.”
So why had it kept quiet? The bookstore explained that it had maintained a “nearly 50-year policy of not engaging in public debate,” premised on a belief that even proclaiming “simple and unalterable truths” would be anathema to a mission it holds dear: “to provide a place where access to ideas, and the free exchange of ideas, can happen in an uninhibited way.” As they saw it, “If Tattered Cover puts its name and weight either behind, or in opposition to, one idea, members of our community will have an expectation that we must do the same for all ideas. Engaging in public debate is not, we believe, how Tattered Cover has been and can be of greatest value to our community.” The owners closed by pledging to feature more titles by Black authors, to schedule more events with Black authors, and to continue to hire and promote employees from diverse backgrounds.
Their statement of supposed neutrality affirmed everything most businesses say when supporting Black Lives Matter. But because it did not treat solidarity as preeminent, it was deemed too problematic to abide. “I’ve just told my publicist to cancel my 6/23 event in conjunction with Tattered Cover,” the author Carmen Maria Machado announced. “Unlike the owners, I know that choosing neutrality in matters of oppression only reinforces structural violence.”
Soon, the owners released a second statement apologizing for the first one. “We are horrified at having violated your trust. We deserve your outrage and disappointment,” it began. “Tattered Cover will no longer stand by while human rights are being violated. To be silent is to be complicit, to be neutral in the face of injustice is an act of injustice itself.” In fact, statements of solidarity and self-flagellating apologies for wrongthink don’t advance social or racial justice any more than displaying and exalting the American flag after 9/11 made the U.S. safer from al-Qaeda. For now, the bookstore has failed to release statements condemning America’s campaign of drone strikes, War on Terror detainees still held in indefinite detention, or the epidemic of rape and sexual abuse in juvenile-detention facilities. Is the bookstore complicit in all of those evils?
Unanimity is neither possible nor necessary to fight racism. On the contrary, attempts to secure unanimity can undermine the fight: They needlessly divide anti-racists and weaken everyone’s ability to grasp reality. When demands for consensus are intense, people may clam up or falsify their own beliefs. When truth-seeking can get you fired, some people stop seeking the truth. Granted, unfettered liberal deliberation is not sufficient to solve problems as difficult as reining in police abuses or ending systemic racism. But it is necessaryno matter how just or urgent the cause. America can achieve more good and harm fewer people with more frank debate, less aversion to dissent, and fewer appeals to moral clarity at the expense of analytic rigor.
Street protests don’t need to stop. Pressure for reforms and accountability should continue. But demands for conformity may permanently damage institutions that can enrich society with their diverse missions and priorities. Short-circuiting debate may deprive Americans of insights on what sorts of protests are effective; how to reform police departments without a spike in murders or other violent crime; how to distinguish between and combat ideological racism versus authoritarianism; how to educate children more equitably; how to determine the potential costs and benefits of race-based reparations; how to determine the relationship among journalistic institutions, their missions, and their readers; how to assess the protections that capitalism can afford to ethnic and religious minorities; and much more.
Absolutely, Black lives matter, which is part of why everyone should encourage constructive dissent, even when it seems frustratingly out of touch with the trauma and emotion of the moment. Identifying changes that will achieve equality is hard. Avoiding unintended consequences is harder. Without a healthy deliberative process, avoidable catastrophes are more likely.
When Doug Jones invokes the civil-rights movement of the early 1960s, he knows the stakes. Forty years before his upset win in a 2017 special election to represent Alabama in the Senate, Jones, a U.S. attorney, prosecuted Klansmen for the Birmingham church bombing—and insisted that the guilty verdict not be seen as the end of the movement’s story.
Jones understands why Americans might be cynical about the current civil-rights protests. He understands why people might look at all of the demonstrations since George Floyd’s death and say that, so far, there’s been more political back-and-forth over whether “Defund the police” is a good slogan than actual change.
“You only have to look back at what happened in this country in 1963, 1964, 1965,” Jones told me. Those changes, he pointed out, took more than a few months. “I would encourage folks to just not give up, to not let this moment pass and not just sit back and say, ‘Well, it’s never gonna happen. There’s going to be too much resistance, so let’s just move on.’”
From his home in Birmingham, Jones has been trying to get Alabamans to listen to public-health guidelines about the coronavirus—while also trying to campaign to hold his seat in November. He’s also been watching the South grapple again with its history, and urging people to be honest about what the Civil War and its aftermath meant. “You can honor individuals who fought, but we should not honor the Confederacy. Remember, this was not our country. This was the Confederate States of America,” Jones said. “If you love freedom and you are a patriot, then you can’t honor the Confederacy.” But he warned against getting consumed entirely by the fight over monuments, despite supporting the removal of many himself. “Those are just symbols, and they’re monuments; and they’re not the barriers to racial inequalities,” he told me.
The civil-rights movement began 60 years ago, and he says it’s not over. I asked him how long he hopes the events of the past four months stay with America. “Well, to be honest with you,” Jones said, “I hope we live with it for a long time.”
Listen to the interview here:
Subscribe to The Ticket on Apple Podcasts, Spotify, or another podcast platform to receive new episodes as soon as they’re published.
What follows is an edited and condensed transcript:
Edward-Isaac Dovere: Senator, the last time I saw you was in March. We were in Selma, Alabama, for the anniversary of the Bloody Sunday march across the Edmund Pettus Bridge. You gave a speech warning against how people in Washington were trying to turn Americans against each other. How are we doing on that?
Doug Jones: Well, I think, as a whole, America is actually faring much better. I think America is coming together like never before.
Dovere: I’ve talked to people who say that we are being foolish to think that things are going to get better. You already feel hopeful.
Jones: Look, I can’t help it. I understand the cynicism that people have. You only have to look back at what happened in this country in 1963, 1964, 1965—historic moments that created a number of changes, but they didn’t finish the job. And as we went on, we tended to start backsliding. So I can understand that cynicism. I just want to look at a glass half full. And I would encourage folks to just not give up, to not let this moment pass and not just sit back and say, “Well, it’s never gonna happen. There’s going to be too much resistance. So let’s just move on.” We have this moment—with this pandemic, with an economic crisis, with the spotlight on racial disparities—the most unique time in modern history, I believe, to really do things in a way to get rid of the systemic problems that we’ve got in this country and build a stronger and more just America.
Dovere: So many other parts of the world and even in the country have figured out how to keep cases low. Not Alabama. What’s going on?
Jones: Well, most places in the country have not figured it out, or if they figured it out, they’re just not following it. I think Alabama and our governor did their very dead-level best to try to open up the economy in a slow and methodical way. But there was a lot of pressure, I think, and I don’t mean just pressure from the administration. I mean community pressure that we’ve got to get out of our households. We’ve got to start trying to live again. And so the governor and others started opening up. Alabama’s governor’s order went from a safe-at-home order, and almost a stay-at-home order, to a safer-at-home order.
But people just didn’t listen to that as much. They heard: You can get out. You can go to restaurants. Just social distance. Wear a mask. But they didn’t follow that advice.
Dovere: Do you feel like enough people in Alabama are wearing masks?
Jones: No, I don’t. I think, more and more, you are seeing more local officials, more business leaders, saying, “Wear these masks. Please take these precautions.”
Dovere: Do you think if it had been reversed, if the pandemic had started in more rural communities instead of hitting cities first, that the response might have been different?
Jones: My view is that it would have been much, much worse had it hit in our rural communities, in our underserved communities first. Because it is those communities that do not have access to good health care, that do not have the same quality of health care and first responders. Now, having said that, what’s so disappointing is that because it did hit in their urban centers first—and I said this really early on to folks in rural Alabama, rural America: “Look, this is right now centered in our more populated areas. You folks in these rural areas, where the population is more sparse, have this opportunity to stop this in its tracks before it gets to you. But you’ve got to do what we’re being told to do in Birmingham and in New York and other places, and that’s: Start social distancing now. Start self-quarantining. Stay at home. Let’s do these things now.” And unfortunately, I don’t think folks got that.
It’s incredibly frustrating. But I will tell you that part of this is just the media messages—and when I say this, I’m not being critical of the media, because we’ve had to report things as we go. So let’s think about this: The first thing we’re hearing is “Well, this is really affecting senior citizens and people in nursing homes.” That let everybody have their guard down a little bit, because that’s all they heard. Then it’s affecting the cities. So the people in the rural areas think, That doesn’t affect me. Then there is even a racial component where it really affects African Americans and the Black community and Latino community more. So there was a sense of Okay, I’m probably not really at risk. There is just so much that we didn’t know and that we were learning. And as we learn it, we say things, we do things, and it lulls people a little bit. And it is incredibly frustrating. Here we are in July, and to be in a situation in Alabama where every day we see a new record and every day we see more deaths. And it’s just not acceptable.
Dovere: You’ve invoked the early ’60s as sort of the model of the moment that we are in now. In 1997, you were put in charge of the prosecution of two Klansmen responsible for the Birmingham church bombing. At the time when that prosecution happened, it seemed to people in a way like it was closing a chapter in history.
Jones: It helps heal some wounds, but it didn’t close a chapter. I said—and I’ve said for 20 years now—we should never close that chapter. We should always remember what happened in Birmingham and the changes that came from the events that occurred right here in our city, whether it was the fire hoses and the dogs, or the church bombing in the course of one year in 1963. And I think we are in a similar moment right now that we can’t let pass.
Dovere: Where do you think we are in the story of the legacy of the South, slavery, and segregation?
Jones: I think we have taken tremendous strides in that story. There’s no question. We have more Black elected officials now. We have more folks integrated into society and schools. But at the same time, we have also seen some slide-backs, rollbacks of efforts to give people the right to vote and make it harder to vote. And so I think we got a little complacent. Dr. King wrote about this in 1967 in his last book. It’s really easy to pass legislation and, at the signing of the legislation, think everything is accomplished.
I think, to some extent, that’s what happened in the ’60s. Everybody patted themselves on the back. It was an incredible victory. And I don’t mean at all to diminish those amazing victories. But doing things legally and statutorily is one thing. Doing it in a way that people change is a completely different story. And I think that there are so many times that we see an implicit bias that people don’t even fully appreciate. And now we are in that moment where everything seems to have come full circle and we are back to where people are recognizing what is going on in this country. They’re also recognizing that regardless of what happens in the future, we are becoming a more diverse America. There is no question about that. And people are seeing it. They’re accepting it. They understand it.
Dovere: What do you say to the people who want to honor the Confederacy?
Jones: I say you can honor individuals who fought, but we should not honor the Confederacy. Remember, this was not our country. This was the Confederate States of America. It was a separate country that was taking up arms against the United States of America. If you love freedom and you are a patriot, then you can’t honor the Confederacy. It was not just a so-called state-rights issue. That’s just a fallacy and a revisionist history. It was states rights with regard to owning enslaved people.
Dovere: You talked about the ’60s as a potential model for what we are going through now. We’re still living with that. How long are we going to be living with the legacy of this period?
Jones: To be honest with you, I hope we live with it for a long time. I hope we live with the fact that we are reminded of the things that pull people together and the things that divided folks. I think that the legacy that we have witnessed now is going to last with us for generations. We should never forget how ill-prepared we were when this pandemic hit us. That is something that I hope will never happen to the United States or the world again. We were not prepared to do this. Schools were not prepared. Businesses were not prepared. Government was not prepared.
Dovere: The Republican primary runoff in Alabama is next week, and you’ll find out whether your opponent will be Jeff Sessions or Tommy Tuberville. It is probably the weirdest Republican race in the country, given the dynamics between them and President Trump being so invested in hurting his former attorney general, despite how much Sessions keeps chasing him. What does that race tell you about the state of the Republican Party in Alabama?
Jones: I think it tells you something of what’s happened to the Republican Party in Alabama, not what’s going on in the state of Alabama, but just what’s happened to the Republican Party. And I fault the Democratic Party a lot for this, because national Democrats ignored the southern Democrats for so long and we had to go it ourselves. And then all of a sudden, things got to a point in Alabama where our party was just not functioning properly. And so there was not another voice out there. And the Republican Party just became a party that you had to appeal to a small base in a primary—you know, 50 percent of an already-small base in a primary—in order to win a primary that was tantamount to an election, somewhat in the way Democrats did years and years ago.
Dovere: So, Tuberville or Sessions, which one would you rather face?
Jones: The answer to that is: I am ready to go. It doesn’t matter to me. I think they both have serious flaws.
Roger Stone’s best trick was always his upper-class twit wardrobe. He seemed such a farcical character, such a klaxon-alarm-from-a-mile away goofball—who could take him seriously?
Aldrich Ames, Richard Hanssen: They had tradecraft. They didn’t troll people on Instagram or blab to reporters. They behaved in the way you would expect from people betraying their country: conscious of the magnitude of their acts, determined to avoid the limelight.
Stone could not have been more different. He clowned, he cavorted, he demanded limelight—which made it in some ways impossible to imagine that he could have done anything seriously amiss. Bank robbers don’t go on Twitter to announce: “Hey, I’m going to rob a bank, sorry not sorry.” Or so you’d expect.
Yet Stone is the central figure in the greatest scandals in U.S. history. Ames, Hanssen, the Rosenbergs, Alger Hiss before them—none of them worked with a foreign intelligence service to help a candidate for president of the United States. Stone did. And now he will receive a commutation of his sentence from the president he served.
On August 21, he tweeted: “Trust me, it will soon [be] Podesta’s time in the barrel,” evidently referencing the then-forthcoming cache of emails phished by Russian intelligence from John Podesta, chair of Hillary Clinton’s presidential campaign.
On October 2, a Sunday, he tweeted that the next WikiLeaks dump would come on Wednesday.
When Wednesday came and went with no dump, Stone tweeted “Libs thinking Assange will stand down are wishful thinking. Payload coming #Lockthemup” Stone reaffirmed his prediction on Thursday. The dump came Friday, October 7.
Stone was simultaneously in communication with the Trump campaign and candidate Donald Trump. The former Trump deputy campaign chair Rick Gates testified at Stone’s trial in November 2019 that he witnessed Trump take a call from Stone after the first WikiLeaks release in July. Less than a minute after the call ended, Trump told Gates that another release would follow later in the campaign.
Trump declared in writing to the Mueller investigation that he did not recall discussing WikiLeaks with Stone. On page 77 of Volume II of the report, Mueller expressed disbelief in Trump’s sworn evidence: “[W]itnesses said that Trump was aware that Roger Stone was pursuing information about hacked documents from WikiLeaks at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.” On page 17 of Volume II, the report cites the former Trump attorney Michael Cohen as one of those witnesses, along with Gates.
It is not illegal for a U.S. citizen to act or attempt to act as a go-between between a presidential campaign and a foreign intelligence agency, and Stone was not charged with any crime in conjunction with his Trump-WikiLeaks communications. But it’s a different story for the campaign itself. At a minimum, the Trump campaign was vulnerable to charges of violating election laws against receiving things of value from non-U.S. persons. Conceivably, the campaign could have found itself at risk as some kind of accessory to the Russian hacks— hacking being a very serious crime indeed. So it was crucially important to the Trump campaign that Stone keep silent and not implicate Trump in any way.
Which is what Stone did. Stone was accused of—and convicted of—lying to Congress about his role in the WikiLeaks matter. Since Stone himself would have been in no legal jeopardy had he told the truth, the strong inference is that he lied to protect somebody else. Just today, this very day, Stone told the journalist Howard Fineman why he lied and who he was protecting. “He knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t.” You read that, and you blink. As the prominent Trump critic George Conway tweeted: “I mean, even Tony Soprano would have used only a pay phone or burner phone to say something like this.” Stone said it on the record to one of the best-known reporters in Washington. In so many words, he seemed to imply: I could have hurt the president if I rolled over on him. I kept my mouth shut. He owes me.
And sure enough, Trump did owe him. Trump commuted Stone’s 40-month sentence. Roger Stone will not go to prison for acting as an information conduit between Russian intelligence and the Trump campaign. Stone’s former business partner Paul Manafort is likewise keeping silent. And so the American public will likely never know what use the Russians made of the Trump polling information that Manafort shared with them. Manafort likewise has extra reason to keep quiet, for he must feel new confidence that his pardon is coming.
But how much more do we need to know? At every step in this story, the formula I’ve mentioned in previous essays continues to hold: “Many secrets. No mysteries.” Although crucial details remain concealed, the core narrative has been visible from the start. An American private citizen worked with foreign spies to damage one presidential candidate and help the other. That president accepted the help. When caught, the private citizen lied. When the private citizen was punished, the president commuted his sentence.
It’s all there: as bold as the spats on Roger Stone’s shoes; as ugly as the 130,000 Americans dead, and daily rising, because of the malign incompetence of the president assisted into the Oval Office by Stone, Manafort, and the Russian spy services.
The Supreme Court knows how to go out with a bang. On Thursday, the justices closed the (virtual) courthouse doors for the summer after finally releasing two long-awaited rulings on President Trump’s efforts to block the release of his financial information to prosecutors and Congress. The Court took its time in handing down the decisions, thanks in part to delays caused by the coronavirus pandemic, and the drama and importance of the opinions themselves measured up to the frenzy of speculation that preceded them.
The litigation over whether or not the president can prevent the release of his records is significant at multiple levels. On one level, the cases spoke immediately to Trump’s electoral fortunes: Would the House of Representatives be able to obtain these documents in enough time to inform the public of the president’s hidden financial dealings before the November election? The Supreme Court’s Thursday rulings mean the answer is almost certainly no.
But on another level, Trump’s efforts threw into question the balance of power between Congress and the president and suggested a vision of the presidency largely unaccountable to criminal law. The Court decisively rejected this vision—and though much else about the opinions remains muddled, this, at least, is a victory for the rule of law.
The cases began roughly a year ago, when the House subpoenaed financial records concerning Trump and his businesses from two banks—Deutsche Bank and Capital One—and Trump’s personal accounting firm, Mazars. Separately, the Manhattan District Attorney Cyrus Vance sought records from Mazars in the course of a New York state criminal investigation. Trump stepped in to bar the institutions from handing over the material, arguing—with regard to Congress—that the legislature had failed to voice an appropriate rationale for its request, and—with regard to Vance—that Trump’s high office shields him from state-level investigations for as long as he remains president.
Compared with Trump v. Mazars, Trump v. Vance both received less attention in the run-up to the decisions and proved to be the easier case for the Court to untangle. As to Trump’s claim to what his legal team once characterized as “temporary absolute presidential immunity,” the Supreme Court’s answer was simple: No. All nine justices agreed that a total shield from state criminal process was out of the question. This is a thrashing for Trump, but it’s also a reflection of how absurd the president’s assertion of immunity was to begin with. Even the Justice Department, which chimed in during oral arguments as a “friend of the court” in support of Trump’s personal legal team, didn’t endorse this aspect of the president’s argument.
Justices Clarence Thomas and Samuel Alito dissented on other aspects of the case, so the nine-justice unanimity was not complete. But in an era when contentious issues often split the justices five to four, the seven-to-two ruling registers as an overwhelming rebuke to Trump—especially given that both of Trump’s appointees to the Court, Justices Neil Gorsuch and Brett Kavanaugh, voted against the president.
Chief Justice John Roberts wrote for the majority in both Vance and Mazars, and to some extent he seems to have tried to knit the two together as a matching set: The majority opinion in Mazars is studded with references to Vance, and the lengthy yarn about Aaron Burr and Thomas Jefferson that opens Vance pops up in Mazars as well. And the same six justices ruled with Roberts in both cases. But the Court’s decision in Mazars is a more complicated story. As scholars and analysts puzzled through the ruling over the course of the day, nobody seemed to be able to agree whether Congress had won or lost.
The majority steered away from Trump’s argument that Congress must clear a consistently high bar in order to subpoena information relating to the president, whether the material is protected by executive privilege—as were the Watergate tapes in United States v. Nixon—or not, as in this case. This would have been an enormous blow to Congress’s ability to conduct oversight of the executive branch. But the chief justice also declined to embrace the House’s view of broad congressional investigative authority with little constraint from the courts, worrying that this would place “essentially no limits” on Congress’s power. The majority instead suggested that courts weighing these cases should pay greater attention to the balance of power between Congress and the presidency, encouraging the legislature to provide judges with more evidence that the subpoenas are sufficiently focused and relevant to congressional work.
All of this sounds reasonable enough. Yet there is a great deal of precedent establishing Congress’s authority to investigate as extraordinarily broad—so much so that every single lower court that considered the subpoenas at issue in Mazars came down in favor of Congress before the case slammed into a wall at the Supreme Court. From one one point of view, the high court’s ruling suggests a road map for how legislators might craft subpoenas that will withstand judicial scrutiny. From another, though, it’s both constraining and condescending. Mazars “basically tells Congress that it needs to do homework in just the precise way that the Court wants it to, or it can’t oversee the president,” Josh Chafetz, a law professor and scholar of Congress, told me. “This is both wildly pro-presidential and dismissively anti-Congress.”
In both Vance and Mazars, the Supreme Court passed the cases back down to the lower courts to reconsider in light of Thursday’s rulings. It’s not quite clear what will happen next, or on what timeline. The Manhattan district attorney may well obtain the financial documents from Mazars sooner rather than later, but laws protecting grand-jury secrecy mean that the public likely will not learn the contents soon. Meanwhile, as both David Graham and David Frum have noted, the plodding pace of litigation means that courts are unlikely to hand Trump’s records over to Congress before the November election. So whatever may be hiding in those documents, voters will not have the benefit of knowing about it before they fill out their ballots.
On the other hand, how many swing voters are really out there for whom the contents of Trump’s financial records would have been the deciding factor in their vote for president? Trump survived the Russia investigation and impeachment with his political fortunes more or less intact; it took his catastrophic bungling of a pandemic and his hostility toward Black Americans protesting against police violence for his poll numbers to drop. It’s hard to imagine what could be in those documents that would be more of an indictment of Trump’s fitness for the presidency than his presiding over the deaths of 130,000 Americans.
The more significant effect of Mazars and Vance was always going to be on the level of institutions rather than individuals—the positioning of the presidency in relation to Congress and state law enforcement, rather than Trump in relation to the coming election. In the words of my colleague Margaret Taylor, who writes about Congress, the decision could have been a “bloodbath for congressional power.” It wasn’t, but whether and how the ruling might reshape the relationship between Congress and the presidency, for better or worse, is an open question—one that might be answered in the months and even years to come as Congress regroups following the Court’s decision. Perhaps the legislature will be more successful in litigation once it hones its requests for information along the lines of the Court’s suggestions. Or perhaps, as the Mazars majority seemingly encouraged, the legislature will be spurred to work out a renewed process of cooperation and negotiation with the executive branch outside the space of the courts.
As enthusiastic as the chief justice seemed about the latter possibility, though, it’s hard to imagine that Congress will find a willing negotiating partner in the current president, who once announced that his administration was “fighting all the subpoenas.” The long-term effects of Mazars for relations between the political branches may look very different depending on who wins the November election.
Yet despite these broader institutional questions, Trump appears incapable of understanding the rulings in any context other than the purely personal. “PRESIDENTIAL HARASSMENT!” he tweeted in the hours before the Supreme Court released the opinions. And then, after the decisions came down: “Courts in the past have given ‘broad deference.’ BUT NOT ME!” There is one line in Roberts’s opinion in Mazars, at least, that Trump should be able to wholeheartedly endorse: “There is not always a clear line,” Roberts wrote, “between [the president’s] personal and official affairs.”