The procedural checkpoints that protect our rights
Plus, the pulled Colbert interview and the administration’s media takeover
Last week, a grand jury in Washington, D.C. (reportedly by a unanimous vote) declined to indict six Democratic members of Congress on charges of interfering with military loyalty. Their alleged crime: posting a 90-second video reminding service members of their long-settled duty to refuse patently illegal orders.
Ordinary citizens — not judges, not politicians, not legal scholars — looked at the evidence the Trump administration’s prosecutors put in front of them and concluded it didn’t meet the threshold to bring charges.
They were right. And their judgment holds an important lesson for the rest of the legal system.
The amendments you probably don’t think about enough
If you remember high school civics class — or if you’ve watched enough Law & Order — you know the basics. The Fourth Amendment requires the government to get a warrant before searching your home or seizing your property. The Fifth Amendment requires the government to get a grand jury indictment before prosecuting you for a felony.
Most of us don’t spend much time thinking about these provisions. They sound procedural. Bureaucratic. The kinds of things you memorize for an exam and then forget.
But they exist for a reason. The Founders understood that government power, unchecked, bends toward abuse. They built these requirements — warrants reviewed by independent judges, indictments reviewed by independent grand juries — as structural safeguards. Not paperwork. Checkpoints. Places where someone outside the government’s chain of command looks at the government’s claims and says, “Prove it.”
When an autocrat in the White House appears intent on weaponizing every element of the federal government to entrench himself in power, these procedural checkpoints are more important than they’ve ever been.
Grand juries that wouldn’t rubber-stamp
When the grand jury refused to indict the members of Congress, they looked at the evidence the government provided with a healthy skepticism and spirit of objectivity and saw through the meritless, political prosecution.
Read more: Is it law enforcement or is it retribution?
While one of the most notable, this is just one example of a growing trend: The increasingly politicized Department of Justice is struggling to find grand juries willing to indict, including in cases against ordinary Americans.
There’s an old saying that a grand jury will indict a ham sandwich. But these “no bills,” or grand jury refusals to indict, are becoming increasingly common and proving to be a crucial guardrail against an authoritarian-captured Justice Department. In case after case, the abuses of power are so patently obvious: selective charges relying upon dubious interpretations of the law, targeting individuals for little more than exercising their constitutional rights to oppose administration policy. Ordinary citizens are refusing to go along.
Read more: Constitutional gatekeepers: The history and role of grand juries.
The growing trend of “no bills” proves that when everyday citizens exercise their independent judgment, they successfully prevent the law from being weaponized against the American people.
The Fulton County warrant that should alarm every judge
And then there’s the search warrant that was approved — and shouldn’t have been.
On Jan. 29, the FBI executed a search warrant at a Fulton County elections office, seizing all physical ballots from the 2020 election — absentee, provisional, in-person, emergency — along with tabulator tapes, ballot images, and voter rolls.
The recently unsealed affidavit reveals that the investigation originated from a referral by Kurt Olsen, a “Presidentially appointed Director of Election Security and Integrity” and a figure with deep ties to efforts to overturn the 2020 election results.
Read more: Trump’s elections Chimera.
The critical thing to understand about warrants is that in order to get one, you have to explain to a judge why you have “probable cause” to believe that a crime has been committed. In this application, the FBI claims to be investigating two crimes — a record keeping violation and a provision making it a crime to “knowingly and willfully” deprive the citizenry of a “free and impartially conducted election” by aiding in the registration of ineligible voters or casting or tabulating fraudulent ballots. Both crimes require evidence of intentional wrongdoing — something numerous independent investigations have ruled out and which the affidavit presents no evidence of. Consequently, the affidavit does not even come close to demonstrating probable cause for either alleged crime. (Former prosecutor Joyce Vance explains in greater detail here.)
In Georgia, federal officers seeking a warrant may not mislead the court by intentionally failing to represent contrary evidence which would undermine probable cause. Not only does the affidavit fail to mention the detailed investigations, hearings, litigation, reporting disproving these debunked conspiracies, it misrepresents the conclusions of sources cited in the affidavit itself, all of whom concluded there was no reason to believe there was any intentional wrongdoing in Fulton County and that the 2020 election was free and fair.
But a judge signed off on that warrant anyway. And in doing so, gave federal agents the power to seize an entire county’s election records based on the recycled claims of election deniers.
Grand juries have set the example for the rest of our legal system
In case after case, grand juries — panels of ordinary Americans with no special legal training — have been doing their jobs. They’ve looked at the Trump administration’s cases and seen them for what they are: baseless, politically motivated, and unworthy of prosecution.
Judges have to hold the line, too. So far, federal district court judges around the country have called out the government’s untrustworthiness and untruthfulness in court and blocked many of the administration’s unlawful abuses of power. But every judge has the same obligation to the Constitution, from the magistrate who granted the Fulton County warrant to the Supreme Court justices who serve as our democracy’s ultimate judicial authority.
Every judge reviewing a warrant application — or really considering any evidence or witness testimony — from this administration should approach it with the same healthy skepticism that grand juries have been applying. Not cynicism. Not partisanship. Just the baseline constitutional duty to honestly evaluate whether the government has actually met its burden.
The Fulton County warrant is what happens when that skepticism is absent. The grand jury “no bills” are what happens when it’s present.
The pulled Colbert interview shows that Trump’s media takeover is working
The late-night interview dominating the headlines this week is one that didn’t actually get broadcast on TV.
Democratic U.S. Senate candidate James Talarico was set to appear on The Late Show with Stephen Colbert on Monday night. The interview was already recorded. And then, according to Colbert, CBS blocked it, citing concerns that the Federal Communications Commission (FCC) could find that airing it violated their “equal opportunities” policy.
Unlike the last time the FCC targeted a late-night show, it didn’t require a threat “right out of Goodfellas” from FCC Chair Brendan Carr to achieve the outcome the administration presumably wanted. There was no “We can do this the easy way or the hard way” because the administration is now reaping the benefits of a more subtle one-two punch strategy straight out of the Orbán playbook. By design, CBS chose the easy way and in doing so, supplied the administration with plausible deniability.
Read more: The FCC vs. the Constitution.
Here’s how the administration employed Orbán’s media takeover playbook.
Step 1: Because the FCC must approve the transfer of broadcast licenses, the administration had significant leverage over Paramount (CBS’ parent company) and Skydance when reviewing their proposed merger last year. The FCC used that leverage to impose significant policy changes, including commitments to make CBS’ coverage more “diverse” (i.e., friendlier to the administration) and install an ombudsman to monitor CBS for “bias.” Once the merger was approved, new owner David Ellison, a Trump ally and son of Trump megadonor Larry Ellison, installed Bari Weiss, a Trump-friendly journalist and political commentator, as CBS’ editor-in-chief — a hire that the president himself praised.
Step 2: Having extracted regime-friendly commitments from CBS, the administration continues flexing its regulatory muscles, indicating the FCC’s willingness to weaponize its authority against perceived critics of the president. Carr has often invoked the previously-seldom-used “news distortion” policy to intimidate broadcasters, including in his threats to ABC about Jimmy Kimmel last year. Carr now seems poised to use the FCC’s “equal opportunities” rule in much the same way. Earlier this month, he initiated an “equal opportunities” investigation of ABC’s The View based on its interview of Talarico, which CNN media reporter Brian Stelter cites as influencing CBS’ decision to preemptively pull Colbert’s interview of Talarico.
Read more: It’s time to take away Brendan Carr’s secret weapon.
CBS’ willingness to alter its coverage without being subject to any enforcement action (or even a threat of one) showcases the benefits for the administration of helping allies secure control of media companies and demanding more “balanced” coverage in return.
Another merger coming around the bend could put CNN under the same compliant ownership as CBS. CNN’s parent company Warner Bros. Discovery (WBD) seemed likely to accept Netflix’s bid to buy them until this week, when Netflix agreed to allow WBD to entertain negotiations with Paramount Skydance, the CBS parent company owned by the Trump-supporting Ellison family. On his Substack, Jonathan Alter reported that, according to his sources, the administration is planning to block Netflix from buying WBD, which could open the door for the Ellisons. If their bid succeeds, it would put CNN under the same leadership as CBS and further expand the Trump administration’s control over legacy media.
What else we’re tracking
Yesterday, the Supreme Court struck down the president’s unilaterally imposed tariffs regime — a big win for the rule of law. In its 6-3 decision, the Court rejected the president’s claim imposing tariffs was a lawful exercise of his emergency powers. In case you missed it, when the Court heard arguments in the case, Ben spoke with Protect Democracy’s Ori Lev and Integrity Matters’ Audrey Roofeh to break down the law and the real world impacts of the tariffs.
This week, Vox is rolling out a new feature series on American democracy after Trump. (Full disclosure: This series is supported by a Protect Democracy grant.) In the coming weeks, they’ll be publishing long-form pieces, uploading videos, and linking to podcasts here, drawing from lessons from abroad and charting a course to a more representative and resilient democracy.
In The Bulwark, Nicholas Grossman makes “The case for being vigilant without panicking” as we confront threats to the upcoming Congressional elections: Trump can’t steal the midterms.
Thank you for the updates