A Post–Labor Day Trump Insurrection Trial? Great, Bring It On.

I’ve had a few conversations with fellow liberals over the last two days that went something like this: I can’t believe the Supreme Court did that. Although I guess, you know, of course they did. But I still can’t quite believe it. I just didn’t think they’d be quite this corrupt about Donald Trump returning to the White House.

If nothing else, the court’s announcement Wednesday that it will hear the Trump immunity case seven weeks from now should tell us once and for all—yep, don’t put anything past these people. Anything. They are as capital-P Political and Partisan as we suspect at our most cynical. More so.

Now, the quickly formed conventional wisdom after the announcement is that while the court’s six conservatives are obviously trying to help Donald Trump by slow-walking the process here, surely they won’t all accept the facially absurd and unconstitutional arguments of Trump’s attorneys. I tend to go along with this. It’s hard to imagine judges of any sort ruling that our laws don’t apply to an ex-president.

And yet … I opened this piece saying that they keep surprising us. They keep Lucying the ideological football on us, and we keep falling for it. So what if—nah, it can’t be. No way five justices could really grant Trump immunity. Right?

Well, two probably will, and we know which two. Clarence Thomas and Samuel Alito are totally ready for authoritarian America. And from there, who knows? I mean, I’d like to have a dollar for every time I’ve heard someone say, Ah, they’d never stop a state recount. Oh, come on, are you kidding? They’ll never completely overturn Roe.

So count me unconvinced. I guess with a gun to my head I’d say it’s 60–40 they’ll reject Trump’s claims. But 40 is damn high.

Now. A late-June decision by the court against Trump would mean a late-September trial date in Judge Tanya Chutkan’s courtroom. She gave Trump’s lawyers 88 days to prepare for trial, and that clock starts ticking when the Supreme Court rules, so a June 30 decision, say, would mean (I think) a September 26 trial date. Here, the liberal impulse will be the fretful one: Oh no! That’s too close to the election! We can’t do that! It wouldn’t be fair!

Pardon me, but: bullshit.

First of all: If you’re thinking—worrying—that this is in Merrick Garland’s hands, exhale. It apparently is not. Yes, the Justice Department has a rule about not interfering in the political process in the fall of an election year. But that has only to do with charging people with crimes. It stems from Reagan-era Iran-Contra special prosecutor Lawrence Walsh’s decision to charge former Reagan official Caspar Weinberger four days before the 1992 election. It was after that that the department agreed upon an unwritten rule about not bringing those kinds of charges within roughly 60 days of a general election.

So that rule is only about charging. It’s not about when trials should be held. Here’s a good primer on the whole matter, debunking a recent Trump lie about it.

Also, Garland was asked this very question in January by CNN’s Evan Perez:

PEREZ: The department has policies about steering clear of elections. Is there a date in your mind where it might be too late to bring these trials to fruition? Again, to stay out of the way of the elections as the department policies?

GARLAND: Well, I just say what I said, which is that the cases were brought last year. [The] prosecutor has urged speedy trials, with which I agree. And it’s now in the hands of the judicial system, not in our hands.

So the feckless Garland, who has striven so hard to be apolitical that he’s actually become political in the other (pro-Trump) direction, has nothing to do with this.

With that out of the way, are there other objections to a late-September trial? Trump and MAGA world will howl. I’ve been told that we can expect this trial to last six to 10 weeks. That would mean that it won’t be over before Election Day.

Is there a political risk there? That Trump’s base will be ultra-energized? Sure. But why shouldn’t it also ultra-energize the pro-democracy base? It certainly should.

And more than that: It will make the election about Trump, not Joe Biden. If Trump is literally sitting in a courtroom on Election Day—or even if he’s not sitting there but, say, Cassidy Hutchinson is on the stand describing that steering wheel incident, or Mark Meadows is on the stand squirming and sweating—the election is about him, the insurrection, the future of democracy. Your typical swing voter in Oakland County, Michigan, is going to be walking into the voting booth thinking about that, not Biden’s age or gait.

That’s what liberals should want the election to be about. There are two warring explanations afoot in our land about Trump’s legal trials. One, his own, is that all these indictments constitute election interference—the deep state trying to stop him from rightfully recapturing that which was stolen from him in 2020. The other, the planet Earth explanation, is that he’s a uniquely corrupt sociopath who thinks the law doesn’t apply to him and wants to get back into the White House for two simple reasons: to absolve himself of all crimes and to illiberalize our institutions and wreck the democracy to the point that he can do anything he wants—including, probably, be president for life.

If that’s the debate the nation is having on election eve, if that’s what neighbors are discussing across the fence post as they prepare to go vote—I’m good with that, and you should be too. And if those corrupt bastards on the Supreme Court inadvertently helped make that happen, so much the better.

Donald Trump is attempting to appeal and delay having to pay that whopping fine that New York Judge Arthur Engoron laid on him earlier this month in the Trump Organization fraud suit brought by state Attorney General Letitia James. As we’ve all heard, to do so, he has to secure a bond.

NBC News did some cipherin’ Wednesday and reported that he’ll need a bond of about $540 million. It is widely assumed he doesn’t have the liquid cash. He has some buildings, notably 40 Wall Street, but many experts are saying that the government doesn’t like to take real estate as collateral. “Whoever is going to bond [Trump] is committing that they’re going to make good on that judgment,” New York business attorney David Slarskey told NBC. “Who’s going to do that?”

Indeed. That is the question. And the possible answer is chilling, if we imagine Trump back in the White House next year.

In sum: He could borrow this money from just about anybody. Or not even borrow it. Someone might just give it to him. Incredibly, as Neal Katyal said on MSNBC Wednesday night, there is apparently no law that prohibits someone in Trump’s position from securing the collateral from anyone. It’s another one of those laws that I suppose no one ever even thought to write because the system has never encountered a Donald Trump before. But now it has.

“There are potential sanctions prohibitions and campaign finance prohibitions. And of course potential tax issues,” MSNBC analyst Andrew Weissmann told me via email Thursday. “But apart from those, a third party can give a gift or loan to post the federal or state bonds.”

Ponder with me the possible dangers here. Let’s imagine a roster of actors who might have the resources and motive to stake Trump to half a billion dollars, either as a loan or a gift. There’s Russia, first of all. Russia—and Vladimir Putin personally, because he’s apparently stolen so much over the years that he might be the world’s richest man—may be out of the question because of the sanctions. But of course, that’s just the law, which Trump spits at.

Imagine a President Trump in hock to Russia or Putin to the tune of a half-billion dollars. Sure, Trump is inclined to give Putin half of Eastern Europe anyway. But money like that would turn a mere ideological sentiment into ironclad fealty, since money means a lot more to Trump than ideas. Well, Poland, you didn’t exist from 1795 to 1918; you can get used to it again.

Or let’s say it came from Saudi Arabia. Remember, it was during this very trial that Trump bragged that the Saudis, or at least some individual Saudi, would willingly pay inflated prices for Trump properties. This was a justification he used for inflating the prices in the first place. Engoron wrote in his ruling: “He also seems to imply that the numbers cannot be inflated because he could find a ‘buyer from Saudi Arabia’ to pay any price he suggests.”

So imagine now that a “buyer” or buyers from the kingdom secretly put up Trump’s collateral. And then Trump won the election. The United States would do whatever Mohammed bin Salman wanted it to do. On the surface, Saudi Arabia is committed to its Vision 2030 plan that proclaims a desire to normalize relations with Iran (this has started) and move away from the current reliance on oil revenues and toward a knowledge economy. That’s all very nice. But conflict will arise in that region, as it always does, and when it does, Trump will serve the master who bailed him out of legal hot water.

Or suppose the Netanyahu government put up the dough. People are plenty critical of Joe Biden now, and rightly so, over the money we’re giving to Israel and the absence of conditions imposed on that money so that Israel can commit atrocities on a massive scale. But if you think it can’t get worse, think again. Trust hard-right Israeli Security Minister Itamar Ben Gvir, who said earlier this month: “Instead of giving us his full backing, Biden is busy with giving humanitarian aid and fuel, which goes to Hamas. If Trump was in power, the U.S. conduct would be completely different.”

Of course, Trump’s benefactor need not be a foreign nation. What if, as Weissman posited to Lawrence O’Donnell Thursday night, it was Elon Musk who ponied up the dough? Or Peter Thiel? Or a consortium of Texas oilmen? Or the Mafia? Obviously, Trump would willingly accept the money from any and all of those sources. How nice would that be, to have a president who hardly made a move without anticipating their reaction?

Lara Trump argues that rank-and-file Republicans will be perfectly happy for their donations to the Republican National Committee to go to paying Trump’s legal bills, and the Trump-era Republican Party is such a warped, freakish imitation of a normal political party, so smothered in cult-worship, that she’s probably right. But even so, rank-and-file Republicans can’t begin to cover more than a fraction of this.

The other hypothetical to consider here is of course that it’s entirely possible that Trump won’t pay at all. After all, as we know all too well, if there’s a law or rule to flout, Trump is there to flout it and dare the system to catch up with him. So this all might be moot, which speaks only to how brazenly lawless the man is.

But if he decides to post the bond, and if all this reporting is correct that he doesn’t have the money himself, he’s going to have to get it from someone. And whoever that someone is will claim a mighty stake on what remains of the mind of the man who might be the president of the United States.

The big headlines Friday morning concerned Fulton County District Attorney Fani Willis and the combative testimony Thursday she offered concerning her affair with Nathan Wade. But that wasn’t the big story of the week on the Donald Trump legal front. In fact, it may have been about fifth.

What’s bigger? Let’s start with Judge Aileen Cannon’s decision to deny Trump’s attorneys’ bid to delay pretrial motions in the case she’s hearing, about Trump’s removal of classified documents from the White House. Cannon, you’ll recall, was appointed by Trump.  After the documents case landed so unserendipitously in her lap, she made a series of nakedly pro-Trump rulings; the 11th Circuit vacated one order of hers that would have helped Trump delay the proceedings. She also blocked federal investigators from examining the material seized by the FBI, a decision eviscerated by legal experts. So maybe she’s gotten the message that she’d better be a real judge, not a sycophant.

Trump also was dealt a blow this week when Juan Merchan, the judge in the Stormy Daniels hush-money trial, dismissed another attempt at delay by Trump’s lawyers. That trial will start, as scheduled, on March 25.

And—no, it doesn’t stop!—another judge, Arthur Engoron, is supposed to hand down his decision in the penalty phase of the civil suit brought by the New York attorney general against the Trump Organization. AG Letitia James is seeking $370 million. There are reasons to think that that number may be on the low end of where Engoron will land.

But for my money, the worst part of Trump’s week came in the filing by special counsel Jack Smith to the Supreme Court in response to the Trump team’s request for a stay on that trial, which is the January 6 insurrection case. In a 40-page filing, Smith and his attorneys dismantled Trump’s arguments one by one. Smith had until February 20 to file this response, but he did it eight days early and he means business: “The charged crimes strike at the heart of our democracy.  A President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law.  Applicant seeks a stay to prevent proceedings in the district court from moving towards trial, which the district court had scheduled to begin on March 4, 2024, before applicant’s interlocutory appeal necessitated postponement of that date.  Applicant cannot show, as he must to merit a stay, a fair prospect of success in this Court.”

Why is this filing so important? Three reasons. First, Smith urges the Court to act quickly. He still wants the trial to start in March. If the Court agrees, picture it: Trump on trial in two separate courtrooms, on charges that strike precisely at the heart of the two biggest manifestations of his moral turpitude: In New York, as a private citizen, as a man, who treats women like garbage; in Washington, as a public, um, servant who mocks the Constitution and believes that no law applies to him. It will be perfect stereo spectacle for Americans to spend the spring observing.

Second, while it’s true that we’re dealing with a very politicized Supreme Court here, and it’s obvious that at least two justices (Samuel Alito and Clarence Thomas) will rule for Trump on just about anything, Smith’s response makes a very strong set of arguments that should appeal to at least some of the Court’s conservative originalists. “The Framers,” Smith writes, “did not provide any explicit textual source of immunity to the President.”

And third: The Smith case is the most important of all, for the simple reason that inciting the January 6 insurrection is the worst thing Trump has done. Granted there is stiff competition for his most mortal sin. But egging on a crowd to overthrow the government and hang your own vice president still takes the cake. If Smith succeeds in convincing the Supremes to expedite this case and goes on to win a pre-election conviction, that ought to seal Trump’s fate. Some recent polls have shown that swing state swing voters would be highly disinclined to vote for Trump if convicted of a crime.

We’ve seen the conventional wisdom turning on this question in recent weeks. Last year, the standard media line was to say that all the indictments were helping Trump, which was true if you were talking only about Republican primary voters. But now the attention of the media and of pollsters is turning toward general election voters, and they see matters differently.

Every one of these cases is important because each one points to a grotesque deficiency of character that demonstrates why Trump should never be president again. But the insurrection case is the first among equals. A conviction in this case before November 5 really should be the end of the road for Trump. It all depends on the Supreme Court agreeing with Smith’s motion this week. He made as strong a case as could be made.

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

Not long ago, a video surfaced of House Speaker Mike Johnson appearing before the National Association of Christian Lawmakers. He told a tale of how the Lord came to him in a series of visitations and “began to wake me up … in the middle of the night” to prepare him for a mighty role. The humble Johnson fancied himself an Aaron, Moses’s sidekick. But in time, in Johnson’s telling, the Lord made it clear to him that he was Moses, and He urged M.J. to be prepared, because “we’re coming to a Red Sea moment.”

Well, Moses, it looks like the Red Sea just crashed down on your head.

If this blockhead has the Lord’s blessing, I’d sure hate to see where he’d be without it. Just three and a half months into the speakership, he’s making Kevin McCarthy look like Cicero. It was just hilarious to see him have to announce on the Alejandro Mayorkas impeachment vote that the “ayes” were 214 and the “nays” were 216 and “the resolution is not adopted.” And minutes later, a stand-alone Israel aid bill failed, with 14 Republicans jumping the leaky Ship Johnson.

The week has been humiliating for Republicans on many fronts. Donald Trump had his preposterous immunity argument mercilessly shot down by the D.C. Circuit Court of Appeals. Mitch McConnell was forced to pull an embarrassing about-face on the border bill, voting against a bill that he’d been promoting for weeks. Even Nikki Haley found a new way to shame herself, losing 2-to-1 in the Nevada primary to “none of these candidates.” Trump did seem to secure a coming win in the Fourteenth Amendment case, but that was largely expected, and it happened in spite of his lawyer’s awful performance.

These things aren’t accidents. They’re all part of the same pattern and are happening for the same reason.

Republicans today are consumed by this primal need for immediate gratification. They’re the party of the dopamine rush. Go read an article about the brain, and you’ll learn in five minutes that dopamine helps regulate pleasure, and pleasure is great, but too much dopamine leads to delusions, hallucinations, schizophrenia, psychosis. The entire party has a massive and collective mental disorder, a severe chemical imbalance in what remains of its collective brain, which explains why it kneels so slavishly before a psychotic man with the emotional regulation of a 5-year-old.

Like rutting ungulates, they are incapable of anything remotely resembling thought and respond only to the stimuli right in front of their noses. Deliberation, caution, calm reflection … these are the qualities that most of us have in more or less equal measure to the desire for gratification. These are the qualities that are most in harmony with the habits of democracy. To be small-d democratic is to deliberate; to think things through a little. This country’s Founders believed profoundly in this, which is why they built so many choke points into our democratic processes (too many, as it turns out). They wanted future generations to think stuff through.

But these people are stuck in the land of anti-thought. And because that’s where they live, it means that in many respects it’s where we all have to live, because that’s where a lot of our national debate plays out.

The border debate is a perfect example. There are a lot of problems with U.S. border policy. Undoubtedly some of them are the fault of Democrats. It’s reasonable that people should want more control over the border. But at the same time, it’s a complex problem, and any real solutions are complex too. Oklahoma Republican Senator James Lankford, to his credit, tried to acknowledge that reality. And what happened? He was brutally shut down. It was chiefly Donald Trump, but it wasn’t only Trump. One right-wing talk radio host threatened to “destroy” him.

But it’s not just the border. It’s everything. The Mayorkas impeachment. I suppose there are many grounds from a conservative point of view on which to think he’s doing a lousy job. That’s fine. But a high crime or a misdemeanor? Ridiculous. That doesn’t matter, though. The mere word impeachment makes the mules rut, and there ends the discussion.

James Comer and Jim Jordan are another primo example. They just go on Fox and Newsmax and say shit. It’s not about facts or methodically building a case. It’s all about the dopamine rush of being on national television and saying titillating things that rile people up and get the checks rolling in. When they have to walk it back two days later, nobody cares. In fact, they’ve accomplished what they wanted to accomplish, which is to add to the general picture of murkiness surrounding Hunter Biden or whatever. And they walk out of that studio feeling eight miles high.

And that’s where our political debate takes place now. It used to be that dopamine-rush politics was occasional. Both sides did it on issues that clearly worked to their advantage, as Democrats still do. But with the GOP today, that’s all politics is. The immediate gratification of having scored a point, trolled a lib, won a little wedge of Fox airtime—and most of all pleased Donald Trump.

No one could succeed in this degraded and juvenile context. Not even Moses. I hope the Lord levels with Johnson soon.

We learned this week, via Jonathan Lemire and some Politico colleagues, that Joe Biden uses salty language about Donald Trump in private. He’s a “sick fuck” and a “fucking asshole.” During his Valley Forge speech commemorating the January 6 insurrection, the president almost let it slip in public: “At his rally, he jokes about an intruder, whipped up by the Big Trump Lie, taking a hammer to Paul Pelosi’s skull. And he thinks that’s funny. He laughed about it. What a sick …”

The White House declined to comment for the record, but this was obviously put out there by administration sources just to test the reaction. Well, here’s mine: Biden should just go ahead and say it publicly. Not all the time of course. But once or twice. It won’t hurt. Most likely it will help. Might help a lot, in fact.

This is so for two basic reasons that people in politics sometimes forget about inside their pressure bubbles. The first is that it’s genuine. If it’s what he thinks, then he ought to just own it. People hear politicians calibrate their words every day (well, except Trump, but even he does it sometimes, notably with respect to a federal abortion ban). To hear someone just let it rip is refreshing.

Reason two? A hell of a lot of people agree. The ones who don’t are loud and enraged, and they command not one but three propaganda television networks (Fox, One America, Newsmax). But I’m betting that your average American—middle class, not very political, guided by conventional morals and values, not angry at either Taylor Swift or Travis Kelce—thinks Donald Trump is a sick fuck.

The success of such a play would depend on the evidence Biden would introduce to reinforce the label. It can’t be political. He led an insurrection? No. That’s partisan. He separated children from their parents and kept them in cold barracks with Mylar blankets? That’s plenty bad, but it’s still just politics.

The best evidence is above politics. Like Trump’s habit of insulting soldiers. Biden hit the right note in the Valley Forge speech: “[Trump] referred to those heroes, and I quote, as ‘suckers’ and ‘losers.’ He actually said that. How dare he say that. How dare he talk about my son and all like that. Look, I call them patriots and heroes. The only loser I see is Donald Trump.” (Biden believes son Beau’s brain cancer, the cause of his death, stemmed from his exposure to burn pits in Iraq during his service.)

The Paul Pelosi story is a pretty good piece of evidence too. Yes, the name Pelosi will set off the inevitable bells on both sides. But I doubt many swing voters think it’s OK to joke about taking a hammer to an 82-year-old man’s head. We might throw in what Trump said about John McCain back in 2015 (“I like heroes who weren’t captured”).

Trump, as we know, leads Biden narrowly in most polls (and in some state polls, not so narrowly). At the same time, large majorities agree that Trump is a lawless and reckless and just bad human being.

Here are some poll results from last summer, which are in line with a ton of other polls. Popularity—unfavorable, 60 to 38 percent. Does Trump think he’s above the law? Yes, 63 to 37. Do you support or oppose Trump’s indictments? Yes, 53 to 39. Do you think Trump has committed a crime? Yes, 62 to 32. And the most germane one here, is Trump fit for office? No, 58 to 42.

Why, you might ask, is a man with those numbers leading in polls? First of all, because Joe Biden is 80. If Biden were 75, he’d be six, seven points ahead, no question about it. And second, because those average swing voters have forgotten everything they didn’t like about Trump, while they see every day the things they don’t like about Biden—his age, and his inflation (although things are improving considerably on that front).

This campaign—and not panicking about January’s head-to-head polls—is going to be an exercise in reminding those voters of the things they hated about Trump. In some ways, Trump will do that work himself. He’s already doing it, defaming a woman he raped, misbehaving in courtrooms, getting convicted of more crimes (we hope), ranting against the legal system, the one venue where his bullshit doesn’t fly. By late October, a lot of people will have observed his campaign-season antics and be asking themselves whether they really want this moral baboon in their faces for another four years. (It occurs to me that’s an insult to baboons.)

But a lot of the work will have to be done by Biden and the Democrats. Trump’s lie to the American people about the seriousness of the coronavirus. His serial bragging about getting rid of Roe v. Wade. His love of Vladimir Putin. His increasing dementia, far worse than Biden’s. And his basic sociopathy and inhumanity. If driving home that last point home means Biden should use a rather unpresidential noun here and there, well, fuck it.