Jim Jordan and Wisconsin Republicans Know the Law—They Just Don’t Care

Watching democracy die isn’t like watching a movie, where (at least in a well-constructed movie) the plot points are made clear to us, to make us sit up in our seats at the crucial points and help us follow along. It’s more like driving (in the pre-GPS world) along an unfamiliar road at night in the rain: You see things that appear to be landmarks, but you’re not sure of their significance and you’re always a little unsure that you’re going to arrive at your destination.

So let’s be clear about two things going on this week that are direct attacks on democracy. Jim Jordan’s attempt to interfere with Fani Willis’s prosecution of Donald Trump and Wisconsin Republicans’ threat to impeach recently elected state Supreme Court Justice Janet Protasiewicz represent blatant efforts to crush law and custom and exert anti-democratic power over duly elected officeholders who happen to be doing things they don’t like.

We start with Jordan, who has repeatedly made clear that all he cares about is power. He recently wrote to Willis demanding that she turn over certain documents relating to her decision to prosecute Trump. His ridiculous letter asserted a federal interest in overseeing local prosecutions. She replied this week with an incendiary letter of her own laying out all the ways in which he’s wrong.

Willis writes that it is “clear that you lack a basic understanding of the law, its practice, and the ethical obligations of attorneys generally and prosecutors specifically.” That may be true. But Jordan is a lawyer. I’d say it’s far more likely that Jordan knows the law and doesn’t care. He’s the chairman of the House Judiciary Committee, and he has the power to subvert or change the law if he wants to.

Willis enumerates the many reasons why the federal government in all its forms has refrained from interfering in local prosecutions. Again, I would guess that Jordan knows all this. This is the point. He and his staff understand federalism. They just wish to trample it. In this case, that is. If and when defending Donald Trump requires howling about the precious importance of federalism, they’ll do that.

Now, to Wisconsin. The GOP argument there with respect to Protasiewicz is that during her campaign, she accepted around $10 million in donations from the Democratic Party and therefore can’t rule honestly on gerrymandering cases that come before her.

That’s a lot of money, and it surely helped her win—a victory that put liberals in charge of the state’s highest court for the first time in years. But what really helped her win—by double digits—was Republican extremism, especially on abortion rights. And here’s the thing. There is nothing illegal in Wisconsin law about accepting such donations. And judicial candidates of both parties have done so. Not to the tune of $10 million, to be sure, but they’ve taken the money (her Republican opponent took $1.2 million in party money). Wisconsin Republicans have not, of course, complained when conservative justices have heard cases involving their donors.

On what basis can the GOP impeach a judge who hasn’t violated any law and hasn’t done anything wrong? And remember, Republicans aren’t accusing her of having done anything wrong. They’re just saying she might make a ruling that might appear to be corrupt. And the reason they’re saying that is that Wisconsin is arguably the most corruptly gerrymandered state in the country. In last year’s midterms, Democratic Assembly candidates won about 200,000 more votes overall, but the Republicans maintained their two-thirds majority in the lower chamber.

In sum: Wisconsin is functionally not a real democracy in which each vote counts equally. The voters elected a judge who campaigned according to the existing laws and whose presence threatens to make the state a functioning democracy (there’s a lawsuit about gerrymandering that’s moving up toward the high court). The Republican response? Remove her from the bench.

That these two events are happening in the same week allows us to reflect on what has become of so-called conservatism. A conservative is someone who, well, conserves. As liberals see social problems and press for change to address them, conservatives say, Hey, wait a minute; let’s stop and think about the consequences of overreaction here, and about what we might be losing if we make the changes liberals want. I don’t agree with that stance and never have. But I acknowledge that it’s a legitimate way to look at the world, and I even acknowledge that sometimes, the conservative impulse can contribute to a decent, balanced outcome (or could, back in the days when there was actual compromise).

But these radicals don’t want to “conserve” anything, except for white people’s political power. They want to destroy. They aren’t just willing to trample law and custom. They are eager to do so. This must be understood. They seek opportunities to hack away at the pillars and foundations of democracy. They used to try to be sneaky and at least a little bit subtle about it. But since Trump, that’s out the window. In late 2018, it was this same Wisconsin Legislature, you may recall, that used its lame-duck session to move, after the election win of Democratic gubernatorial candidate Tony Evers, to limit the incoming governor’s powers.

We may be driving down an unfamiliar road here. But now we have GPS, and we know the destination. We need to take note of the landmarks along the way. And we—and by “we” in this case, I mean mainly the mainstream press and the swing voters who still think both parties are equally corrupt—need to stop pretending that this is a normal American political party. It’s an authoritarian army of thugs in suits.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

It was hard to watch that Mitch McConnell video. That’s the second time he’s gone blanko in recent weeks in front of the cameras. We have no idea how often it’s happened when he wasn’t in front of the cameras. But odds are pretty good those aren’t the only two times.

Word is that some senators are considering a meeting to try to figure out what to do about this. There does exist a rump anti-McConnell faction of a sort: Florida GOP Senator Rick Scott, the old Medicare fraudster, mounted a challenge to McConnell last year. It failed badly, but Scott did get 10 votes. One Republican senator told Politico that any attempt to dethrone McConnell “will be a rerun of last time.”

I’m sure that’s true today. But I wonder how long it will hold. The reason is pretty simple: The McConnell video is really about Joe Biden.

Why? Age, obviously. McConnell is 81. Biden is 80. Trump and the GOP (and Fox News and One America and Sinclair and so on) are going to be making Biden’s age a major issue in the presidential campaign. And I have to say you can’t blame them. Polls show that Biden’s age is obviously his greatest vulnerability.

This seems to set up a situation where his fellow Republicans are going to throw McConnell to the wolves. Think about it. If they keep McConnell and defend him and say everything’s fine, they’re saying that an octogenarian who is clearly losing his connection to terra firma is just fine, everything’s hunky dory, and he’s totally up to the job. That is implicitly saying that Biden too is up to the job of president. And that is something they cannot do.

They can’t do it for plain political reasons because they would be taking an untenably hypocritical position (not that that ever stops them, but this is a high-profile matter). But it’s even more than that: They can’t do it because it would offend Dear Leader, and that, above all, they cannot do.

Donald Trump wants to talk, and talk, about Biden’s age. But he can’t do that effectively if his own party is keeping an 81-year-old man in his rigorous job. Especially when that 81-year-old man has had episodes like these last two.

And besides that, Trump hates McConnell, as we know. The aspersions are numerous. Earlier this month at a South Carolina dinner, where Lindsey Graham was once again sitting at the top of Mount Genuflection, Trump said: “These guys, what they’re doing with the election interference and the Senate has to step up and do something. The House is doing a lot of things. The Senate, under perhaps the worst leader in the history of the country running the Senate, Mitch McConnell, has to stand up and do something.” He also speculated that the Democrats must “have something” on McConnell. That’s Trump’s way of saying that he has something on McConnell, which he wants McConnell to believe, whether it’s true or not.

McConnell may be safe for now as his colleagues rally around him. But if he has one more episode, that’ll be three, and three is (for no particularly good reason, but it is) a magic number when it comes to these sorts of things. People will start asking then, if not before, how the GOP can stand behind McConnell yet call Biden too old. Trump will make his party choose: It’s Mitch or me. And they’ll throw McConnell to the wolves.

Mind you, I’m not suggesting we throw a pity party here. McConnell has set a pretty high bar of Trump capitulation himself over the years. In 2016, he offered Trump high praise right before the election. In 2020, The New Yorker’s Jane Mayer wrote a long profile that called McConnell Trump’s “enabler-in-chief.” True, McConnell has criticized Trump here and there, most memorably in that speech after the second impeachment. But remember—that speech came after McConnell voted to acquit.

That was the key moment right there, the moment that history will remember. McConnell reportedly told an aide at the time, “The Democrats will take care of the son of a bitch for us.” But this wasn’t true and couldn’t be true, and he knew it. The Democrats had 50 Senate votes, and 67 are needed to convict. Seven Senate Republicans voted with the Democrats. But McConnell had it in his power to direct 10 more votes toward conviction. He chickened out.

So did Kevin McCarthy, who on January 6 itself was outraged at Trump’s actions. But both men pulled back. In their book This Will Not Pass, New York Times reporters Alexander Burns and Jonathan Martin wrote: “The leaders’ swift retreat in January 2021 represented a capitulation at a moment of extraordinary political weakness for Mr. Trump—perhaps the last and best chance for mainstream Republicans to reclaim control of their party from a leader who had stoked an insurrection against American democracy itself.”

That was the one chance Republicans had to seize their party back from Trump (and just return to the normal, pre-Trump, run-of-the-mill racist dog-whistling, xenophobia, and warmongering). And it was all in McConnell’s hands, much more than McCarthy’s. The votes of 10 more Senate GOP heavyweights, including McConnell’s own vote, might not have sealed Trump’s fate; his following would still have been rabid. But a conviction would have emboldened many in the party to speak out against Trump and start to move past him.

McConnell couldn’t do it. His stated reason—that there were constitutional issues raised by convicting a president who was no longer in office—was a thin rationale. He was afraid. He needed to hold on to his power. And now he’s held on too long. I don’t wish the man ill health. But if I’m right, and this ends up being his downfall, all because of a man he once had the power to neutralize but did not, it will be the kind of ignoble end that a man who turned the U.S. Senate into an ideological gutter deserves.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

It’s not just unprecedented that we now have an ex-president with a mug shot. It’s insanely, amazingly, staggeringly, chillingly unprecedented. It makes me think about the past—about how we got to this insane, amazing, staggering, chilling point. And it makes me think about the future—about what grim precedent Trump will drag us into next.

We got here because Donald Trump, now also known as Prisoner P01135809, has never had any regard for laws of any kind. We’ve known this for decades. When I was a young reporter in New York, and Trump was not yet a wannabe dictator, and the working-class men of the heartland registered him in their minds (if at all) as a swanky Manhattan rich guy who had nothing to do with their lives, Trump’s habits and attitudes were well known in New York. Sometimes, people went at him, but no one ever got him. And often, the people with the power to do so didn’t even go at him.

Robert Morgenthau, the Manhattan district attorney for most of the years Trump was operating in New York, left his office in 2009 with a sterling reputation. And he largely deserved it. But the record does tell us, as Morgenthau’s biographer Andrew Meier wrote in The New York Times earlier this year, that Trump befriended Morgenthau, and the D.A. reciprocated. Trump donated to Morgenthau’s campaigns and his pet charities. Morgenthau accepted an invitation to stay in Mar-a-Lago.

And yet, late in life—Morgenthau lived to be 100, and three years into Trump’s presidency—he seemed to have some regret. Meier visited him not long before his July 2019 death and asked him what his greatest fear was, to which Morgenthau answered: “Trump.”

Trump was sued and deposed over and over and over, but he always had the money and the legal architecture to wiggle out. Like it or not, there’s a complex calculus involving the extent to which the law will pursue a rich and famous man who builds glitzy buildings and makes donations to the Police Athletic League. Prosecutors, too, have budgets, and they think twice before committing them to the pursuit of people who have the power to fend them off for years.

But once a person enters public life, the calculus changes. Then, the money and power and PAL checks don’t matter anymore. All that can no longer insulate you. Presidents take an oath, and they are subject to federal and state laws. Period.

And so Trump’s great, improbable triumph—his ascension to the presidency—was also his fatal mistake: He finally put himself in a position where the law, however slowly, could catch up with him. He didn’t understand or accept this, of course, because he always thought of himself as above the law. He is probably shocked to find that there are potential consequences to saying to a state official that the official just needs to find him 11,780 votes. There’d never been consequences before for anything.

So that, in sum, is how we got here. It’s a simple and very American story of money, influence, and power. And while I wouldn’t say it could only happen in New York, the city was easily the most likely place for it to happen, because New York—especially in the 1980s and 1990s, when money, influence, and power really began to swallow the whole place, its possessors lionized in the newly celebrity-obsessed media—was far more susceptible to a Trump than any other American city.

As for where we’re headed: Well, quickly, let’s review. The precedents Trump has set: winning the presidency with help (wittingly or not, we don’t know, at least from a legal perspective) of Russia; believing Russia’s dictator over his own intelligence agencies; saying, as president, that there were “good people” among the white supremacists who marched with torches in a Southern city; getting impeached twice; refusing to accept election results; losing 60-odd court cases toward the end of overturning that result; and, finally, getting indicted four times.

What’s next? The trials, of course. But what else? Miles Taylor, the former (and repentant) Trump official who is the author of Blowback, told Nicolle Wallace on her MSNBC show Thursday: “All of these things lend themselves to a more volatile and combustible situation. We are about to find out in the next couple of weeks what law enforcement in this country actually thinks about it. Usually in September, we have the heads of the intelligence agencies and the FBI come up and testify before Congress. I predict they will come up and say that the political violence factors and trajectory in this country are worse than it was before, and they are worried about 2024. I think you will hear from the FBI, as well as the Department of Homeland Security, probably around the beginning of September.”

I don’t want to make irresponsible predictions. But am I worried about violence? Should we all be worried about violence? Tucker Carlson asked Trump this question Wednesday. Presidents, of course, usually urge people against such a course when asked such a question. Trump—and here’s another new precedent—did not: “There’s a level of passion that I’ve never seen, [and] there’s a level of hatred that I’ve never seen, and that’s probably a bad combination.”

How do you think they heard that in Proud Boys–Oath Keepers–MAGA land?

The next election is about many things: abortion rights, civil rights, the fate of the planet, and more. But it’s really about one thing: whether one man can corrupt and destroy a 250-year-old democracy. That we’re this unsure of the answer is terrifying.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Donald Trump has had quite a run of lawyers. There’s Alina Habba, the camera-hungry counsel who decided to hold a news conference before Trump’s arraignment yesterday and ranted about Hunter Biden before admitting, one presumes accidentally: “I think that everybody was made aware that he lost the election, but that doesn’t mean that was the only advice he was given.”

They’ve been a clown show almost top to bottom, but it looks like John Lauro, who’s taken the public lead this week, is topping them all. He started the week peddling the free speech argument against the indictment, which has been pulverized by many people, such that I don’t even need to go into it. But just to toss in my own quick two cents: If I say to John that Jeff is a terrible person and should die, that’s free speech; if I say to John that Jeff is terrible person and we should conspire to murder him, that’s criminal intent. Pretty simple.

But Lauro really outdid himself Thursday night on Laura Ingraham’s show. Early in his segment, he said to Ingraham that before January 6, Trump had voiced his support for Mike Pence to refuse to certify the Electoral College votes and send the presidential election back to the states. Then, a little later, Lauro said: “What President Trump said is, ‘Let’s go with option D. Let’s just halt, let’s just pause the voting and allow the state legislatures to take one last look and make a determination as to whether or not the elections were handled fairly.’ That’s constitutional law. That’s not an issue of criminal activity.”

Um … whut? That is exactly an admission of criminal activity! It’s an admission that Trump was urging Pence to violate the Electoral Count Act, which requires him to preside ceremonially over the counting and approve it. In fact, Lauro was describing a conversation that is recorded in the indictment! Go look. It’s in paragraph 93: “The Defendant and Co-Conspirator 2 then asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states’ legislatures.”

Over on MSNBC, they were quick to pounce. “That is a Trump criminal defense lawyer quoting Donald Trump committing a crime,” said Lawrence O’Donnell.

This is a pattern with these people. Go back to late 2020, after the election, and think of all the arguments Rudy Giuliani was making on Fox and Newsmax. They were, if true, monstrous and outlandish charges about voter theft. But a funny thing happened whenever he found himself in an actual courtroom: He didn’t say those things, because he knew they’d never fly and he had no actual evidence. But that didn’t prevent him from saying those things on national television, over and over, with so much conviction that his hair dye ran down his face.

The above are lies, but they’re just stupid lies. They’re dangerous and destructive, but we don’t really have to take them that seriously since they get laughed out of court and show these people to be such incompetent bumblers. There’s another set of lies, however, that we need to take more seriously, because these lies constitute direct attacks on our system of government. These lies are fascist.

I’m thinking here, to name one of many possible examples, of Lindsey Graham, who told Sean Hannity, “Well, Sean, any conviction in D.C. against Donald Trump is not legitimate.”

Think about that. That’s a U.S. senator saying that the American system of justice is illegitimate—that the jury system isn’t to be trusted. He’s not alone, of course. They’re all piling on about a D.C. jury (and yes, there aren’t many MAGA-heads living in the nation’s capital, but I think we all know what else that means, between the lines).

Do you know how far back the principle of trial by jury goes? They had jury trials in Ancient Greece. In the Roman Republic. It was enshrined in the Magna Carta (that’s 1215). And the principle was absolutely crucial to the Founders. John Adams: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

They were fine with the jury system, of course, when we were all talking about Aileen Cannon’s courtroom down in Fort Pierce, Florida, in a county that Trump carried. Then, they didn’t complain. And you know what? I didn’t either, and I didn’t hear a single Democrat talk crazy smack on the jury system. I wasn’t wild about it, or about the fact that the classified documents case got assigned to Cannon in the first place, but them’s the breaks.

They will say anything, do anything, attack anything, allege anything, lie about anything, repeat anything, proclaim anything, insinuate anything, and imply anything. Except of course anything that’s true. They are turning the country and its principles upside down. They are fomenting a furious army of acolytes who own a lot of guns. When Trump is convicted here, as it appears he will be, given that his lawyer just admitted to it, what will they do?

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Fascism is not a political program. It’s different from every other -ism in this way. Capitalism means something specific: private ownership of the means of production. Communism means the opposite: state (or worker) ownership of the means of production. Socialism is, or used to be, a softer form of communism. It’s hard to say what it means now, and by the way, Bernie Sanders and Alexandria Ocasio-Cortez are not democratic socialists. They’re social democrats—Google the difference, and you’ll see what I mean.

Anyway. Fascism is a sensibility far more than it is a political program. The word comes to us from ancient Rome, where the fasces was a bound bundle of wooden rods with an ax (or sometimes two) that symbolized political power. It wasn’t always bad; next time you visit the Lincoln Memorial, look below Abe’s hands—those are fasces. They were literal back in Rome, and Cincinnatus, who served as dictator for just 16 days, is famous for having spurned them. He remains one of the few leaders in history who refused absolute power and returned to private life, the other prominent one being our own George Washington, who easily could have made himself dictator in the mid-1780s but refused to do so. The day in 1783 when he stopped off in Annapolis, where the Continental Congress was meeting, and resigned his military commission is the day the United States became a republic.

Fascism developed its modern meaning in Italy in the 1920s, under Benito Mussolini. He coined the term in 1919. He ascribed to it certain attributes—absolute state power over private enterprise, racial superiority of the majority group—but it really revolved around the power of the dictator, the dictator’s emotional connection to his followers, and their complete obeisance to him. It’s mystical and hard to describe. It can’t be defined in any constitution. It’s just something you can see and feel. I once saw a clip of Adolf Hitler giving a speech. After he was introduced and the applause quieted, he stood silent at the podium for almost a minute before he started speaking, quietly. That minute was fascism.

That is what Donald Trump wants. He already has it, in the sense that his rallies are fascist rallies. His backers surrender themselves to him in a way that small-d democratic admirers of Barack Obama and George W. Bush did not. This is why his poll numbers among Republicans go up and up. He has cemented the mystical bond. What he lacks, for now, is the power. We’re in a race now between republicanism, rule by citizens for the common good, and fascism, rule by a dictator for the good of his followers.

In a democratic society, the law is the most efficient means by which to arrest fascism. This is why Trump faces indictments. It’s the surest way to stop him. Smart fascists know this, and they either stay within the law or, perhaps paradoxically, violate it so flagrantly that they end up redefining what “the law” even is. Fortunately for us, Trump is a dumb fascist, and his ignorance may prove to be his Achilles’ heel. We also—again fortunately—have a system and set of laws and traditions that are stronger than those of, say, Weimar Germany, so Trump hasn’t yet been able to pollute them, although if he is reelected, he certainly will.

The new felony charges announced Thursday evening by the office of special counsel Jack Smith are simultaneously shocking and unsurprising. It stands to reason that Trump wanted the computer server that hosted Mar-a-Lago security video deleted. Yes, it’s especially ironic, given the way he carried on about Hillary Clinton’s server in 2016, but this too is a key attribute of fascism: Fascists do precisely the thing they accuse their opponents of doing. In August 1939, Goebbels accused the Poles of violence against Germans in the Danzig Corridor. It’s the only way fascism can work; to get the people to believe the opposite of the truth. Even Trump, dumb as he is, instinctively knows this.

Look at his recent statements. “This is prosecutorial misconduct used at a level never seen before. If I weren’t leading Biden by a lot in numerous polls, and wasn’t going to be the Republican nominee, it wouldn’t be happening. It wouldn’t be happening.… But I am way up as a Republican and way up in the general election, and this is what you get.”

He’s not ahead of Joe Biden. It’s a close race—disturbingly so—but, according to RealClearPolitics, Biden is narrowly ahead. And of course it’s not prosecutorial misconduct. Grand juries—American citizens—indicted Trump, not prosecutors. The only prosecutorial misconduct in Trump’s life was the laxity of the New York prosecutors who failed to nab him over the past 40 years. If they’d been doing their job, the nation might have been spared this turmoil.

With these next two indictments, assuming they happen, the mystical bond will grow deeper. Trump’s lies will intensify; his movement will become more openly fascistic. The law is the surest way to stop all this. But even convictions won’t end it. They’ll keep him out of the White House, most likely, but the Republican Party has probably been permanently transformed. The next Trump can’t wait to grab the fasces.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.