The perilousness of this moment was laid out for us on Monday
Donald Trump and his criminal trial(s), a Trump judge and voting rights, Elon Musk and the Texas AG going after a nonprofit for its reporting.
Monday was a day that crystallized on just how many levels our democracy and its promises stand on a precarious perch.
The day started with arguments in one appeals court over the proper way of handling the criminal trial of a former president charged with trying to overturn an election who is both publicly attacking those involved with his trial and running for president again.
The afternoon featured a judicial appointee of that former president ruling for another appeals court that one of the final remaining effective federal laws for enforcing federal voting rights protections can only be enforced via litigation1 brought by the attorney general — not, as historically implemented, by either the Justice Department or private parties.
The evening featured what appeared to be coordinated or at least suspiciously timed announcements from the richest man in America that he was suing a nonprofit organization that reported on advertisements placed next to the white supremacist content on the rich man’s website and a state attorney general announcing that he was investigating the nonprofit because of the rich man’s unhappiness.
It was, in short, not a very good day — for free speech, voting rights, or democracy.
Trump gag order arguments
In the morning, the U.S. Court of Appeals for the District of Columbia Circuit heard arguments over the propriety and scope of the partial gag order issued by U.S. District Judge Tanya Chutkan against Donald Trump in conjunction with the federal criminal case pending against him in her court.
“There’s a balance that has to be undertaken here, and it’s a very difficult balance in this context, and we certainly want to make sure that the criminal trial process and its integrity and its truth-finding function are protected, but we’ve got to use a careful scalpel here, and not step into really skewing the political arena, don’t we?” Judge Patricia Millett asked, summarizing the more than two hours of arguments in the appeal.
Although Trump’s lawyer, D. John Sauer, had an altogether unsuccessful argument in defense of his client, it was clear when the lawyer from Special Counsel Jack Smith’s team, Cecil VanDevender, got up that Sauer’s failings weren’t the end of things. Although Sauer had been argumentative and unwilling to respond to many of the three-judge panel’s questions, that wasn’t the meat of the argument.
The substance of the argument was with the government, where Millett, along with Judges Cornelia Pillard and Brad Garcia — all Democratic appointees — focused on how the court is to balance the need to ensure that Trump doesn’t cause harm to the administration of justice in his case with both general First Amendment rights and, specifically, the “core political speech” at issue in Trump’s run for president.
In discussing comments that Trump could make about the prosecutors on the case under Chutkan’s gag order, Millett asked, “Doesn’t the First Amendment protect — and, to be clear, these comments are coming in the course of a presidential campaign, or I guess at this point a party nomination campaign — inflammatory language?”
While the court appeared poised to uphold the ability of the lower court to issue the gag order, it seemed likely that it would be cutting back its scope.
“I asked them about balance for protecting the criminal process, but I guess I’m asking your position, which doesn’t seem to give much balance at all to the First Amendment’s vigorous protection of political speech,” Millett told VanDevender.
These are important questions, and I am very sympathetic to keeping in mind the effects of decisions in Trump’s cases on criminal defendants’ rights more broadly.
That said, the almost surreal nature of the arguments themselves — essentially, how close can Trump get to calling for violence against potential witnesses in his case or the prosecutors or judges in his cases before he crosses a line in which a gag order would be appropriate — was a stark reminder of how dangerous Trump is.
Voting rights take a hit
On Monday afternoon, Judge David Stras of the U.S. Court of Appeals for the Eighth Circuit attempted to gut what is left of federal voting rights law protections — not with a scalpel, but with an ax.
In a case raising a “vote dilution” challenge to Arkansas’s state legislative redistricting effort, Stras, a Trump appointee, wrote that Section 2 of the Voting Rights Act can only be enforced by the U.S. Attorney General — and not by private parties, as has been understood to be the fact throughout many U.S. Supreme Court cases and congressional amendments to the law.
Stras was joined by Judge Raymond Gruender, a George W. Bush appointee in ruling that none of that history mattered because the text as they saw it only allows the Justice Department to enforce the law.
It is a remarkable — and remarkably dismissive — ruling. (To give just one example, in describing the lawsuit itself, Stras writes derisively that the advocacy groups who brought the litigation “sued nearly everyone who had anything to do with” the new map. Look at the image above; it’s a fairly ordinary list of defendants.)
Judge Lavenski Smith, a George W. Bush appointee, dissented.
“Until the [Supreme] Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy,” Smith wrote. “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”
Election law expert and UCLA Law professor Rick Hasen wrote that the ruling “would decimate the rights of minority voters” in a post at his Election Law Blog, explaining, “It’s hard to overstate how important and detrimental this decision would be if allowed to stand: the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources.”
Unless the Eighth Circuit rehears the case en banc and reaches a contrary conclusion, this case is almost certainly going to the Supreme Court.
Elon Musk and Ken Paxton fight free speech
Musk did so via three men who previously worked for the Texas Attorney General’s Office. John Sullivan’s first line in his LinkedIn bio is that he is “[a] former Assistant Solicitor General for the State of Texas.” Judd Stone’s departure as the solicitor general in Texas was reported last month. Christopher Hilton’s departure from the office was also reported last month.
The X (formerly known as Twitter) lawsuit against Media Matters was filed in the Northern District of Texas (naturally) and assigned to U.S. District Judge Mark Pittman, a Trump appointee. The Texas filing choice was also, as Ken White pointed out, likely for other reasons beyond the judge the case was likely to be assigned to as well.
It’s a lawsuit that essentially confirms Media Matters’ reporting while insisting that the way the group did its reporting justified the lawsuit.
As Media Matters President and CEO Angelo Carusone wrote in response, “This is a frivolous lawsuit meant to bully X’s critics into silence. Media Matters stands behind its reporting and look forward to winning in court. Onward!”
Also Monday, at roughly the same time as the Musk lawsuit was announced, Texas Attorney General Ken Paxton announced an investigation into Media Matters based on the same claims.
As I wrote elsewhere, these two are proving that they have no interest in free speech and just want their speech. And while Musk’s decision to sue Media Matters for its reporting on X is bad, Paxton’s use of government resources to investigate the organization for its reporting — with a claim that it is doing so as an investigation into “potential fraudulent activity“ — is significantly more disturbing move.
All of this, as discussed in the D.C. Circuit arguments, is happening in the context of another Trump run at the presidency.
It is a dangerous moment.
As three conservatives — George Conway, J. Michael Luttig, and Barbara Comstock — wrote on Tuesday morning in The New York Times:
American democracy, the Constitution and the rule of law are the righteous causes of our times, and the nation’s legal profession is obligated to support them. But with the acquiescence of the larger conservative legal movement, these pillars of our system of governance are increasingly in peril.
As they put it bluntly, the reporting on “plans for a second Trump presidency are frightening.”
While they’re right on that front, I think that Monday went a long way to illustrating how many of these anti-democratic harms — from Trump himself to his judicial appointees who are ruling on cases across the nation to state officials seeking to emulate him — are already here today.
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This has been corrected. The reference now, correctly, is to “litigation,” not “legislation,” as it stated initially.