A wild, pivotal week for our democracy.
We saw the first-ever criminal trial of a former president — and yet, somehow, it wasn’t the most important news story. No, that was the Supreme Court’s hearing yesterday on whether Donald Trump — and the presidency in general — is above the law (either expressly through criminal immunity or by default through procedural delays).
It’s hard to overstate the importance of this case, both on its own and as a centerpiece of Trump’s second-term aim of radically expanded executive power, as Charlie Savage explains.
For more on the rest of Trump’s executive power plans, read our Authoritarian Playbook for 2025.
Kristy Parker, a former federal prosecutor, and Conor Gaffney, a counsel focused on abuses of power, are two of the authors on our guide to prosecuting political leaders during an election.
Their four takeaways from the Supreme Court case that has held up Trump’s January 6th trial for weeks (134 days and counting):
Several of the justices seemed more concerned with hypothetical “burdens” criminal liability would impose on future presidents than with former President Trump’s role in the insurrection. Read more→
Several justices seemed to think that the laws and processes that apply to ordinary Americans and other federal officials might subject the president to unfair prosecution. Read more→
There’s reason to be concerned that a majority of justices will send this case back to the lower courts for additional litigation on the immunity issue. Read more→
But, there’s still a chance that the Court could hold that the former president is *not* immune for leading an insurrection to overturn a free and fair election in time to permit a trial. Read more→
Not a great day for the Court or the four words — equal justice under law — inscribed on its facade. But the window has not yet closed for them to do the right thing.
As Kristy and Conor write:
In the end, Mr. Dreeben [the lawyer for the government] had it right when he said that the task before the Court is to uphold the principle that no one, including the president, is above the law, while also protecting the president in the exercise of his or her legitimate powers. He also had it right when he said this isn’t difficult to do in this case.
At this critical moment for our democracy, the Court needs to grapple with what happened on January 6th and allow the criminal justice system to work as it’s supposed to (and as it would for any other American). Any other approach will deprive the public of the opportunity to learn the full facts and outcome of this case before the 2024 election, cement the view that our institutions aren’t capable of enforcing democratic principles, and potentially signal to future bad actors — including the defendant himself — that they are free to abuse the vast powers of the presidency to foment insurrections without any meaningful constraints.
Read the rest of their reactions here.
Immunity wouldn’t just be an outrage — it’s a national security risk
Trump’s lawyers and supporters argued that criminal immunity is necessary for the president to be able to take “bold action.” Forcing the president to obey the law, they argue, could harm national security.
But in truth, the opposite is true.
That’s the argument of a (literally) star-studded group of retired four-star generals, admirals and other high-ranking civilian defense officials writing in Stars & Stripes.
A commander in chief who is exempt from the rule of law risks cascading harms to American democracy, national security and our leadership in the world… We know firsthand that trust between political leaders and career uniformed military leaders is central to effective civilian control of the military and order in the ranks. That trust would be fatally undermined if the court grants the president an unprecedented carveout in the rule of law.
This is because, they explain, every other person in the chain of command, from the Secretary of Defense to enlisted service members, unquestionably has no such criminal immunity. And “that ‘just following orders’ is not a defense to having committed crimes, even during war.”
So immunity for the president would simply pass the burden of accountability from the commander-in-chief to… well, everyone who isn’t the president. Which is just about as undemocratic a sentiment as I can imagine. And that’s why I don’t think they’re exaggerating when they say: “American democracy, its security and its credibility, both at home and abroad, are on the line.”
Read the whole piece. (Or their amicus brief.)
In case you missed it, one of the authors, former Secretary of the Army Louis E. Caldera also explained why the “bold action” claim is so clearly ahistorical in an If you can keep it - Insights post earlier this week (if you want to get those posts in your inbox too, click here).
Speaker Johnson’s struggles show why political parties are important to democracy
It’s easy to be entertained by the drama of the House of Representatives these days. Will the Speaker lose his job — again — for passing a broadly popular bipartisan consensus bill!? The ironies boggle the mind.
But from a democracy point of view, the chaos is pretty obviously bad news. And it’s all downstream from dramatic erosion of an important institution of American democracy: one of our two political parties. Chris Parr & Jennifer Dresden explain:
This may sound contradictory — that more disciplined and better organized parties are less vulnerable to autocratic takeover — but history is quite clear: healthy parties constrain authoritarian tendencies.
Political scientists argue this happens because healthy parties have the ability and the will to box out would-be authoritarians, denying them endorsements, resources and legitimacy. For example, in the 1920s Henry Ford was a potential political force with decidedly authoritarian politics. Ford wielded a massive fortune, his own newspaper and widespread popularity. What he did not have was support from the leadership of either major political party, which was vital at the time to secure a party nomination. As a result, his political prospects faded.
Read more.
What else we’re tracking:
For anyone in the Bay Area, I’m speaking on Tuesday at an event hosted by NosTerra Ventures on what you (yes, you!) can do to help democracy in this pivotal year. With Stanford’s Larry Diamond, KQED’s Marisa Lagos and Democracy Lab’s Deepak Puri. Join us.
Or, if you’re in DC, join Brookings and Count Every Hero on Monday for a top-tier event on domestic deployment of the National Guard (which is one of those issues most of us don’t want to think about until we really need to think about it). Register here.
A grand jury in Arizona indicted the state’s 2020 “fake electors,” the latest significant step towards accountability for people involved in the plot to overturn the election. Ryan Goodman explains.
The American Bar Association released their 2024 poll on civic literacy this week with a great discussion panel. Lots of unsurprising numbers — like 74% saying U.S. democracy is weaker today than it was five years ago — but some things jump out. Like “misinformation” and “political parties” being the main perceived culprits (what we’re doing on each here and here).
“Trump’s Misogyny Is on Trial in New York,” a must-read from Quinta Jurecic in The Atlantic.
Recommended long-read for your weekend: Lee Drutman on the core paradox of American politics right now: why most Americans say we’re personally doing well and that the country is doing terribly. (Keep reading to his final points — it’s worth it.)
Deseret News’ Ethan Bauer has the best deep-dive into the contingent election time-bomb I’ve seen yet: “How a single quirk in the U.S. Constitution could trigger an electoral disaster this November greater than any in modern history.”
As we’ve said before, this year was always going to be long and rocky. Glad to have you with us.