“the notion that Biden or Garland was somehow determined to prosecute Trump relies on a serious distortion of the public record. Indeed, that record vexed some observers, including me, who repeatedly expressed frustration over how the two men seemed to be going out of their way for most of the first two years of the administration to avoid investigating and potentially prosecuting Trump.
What changed?
The best explanation at the moment — the one that most neatly fits the available facts and a robust body of credible reporting — is that the work of the Jan. 6 select committee spurred the Justice Department to action.
The committee’s investigation uncovered new and important information that was impossible to ignore, and their hearings last summer generated intense and legitimate political and public pressure on DOJ and Garland. Ultimately, it appears that they no longer had a choice but to shift course”
…
“As the hearings unfolded, there was testimony from former Attorney General Bill Barr, Trump 2020 campaign manager Bill Stepien and other Trump administration officials and campaign advisers indicating that Trump knew he had lost the 2020 election even as he began his monthslong campaign to overturn the results. There was firsthand testimony about the legally baseless effort to pressure then-Vice President Mike Pence to throw the election to Trump that featured White House lawyers and Pence advisers. There was also a hearing, among others, devoted to Trump’s personal efforts to pressure — or threaten — state officials to swing their election results to him.
Given the one-sided nature of the committee’s presentation, there were reasons to question whether all of the testimony provided the full picture of the underlying events. Still, it quickly became apparent that the committee had exposed some glaring shortcomings at the Justice Department. A series of stories last summer in the New York Times and the Wall Street Journal reported that senior officials at the Justice Department were not aware of critical evidence that the committee had obtained, and in fact had been trying to avoid directly confronting Trump and his potential criminal liability. Meanwhile, some of us were complaining (again) that the department seemed to be falling short of its duty to the country, and members of the media and the public began asking much harder questions about the department’s actions — or lack thereof.”
“The Enforcement Acts, one of which was known also as the Ku Klux Klan Act, given its prime target, criminalized widespread attempts by former Confederates to deny Black Southerners their right to vote, to have their votes counted and hold office — rights they enjoyed under the Reconstruction Act of 1867, the 14th Amendment and soon, the 15th Amendment. Coming at a time when American democracy teetered on the edge, these laws gave teeth to the federal government’s insistence that no eligible voter could be denied the right to vote and have his vote counted. (At the time, only men could exercise the franchise.) The laws were a direct response to Southern Democrats’ efforts to abrogate the practical effects of the Civil War and nullify Black political participation and representation.
Today, American democracy stands once again at a crossroads. The refusal of many Republican officeholders to accept the outcome of a free and fair election, and Trump’s outright appeal to fraud and violence in an effort to overturn that election, are precisely the kinds of antidemocratic practices the Enforcement Acts were intended to criminalize and punish.”
…
“In the days to come, Trumps’ defenders may claim that the 1870 Enforcement Act is antiquated and obsolete or, as the National Review argued, irrelevant to the case in hand.
In fact, as the Washington Post recently documented, while the act was precipitated by Klan violence in the 1860s, throughout the 20th century and even in more recent times, “Section 241 has also been used to prosecute a wider range of election subversion, including threatening or intimidating voters, impersonating voters, destroying ballots and preventing the official count of ballots.” That includes its use to prosecute white people who terrorized civil rights volunteers during the 1964 Freedom Summer in Mississippi and in cases involving election interference in states like Oklahoma, Tennessee and Kentucky. In other words, it is hardly what legal observers call a “strange law,” or a law still on the books but no longer relevant or enforceable.
Moreover, the acts of which Trump stands accused of committing are precisely what the Enforcement Act was intended to combat. Nullifying the votes of citizens. Fraudulently submitting fake elector slates. Attempting to intimidate state officials into falsifying returns. Bullying a vice president into discarding the official election count. And yes, inciting violence in the furtherance of overturning a free and fair election.
Our system presumes that a defendant is innocent until proven guilty. It is now incumbent upon the Department of Justice to make its case. But the shameful events of late 2020 and early 2021 only reinforce the lasting relevance and importance of the 1870 Enforcement Act, a law constructed to meet challenges that, a century and a half later, still hang over America’s fragile democracy.”
“Less than a year into Donald Trump’s presidency, top homeland security officials were so alarmed about escalating tensions with North Korea that they held multiple meetings to prepare for a nuclear attack on American soil, according to a forthcoming book by Miles Taylor, who was a top official in the department at the time.
In an excerpt of the book Blowback: A Warning to Save Democracy from the Next Trump that was shared with POLITICO, Taylor describes acute concerns in the Trump administration in 2017 after North Korean missile tests — including one while then-Japanese Prime Minister Shinzo Abe visited Trump at Mar-a-Lago. Trump responded to the missile tests with increasingly bellicose rhetoric.
“In the national security world, anything having to do with nuclear weapons is handled with extreme sensitivity — well planned, carefully scripted — yet we didn’t know what Trump might say at any given moment,” writes Taylor, who was intelligence and counter-threats counselor to the secretary of homeland security at the time. “One day, he threatened North Korea ‘with fire, fury and frankly power the likes of which this world has never seen before.’ He almost seemed to welcome a nuclear conflict, which terrified us.”
Taylor said then-Defense Secretary James Mattis cornered him one day after a Situation Room meeting.
“‘You all need to prepare like we’re going to war,’ he warned. Mattis was serious. DHS should assume the homeland was in mortal danger.”
The Department of Homeland Security took a step it had never taken before, according to Taylor, who is best known for writing an anonymous op-ed in The New York Times in 2018 describing a “quiet resistance” in the Trump administration “of people choosing to put country first.”
“We convened every top leader in DHS to discuss the brewing crisis,” he writes in the new book, which is set for release on July 18. “Experts walked through various scenarios of a nuclear strike on the U.S. homeland, dusted off response plans, and outlined best-case scenarios which nevertheless sounded horrifically grim. I cannot provide the details, but I walked out of those meetings genuinely worried about the safety of the country. In my view, the department was unprepared for the type of nuclear conflict Trump might foment.””
“by sitting on this case, a Supreme Court dominated by conservative Republican appointees effectively let Tipton control ICE for more than a year.”
…
“Texas’s lawsuit was rooted in a federal statute which states that the United States “shall take into custody any alien” who commits certain immigration offenses. In effect, they argued that the word “shall” is a mandatory command that forces ICE to make mass arrests.
But this argument runs afoul of 150 years of well-settled law. As far back as Railroad Company v. Hecht (1877), the Supreme Court held that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.”
One reason for this strong presumption that federal laws do not impose arrest or prosecution mandates on law enforcement is that it is often literally impossible for a law enforcement agency to arrest every single person who violates a law — imagine the massive police state that would be required, for example, to pull over every single driver who violates a traffic law.
As the Justice Department explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources to “remove fewer than 400,000 such aliens each year.” That means that leaders of immigration agencies like ICE necessarily must set priorities, and make choices about which deportable immigrants will be targeted and which ones will effectively be tolerated within US borders.
Indeed, as Kavanaugh writes in his Texas opinion, this ability to set priorities and to decide when not to enforce the law has been a regular feature of federal immigration law across many administrations. “For the last 27 years since” the immigration statutes at issue in Texas “were enacted in their current form,” Kavanaugh writes, “all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.””
“most of his anti-liberal broadside is at once underbaked and overheated.
The critique is underbaked in the sense that it’s not clear from his account how exactly this rather large “elite” is responsible for the destruction of conservative norms and small-town America. How can we hold a graphic designer in Chicago or a Whole Foods supply chain specialist in Austin responsible for the decline of Christian morals and the hollowing out of small towns?
It’s overheated in the sense that Deneen turns his rivals into cartoon villains, arguing that “the current ruling class is uniquely ill-equipped for reform, having become one of the worst of its kind produced in history.”
Roman nobles were legally permitted to rape their slaves. The military elites of the Mongol Empire were constantly murdering civilians and each other. In France after the Black Plague, the impoverished aristocracy stole from their already-suffering peasants to continue funding their lavish lifestyles. The elite of the early American South centered their entire society around the racist brutality of chattel slavery.
Is the American elite out of touch with the working class in ways that have tangible and negative consequences for the country? Sure. But it’s not remotely comparable to the bad elites of previous centuries.
This loss of perspective tarnishes Deneen’s argument throughout the book — a problem most vividly on display in his treatment of the divide between “the many” and “the few.”
In Deneen’s thinking, it is axiomatic that the central divide in Western politics is between the villainous liberal elite (the “few”) and the culturally conservative mass public (“the many”). The liberal elites wish to impose their cultural vision on society and attack the customs and traditions of ordinary people; the many, who are instinctively culturally conservative, have risen under the banner of leaders like Trump to oppose them.
Except how do we know that liberals really are “the few?”
Deneen doesn’t cite election or polling data to support his theory of a natural conservative majority. Trump has never won the popular vote while on the ballot; his party performed historically poorly in two midterm elections since his rise to power. Polling on the cultural issues Deneen so cares about, like same-sex marriage, often finds majority support for liberal positions.”
“Trump has come to define who and what Republican Party activists — that is, people who volunteer for political campaigns, donate money, work for politicians, etc. — think of as conservative. Their research, for instance, found that GOP activists viewed Trump critics like former Sens. Ben Sasse and Patrick Toomey as much less conservative than their voting records in Congress indicated. Meanwhile, GOP activists viewed Trump boosters as the most reliably conservative politicians.
But Trump has also powerfully redefined what constitutes conservatism for rank-and-file Republican voters, according to my analyses of data from the Cooperative Election Survey — a massive academic survey administered by YouGov that asks over 50,000 respondents every two years to, among other things, rate politicians’ ideologies on a seven-point scale from “very liberal” to “very conservative.”
According to CES data, Republicans nationwide now view Trump as more conservative than they did immediately before the 2016 general election. On the other hand, Utah Republicans perceived Sen. Mitt Romney as a lot less conservative after his February 2020 vote to convict Trump during his first impeachment trial. But that decline pales in comparison to the utter evaporation of former Rep. Liz Cheney’s conservative credentials. Wyoming Republicans repeatedly rated Cheney as a solid conservative in 2016, 2018 and 2020. Yet her reputation as a stalwart conservative vanished entirely after she voted to impeach Trump in January 2021 and subsequently became one of the former president’s most vocal critics in Congress as vice chair of the House committee investigating the Jan. 6 insurrection — so much so, that Wyoming Republicans placed her all the way on the liberal side of the ideological spectrum in the 2022 CES.”
…
“The seven Republican senators who voted to convict the former president during his second impeachment trial were all rated as much less conservative than we would otherwise expect from their Senate voting records”
“”The government tried for over a year, quietly and with respect, to get them back, which was essential that they do, and he jerked them around,” Barr said. Trump remained recalcitrant even when he faced a federal subpoena seeking all the documents with classification markings stored at Mar-a-Lago.
“He didn’t raise any legal arguments,” Barr noted. Instead, according to the indictment, “he engaged in a course of deceitful conduct” aimed at hiding records covered by the subpoena. “If those allegations are true,” Barr said, Trump’s conduct was “outrageous” and “a clear crime.”
Barr called the evidence supporting the charges against Trump, which include obstruction of justice and willful retention of national defense information, “very strong,” noting that much of it “comes from his own lawyers.” Trump lawyer Evan Corcoran’s notes, for example, indicate that his client was inclined to defy the subpoena.
Consistent with that impression, Trump had boxes moved out of a Mar-a-Lago storage room before Corcoran could search them for relevant documents. Barr said he also believes Trump lied to the Justice Department by averring that he had fully complied with the subpoena—another crime listed in the indictment.”
“In 2016, Trump put absolutely zero effort into preparing for the possibility that he might actually govern after the election. The result is that he took office with a staff heavily drawn from the ranks of the GOP establishment, some of whom worked to curb his most disruptive impulses.
This time around, we can expect no such discordance — meaning that we’re likely to get Trump unleashed from day one.
Moreover, experience with politicians like Trump abroad suggests that Trump’s agenda will be every bit as radical as the town hall suggests — with a focus on dismantling constraints on Trump’s authority and undermining the fairness of the political system.”