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he Supreme Court heard oral arguments on Wednesday in Alexander v. South Carolina State Conference of the NAACP, a case that could help decide which party controls the House of Representatives in 2024, along with the future of minority representation and voting rights litigation in the South.
In 2018, Joe Cunningham became the first Democrat in nearly 40 years to win South Carolina’s 1st congressional district, which is centered around Charleston.
Two years later, Republican Nancy Mace defeated Cunningham by one point. But that victory was too close for comfort for Republicans.
When South Carolina’s GOP-controlled state legislature redrew the state’s congressional districts in 2021, a GOP state senator from the area said he wanted to “give the district a stronger Republican lean.” Republicans accomplished that goal by moving nearly 30,000 Black voters in Charleston County (62 percent of the county’s total Black population) from the swing 1st district to the safely Democratic seat of longtime Rep. James Clyburn, one of the most powerful House Democrats. (ProPublica reported that Clyburn worked with Republicans to add more Black voters to his district to shore it up; he has denied this and filed a brief in support of civil rights groups.)
In 2022, Mace won re-election by 14 points. Last week she made headlines by becoming one of eight House Republicans who voted to oust House Speaker Kevin McCarthy.
Civil rights groups, led by the South Carolina NAACP, challenged the GOP’s map and in January a three-judge panel struck down the district as a “stark racial gerrymander.” Republicans promptly appealed to the Supreme Court.
South Carolina said the district drawn for Mace was motivated by politics, not race. “District 1 is not a racial gerrymander,” said John Gore, an attorney at Jones Day who represented South Carolina. (Gore was head of the Justice Department’s Civil Rights Division under Donald Trump and one of the driving forces behind the Trump administration’s failed effort to add a question about citizenship to the 2020 census, pushing the bogus argument that it was needed to better enforce the Voting Rights Act.) His argument in the Alexander case could be used to justify nearly any instance of racial gerrymandering, making it next to impossible to strike down maps that discriminate against voters of color.
The court’s conservative majority appeared sympathetic to South Carolina’s defense that it was difficult to disentangle race and politics. Chief Justice John Roberts told Leah Aden, senior counsel for the NAACP Legal Defense Fund, that civil rights groups faced a “high burden” and “you’re trying to carry it without any direct evidence, with no alternative map, with no odd shaped districts.” A ruling vacating South Carolina’s map based on what he termed “circumstantial evidence,” Roberts said, “would be breaking new ground in our voting rights jurisprudence.”
The Roberts Court has already made it very difficult to strike down gerrymandered maps, ruling that partisan gerrymandering cannot be challenged in federal court, and has reliably sided with Republicans in voting rights disputes. As Justice Elena Kagan noted, the Court’s 2019 decision in Rucho v. Common Cause preventing federal courts from invalidating partisan gerrymandering gave states like South Carolina a green-light to enact racial gerrymanders but claim they were simply done for partisan reasons.
One surprising exception to the Court’s hostility to voting rights came last summer, when it invalidated Alabama’s congressional map because it did not include a second majority-Black district in a state that is 27 percent Black. The new seat ordered by the courts is expected to elect a new Black member of Congress from Alabama and boost Democrats’ chances of retaking the House. These developments have raised hopes that the conservative majority may be open to policing racially gerrymandered maps in a new way.
In Alabama and South Carolina, Republicans pursued different strategies to dilute Black voting strength. Republicans in Alabama simply ignored Black political power by refusing to draw a second majority-Black district. In South Carolina, “Black voters were used as political puzzle pieces in the state legislature’s attempt to ensure and insulate the legislative majority party’s power,” says Mitchell Brown, senior voting rights counsel at the Southern Coalition for Social Justice.
In Alabama, Republicans didn’t consider race enough. In South Carolina, they considered race too much. In that sense, civil rights groups are making an argument often used by Republicans—that race should not be the driving force in drawing political lines—to argue against racial gerrymandering.
“State legislators are free to consider a broad array of factors in the design of a legislative district, including partisanship, but they may not use race as a predominant factor and may not use partisanship as a proxy for race,” the three-judge panel wrote in South Carolina.
The Supreme Court similarly ruled in 2017 in Cooper v. Harris that a district is likely unconstitutional if “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.”
“No party disputes Cooper’s basic legal rule that absent a compelling interest, race cannot predominate in line drawing, even as a means to achieve a partisan goal,” said Aden.
But in the Alexander case oral arguments, the Court’s conservative majority seemed to suggest that its recent decision striking down racial gerrymandering in Alabama may be a one-off.
Civil rights groups have asked the Supreme Court to issue a decision by January 1, 2024, so that new lines could take effect for the 2024 election if the lower court decision is upheld.
Close watchers of the MAGA movement have been chronicling the alarming escalation of both violent intimidation and overt white supremacy in recent weeks. Donald Trump, of course, now begs his followers on a nearly daily basis to murder his perceived enemies. But the rhetoric is spiraling, with people like Fox News host Greg Gutfeld openly calling for civil war. Meanwhile, Christopher Rufo — a right hand man for Gov. Ron DeSantis, R-Fla. — recently hosted a forum that pushed establishment Republicans to build a “bridge” to the so-called "dissident right," including some open white nationalists. He may get his wish, as one of the top contenders for Speaker of the House, Rep. Steve Scalise, R-La., described himself as "David Duke without the baggage."
The radicalism of the right is growing as the GOP careens swiftly towards nominating Trump as their presidential candidate, despite his 91 felony indictments in four jurisdictions. But, as anyone who has studied cults can tell you, they never limit their escalations to violence or hateful ideologies. There's almost always a weird sexual component, as cult leaders come up with ever stranger rules and regulations to control the sexual expression of their followers.
The MAGA movement is no different. The cult-like following of Trump always had an unsettling mix of incel-inflected misogyny, coupled with a homophobia that is somehow also homoerotic. But it's been rapidly getting worse in recent months. Even more frightening is how determined they are to inflict their sexual hang-ups on the rest of the country.
Gutfeld, who claims to be a "comedian," has long positioned himself on Fox News as an everyman character. He's meant to make audiences feel that normal people can be Republicans, and not just Bible-hugging weirdoes or camo-clad militia nuts. But, as his civil war rant makes clear, lately he's been channeling a more David Koresh-esque vibe, and invariably that comes with some sexual weirdness.
Last week, Gutfeld hosted a far-right figure named Hotep Jesus, who is known primarily for being an apologist for white supremacists and anti-semites. Hotep Jesus, whose real name is Bryan Sharpe, was on the show to promote a "dating" blog that is, in actuality, propaganda for domestic abuse. As Media Matters chronicled, Sharpe regards it as a form of adultery if women are "allowed" to work or vote. "Imagine guts, sweat, and tears shed only to watch your woman get dolled up only to prance around another man’s office while he gives her marching orders," Sharpe writes, claiming, "Women WANT to give up control of their life," and that they only vote, work, or otherwise make decisions because of "the pressure of modern society."
This wasn't a one-off, either. Gutfeld recently joined the chorus of right wing voices defending Russell Brand, after the British "comedian" was accused by multiple women of sexual violence and rape. Gutfeld applauded a teacher who got arrested for having sex with a 16-year-old student. And he claimed men only cry because of "substances in the water that reduce testosterone."
The jokey tone of some of this is there to insulate it from criticism, but Gutfeld isn't joking. The party of Donald "Grab 'Em By The Pussy" Trump shows no limits in normalizing extremely toxic masculinity and sexual violence. That much is evident in new court filings in the first big test case for the abortion "bounty hunter" law in Texas. The author of the law, former Texas solicitor general Jonathan Mitchell, has so far shown no shame that his client — who is suing his ex-wife's friends for helping her abort a pregnancy — displays a long history of abusive, controlling behavior. Mitchell shrugged off reports that his client, Marcus Silva, tried to prevent his wife from working and called her names like "slut" and "whore" in front of her coworkers.
So it's unlikely that Mitchell will mind a new filing providing evidence that Silva threatened to upload sexually explicit videos of his ex-wife, unless she returned home to clean and do laundry for him. Or that he used blackmail methods in an attempt to rape her, saying he would drop the lawsuit if she had sex with him. The document had a transcript of Silva, this latest "hero" of the anti-abortion movement, telling his ex, "You’re just gonna have your fcking life destroyed in every fcking way that you can imagine to where you want to blow your f*cking brains out."
It's not surprising that Mitchell would be fine with this treatment of women. As he argued to the Supreme Court in 2021, women have it coming by not "refraining from sexual intercourse." But now, of course, Mitchell is working for a man whose goal is to force his ex-wife to have sex with him.
One would think, after the political backlash to the overturn of Roe v. Wade, Republicans would not be so eager to advertise how the anti-choice movement is about controlling women and not "life." But, as David Kirkpatrick of the New Yorker writes, the head of Alliance Defending Freedom, the biggest conservative legal group in the country, was open about how the goal is to destroy access to contraception. "It may be that the day will come when people say the birth-control pill was a mistake," Alan Sears explained.
What's notable is this extremism isn't just relegated to the world of fundamentalist Christianity. The more secular and more proudly fascist right — which is increasingly cossetted and promoted by the tech billionaire world of Elon Musk and his buddies — has been aggressively promoting pseudo-scientific arguments in favor of extreme curtailing of sexual freedom.
The most prominent example is Costin Alamariu, a self-declared fascist who has become an "intellectual" darling on the right for putting a faux-intellectual gloss on some of the most evil impulses of the MAGA movement. He's been blogging for a long time under the name "Bronze Age Pervert," which makes him sound fun, but of course, he's anything but. His book, "Selective Breeding and the Birth of Philosophy," has become an Amazon bestseller because he's promoted by the grossest people on the internet. He proposes strict control over human "breeding" on the facetious grounds that it's necessary for the betterment of humanity, which he mostly understands in extremely racist terms. In his newsletter, John Ganz quotes Alamariu's writing:
I make the case in this introduction that this same matter of selective breeding, whether sexual selection, or various societies' management of marriage and reproduction, constitutes the most important part of morality, legislation, or of the "lawgiver's art," and that a sharp awareness of this reality is what led, again, to the discovery of the standard of nature and the subsequent birth of philosophy.
As Graeme Wood at the Atlantic pointed out, on his blog, Alamariu dispenses with the faux-academic language for an earthier version of the same arguments. "He considers American cities a 'wasteland' run by Jews and Black people, though the words he uses to denote these groups are considerably less genteel than these," he writes. Christopher Rufo has publicly praised Alamariu.
The sexual weirdness of the MAGA movement is deeply intertwined with the racism and the violence. Alamariu's writings are just saying the quiet part out loud: Sexual control, especially of women, is largely fueled by notions about "breeding" future generations, especially to look a certain way that racists want them to. Normalizing violence against women is part of that scheme, since, as fascists long have understood, women often don't go along voluntarily.
Because this is so weird, it's tempting to ignore it as the chattering of a fringe group of men are still mad they didn't get laid in college. But that would be a mistake, and not just because some of those men have become wildly powerful:
As the Dobbs decision by the Supreme Court shows, Republicans are never content to keep their massive sexual issues to themselves. They are determined to make everyone else suffer, not only by rolling back reproductive rights but by aggressively normalizing sexual and domestic violence. The throughline here is a belief that women aren't full human beings, but a sexual resource to be put under male control, by violence if necessary. It's a view they're getting increasingly less coy about publicly sharing.
It’s the American Library Association’s annual Banned Books Week, a tradition that started in 1982. This year, the theme is “Let Freedom Read!” in honor of record-breaking efforts to censor books now sweeping the nation’s libraries and schools. Yesterday, I published a story about Wyoming’s Cambell County Public Library, which, after a controversy over sex-ed books, last year became the first library system in the country to officially break ties with the venerable American Library Association, leaving its staff without opportunities to apply for grants, attend conferences, and fulfill their profession’s continuing education requirements.
Not to be outdone, Moms for Liberty, the crusading parents’ rights group whose annual conferences I’ve covered for the last two years, has declared this is “Teach Kids to Read Week.“ Here’s how the group’s founders explained it in a statement to the conservative website Post Millennial:
“When…those pushing for so-called ‘Banned Book Week’ continue to try to keep porn in schools we must fight back. America’s kids no longer know how to read and rather than highlighting that issue, these groups want to allow kids to access pornographic materials and other inappropriate materials. This is unacceptable, and we are proud to continue to fight for America’s children and encourage kids to learn how to read.”
Moms for Liberty’s attempt to connect literacy instruction to “pornographic materials” is part of a relatively new campaign to capitalize on the failure of a progressive movement in the teaching of reading. A spate of recent reporting has revealed that a popular approach called “balanced literacy,” which encouraged children to use context clues and guess when they couldn’t decode a word, didn’t actually help many kids learn to read. Moms for Liberty claims now that teachers are focused on in LGBTQ and anti-racist lessons instead of teaching kids how to decode words. I explained in a piece a few months back:
[Moms for Liberty] charges that schools have overstepped their bounds by teaching students progressive values—acceptance of all sexual and gender identities, for instance, or how to fight against racism—instead of focusing solely on academics. Now, these groups have taken up the failure of balanced-literacy instruction as further evidence of the utter failure of progressive education in perhaps the most important skill a child learns in school. In the process, they’ve launched the latest version of an age-old political fight over reading. Basically, the argument from parents’ rights groups can be boiled down to this: Don’t believe us that public schools have sacrificed education at the altar of progressive educational schemes? Just look at how miserably they’ve failed in teaching our kids to read.
“There is a lot of time being spent on ‘social-emotional learning’ and not so much time being spent on effective reading instruction in the classroom,” the Moms for Liberty account tweeted on May 21. “Why is literacy not being prioritized like sexual education is currently? Why does a 5yo need to learn about gender identity?”
What is the exact scenario in which an inclusive curriculum somehow replaces phonics-based reading instruction? Moms for Liberty has yet to explain exactly how this happens. Meanwhile, if you’d like to celebrate Banned Books Week by reading a few of the most censored, there’s a list here.
On Thursday, Donald Trump’s legal team filed a long-awaited motion to dismiss the special counsel’s 2020 election interference charges on presidential immunity grounds. We anticipated that Trump would mount this defense even before the charges officially dropped in a model prosecution memo on the case earlier this summer and published an extended takedown of the arguments. Now that the motion is here and we can judge the substance, it is still likely to fail.
Trump argues that the conduct underlying the charges in special counsel Jack Smith’s indictment falls within the “outer perimeter” of Trump’s official responsibilities as president. But this is the standard for civil immunity for presidents; although Trump’s lawyers try to apply this standard, courts have never even established that presidents enjoy any immunity from criminal prosecutions. Indeed, a close reading of that case suggests that five of the nine justices on the court thought that it did not.
Even if Judge Tanya Chutkan were to apply that standard, Trump’s alleged conduct falls well outside the outer perimeter of his duties. As we explained in the model prosecution memo:
Trump’s conduct in the many schemes leading up to January 6 or in the insurrection itself does not remotely qualify for any form of immunity. Simply put, the president has no role to play in counting or tabulating ballots—or certifying results—in presidential elections.
To deal with this problem, in their motion Trump’s lawyers go to great lengths to rebrand the conduct alleged in the indictment with a series of innocuous-seeming descriptions, such as that he “made public statements about the administration of the election,” “communicated with senior Department of Justice officials about investigating election fraud and about choosing the leadership of DOJ,” and “communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it.” They argue that the prosecution has charged Trump for official acts taken with allegedly improper motives—motives that, in any event, cannot alone curtail immunity.
These attempts to spin the descriptions of the conduct alleged in the indictment such that they might reasonably be viewed as falling within the outer perimeter of the president’s conduct are unpersuasive at best and dishonest at worst.
No neutral observer hearing Trump’s Jan. 2 phone call to Georgia Secretary of State Brad Raffensperger—during which Trump asked him to “just … find 11,780 votes”—would describe it as a mere communication with a state official about his duties. It was a naked attempt to pressure a state official to overturn the results of a free and fair election—one that had already been decided—in Trump’s favor. That was not within the outer perimeter of Trump’s responsibilities as former president but, rather, went far beyond it.
As explained in the model prosecution memo:
There are good, self-evident reasons why our legal system does not give the sitting president a role in counting, tabulating, or certifying the election for his successor—an election in which he may be a candidate. Any claim that Trump’s apparent involvement in the creation of false electoral slates claiming victory in states he lost, in a campaign to pressure Pence to unilaterally override the will of the voters, or in directing a group of armed and violent rioters to the Capitol to disrupt the certification of the election results was in furtherance of official federal business, rather than in pursuit of personal political gain, will not stand. Such a claim offends the Constitution’s structural safeguards against electoral self-dealing, as well as its prohibitions against making any single person or official the judge of their own case.
A string of controlling appellate cases is adverse to Trump, from the Supreme Court’s decision in U.S. v. Nixon to more recent decisions in the U.S. Court of Appeals for the District of Columbia Circuit regarding Trump’s assertions of similar arguments against the House Jan. 6 committee’s document subpoenas and Smith’s grand jury subpoenas of senior Trump administration officials. Indeed, Trump’s legal team repeatedly cites the Jan. 6 case Thompson v. Trump but merely asserts that it was wrongly decided, neglecting to note that he appealed the case to the U.S. Supreme Court and the justices denied his petition. In the civil context, Chutkan’s colleague Judge Amit Mehta, also rejected the identical Trump argument in the Blassingame case.
Court rulings in the Fulton County case on removal are also instructive. Trump’s chief of staff Mark Meadows sought to remove his criminal case in Fulton County, Georgia, from state to federal court by making similar arguments to Trump’s—that Meadows is entitled to immunity because the conduct alleged in the indictment related to his duties as a federal official. The presiding federal judge, Steve Jones, flatly rejected that argument, explaining that the Constitution does not provide for any White House involvement with state election and post-election procedures.
Jones also pointed out that the Hatch Act prohibits federal employees from engaging in political activity and that the activities in question were campaign-related, not official business. Jones highlighted that the lawyers on Trump’s call with Raffensperger were not from the DOJ or the White House Counsel’s Office, but were Trump’s personal and campaign attorneys—evidence that this was campaign activity falling well beyond the outer perimeter of federal duties. Jones also rebuffed similar points made by former DOJ official Jeffrey Clark in rejecting his removal motion. Chutkan is likely to reach the same conclusion.
Additionally, the implication argued by Trump that an acquittal in an impeachment somehow precludes criminal prosecution is absurd. It is true that the Constitution says that if a president is convicted in impeachment, he or she can later be subject to prosecution. The reason that the framers were silent about what happens to presidents who are acquitted in an impeachment is that it is so obvious—of course, they too remain subject to other, non-impeachment processes such as indictment. Trump cites reasoning by Justice Samuel Alito in Trump v. Vance, but that was in dissent and is not the holding or reasoning of that case. The majority of the court did not go for it, because it makes no sense.
Chutkan is likely to reject the motion, and the appellate courts will probably uphold that decision. Of course, we’ll have to wait to see how the DOJ responds and how Chutkan ultimately rules. But the facts and the law are clear—Trump’s efforts to overturn the results of an election he knew he lost do not fall within the outer perimeter of his official responsibilities as president. Not even close.
President Trump won several more weeks to file some motions in his D.C. election interference case, but the March 2024 trial date will remain the same, a federal judge ruled on Friday.
U.S. District Judge Tanya Chutkan for the District of Columbia gave Trump one more month to file motions concerning subpoenas, and two more weeks to file motions to dismiss and other pre-trial motions. Those were initially due by Monday; now they must be filed by Oct. 23.
It’s a moderate win for Trump, who had asked for a 60-day delay. But it does nothing to postpone the trial date — a goal he has sought both in his D.C. and Florida prosecutions. Trump moved to dismiss the case on Thursday on the basis of one claim: that he’s immune from prosecution because the allegations in the indictment all took place while he was president.
Separately, Chutkan mostly shut down an attempt from the former President to ask for delays around classified information.
There isn’t a lot of it in the D.C. case, but Trump’s attorneys had suggested that their lack of access — and lack of security clearances — should be cause to further delay proceedings.
Chutkan called their bluff earlier this week by ordering the Trump attorneys who had not yet applied for a security clearance to do so.
But the lawyers had also asked Chutkan for the opportunity to review a motion that prosecutors make in national security cases, which involves describing to the judge what classified information they believe should be allowed to make it to the defense. The defense is not allowed to review this motion because it contains information that, the judge may rule, they’re not allowed to see.
Trump’s attorneys asked to be able to review a redacted version of that motion and to file “procedural objections.” Chutkan denied the first part of that request, but approved the second half, noting that both the law governing the use of classified material in criminal trials and precedent from the D.C. circuit bars the defense from being able to see the document.
“Still, the court will allow the defense an opportunity to explain why it believes that CIPA’s statutory text and Circuit precedent do not govern this case,” Chutkan wrote.
The debate over classified information in the Trump case appears to touch on a vanishingly small amount of documents. Prosecutors said in a filing this week that they don’t plan on introducing classified documents at trial, and that the overall amount is relatively limited by the standards of federal criminal cases: 975 pages in total.
Suffice it to say, if Liz Cheney had survived the wrath of Donald Trump and retained her congressional seat, she would be organizing congressional Republicans to oppose Jim Jordan’s bid to become Speaker of the House.
But Cheney, the bluntest Republican critic of Trump’s assault on democracy, was crushed in the 2022 primary campaign for her Wyoming seat, thus foreclosing any chance that she would ever achieve the speakership that she so obviously coveted. But Cheney is still battling Trump and still, in her way, battling for the speakership.
Even before Trump endorsed Jordan’s candidacy to replace deposed Speaker Kevin McCarthy early on Friday morning, Cheney was raising a red alert regarding the House Judiciary Committee chair’s bid to become the most powerful Republican in Washington.
Were House Republicans to opt for Jordan in the race he is now running against House Majority Leader Steve Scalise, R-Louisiana, Cheney argued in an October 4 speech at the University of Minnesota, it would be an ominous development for her party and her country. “If they were to decide that Jim Jordan should be the Speaker of the House,” she warned, “there would no longer be any possible way to argue that a group of elected Republicans could be counted on to defend the Constitution.”
In reality, the notion that elected Republicans are inclined as a group to defend the Constitution went out the window long ago. Cheney was a part of the problem when she chaired the House Republican Conference and served as one of the most hawkish members of a chamber that regularly rejected its constitutional duty to check and balance presidential war-making and abuses of civil liberties. Cheney actually voted with Trump on a slightly more frequent basis than Jordan—though, it should be noted, on a slightly less frequent basis than Scalise, an insider whose social conservative streak comes with a pro-corporate edge.
Cheney’s concerns about Jordan are rooted in the bitter experiences of her final term in the House, when she and a handful of other Republicans tried to hold the former president to account for his efforts to overturn the results of the 2020 election he lost to Democrat Joe Biden. Both Jordan and Scalise were on the wrong side of that fight, but Cheney, the former co-chair of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, argues, “Jim Jordan knew more about what Donald Trump had planned for January 6th than any other member of the House of Representatives. Jim Jordan was involved, was part of the conspiracy in which Donald Trump was engaged as he attempted to overturn the election.”
Jordan was so involved that he reportedly discussed the prospect of Trump issuing preemptory pardons to the former president’s congressional allies. And Jordan was among Trump’s most ardent defenders during his second impeachment in 2021.
That gives Cheney plenty of reasons to oppose Jordan—and Trump just as many reasons to support him. So it comes as no surprise that, within hours of Cheney’s warning, Trump rejected overtures from House allies who wanted him to seek the speakership and endorsed Jordan’s bid.
“He will be a GREAT Speaker of the House,” argued Trump, who added that, “He is STRONG on Crime, Borders, our Military/Vets, & 2nd Amendment.”
The choice between Scalise and Jordan is not an ideological one, and there’s an argument to be made that Scalise would be more effective at pulling the caucus together and advancing the conservative agenda. But Trump’s not interested. In the former president’s eyes, Jordan’s biggest selling point is that he is stronger on Trump than any top Republican in the House. Jordan proved that when he abused his authority as Judiciary Committee chair so egregiously that attorneys for Manhattan District Attorney Alvin Bragg alleged that he had engaged in “a campaign of intimidation, retaliation and obstruction” in order to undermine efforts to prosecute Trump—who currently faces 91 criminal indictments in a number of jurisdictions.
And, of course, Jordan has been leading the effort to impeach Trump’s likely opponent in the 2024 presidential race, President Biden, on charges so spurious that constitutional law professor Jonathan Turley, a frequent GOP witness on issues related to presidential accountability, told the House Oversight Committee he did “not believe that the current evidence would support articles of impeachment.”
If Jordan becomes speaker, it’s a safe bet that the impeachment inquiry will proceed more aggressively than it did under McCarthy— who faced criticism from conservatives for his hesitancy regarding the initiative. Even if Jordan could get the House to vote to impeach Biden—which is not guaranteed—the prospects for a conviction in the Democratic Senate would be slim.
But it is surely worth noting that, as Speaker of the House, Jordan would not merely be the most powerful Republican in the Capitol. He would be second in the line of presidential succession after Vice President Kamala Harris.
A daunting thought for those who recall that former House Speaker John Boehner, who once dismissed his fellow Ohio Republican as a “political terrorist,” has said of Jordan, “I just never saw a guy who spent more time tearing things apart—never building anything, never putting anything together.”
On October 11, the Supreme Court will hear a challenge to racially gerrymandered congressional maps in South Carolina that could tell us a lot about where the Court stands on voting rights.
The lower court in this case, known as Alexander v. South Carolina State Conference of the NAACP, determined that the state’s Republican legislature excluded Black voters from the state’s First Congressional District in order to shore up Republican control of that district.
The stakes in any congressional gerrymandering case are high because these cases can potentially impact who will control the US House of Representatives in the future. And the Court’s ultimate decision in Alexander may be unusually significant.
For years, the Supreme Court’s Republican majority had been almost unrelentingly hostile toward voting rights plaintiffs, and especially toward the Voting Rights Act — a federal law that bans race discrimination in elections. But in a surprising move last June, the Court struck down an Alabama gerrymander, affirming a lower court decision holding that the state violated the Voting Rights Act when it drew congressional maps that diluted Black voting power within that state.
Notably, the Court’s 5-4 decision in that case, known as Allen v. Milligan (2023), was written by Chief Justice John Roberts, and it rested upon a provision of the Voting Rights Act that Roberts unsuccessfully pushed President Ronald Reagan to veto when he was a young political appointee in the Justice Department.
So Milligan is potentially the first sign that the Court’s hostility toward voting rights plaintiffs is diminishing. Now, with Alexander, the first major voting rights case the Court has taken up since, we could see how committed to that pivot the justices actually are.
Technically, the legal issue in Alexander is distinct from the one in Milligan. Milligan held that Alabama violated the Voting Rights Act when it drew its congressional maps, while the lower court in Alexander held that South Carolina violated the Constitution’s safeguards against race discrimination, which function quite differently in racial gerrymandering cases.
But this Court rarely troubles itself with legal formalisms when it decides voting rights cases. Its decision in Shelby County v. Holder (2013), for example, declared a key provision on the Voting Rights Act unconstitutional based on something called the “‘fundamental principle of equal sovereignty’ among the States” that cannot be found anywhere in the text of the Constitution. The Court’s decision in Brnovich v. DNC (2021) simply made up a bunch of new limits on the Voting Rights Act, such as a presumption that voting restrictions that were commonplace in 1982 are valid, which also have no basis in any legal text.
This is why the Milligan decision, which hewed to a 37-year-old precedent governing vote dilution cases, was so surprising. The Court took an unexpected turn toward following existing law.
Thus, the biggest question in Alexander is whether Milligan’s turn toward the rule of law in voting rights cases is merely a fluke or whether it reflects a broader shift in the Court’s posture toward democracy.
So what’s the legal issue in Alexander?
In 2018, former Rep. Joe Cunningham, a Democrat, won a narrow victory in South Carolina’s First Congressional District, a district that had been held by Republicans for many years. Although he lost his seat to Republican Nancy Mace in 2020, Cunningham still received over 49 percent of the vote in that election — a result which suggested that the First District would remain competitive unless it was altered.
And so the state’s Republican legislature decided to alter it. As the lower court opinion striking down this district’s new configuration explained, “when the South Carolina House and Senate began considering congressional reapportionment in 2021, the Republican majorities in both bodies sought to create a stronger Republican tilt” in this district. And the newly drawn district does appear to be more solidly Republican. Mace won her most recent election, in 2022, with nearly 57 percent of the vote.
Yet, while the GOP’s goal was to shore up Republican control of the First District, the lower court determined that it did so through an illegal racial gerrymander. Specifically, the lower court found that South Carolina’s mapmakers chopped up Charleston County, including many white voters from that county in the First District, while excluding nearly 80 percent of Charleston’s Black population.
Because South Carolina’s voters are racially polarized — in 2020, 90 percent of Black voters in South Carolina voted for President Joe Biden, according to CNN exit polls — Republicans could use race to identify which voters are likely to prefer Democratic candidates. According to the lower court, they then excluded many Black voters from the First District in order to keep them from electing a Democrat in that district.
This violates the Supreme Court’s decision in Cooper v. Harris (2017), which held that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.”
South Carolina does spend some of its brief suggesting bold new limits on constitutional challenges to racial gerrymanders — at one point, for example, it implies that courts should be forbidden from ruling that a map is unconstitutionally gerrymandered unless the plaintiffs can produce “direct evidence such as a legislator’s admission” that the map was designed to target voters of a particular race.
As a whole, however, the state’s brief focuses less on calls for a new legal regime, and mostly on calls for the Supreme Court to second-guess the lower court’s factual determination that the state sorted voters into districts because of their race. The gerrymandered map, they claim, was “race-neutral” because voters were moved out of the First District “based on their political composition and traditional criteria, not their racial composition.”
This argument should not carry much, if any, weight in an appellate court. As the Supreme Court also held in Cooper, appeals courts — including the highest Court — typically should defer to a lower court’s factual determinations. The lower court’s “findings of fact — most notably, as to whether racial considerations predominated in drawing district lines — are subject to review only for clear error.”
So, if the Supreme Court is inclined to follow existing law in the Alexander case, it will affirm the lower court’s decision to strike down the gerrymandered maps. Absent clear evidence that the lower court botched its factual determinations, those determinations may not be disturbed on appeal.
What the Court should say in its Alexander opinion
Significantly, no one questions that South Carolina Republicans gerrymandered the First District to prevent Democrats from winning it again. Indeed, South Carolina repeatedly admits in its brief to the justices that “the Republican-controlled General Assembly’s goal was to ‘create a stronger Republican tilt’ in District 1.”
Under the Court’s First Amendment decisions, which protect against attempts to discriminate against voters because of their partisan affiliation, this admission should be fatal to South Carolina’s case. But the Court has never ruled explicitly that those protections apply to gerrymanders. And then there is the Court’s decision in Rucho v. Common Cause (2019), which held that federal courts typically are powerless to do anything about partisan gerrymandering. So the state’s admission that it drew a partisan gerrymander most likely will not kill South Carolina’s hopes.
To be clear, cases like Cooper establish that federal courts may sometimes intervene when states draw racial gerrymanders, meaning that voters were sorted because of their race. But cases challenging partisan gerrymanders — maps that sort voters based on whether they are Democrats or Republicans — will typically be dismissed by federal courts thanks to Rucho.
In Alexander, the lower court determined that South Carolina’s First District is both a racial gerrymander and a partisan gerrymander. And, under Cooper, federal courts should still strike down an illegal racial gerrymander even if the map wasn’t motivated by outright white supremacy, but merely by a partisan desire to use race to determine which voters are Democrats and diminish the power of those voters.
Nevertheless, South Carolina’s primary legal strategy in Alexander is simply to deny that race played any role in its map-drawing decisions, and to present the First District as the product of a purely partisan gerrymandering process.
Notably, however, the Supreme Court has never held — not in Rucho or in any other case — that partisan gerrymandering is constitutional. To the contrary, the Court has consistently held that the First Amendment protects against “viewpoint discrimination,” which occurs when the government discriminates based on someone’s political views.
Though the full Court has never struck down a partisan gerrymander for engaging in viewpoint discrimination, at least five justices have, at various times, endorsed the view that such gerrymanders violate the First Amendment. As Justice Elena Kagan wrote in her Rucho dissent, the First Amendment “gives its greatest protection to political beliefs, speech, and association,” but partisan gerrymanders “subject certain voters to ‘disfavored treatment’ — again, counting their votes for less — precisely because of ‘their voting history [and] their expression of political views.’”
So, by admitting that it drew the First District to give an advantage to Republicans and a disadvantage to Democrats, South Carolina confessed in a brief to the Supreme Court that it violated the First Amendment.
Rather than holding that the First Amendment permits viewpoint discrimination in redistricting, Rucho held that federal courts should stay away from partisan gerrymandering cases because they are too hard. As the Court said in that case, the justices have “struggled without success over the past several decades to discern judicially manageable standards for deciding” partisan gerrymandering cases. That is, the majority in Rucho concluded that it is too difficult to come up with a unified theory of partisan gerrymandering that will allow judges to determine whether each map drawn by a state legislature violates the Constitution.
Whatever the wisdom of this decision in Rucho, however, it makes no sense to apply Rucho to cases where a state openly confesses, in a brief to a court of law, that they violated the First Amendment by drawing a partisan gerrymander — for the same reason that it is not hard to figure out who robbed a bank after the bank robber shows up at the police station with a signed confession.
Is this Supreme Court likely to agree with this argument? No, it is not. Even before Rucho, states frequently defended themselves against racial gerrymandering suits by claiming that their gerrymandered maps were drawn for partisan and not racial reasons. And this Supreme Court has shown little interest in pushing back against this practice.
South Carolina can still lose, even if the Supreme Court does not move against partisan gerrymandering
Though the Supreme Court is unlikely to order states to stop defending against racial gerrymandering allegations by confessing to partisan gerrymandering, that doesn’t mean that South Carolina is likely to prevail in this case.
Again, under Cooper, it is already illegal for a state to use race as a proxy to identify Democratic voters. And the Supreme Court is supposed to defer to a trial court’s factual determination that South Carolina did, in fact, use race as such a proxy in the Alexander case.
Prior to Milligan, voting rights advocates would still have very good reason to fear the outcome of the Alexander case. As cases like Shelby County and Brnovich suggest, this Supreme Court does not always concern itself with what the law actually says when it decides a voting rights case.
But, at the very least, Milligan reveals that at least five justices are still open to the argument that the Court should strike down racially gerrymandered maps if those maps violate existing law.
Beyond the formal, furrowed-brow statements from congressional communications directors, Senator John Fetterman probably best captured the consensus view among Democrats of the House Speaker drama roiling Washington: “Replacing one dick with a different kind of dick isn’t going to change anything in the House.”
Democrats better hope that’s true. Otherwise, we’re headed for a very long government shutdown.
Now-former Speaker Kevin McCarthy disgusted Democrats with his many attempts to appease the most rabid elements of the House Republican Conference—most notably, pushing spending bills with cuts deeper than agreed upon in last spring’s debt limit deal, unilaterally greenlighting an impeachment inquiry into President Joe Biden, and last Sunday claiming Democrats “were willing to let government shut down” instead of thanking them for supporting his bill to keep the federal government open.
All low road moves. Nevertheless, McCarthy did forge the debt-limit deal with time to spare. McCarthy did abandon his draconian cuts and pushed through a “clean” 47-day spending bill without poison pills when the shutdown was imminent. A different kind of speaker may not do the same when we reach the next deadline if we even have a speaker by then.
On the morning of what turned out to be McCarthy’s last day as speaker, I made the case for Democrats to keep him in place because a Republican speaker who will keep the government open and pay debt obligations is as good a speaker as Democrats will get. Instead, House Democrats focused on everything McCarthy did outside of those two acts to conclude, in the words of Representative Abigail Spanberger, “he’s likely the most unprincipled person to ever be speaker of the House.”
The Republican who introduced the motion to vacate, Representative Matt Gaetz, would no doubt agree. On Sunday he argued, “Speaker McCarthy made an agreement with House conservatives in January, and since then, he’s been in brazen, repeated material breach of that agreement. This agreement that he made with Democrats to really blow past a lot of the spending guardrails we set up is a last straw.”
Gaetz and his splinter faction accused McCarthy of violating a January deal he made with them for draconian cuts. At the same time, Democrats didn’t trust McCarthy to follow through on the May deal with President Joe Biden for milder spending cuts. One congressional staffer posted on X that McCarthy’s plan to move individual appropriations bills in October indicated that, despite the stopgap spending bill, he was “going to steer us directly back into the crazy cuts and abortion restrictions.” McCarthy was mistrusted, left and right. So here we are.
To my eye, McCarthy’s decision to pass a bipartisan stopgap bill showed his hand more than anything else. He may have hoped to wrangle some more cuts out of the appropriations process, or at least wanted fellow Republicans to believe he was trying his hardest to do so, but he wasn’t going to shut down the government over it.
Regardless, what’s done is done. Now the challenge is keeping the government open with a speaker who, to secure 218 Republican votes, will likely need the blessing of the nihilists who provoked McCarthy’s ouster.
Yes, as I wrote here recently, any shutdown will be the fault of Republicans, and no shutdown has ever led to the instigating crew securing their stated policy demands. But if it takes months before Republicans accept political reality, the long period of government inactivity could take a big chunk out of the Gross Domestic Product. The worst-case scenario for Democrats: what had been an upward economic trajectory is wrenched downward into recession. What could begin as a self-inflicted wound by Republicans could eventually bleed out Joe Biden’s re-election. McCarthy and Senate Minority Leader Mitch McConnell were not interested in taking this political gamble, but the next speaker might.
Can Democrats avoid this scenario by collaborating with the handful of House Republicans representing Biden-won districts and electing a moderate speaker? Business Insider’s Bryan Metzger put that question to Representative Mike Lawler, who resides in an upstate New York district Biden won by 10 points. He “became livid” and replied, “Democrats just joined together with Matt Gaetz to upend the Republican majority and upend the institution of the House of Representatives. So whatever hopes of a bipartisan compromise, you can kiss that goodbye.”
McCarthy may have been unprincipled, but Democrats must now gird themselves for a Republican speaker who may have more right-wing principles and little, if any, investment in the spending caps set by the Biden-McCarthy debt limit deal (though the two announced candidates for speaker, Steve Scalise and Jim Jordan, both voted for that deal.)
Democrats likely will and should insist on sticking with a deal supported by a majority of House members in each party, making clear any shutdown is being provoked by reneging Republicans. Presumably, if past shutdown dramas are any guide, the instigators will eventually fold. Whether Republicans, under, say, Speaker Jordan or Speaker Scalise, would blink before inflicting lasting economic damage is something Democrats can’t dictate.
Most Americans who oppose Donald Trump agree the threat to democracy is the major issue of the 2024 election. But what, precisely, constitutes the threat? To most Democrats, the danger is that the election will install into power a president who admires autocratic regimes and wishes to replicate their methods by encouraging violence, using the government to punish independent media and prosecute his political enemies.
But another, smaller group of people say the threat to democracy is that there will only be one candidate running against Trump. They define “democracy” as giving voters in the general election the choice of multiple non-Trump options.
At the moment, Biden is facing potential spoiler campaigns from the center (No Labels) and the left (Cornel West.) The substantive critiques those two spoiler campaigns have with President Biden and the Democratic party are ideologically diametrical, but their process argument is the same.
“There is no true democracy in America when two ruling parties actively work to prevent voters from having choices,” says Peter Daou, West’s campaign manager. “Would you accept a restaurant with only two (rotten) items on the menu? Of course not.”
“The attempt to shut down No Labels is not an attack on the organization. It’s an attack on America’s democracy,” claims Joe Lieberman, one of the organizers of the centrist third-party campaign.
Notably, West and Lieberman alike aren’t merely making a procedural case that they require ballot access. They are arguing that even to denounce their campaigns imperils democracy. Lieberman’s comments came in response to the Democratic Party merely instructing its officials to attack No Labels as a threat to democracy.
Daou, in an interview with The New Yorker’s Isaac Chotiner, complained that the very act of criticizing his campaign is undemocratic. “Let’s say this cycle we also say the same thing, which is, ‘Oh, my God, we have to stop Donald Trump or we have to stop whoever the Republican might be,’” he theorized. “And this happens the next cycle and the next cycle and the next cycle. Where is the so-called democracy that we’re supposedly protecting or saving? What we’re doing is we’re crushing third parties. We are stifling democracy itself, Isaac.”
Daou and Lieberman are not simply asserting that third parties must have the right to appear on the ballot. They are insisting democracy requires that they run and that the major parties refrain from denouncing them as spoilers.
At the risk of insulting the reader’s intelligence, apparently, it is necessary to point out that the choice construction of a presidential election is nothing like a restaurant menu. When you order from a restaurant, every diner gets to eat whichever dish they want. For that reason, it’s in the restaurant’s interest to provide them with as many options as the restaurant can competently supply. When I go to a restaurant, I want the menu to offer me something that caters to my individual tastes.
To continue with the restaurant analogy, a presidential election is like a restaurant where, even though we have different choices on the menu, every diner gets the dish that gets ordered the most. That changes the incentive completely. In that kind of restaurant, I would neither expect nor even want a menu with lots of choices. I would want a menu designed to give me the choice closest to my preference. I happen to love Indian food, but putting chicken tikka and lamb vindaloo and saag paneer on a winner-take-all menu ballot might well mean that I wind up eating a bologna sandwich.
If we could live in a world where everybody got the president of their choice, I am confident nobody would care how many presidential candidates jumped into the race. The reason Democrats are concerned about the proliferation of candidates is that the election is going to result in just one president.
The nature of the American presidential election system, which lacks both parliamentary coalitions and ranked-choice voting, is that multiple candidates make it easier for a candidate to win with a minority of the vote. Democrats believe that the intensity of opinion around Trump — and the Democrats’ need to win a strong majority of moderates in order to have a majority — means that having multiple non-Trump candidates increases the odds of a Trump victory.
Third- and fourth-party enthusiasts seem (or perhaps just pretend) not to comprehend this dynamic at all and instead insist putting more choices on the November election is tantamount to “democracy.” Of course, you could expand choices by running more candidates in the primaries, which are open and decided by the voters. But neither the No Labels faction nor the Cornel West faction are willing to actually compete for the Democratic nomination. (Daou, revealingly, originally managed the campaign for Democratic candidate Marianne Williamson before giving up when she went nowhere).
The Wall Street Journal has repeatedly argued that criticizing No Labels is unpatriotic and anti-democratic. “President Biden said in a rare recent interview that No Labels has ‘a democratic right’ to do this, but ‘it’s going to help the other guy,’” complains an editorial this week. “Now comes a Super Pac trying to raise millions of dollars to assail No Labels, according to a fundraising pitch to prospective donors. What do these folks have against democracy?”
The Journal used to insist that wealthy donors spending money on ads to promote their point of view was a freedom so vital that campaign donations couldn’t even be regulated. Now, apparently, it’s a threat to democracy.
The Journal also professes to have no idea why anybody would even object to a No Labels candidacy. “What we don’t understand is the obloquy heaped on No Labels. Its members are patriots who want to spare the country from a campaign that offers four more years of the last two polarizing Presidencies,” pleaded a July editorial.
Of course, the Journal understands perfectly well why Democrats object to a spoiler campaign. “Yes, this does pose a threat to them because it’s likely to drain votes away from the Biden side,” boasted a Journal editorial writer in a video segment praising No Labels.
Lieberman’s own motives are only slightly more opaque. In an interview with CT Insider this summer, he dismissed polling that found a No Labels candidacy would pull more votes from Biden than Trump by insisting, “I haven’t seen exactly that one, that’s not our poll.” (As the interviewer noted, those numbers actually did come from his organization.)
And while Lieberman has been publicly assuring Democrats that No Labels would stand down if its candidate isn’t in position to win the election, he told CT Insider he might stay in the race anyway:
Even if we don’t think we’re likely to win, is there a constructive role for third party, a third ticket, bipartisan in which the American people can say by voting for that by partisan ticket, “Hey, Republicans and Democrats, we’re not buying what you’re selling, we want a third choice and No Labels is offering it to us.” So we may decide to run even if it’s not so sure that we can win, if we think we can have that kind of positive effect on whichever of the two candidates gets elected next November.
If your primary motivation in life is to exact revenge on the Democratic Party over personal slights, it’s easy to talk yourself into believing that you’re following some higher principle. But nobody should indulge their self-delusions. Skipping an open primary system to instead flood a first-past-the-post ballot with competing candidates to lower the plurality threshold for a terrifying authoritarian to win power has nothing to do with “democracy.”
High interest rates may soon get higher. CNN reported that JPMorgan Chase CEO Jamie Dimon sent a “stark warning” to Wall Street on Monday that it is possible the Federal Reserve will raise the benchmark rate all the way to 7% — even though most analysts think it will top out under 6%. If his “contrarian” prediction is correct, “you’re going to see a lot of people struggling," Dimon said.
But the new era of high interest rates is already rippling through the economy and government.
The effects are being felt in the housing market: CNBC reported that mortgage demand fell 6% during the last week of September because “mortgage rates just continue to climb higher.” Rate hikes are affecting car buyers: The average monthly payment on a new car is $736 — up $33 from a year ago, per Axios. And they’re being felt in Hollywood: Financial Times noted that entertainment companies are putting an end to the “golden era of cheap streaming” because rates are making TV and movie production more expensive. Expect fewer new shows and higher streaming subscription costs.
Washington isn't immune to the effects, either. The federal government was able to swallow rising deficits over the last 15 years, Eric Levitz argued in Intelligencer, because it could borrow money cheaply. Now the yield on a 10-year bond is at 4.8%, “its highest level since 2007.” If the rate stays that high, “the implications for the nation’s finances will be profound.” If federal borrowing continues and rates don’t come down, “interest payment will come to consume more than half of federal tax revenue by 2050.”
‘Higher for longer’
“Forget the shutdown,” The Economist editorialized. America’s “real fiscal worry” is rising bond costs linked to the Federal Reserve’s decision to keep interest rates “higher for longer” as it tries to rein in inflation. Right now, the Feds spend 2.5% of the country’s gross domestic product servicing the national debt. By 2030, that number will be 3.2%, “equaling an all-time high and more than the cost of defense.” And that might even be a low estimate. It’s clear that American politicians cannot “continue to act as if deficits do not matter.”
“Rising interest rates mean deficits finally matter,” Greg Ip added at The Wall Street Journal. The now-dead era of ultra-low interest rates meant that “we had a blissful 25 years of not having to worry about this problem,” one analyst said. But it’s tough to see who might solve that problem: Former President Donald Trump and President Biden “have signed deficit-busting legislation” and nobody seems interested in either tax hikes or cutting Medicare and Social Security.
Don’t panic, Louise Sheiner wrote for The Brookings Institution. Yes, interest rates are high now — a big reason the deficit has increased — but “it is too soon to know whether the recent increases will persist, and if so, why.” If rates do come back down, or if the GDP gets an unexpected boost, the crisis will be averted. For now “it is much too soon to tell.”
‘The Romans had it worse’
Bank of America is taking the really long view on interest rates, Insider reported. The bank charted interest rates over 5,000 years of human civilization and found that while interest rates are relatively high now — compared to recent history — “the Romans had it worse.” The analysis was a bit tongue-in-cheek, however. “Investors can probably take the chart with a grain of salt.”
“So is the low-interest era really over?” asked The New York Times’ Paul Krugman. He doesn’t think so — and points to Japan as the model. That country has had both low population growth and low interest rates for a long time, and America is entering its own low-population growth phase. “Why shouldn’t we expect interest rates to go back to prepandemic levels once the Fed is done fighting inflation?”
Maybe there’s no reason for the Fed to raise rates further. The data suggests “inflation is falling,” Texas Tech University economist Alexander William Salter argued at The Hill, concluding that “fighting inflation is good, but causing needless economic pain isn’t.”
WASHINGTON (AP) — Lawyers for Donald Trump asked a judge Thursday to dismiss the Washington federal election subversion case against him, arguing the Republican is immune from prosecution for actions they say were taken in his official role as president.
The motion amounts to the most pointed attack yet by defense lawyers on the federal case charging Trump with plotting to overturn the results of the 2020 presidential election he lost to Democrat Joe Biden. It tees up a fight over the scope of presidential power, forcing courts to wrestle with whether the actions Trump took in his failed bid to remain in office fell within his duties as commander-in-chief or whether they strayed far outside his White House responsibilities and are subject to prosecution.
“Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the ‘outer perimeter,’ but at the heart of his official responsibilities as President,” the defense motion states. “In doing so, the prosecution does not, and cannot, argue that President Trump’s efforts to ensure election integrity, and to advocate for the same, were outside the scope of his duties.”
The presidential immunity argument had been foreshadowed for weeks by defense lawyers as one of multiple challenges they intended to bring against the indictment.
Special counsel Jack Smith’s team is expected to vigorously contest the motion. It is not clear when U.S. District Judge Tanya Chutkan might rule, but potentially protracted arguments over the motion — including an expected appeal if she denies the request — could delay the case as courts step into what defense lawyers described an unsettled question.
The Supreme Court has held that presidents are immune from civil liability for actions related to their official duties. But Trump’s lawyers noted in their motion that no court has addressed the question of whether that immunity shields a president from criminal prosecution, hinting that the defense will likely fight the issue all the way to the nation’s highest court.
“In addressing this question, the Court should consider the Constitution’s text, structure, and original meaning, historical practice, the Court’s precedents and immunity doctrines, and considerations of public policy,” they wrote.
Prosecutors appeared to anticipate the immunity argument, writing in the indictment that though political candidates are permitted to challenge their election losses and to even falsely claim victory, Trump’s actions strayed far beyond what is legally permissible in the run-up to the Jan. 6, 2021, riot at the U.S. Capitol, when pro-Trump rioters stormed the building to disrupt the counting of electoral votes.
In their motion, defense lawyers argue that the actions that form the basis of the indictment, including urging the Justice Department to investigate claims of voter fraud and pressing state officials on the administration of elections, cut to the core of Trump’s responsibilities as commander in chief.
The Justice Department has held that sitting presidents cannot be prosecuted. The motion Thursday seeks to ensure that same protection to a former president for actions taken while in office, asserting that no prosecutor since the beginning of American democracy has had the authority to bring such charges.
“Every action of the Defendant charged in the indictment occurred while he was still in office as President of the United States, and, according to the prosecution, all concerned a federal government function,” they wrote. “Given the all-consuming nature of the Presidency, these facts alone strongly support the notion that the indictment is based solely on President Trump’s official acts.”
They contend that Trump’s tweets and public statements about fraud in the election and Vice President Mike Pence’s role in the certification were directly related to his assertion that the election’s outcome was tainted by fraud and that the Justice Department and certain states had failed to adequately investigate it.
And they say meetings detailed in the indictment with Justice Department officials also fall within his official duties because he was urging his agency “to do more to enforce the laws that it is charged with enforcing.”
Prosecutors alleged a broad range of criminal conduct in a four-count indictment issued Aug. 1, accusing Trump of conspiring with a half-dozen allies to pressure state officials to alter the results of their elections; enlist slates of fake electors in battleground states who could falsely claim that Trump had won; and persuade Pence to shirk his duty to certify the vote count before Congress.
The indictment says Trump knew the claims he was pushing about election fraud were false but did so anyway in an effort to undermine the integrity of the democratic process. But Trump’s lawyers say “the president’s motivations are not for the prosecution or this Court to decide.”
Trump’s lawyers also argue his 2021 impeachment trial acquittal bars his prosecution, saying the Constitution suggests presidents can only be criminally charged in cases where they are impeached and convicted by the Senate.
“President Trump was acquitted of these charges after trial in the Senate, and he thus remains immune from prosecution. The Special Counsel cannot second-guess the judgment of the duly elected United States Senate,” his lawyers wrote.
The case, one of four Trump is facing, is currently set for trial on March 4, 2024.
His lawyers have separately sought the dismissal of a New York state case charging him with falsifying business records in connection with hush money paid to a porn actress who alleged an extramarital affair with Trump years earlier.
In court papers made public late Wednesday, Trump’s lawyers accused prosecutors of reviving a so-called “zombie case” to interfere with his comeback campaign for the White House and argued that Manhattan District Attorney Alvin Bragg, a Democrat, only brought the case because of politics.
Defense lawyers also sought late Wednesday to postpone until after the 2024 presidential election the trial in a separate criminal case in Florida charging him with illegally hoarding classified documents.