This morning, Time magazine published a cover story by Eric Cortellessa about what Trump is planning for a second term. Based on two interviews with Trump and conversations with more than a dozen of his closest advisors, the story lays out Trump’s conviction that he was “too nice” in his first term and that he would not make such a mistake again. Cortellessa writes that Trump intends to establish “an imperial presidency that would reshape America and its role in the world.” He plans to use the military to round up, put in camps, and deport more than 11 million people. He is willing to permit Republican-dominated states to monitor pregnancies and prosecute people who violate abortion bans. He will shape the laws by refusing to release funds appropriated by Congress (as he did in 2019 to try to get Ukraine president Volodymyr Zelensky to smear Hunter Biden). He would like to bring the Department of Justice under his own control, pardoning those convicted of attacking the U.S. Capitol on January 6, 2021, and ending the U.S. system of an independent judiciary. In a second Trump presidency, the U.S. might not come to the aid of a European or Asian ally that Trump thinks isn’t paying enough for its own defense. Trump would, Cortelessa wrote, “gut the U.S. civil service, deploy the National Guard to American cities as he sees fit, close the White House pandemic-preparedness office, and staff his Administration with acolytes who back his false assertion that the 2020 election was stolen.” To that list, former political director of the AFL-CIO Michael Podhorzer added on social media that if Trump wins, “he could replace [Supreme Court justices Clarence] Thomas, [Samuel] Alito, and 40+ federal judges over 75 with young zealots.” “I ask him, Don’t you see why many Americans see such talk of dictatorship as contrary to our most cherished principles?” Cortellessa wrote. No, Trump said. “‘I think a lot of people like it.” Time included the full transcripts and a piece fact-checking Trump’s assertions. The transcripts reflect the former president’s scattershot language that makes little logical sense but conveys impressions by repeating key phrases and advancing a narrative of grievance. The fact-checking reveals that narrative is based largely on fantasy. Trump’s own words prove the truth of what careful observers have been saying about his plans based on their examination of MAGA Republicans’ speeches, interviews, Project 2025, and so on, often to find themselves accused of a liberal bias that makes them exaggerate the dangers of a second Trump presidency. The idea that truthful reporting based on verifiable evidence is a plot by “liberal media” to undermine conservative values had its start in 1951, when William F. Buckley Jr., fresh out of Yale, published God and Man at Yale: The Superstitions of “Academic Freedom.” Fervently opposed to the bipartisan liberal consensus that the federal government should regulate business, provide a basic social safety net, protect civil rights, and promote infrastructure, Buckley was incensed that voters continued to support such a system. He rejected the “superstition” that fact-based public debate would enable people to choose the best option from a wide range of ideas—a tradition based in the Enlightenment—because such debate had encouraged voters to choose the liberal consensus, which he considered socialism. Instead, he called for universities to exclude “bad” ideas like the Keynesian economics on which the liberal consensus was based, and instead promote Christianity and free enterprise. Buckley soon began to publish his own magazine, the National Review, in which he promised to tell the “violated businessman’s side of the story,” but it was a confidential memorandum written in 1971 by lawyer Lewis M. Powell Jr. for a friend who chaired the education committee of the U.S. Chamber of Commerce that insisted the media had a liberal bias that must be balanced with a business perspective. Warning that “the American economic system is under broad attack,” Powell worried not about “the Communists, New Leftists and other revolutionaries who would destroy the entire system.” They were, he wrote, a small minority. What he worried about were those coming from “perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” Businessmen must “confront this problem as a primary responsibility of corporate management,” he wrote, launching a unified effort to defend American enterprise. Among the many plans Powell suggested for defending corporate America was keeping the media “under constant surveillance” to complain about “criticism of the enterprise system” and demand equal time. President Richard Nixon appointed Powell to the Supreme Court, and when Nixon was forced to resign for his participation in the scheme to cover up the attempt to bug the headquarters of the Democratic National Committee in the Watergate Hotel before the 1972 election, he claimed he had to leave not because he had committed a crime, but because the “liberal” media had made it impossible for him to do his job. Six years later, Ronald Reagan, who was an early supporter of Buckley’s National Review, claimed the “liberal media” was biased against him when reporters accurately called out his exaggerations and misinformation during his 1980 campaign. In 1987, Reagan’s appointees to the Federal Communications Commission abandoned the Fairness Doctrine that required media with a public license to present information honestly and fairly. Within a year, talk radio had gone national, with hosts like Rush Limbaugh electrifying listeners with his attacks on “liberals” and his warning that they were forcing “socialism” on the United States. By 1996, when Australian-born media mogul Rupert Murdoch started the Fox News Channel (FNC), followers had come to believe that the news that came from a mainstream reporter was likely left-wing propaganda. FNC promised to restore fairness and balance to American political news. At the same time, the complaints of increasingly radicalized Republicans about the “liberal media” pushed mainstream media to wander from fact-based reality to give more and more time to the right-wing narrative. By 2018, “bothsidesing” had entered our vocabulary to mean “the media or public figures giving credence to the other side of a cause, action, or idea to seem fair or only for the sake of argument when the credibility of that side may be unmerited.” In 2023, FNC had to pay almost $800 million to settle defamation claims made by Dominion Voting Systems after FNC hosts pushed the lie that Dominion machines had changed the outcome of the 2020 presidential election, and it has since tried to retreat from the more egregious parts of its false narrative. News broke yesterday that Hunter Biden’s lawyer had threatened to sue FNC for “conspiracy and subsequent actions to defame Mr. Biden and paint him in a false light, the unlicensed commercial exploitation of his image, name, and likeness, and the unlawful publication of hacked intimate images of him.” Today, FNC quietly took down from its streaming service its six-part “mock trial” of Hunter Biden, as well as a video promoting the series. Also today, Judge Juan Merchan, who is presiding over Trump’s criminal trial for election fraud, found Trump in contempt of court for attacking witnesses and jurors. Merchan also fined Trump $1,000 per offense, required him to take down the nine social media posts at the heart of the decision, and warned him that future violations could bring jail time. This afternoon, Trump’s team deleted the social media posts. For the first time in history, a former U.S. president has been found in contempt of court. We know who he is, and today, Trump himself validated the truth of what observers who deal in facts have been saying about what a second Trump term would mean for the United States. Reacting to the Time magazine piece, James Singer, the spokesperson for the Biden-Harris campaign, released a statement saying: “Not since the Civil War have freedom and democracy been under assault at home as they are today—because of Donald Trump. Trump is willing to throw away the very idea of America to put himself in power…. Trump is a danger to the Constitution and a threat to democracy.” Tomorrow, May 1, is “Law Day,” established in 1958 by Republican president Dwight D. Eisenhower as a national recognition of the importance of the rule of law. In proclaiming the holiday today, Biden said: “America can and should be a Nation that defends democracy, protects our rights and freedoms, and pioneers a future of possibilities for all Americans. History and common sense show us that this can only come to pass in a democracy, and we must be its keepers.” — Notes: https://time.com/6972021/donald-trump-2024-election-interview/ https://time.com/6972022/donald-trump-transcript-2024-election/ https://time.com/6972024/donald-trump-fact-check-2024-election-interview/ https://scholarlycommons.law.wlu.edu/powellmemo/ https://www.merriam-webster.com/wordplay/bothsidesing-bothsidesism-new-words-were-watching Twitter (X): Mike_Podhorzer/status/1785348580334501936 You’re currently a free subscriber to Letters from an American. If you need help receiving Letters, changing your email address, or unsubscribing, please visit our Support FAQ. You can also submit a help request directly. For the full experience, upgrade your subscription.
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Tuesday, April 30, 2024
April 30, 2024
Contempt
Court started in Manhattan with a bang this morning, ending days of speculation about when Judge Merchan would rule on allegations Donald Trump violated the Judge’s gag order in that case. After telling Trump he can attend his son Barron’s May 17 graduation ceremony, the Judge promptly slapped Trump with the maximum fine—$1000 per occurrence—for contempt on nine of the ten possible violations prosecutors brought to his attention. Tonight we unpack the Judge’s order. You can read it in full here.
The penalty, which will disappoint many people because it doesn’t include custody, is consistent with what we’ve been predicting here. As with progressive discipline for your toddler, the Judge is giving Trump the opportunity to show that he’s learned his lesson. If he continues to violate from this point on, after the Judge has already imposed the maximum fine authorized by law, Trump will have amply demonstrated that there is no available sanction short of incarceration, even for a brief time, that is available to enforce the gag order. The Judge has now issued every conceivable warning. But it was satisfying to see the Judge’s written order, which addressed the inadequacy of the fine head-on. That section alone made it worth the wait. The order also puts the spotlight on the contempt hearing scheduled for Thursday on allegations raised by the People after the first hearing. Trump seems to have backed off since that took place, and for the Judge, this is probably the best of all possible worlds. Having issued today’s order, and with new charges hanging over Trump’s head, the Judge can avoid the controversy that would be involved in putting the Republican Party’s presidential candidate in jail—while still ensuring his good behavior. The order leaves little room to doubt what the consequences of future violations after this point will be, and it also clarifies what constitutes a violation. Trump’s lawyers claimed in court that reposting other people’s social media posts, no matter the content, was not a gag order violation. Judge Merchan dismissed that nonsensical notion swiftly, citing to Trump’s own boast that his seven million followers on Truth Social "get whatever I have to say, and quickly" when he posts there. It’s an interesting question of law because no court appears to have previously addressed reposting, but Judge Merchan, in his straightforward way, wrote in the order that “Lacking legal authority to guide its decision, this Court must, as defense counsel stated at the hearing, rely on common sense.” Trump also argued there was no willful violation of the gag order “because the posts constitute protected political speech made in response to attacks by Michael Cohen and Stormy Daniels.” While acknowledging that the gag recognized Trump’s ability to respond to political attacks, Judge Merchan wrote that, “merely characterizing every one of Defendant's postings as a response to a ‘political attack’ does not make them so.” Nonetheless, the Judge did not find Trump in contempt on the first allegation raised by the People, which involved a post on Truth Social on April 10, at 10:07 a.m. He found that the People failed to meet their burden of establishing the violation in regard to only this one of the nine charges. Prosecutors described the post in their motion as a repost of a post by Michael Avenatti, disgraced former lawyer and convicted felon, attacking Michael Cohen and Stormy Daniels. Trump added his own comment thanking Avenatti for “revealing the truth about two sleaze bags who have, with their lies and misrepresentations, cost our Country dearly!”
The Judge declined to hold Trump in contempt over this post because, on the evidence before him, he believed it wasn’t clear whether Trump was responding to two other posts he’d identified as attacks, which meant the People failed to meet their burden of proof on this one. But as to exhibits 2-9, which involved attacks on witnesses, and which Trump also claimed were political speech, the Judge found that the burden was met: “To allow such attacks upon protected witnesses with blanket assertions that they are all responses to ‘political attacks’ would be an exception that swallowed the rule. The Expanded Order does not contain such an exception.” There is also a cautionary note in the Judge’s order, designed for Michael Cohen and perhaps Stormy Daniels as well, both of whom have commented publicly on the case. Cohen’s comments have been particularly aggressive, designed to poke the tiger. They will undoubtedly lead to vicious cross-examination, something no prosecutor wants to risk, but Cohen has inexplicably continued with personal attacks like this one (which I will not repeat), which remain on his feed as of this writing. I have been wondering whether the Judge might not expand the gag order, which currently applies only to Trump, to offending witnesses as well. But he took a different approach, writing that Trump’s First Amendment right to engage in political speech deserves protection and that he will not permit the gag order to be used as “a sword instead of a shield by potential witnesses.” Trump isn’t the only one the order puts on notice about further misbehavior. After finding Trump in contempt, the Judge took up the issue of permissible penalties, noting, as we previously have here, that the relevant law, Judiciary Law § 751A, gives him the option of imposing a fine of up to $1000 and/or up to 30 days in custody. The Judge wrote that the purpose of the proceeding was to “protect the dignity of the judicial system and to compel respect for its mandates.” Then, he took on the real issue hanging over the contempt proceedings, acknowledging that the law makes no allowance for a case where the fine is clearly inadequate, stating that “the Judiciary Law does not vest the Court with authority to craft an appropriate punishment when a $1,000 fine will not achieve the intended purpose … Because this Court is not cloaked with [discretion to impose a higher fine], it must therefore consider whether in some instances, jail may be a necessary punishment.” My sense is that as long as Trump avoids further violations, the Judge won’t make that decision on Thursday. But it’s clear he’s serious if there’s an additional violation, stating that “Defendant is hereby warned that the Court will not tolerate continued violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment.” Trump would do well not to test the Judge any further. He has given him all of the due process he is conceivably required to—if Trump willfully violates the gag again, he will leave the Judge with no choice. Trump has until Friday to pay the fine and has already removed the offending posts, which the Judge ordered him to do. Trump is now formally a “contemnor,” the label assigned by the New York courts to a person who has been held in contempt. The Judge cited case law that references the court’s ability "to punish the contemnor for disobeying a court order." Put that one on a T-shirt! There has been a suggestion that Trump is in violation of the terms of his pre-trial release in this and other cases, which require that he not commit any new crimes. I’ve looked into that, and my tentative conclusion is that these charges don’t technically qualify as “crimes.” Prosecutors asked the Judge to issue a show cause order pursuant to Judiciary Law § 751A, a series of laws that define the powers of courts in New York. The contempt provision found here permits a Judge to make a finding of contempt, as we discussed above, to protect the integrity of court proceedings. It is not a charge brought via a grand jury and tried in court. That sort of contempt is found in New York’s criminal code, which provides for felony charges, but it was not used here—that would have been a long, drawn-out process. So this contempt finding is not a clear violation of law that would suffice to revoke Trump’s bond in this or other cases where he is on pre-trial release. Will Trump be able to avoid future violations? I would never bet on anything that requires him to use good judgment and restraint, a sad commentary on the man who wants to be president again. We’re in this together, Joyce You're currently a free subscriber to Civil Discourse with Joyce Vance . For the full experience, upgrade your subscription.
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