All posts tagged "courts"

This big gamble could seal Trump's fate — but the case hangs by a thread

The stalled Georgia case against President Donald Trump and more than a dozen allies accused of trying to invalidate the results of the 2020 election was given new life last week. Or was it?

Peter Skandalakis, who was tasked with assigning the case to a different prosecutor following Fulton County District Attorney Fani Willis’s dismissal by a top court, has decided to appoint himself to oversee what remains of the sprawling case.

Skandalakis, the executive director of the Prosecuting Attorneys’ Council of Georgia, highlighted the unusual nature of the case in his statement announcing his self-appointment:

“The filing of this appointment reflects my inability to secure another conflict prosecutor to assume responsibility for this case. Several prosecutors were contacted and, while all were respectful and professional, each declined the appointment. Out of respect for their privacy and professional discretion, I will not identify those prosecutors or disclose their reasons for declining.”

Willis herself alluded to this “culture of fear” last month, warning that the national ramifications of the case and its outcome could make it difficult to find another prosecutor.

“I think you have prosecutors, citizens and even judges who are afraid right now, and for good reason,” she told WSB-TV Channel 2.

“The reality is it’s going to be hard to find a prosecutor that’s not afraid to prosecute that case when one of the primary defendants is threatening anyone that would dare to prosecute them.”

She went on to argue that other district attorney offices may lack the resources and the staff to take on such a huge case.

Skandalakis, for his part, says there are still some parts of the case he needs to review. But he already has some familiarity with the matter. Willis was previously barred from bringing charges against Lt. Gov. Burt Jones, now a top Republican gubernatorial contender. A state senator at the time, Jones called for a special legislative session in the aftermath of Trump’s 2020 defeat and was one of the Republicans who participated in the alleged “fake elector” scheme. But a separate political conflict of interest resulted in Jones being severed off from any case brought by the Fulton DA.

Skandalakis would name himself to oversee the investigation into Jones after the lieutenant governor was listed as an unnamed co-conspirator. But he ultimately concluded that the case warranted no further action, saying that Jones was acting as an elected representative and not a criminal conspirator.

“Considering the facts, applicable law and the circumstances surrounding the events occurring in November and December of 2020 and January of 2021, I find the conduct and involvement of Sen. Jones as an elected representative to be reasonable and not criminal in nature,” Skandalakis said in 2024.

The appointment leaves Georgia as the only jurisdiction with an active criminal case against the president.

Trump was convicted in Manhattan last year for falsifying business records, and the two federal cases against him were dismissed upon his return to the presidency.

We don’t know how Skandalakis will handle the case going forward. But if his exoneration of Burt Jones is any indication, the case is still skating on thin ice: There is simply no precedent for a state-level prosecution against a sitting president, and he wouldn’t be able to serve any prison time until the end of his term in office.

As for the remaining defendants and conspirators? Trump recently pardoned many of them, including Jones, for trying to overturn the president’s 2020 loss. But given that presidential pardons don’t apply to state prosecutions, the order was largely symbolic.

Now it’s all up to Skandalakis to decide when – or if – the case makes it before a jury. However, finding 12 impartial Georgians with no knowledge of the case to judge a sitting president’s staunchest allies may prove to be the steepest hill to climb.

  • Niles Francis recently graduated from Georgia Southern University with a degree in political science and journalism. He has spent the last few years observing and writing about the political maneuvering at Georgia’s state Capitol and regularly publishes updates in a Substack newsletter called Peach State Politics. He is currently studying to earn a graduate degree and is eager to cover another exciting political year in the battleground state where he was born and raised.

Dark motive behind Trump maneuver revealed in ominous court filing

On Monday, the Trump administration submitted arguments to the Supreme Court claiming that no court — including the Supreme Court — can question Trump’s decision to deploy military troops against US cities.

Trump lawyers wrote that “the President’s determination to call up the National Guard is a core exercise of his power as Commander in Chief over military affairs, based on an explicit delegation from Congress. That determination is not judicially reviewable at all; at minimum, it is entitled to extremely deferential review, under which (Trump’s deployment) should be upheld.”

Claiming Trump called up the National Guard in Chicago “in light of the violent, organized resistance” ICE agents face, Trump attorneys insist his decision is not subject to judicial review, citing a case from 1827 that they apparently have not read.

Martin v. Mott arose from the War of 1812, and held that military subordinates could not second guess a president’s judgment about military threats. Although it is often mis-cited, Martin did not even discuss judicial review, much less hold that no court can ever review a president’s decision.

Americans don’t want this

Most Americans have a strong moral resistance to military intrusion into civilian affairs. An easy majority of Americans today, across party lines, oppose sending military troops into US cities in the absence of a foreign threat.

Our resistance can be traced back to the Revolutionary War. After living under the tyranny of King George III, whose hated armed troops ate their food and slept in quarters they were forced to provide, colonists held a widespread fear of a national standing army, because it threatened individual liberty and the sovereignty of the separate states. Because of that distrust, the founders carefully apportioned responsibility over the “militia” — today’s National Guard — between the federal government and the States.

Article I, Section 8, Clause 15 of the U.S. Constitution grants Congress, not the president, the power to call forth the National Guard “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” That foundational authority in turn supports Title 10 USC 12406, which allows a president to call forth the militia but only under specific, statutorily defined circumstances. It also supports the Posse Comitatus Act, 18 U.S.C. § 1385, which forbids the use of any part of the federal armed forces to execute laws, except where “expressly authorized by the Constitution or Act of Congress,” reflecting “the deeply rooted and ancient opposition in this country to the extension of military control over civilians.”

Exaggerated threats

Trump officials, with daily assistance from Fox News, report extreme violence among ICE protestors, significantly more violence than eyewitnesses, or state and local law enforcement officers, have observed.

Trump lawyers claim ICE agents “are facing incessant violent resistance on the streets of Illinois — including ambushes where their vehicles are rammed by trucks and dangerous projectiles are thrown at them, potentially motivated by bounties placed on their heads by violent gangs and transnational cartels. Federal agents faced with such threats and violence — in Chicago and elsewhere— operate, on a daily basis, in a climate of fear for their lives and safety, forced constantly to focus on self-defense and protection instead of executing federal law.”

It is no surprise that eyewitness accounts largely dispute these claims, often with video evidence. Examples of disputed ICE claims include:

To date, there is no known case addressing what happens when an unhinged president deliberately escalates violence and civil unrest in order to feel powerful/beat his chest/justify siccing the military on US citizens.

'Regular forces'

The Ninth and Seventh Circuit Appellate courts have addressed Trump’s National Guard deployments into US cities. Both appellate courts rejected Trump’s argument that military deployments are not reviewable, noting that the statute’s plain text lists specific predicate conditions before a president can deploy the National Guard, and “nothing in the text … makes the President the sole judge of whether these preconditions exist.”

The Ninth Circuit decision is awaiting full en banc review, while the Seventh Circuit concluded that facts on the ground weren’t what ICE said they were. The Seventh Circuit decision is now before the US Supreme Court, which recently directed the parties to file supplemental brief letters on the meaning of 10 USC 12406(3), which allows a president to call up the National Guard when he is “unable with the regular forces to execute the laws of the United States.”

Trump’s belief that his deployment of military forces is immune from judicial review is ominous, given his demonstrated lust for violence against unarmed people. His sinister plans for Americans who don’t support him, now officially labeled “domestic terrorists,” will depend greatly on whether the Supreme Court checks him with this case.

  • Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.

This man could have brought down Trump. There's no way to defend him

MSNBC’s Ken Dilanian recently discussed a new book that claims to reveal the nature of deliberations inside the US Department of Justice after the 2020 presidential election that “may have hampered the federal criminal investigations” of Donald Trump.

In Injustice: How Politics and Fear Vanquished America’s Justice Department, Carol Leonnig and Aaron Davis report on former US Attorney General Merrick Garland’s principled, cautious and slow decision-making (Dilanian’s adjectives) in two cases: the one about state secrets found in his Florida mansion and the one about the conspiracy to use fake electors to overturn his defeat by Joe Biden.

Garland moved with exceptional care for fear of establishing a “legal precedent” that might affect past and future presidents, according to Leonnig and Davis. What emerges from their book, Dilanian said, is a picture that “runs contrary to the GOP allegation that the federal indictments of Trump by special counsel Jack Smith were the product of a Democrat-led plot to weaponize the Justice Department. Instead, the book depicts example after example of the opposite happening.”

Dilanian cited some of those examples from the book. They are damning.

They show time and again that Garland’s Republican critics were wrong. Leonnig and Davis write that Garland made sure the cases were free of even a hint of political consideration. He “had chosen to impose a very conservative interpretation” of DOJ policies. He froze the cases prior to the 2022 midterms in the belief that no action should be taken near or during elections.

“Trump was not even on the ballot and had not yet declared his presidential candidacy for 2024,” Dilanian said. “But Garland nonetheless imposed the freeze.”

While Garland’s slow-walking of key decisions may have hampered the investigations of Trump, there’s still a smell of approval rising up from Dilanian’s piece (and perhaps from the book, too, though I have not yet read it) — despite the “handwringing,” Merrick Garland did things right.

He and Smith “faced criticism then from Democrats who wanted them to move faster, but no evidence has surfaced showing that anyone from the White House imposed that sort of pressure.”

Moreover, Dilanian wrote, though we are months into Trump’s second term, his allies “have not produced evidence establishing that any decision in the cases was made for political reasons or that any White House official or Biden partisan had any influences over the investigations."

Just to be clear, Dilanian only suggests that Garland did things right. But even so, I don’t know how anyone could even accidentally suggest as much. It’s plain that Garland did not ensure cases were immune from the appearance of politics, because every choice appears to have been made with a single question in mind: “What will Donald Trump and the rightwing media say about this?”

Though it appears to be true that no one from the White House pressured Garland, he was still pressured. That’s clear. More precisely, Garland allowed himself to be, as he placed more importance on his reputation, and that of the Justice Department, than he did on justice.

I don’t know what the consequences would have been if Garland had gone all Judge Roy Bean on Trump, but I do know the consequences of the choices he did make. Due to the extraordinary delays that came from, as Dilanian said, “straining to give the former president every benefit afforded under DOJ norms and policies,” the US Supreme Court had time to strike down an early 2024 effort to keep Trump off state ballots.

Colorado’s highest court had decided on 14th Amendment grounds that Trump’s role in the J6 insurrection disqualified him. After the Supreme Court overturned that decision, it was clear that no court was going to stop Trump before the election and that voters were suddenly burdened with the responsibility of deciding his verdict on their own.

As I said at the time, the court’s Republican justices put democracy on a collision course with the law.

“If he loses, he’s guilty of all crimes committed against democracy. (Perhaps the justice system would then proceed.) But if he wins, he’s innocent. He will have been granted absolution for everything he’s ever done. Everything. There might never again be such a thing as a crime if the president does it. He could have his opponents murdered, safe in the knowledge that a majority approves. Democracy will have obliterated the rule of law.”

I concede that the rule of law has not been obliterated. It still applies to you, me and everyone we know. However, that doesn’t take away from the fact that if the law can’t bring down a rich and powerful criminal who acts with total impunity for it, there’s no point in the law. This conclusion is so obvious that it’s somewhat surprising to see a big-foot reporter like Dilanian not only suggesting that Garland did things right but also falling into the same trap Garland fell into.

Just as Garland privileged Trump’s interests in how he chose to proceed with the two criminal cases, Dilanian privileges Trump’s interests in how he chose to write about Leonnig and Davis’ book. He decided to maximize how it proves Garland’s Republican critics were wrong while minimizing how it proves his liberal critics were right.

In doing so, Dilanian prioritizes lies — that Garland “weaponized” the law against Trump — while de-prioritizing the truth: that Garland’s public image as an impartial administrator of justice was more important to him than the impartial administration of justice.

It counts as political if it’s the left that’s demanding justice. It doesn’t count as political if it’s the subject of investigation who’s howling about “injustice.” And such allegations are not political, because they seem more or less normal, and they seem more or less normal, because the rightwing media complex has made them so. Long before Garland was even confirmed, Trump’s media allies had already begun establishing in the public’s mind a “truth,” thus making all subsequent efforts by the attorney general to reveal the truth seem political by comparison.

As with most political discourse, rightwing propaganda is nearly totally absent from the question of whether Merrick Garland did things the right way, which suggests he absolutely did not. It also suggests that future attempts to hold rich and powerful men accountable for their crimes must learn from his mistakes or be doomed to repeating them.

When the end comes, there must be a purge of the government. The guilty must be hunted down like the J6 insurrectionists were. Reforms must be made — abolishing ICE or packing the US Supreme Court, for example — to make sure no traitor is again able to hijack the republic. That’s a very tall order made much taller by the fact that rightwing propaganda will continue to work in the shadows if the impartial administrators of justice continue to pretend it doesn’t exist.

These Jan 6 lawyers should not be allowed near a courtroom — never mind a school district

Here’s a lesson for the public schools to teach parents: “Mama, don’t let your babies grow up to be lawyers at the Thomas More Society.”

You may have heard that Kirkwood School District, in Missouri, was recently threatened with a lawsuit over a three-minute LGBTQ+ History Month video shown to middle schoolers last month. Some parents complained.

The Chicago-based Thomas More Society swooped in with an eight-page demand letter threatening years of federal litigation and “substantial attorney fees” unless Kirkwood caved to their demands — all in the name of “protecting” the school district’s children from exposure to non-heterosexual subject matter.

This uncivil society has fancied itself for two decades as a guardian of morality. Not merely to advance homophobia, but to defund public libraries, shutter abortion clinics and otherwise seek to redefine America in the most unChristian manner imaginable.

But it was the group’s spectacularly failed attempt to overthrow American democracy as leading election deniers that best defines its notion of right and wrong. And that best illustrates the threat it poses to the rest of us.

Kids need to be protected from adults like this.

In 2020, the Thomas More Society created something called the Amistad Project — after updating its bylaws to include “election integrity” as part of its mission statement.

It launched lawsuits in multiple key swing states Donald Trump lost — Wisconsin, Pennsylvania, Michigan, Nevada, Georgia and Arizona — all of which were dismissed or tossed out after courts found serious procedural or constitutional flaws.

In December 2020, it sued in federal court seeking to block Congress from counting electoral votes on Jan. 6. U.S. District Judge James Boasberg rejected the motion, writing that the suit “rests on a fundamental and obvious misreading of the Constitution. It would be risible were its target not so grave.”

Risible is judge-speak for “Stupid on stilts.”

The Amistad Project was run at the time by Phill Kline, a former Kansas state attorney general whose resume included having had his law license suspended in 2013 for what the Kansas Supreme Court termed “clear and convincing evidence” that Kline committed 11 separate ethics violations.

The Court’s findings included that he misled a grand jury, provided false testimony, and illegally obtained confidential medical records during his investigations of abortion providers. The Court cited his “dishonest and selfish motives” and noted his “inability or refusal to acknowledge” his misconduct. He would ultimately lose his appeals at the U.S. Supreme Court, at a reported cost of $600,000 to Kansas taxpayers.

Great guy. I have no idea what he’s doing now. But during the scandalous post-2020 election effort to thwart democracy, he personified the Thomas More Society’s idea of an upstanding and morally impeccable attorney.

There are quite a few other examples of attorneys who have been associated with the society and whose service — like Kline — speaks volumes as to the group’s high standards of virtue.

There was Jenna Ellis, whose meteoric rise from a traffic-law attorney in Colorado to the height of Trump World culminated in a criminal guilty plea for aiding Trump’s fake‑elector scheme and a public censure for repeatedly misrepresenting the 2020 election. (To be fair, Ellis deserves our compassion as a survivor of close exposure to Rudy Guiliani’s flatulence and runaway hair dye.)

There were lesser known stalwarts like Erick G. Kaardal — identified as “Special Counsel” for the Amistad Project in the December 2020 election‐lawsuit filings. A federal judge referred him for possible disciplinary action after describing his complaint as “a sweeping Complaint filled with baseless fraud allegations and tenuous legal claims.”

The list goes on. But you don’t need deep research to understand the grotesque nature of the Thomas More Society. The demand letter it sent to the Kirkwood School District on behalf of a handful of aggrieved parents speaks for itself:

“Based on our track record of First Amendment victories and fee recoveries across the country, those amounts are likely to be substantial.”

Nice school district you have here. It would be a shame if something bad happened to it.

At this point, it’s fair to wonder what sort of moral outrage might be so heinous as to offend the sensibilities of the openly heinous themselves? Must be pretty gruesome, right?

Fortunately, there’s no need to speculate. The demand letter specifies some of the atrocities perpetrated at Kirkwood. Here it is (but I must warn you these bulleted items might not be appropriate for children to see):

  • “Years ago” being “openly LGBTQ+ was difficult and dangerous” and “everything changed” for the good during the “Stonewall Uprising,” thanks in part to “brave activists like Marsha P. Johnson [a self-identified ‘drag queen’] and Sylvia Rivera [a self-identified ‘transvestite’],” which led to “speak[ing] up” for “LGBTQ+ rights” across the world.
  • The “Christopher Street liberation day march” was the first “Pride parade” that served as a way for self-identified LGBTQ+ individuals to “step out of the shadows” and “show the world who they were,” because “being yourself is something to celebrate, not hide.”
  • “Pride” is about “being proud of your identity.”
  • “Pride month” is “celebrated” with “parades, festivals, and flags full of bright colors.” The rainbow flag was created as a “symbol of love, acceptance, diversity, and hope.”
  • Newer versions of the “Pride flag” include the “progress pride flag” adding “black and brown to highlight the inclusion of people of color,” along with “pink, blue, and white to include the ‘trans’ community.’ This evolution shows that the movement is growing and working hard to include everyone.”
  • “The Pride community today is a huge and amazing group”; “it’s a supportive family.”
  • “Pride reminds us to[:] Be proud of who you are[,] Stand up for fairness and equality[,] Support Others” [as also displayed in illustrated text on the video], “no matter who they love or how they identify.”
  • “It started as a protest, and today it’s also a celebration of courage, history, and community.” “Supporting ‘Pride’ means supporting equality, kindness, and the right to be yourself.”
  • “HAPPY LGBTQ+ HISTORY MONTH” [shouted by student-narrators in unison, and as further displayed in illustration on video].

Dear reader, I apologize if it has offended your sensibilities to see — in raw and uncensored form — the subversiveness that was inflicted upon innocent children in Kirkwood. Certainly, it’s understandable that it might offend your religious beliefs.

Especially if you’re possessed by whatever demons haunt the nice people at the Thomas More Society.

These Trump court cases offer a clear roadmap to authoritarian rule

President Donald Trump’s ICE raids in American cities are not simply efforts to deport undocumented immigrants or battle crime. In addition to creating fear and desensitizing law-abiding citizens to a military presence on American streets, Trump wanted to pick a fight.

And he has.

Specifically, Trump wanted a legal fight that he could take to the conservative majority on the U.S. Supreme Court. If it accepts his justification for “federalizing” the National Guard over a state governor’s objections, he’ll have unrestrained power to deploy the military on American soil any time, any place, and for any reason.

The implications are staggering. Fear has gripped neighborhoods where armed troops patrol the streets as something akin to an occupying force. During the 2026 midterm elections, deployments would be a powerful voter suppression tool.

Trump’s argument

In the cases challenging Trump’s National Guard deployments in Los Angeles, Portland, and Chicago, his lawyers have argued that the courts have no power to review the President’s decisions. His claimed factual basis is not subject to challenge. His decision is final. His authority is absolute.

Trump bases his argument on language in an 1827 case involving Jacob Mott, a state militiaman. Mott refused to report for duty when President James Madison called up the New York militia during the War of 1812. The Supreme Court ruled that Mott had no right to dispute the president’s judgment.

Extrapolating the language of that case involving a subordinate militiaman during a time of war to foreclose all judicial review of the factual basis for Trump’s deployments is a stretch. But one appellate court judge in the ongoing ICE cases has embraced Trump’s position.

California

In June, Trump mobilized the National Guard over the objections of Gov. Gavin Newsom. The president invoked the statute authorizing him to “federalize” the Guard, which permits such action only if:

(1) theUnited States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States.” (10 U.S.C. Sec. 12406)

Trump claimed that the factual circumstances entitled him to invoke subsections (2) and (3).

The trial court granted Newsom’s request for a temporary restraining order, and the Trump administration appealed. Trump’s primary argument was that he had unrestrained discretion to make the required statutory determinations (i.e., whether there was a rebellion, danger or rebellion, or inability with regular forces to execute federal law). Whatever he decided should be the beginning and the end of the inquiry. Actual facts contradicting his claims were out of bounds. Judges couldn’t scrutinize his justifications. No one could.

The Ninth Circuit Court of Appeals (including two Trump appointees on the three-judge panel) rejected Trump’s argument. The court ruled that the president’s power is not absolute, but he is entitled to “a great level of deference” in making the required factual determinations.

Portland

When Trump deployed troops in Portland, Oregon, the city and the state sued to block him, and he made the same argument. Federal District Court Judge Karin Immergut — a Trump appointee — followed the appellate court’s earlier California decision and rejected it.

Judge Immergut’s 31-page opinion set forth her factual findings and legal conclusions. She outlined the evidence that rebutted Trump’s claimed “facts.” The court acknowledged that “the President is certainly entitled ‘a great level of deference’... But ’a great level of deference’ is not equivalent to ignoring the facts on the ground… The President’s determination was simply untethered to the facts.”

Judge Immergut granted the motion to prevent the deployment.

Reversed on appeal

Under well-settled law, Judge Immergut’s ruling could be reversed on appeal only if it was an “abuse of discretion” — which it wasn’t. The appellate court had to accept her factual findings as true, unless they were “clearly erroneous” — which they weren’t.

But in a two-to-one vote, the Ninth Circuit Court of Appeals reversed Judge Immergut’s ruling. Rather than respect the trial court’s detailed factual findings, the Trump-appointed majority discarded them in favor of its own characterization of the record.

Ironically, the court concluded, “[T]he district court erred by placing too much weight on statements the President made on social media.”

Judge Ryan Nelson — one of two judges comprising the majority that reversed Judge Immergut — accepted Trump’s primary argument. In his concurring opinion Judge Nelson wrote that “the President’s decision in this area is absolute.”

Facts and evidence don’t matter. Everyone has to take Trump at his word — a remarkable empowerment of a serial liar.

The dissenting opinion of Judge Susan Graber, a Clinton appointee, returned to the facts:

Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd.

But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions.

Judge Graber pleaded for additional scrutiny of the majority’s errant decision:

By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.

That process — a request for en banc review by 11 randomly-selected judges in the Ninth Circuit — is underway.

Chicago

Meanwhile, the Seventh Circuit Court of Appeals affirmed unanimously a trial judge’s order blocking Trump’s deployment of the National Guard in Chicago. As in Los Angeles and Portland, Trump argued that the courts had no role in reviewing his factual determinations. The court — including a George H. W. Bush appointee, a George W. Bush appointee, and an Obama appointee — rejected Trump’s argument.

Unlike the majority in the Portland appeal, the court accepted the lower court’s factual findings and applied them:

Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the US government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows.

Nor did the activity surrounding the ICE facility render federal officers incapable of executing the laws of the United States.

Trump has appealed to the Supreme Court, where the conservative majority has a track record of giving him anything he wants.

As of Sept. 22, he had won 21 cases on the Court’s “shadow docket” where little or no reasoning accompanied quick decisions granted on a “preliminary” basis (even though the impact often is profound and enduring).

His administration had lost only two, with two others pending. Two were withdrawn and was one dismissed.

In asking the Supreme Court to intervene, Trump’s lawyers called the Seventh Circuit’s ruling part of a “disturbing and recurring pattern” that “improperly impinges on the President’s authority and needlessly endangers federal personnel and property.”

None of that is true. The only “disturbing and recurring pattern” is Trump’s false assertions to justify deploying the military on American soil. And now he wants to prevent anyone challenging him — ever.

  • Steven J. Harper is an attorney, adjunct professor at Northwestern University Law School, and author of several books, including Crossing Hoffa — A Teamster's Story and The Lawyer Bubble — A Profession in Crisis. He has been a regular columnist for Moyers on Democracy, Dan Rather's News and Guts, and The American Lawyer. Follow him at https://thelawyerbubble.com.

Here's why Comey will struggle to have case dismissed despite Trump's clear abuse of power

By Peter A. Joy, Professor of law, Washington University in St. Louis.

Soon after President Donald Trump demanded in a social media post that the Department of Justice prosecute his perceived enemy, former FBI director James Comey, Comey was indicted on Sept. 25, 2025, for lying to a Congressional committee in 2020.

Comey’s lawyers have responded, filing a motion on Oct. 20, 2025, to dismiss the charges against him with prejudice — the “prejudice” being legal jargon for barring a refiling of the charges. Comey’s lawyers allege that the Justice Department’s prosecution is both selective and vindictive.

Despite the existence of a long string of Trump attacks specifically urging that Comey be prosecuted, getting the case dismissed as a prosecution that is selective, vindictive or both will require Comey to overcome a very strong presumption that the charging decision was lawful.

Selective prosecution

For a court to find that there is a selective prosecution, Comey has two hurdles.

First, he has to demonstrate that he was singled out for prosecution for something others have done without being prosecuted.

Second, Comey will have to prove that the government discriminated against him for his constitutionally protected speech of criticizing Trump.

Clearing both of these hurdles seems unlikely. Others, including former Trump fixer Michael Cohen and former Reagan administration Defense Secretary Caspar Weinberger, have been prosecuted for the same type of crimes — allegedly making false statements to Congress or unlawfully seeking to influence or obstruct a Senate investigation.

Vindictive prosecution

Due to Trump’s repeated statements and social media posts that Comey should be charged, proving a vindictive prosecution may be easier.

Indeed, the motion to dismiss starts by laying out the argument for a vindictive prosecution, signaling that Comey’s lawyers think this is the stronger argument by leading with it.

Still, if Comey’s lawyers are to convince the judge, they will have to overcome a heavy burden that the prosecution has exceeded the broad discretion of the prosecutor.

The legal standard requires a court to first find that the prosecutor had animus, hostility, toward Comey, and second, that the charges would not have been brought if there was no animus.

The motion to dismiss based on vindictive prosecution makes a very strong showing of animus, relying on Trump’s several statements and social media posts that Comey should be prosecuted and that Comey was a “Dirty Cop” and “a total SLIMEBALL!”

Further evidence involves the fact that no other prosecutor other than Trump’s former personal lawyer, Lindsey Halligan, would seek charges against Comey.

Still, the grand jury found probable cause for the two charges against Comey and issued the indictment. The government will likely argue that demonstrates that the charges could have been brought even if there was animus.

Fallback position

Comey’s lawyers are leaning heavily on arguments for a dismissal of the charges with prejudice, but they also have a fallback position.

If the judge determines that they have not proved a selective or vindictive prosecution, they are asking for the opportunity to obtain discovery — the record — of the government’s decision to seek charges from the grand jury, and a hearing on their motion to dismiss the indictment.

Given Trump’s public statements and social media posts, and the legal authority on this issue, as a longtime practitioner and teacher of criminal law, I believe the judge is very likely to choose this course of action.

No matter how the trial judge rules on the motion to dismiss, the losing side is certain to appeal. No matter how the federal appeals court rules, the losing side is likely to seek Supreme Court review. Whether the court would take such a case is impossible to predict with any certainty.

Here's how to bring Trump and his lawless thugs to justice

We are witnessing lawlessness on a scale none of us has seen in our lifetimes. It’s so bad that over the weekend, even Kamala Harris was forced to admit she’s lost faith in the American system of justice.

“I don’t know if we can trust what’s coming out of the Department of Justice,” the former vice president told MSNBC.

“That pains me to say that, as someone who spent the majority of my career as a prosecutor. Many who have worked as US attorneys … talk openly and rightly about the fact that they should do their work without any fear and not in the interest of favor. That so clearly is not what is ruling day there.”

In her new book, she repeatedly says the Democrats should fight fire with fire. Should they do with the US Department of Justice what the Republicans under Donald Trump have done to it? Her answer: No.

“No president should think of the Department of Justice as being their personal attorney,” Kamala Harris said. “No president should try to influence prosecutorial decisions based on a political agenda, period.”

But I suspect she knows it’s more complicated. No legal institution — not the courts and not the Department of Justice — is going to hold Donald Trump accountable for the crimes he has committed without the political motivation to do so. But there will be no such motivation if the Democratic Party sticks with its “norms and institutions” view of criminal justice. It must channel the public’s desire for retribution.

The people want payback, wrote Christopher Jon Sprigman.

“When this is over – and it will end – there has to be a sustained and severe campaign of retribution, from Trump down to the masked ICE fascists who carried this out,” he said. “No f–––––g kumbaya. Consequences.”

Sprigman is the Murray and Kathleen Bring Professor of Law at New York University and co-director of its Engelberg Center on Innovation Law and Policy. I got in touch with him. Below is our conversation.

JS: The Democrats seem to have stopped talking in terms of compromise and have begun talking in terms of accountability. You think they need to demand retribution (your word). Why?

CS: There are two reasons.

First, the American people need to hear that when this is all over, elected Democrats aren't going to want to sing kumbaya — which is probably the instinct that a lot of them have. If that happens, if perpetrators in this administration aren't punished — severely punished — we'll be right back in this mess very quickly.

Second, the word "retribution" is part of justice. And in situations like the one we face, it should take center stage. Existing law and courts — the institutions we rely on to provide justice — are plainly inadequate to meet the challenge of the wide-scale lawbreaking, abuse and utter lack of human decency that we see from Trump on down to ICE. What's needed is something beyond existing law and legal process.

What would that something be?

I've been re-reading Justice Robert Jackson's opening statement at the Nuremberg War Crimes Tribunal. I'm not saying the administration has risen, or sunk, to the level of the Nazis ... although, give them some time, I suppose. What I am saying is that some of what Jackson says about why a special set of proceedings was required for Nazis — you can't just try them in US courts — is applicable to our situation.

Jackson insisted that "[t]he common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched."

I think our courts — most notably the Supreme Court — have demonstrated that they will not hold Trump to account. So, for example, if Trump's attacks on alleged Venezuelan drug boats are really the murder of a bunch of innocent fishermen, US courts are not going to permit him to be tried for murder.

Later in his speech, Jackson noted that trying the Nazis in regular US courts would be an interminable process — and that years of delay was unacceptable:

"Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a whole Continent, involving a score of nations, countless individuals, and innumerable events. Despite the magnitude of the task, the world has demanded immediate action. This demand has had to be met, though perhaps at the cost of finished craftsmanship. In my country, established courts, following familiar procedures, applying well-thumbed precedents, dealing with the consequences of local and limited events seldom commence a trial within a year of the event in litigation."

So too here. This administration has been in power less than 10 months, and already the scale of its lawbreaking is immense. Trials in US courts would likely drag on for more than a decade.

Why do we need to go outside existing law and legal process? Why can't we do it ourselves, so the people can get fully behind it?

There is simply no law that squarely covers a lot of what Trump has done. Partially because we could not previously imagine a criminal sociopath being elected president. Partially because the Supreme Court has — based on literally nothing — conjured a crazily broad presidential immunity doctrine just at the moment a criminal sociopath was in place to abuse it.

And also partially because the federal courts are now packed with partisans who cannot be trusted to apply the law evenhandedly. We need new rules, and we need a new institution to judge Trump and his enablers and thugs. We need to apply the Nuremberg model here.

It seems to me, for all these reasons, Trump is going to get away with his crimes. But the same might not be said for his minions. Can our system seek retribution sufficiently to deter future conspirators?

I don't think it's time yet to accept that Trump is going to get away with it. If we leave this to regular law and courts, he will. That's why I'm making these arguments.

The US is currently in a state of lawlessness. It may not seem that way to the average person. The law still applies to them. But that's the trick. The law doesn't apply to Trump and his allies. That is a particularly threatening type of lawlessness.

Law for some. Impunity for others.

And my point is: the law is broken. The response to that should not be strictly legal — at least not "law," as it stands currently. We need a new law that responds to lawlessness. We need a new institution to enforce it on the lawbreakers. That was the essence of Nuremberg.

To answer your question directly: if there's no punishment for Trump and we focus on Trump's enablers, that's a terrible outcome.

That will breed more contempt for the law.

And it should.

To make reforms happen, there must be political will. Something big enough to force the Democrats — who are the only way Trump will feel the consequences of his actions — to act. Perhaps Epstein is the stand-in for all elite corruption and impunity for law?

I worry every day that this is asking too much of a party that retains as its legislative leaders two men as limp as Chuck Schumer and Hakeem Jeffries. I mean, how can any elected Democrat explain that?

But it's not in my nature to just throw up my hands. And there is a level of anger and frustration in this country — and revulsion in seeing our government turn into a crime syndicate — that I think some enterprising politician will eventually harness. Of course, that comes with great danger. We're living very close to the edge right now, and will be for some time, unless we fall completely into the abyss.

The furor around the Epstein files is an indicator that this fury at our elites is shared by many Republicans as well as Democrats. Trump has somehow convinced people — for now — that he is the vessel for retribution (that word again) against corrupt elites. Of course, he never was that. People bought it. They may continue to. But the Epstein files seem to have had some power to shake people's faith in Trump and Trumpism. We'll see how that develops. I'd be surprised if it goes away.

In any event, I hope voters will send Democrats a clear message.

If they do ever regain power, they cannot leave the Trump administration’s lawbreaking unaddressed. And they cannot leave it to existing law and our politicized courts. We need new rules and new institutions. And they have to judge Trump and his enablers, right down to the masked, violent ICE agents on the street.

All Trump's lethal buffoonery is contained in this pathetic suit

The first thing experienced defense attorneys do when they get a new complaint is read it end to end, to see if it tells a compelling story. Did my client say something so stupid, so damaging, his transcript is already at FedEx Kinkos, blown up billboard size for opening statements? Is there a hidden narrative lurking that plaintiffs’ own counsel has, miraculously, somehow missed?

But once in a while, you get a complaint so full of bombast, ignorance, and braggadocio you assume the lawyer was drunk when they filed it. Pleadings, after all, can become trial exhibits, and if your client is a self-impressed a------, you don’t want to advertise that fact to the jury.

When you get that complaint, you share it among peers, because your friends are all litigators who love a good laugh. Had I been on the receiving end of Trump’s New York Times complaint, I’d have sent it out as an early Christmas gift.

Choking on its own puffery

Now the whole world knows Trump can’t take a joke, Jimmy Kimmel should deadpan deliver a few pages of Trump’s vanity suit against the NYT as his sidekick Guillermo runs and hides.

Much like Trump’s embarrassing tirade at the UN this week, his defamation complaint pays cringing, fawning tribute to himself, literally citing his own “singular brilliance” and describing his 1.5-point election win in 2024 as “the greatest personal and political achievement in American history.”

Eighty-five pages of Trump anointing himself begins by claiming he won “in historic fashion,” securing a “resounding mandate from the American people.” Unless you watch Fox News exclusively, you know that to be a lie. Trump’s win over Kamala Harris was one of the smallest presidential victories in US history.

An experienced plaintiff’s attorney would have warned Trump that shooting his own credibility in the first pages is ill-advised. Once juries roll their eyes, it’s hard to get them to focus.

‘You’re Fired!’

Trump’s suit then whines about NYT articles that panned The Apprentice, the show that, lamentably, made him a household name. Trump boldly claims he invented the phrase, “You’re fired,” as if every single person ever fired prior to the year 2004 was told, as a matter of fact and law, “You’re terminated.”

Trump insists that he made The Apprentice a success — and not the other way around. He does not claim the NYT defamed him over The Apprentice, but that they groveled insufficiently over it. If anything, his complaint suggests the American people would have a legal claim against the producers of the show if it weren’t for the statute of limitations.

After his NDA finally expired, Bill Pruitt, producer of the first two seasons of The Apprentice, was free to tell the truth. He said Trump “was not, by any stretch, a successful New York real estate tycoon like we made him out to be… We needed to legitimize Donald Trump as someone who all these young, capable people would be clamoring over one another trying to get a job working for.”

Pruitt readily admits the whole show was a con job that worked, because Trump recognized the show would “elevate his brand.” It’s also likely where Trump grew addicted to being called “Sir,” not recognizing the sarcasm of an inside joke.

Lucky Loser

Trump’s complaint also harangues the Times about the book “Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success” by reporters Susanne Craig and Russ Buettner, now available on Kindle for $13.99.

Written by the authors who wrote the 2018 NYT exposé of Trump’s finances, Lucky Loser exposes how “one of the country’s biggest business failures lied his way into the White House:”

“Trump spun a hardscrabble fable of how he parlayed a small loan from his father into a multibillion-dollar business and real estate empire.

This feat, he argued, made him singularly qualified to lead the country.

Except none of it was true. As his wealthy father’s chosen successor, Trump received the equivalent today of more than $500 million in family money…”

One assumes defense counsel is already making oversized exhibits of Trump’s silver spoon, complete with charts and quotes.

Judge not amused

Last week, Republican-appointed Judge Steven Merryday struck down Trump’s $15 billion lawsuit, giving Trump’s counsel 28 days to file a version that complies with federal pleading rules.

Merryday wrote that the complaint included legally improper puffery, “florid and enervating” pages lavishing blind praise on Trump while indulging his nonstop grievances. Merryday dressed down Trump’s legal team for violating pleading rules “every member of the bar of every federal court knows, or is presumed to know…”

After recounting with scorn some of the more lurid absurdities in Trump’s complaint, Merryday reminded Trump’s counsel that a complaint at law is not an ego stroke for Trump, a PR tool for Fox News, or a rally speech for MAGA voters who don’t know any better.

He closed by warning counsel that if they refile the thing, the case will proceed in his courtroom in a “professional and dignified” manner — or not at all.

The joke lives on

In response, Trump told ABC, “I’m winning, I’m winning the cases.” Because of course he did.

His legal team backed him up, claiming Trump “will continue to hold the Fake News accountable through this powerhouse lawsuit… in accordance with the “judge’s direction on logistics.”

The “judge’s direction on logistics,” (writer smacks the back of her own head to dislodge her rolled eyes) is face-saving spin for the judge’s obvious smackdown: a snarly dismissal order dripping in sarcasm, a 40-page limit for any re-do, and the judge’s suggestion that counsel learn civil practice rules before they come back.

  • Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.

This shocking Trump act spells disaster for our republic

President Donald Trump has done so much damage to the formerly steadfast pillars of democracy that it's often difficult to single out any one disastrous act, other than the obvious, such as January 6 and militarizing the homeland. But the indictment of former FBI director James Comey may break the strongest last wall buttressing one of history's most resilient republics.

There seems to be nothing left, no rule, no law, no moral, no ethic, no obligation — nothing that can restrain Trump's id when free to "rule," as demonstrated by the unprecedented order to charge Comey. Mark this development as his most significant anti-democratic moment in term two, one that might take two generations to overcome.

Perhaps the near-defining characteristic of third-rate dictatorships is the automatic imprisonment of one's political rivals. Just call modern Republicans a "junta," and it all starts to at least sound normal.

Yes, the Department of Justice under President Joe Biden charged Trump and many others with crimes. But Biden did not direct any charges (One might argue, and many have, that he should have been more involved, from very early on.)

There are no allegations that Biden contacted Attorney General Merrick Garland about any one charge or that Garland was politically motivated. Indeed, not only did Garland foot-drag the milquetoast effort, he even brought in a special prosecutor midstream, creating catastrophic delay. And the Right still calls it "lawfare.”

Not it seems to now matter, but it's worth mentioning that Trump and cohorts most certainly did enough to at least be charged with crimes. The federal government pleaded with Trump for years to return critical documents, even sent binding subpoenas as warnings — begging to settle, only to be ignored. Moreover, the attack on Congress on January 6, 2021 and the third-rate conspiracy to vitiate certification of Biden's win were as corrupt as they were unprecedented and should have been far more aggressively prosecuted.

There is simply no comparison. Every objective person, including nearly every Republican member of Congress, knows this to be true. They are simply that beholden to Trump. One man, not a value, idea, or program, one man — a symptom of deep disease in our body politic. MAGAs are absolutely giggling and high-fiving this as if it were a playground scrap.

The Jeffrey Epstein files must be really bad. But that's actually beside the point, which makes this even more destructive.

It all results in what we have now — real "lawfare," because none of these "Trump enemies" committed any crimes in the normal sense, and literally everyone also knows it, with the possible exception of Trump himself, who seems to believe that it is criminal to be his antagonist. Comey didn't even charge Trump!

Making matters even worse, we had Trump issue what might have been an absurd error in tweeting, not texting, Attorney General Pam Bondi, instructing her to indict his "enemies" and then firing his own appointed U.S. Attorney for Eastern Virginia in order to bring about these charges. This jaw-dropping move is actually all out in the open. He announced the f–––––g thing!

All hope to pull Trump back on the Comey matter now falls to the judiciary.

Other than our actual Supreme Court, the district judges and circuit courts have largely been the most stalwart constitutionalists pushing back against the viciously whimsical and deeply personal tyranny from above. “Saving democracy" was never contemplated when drawing up a district judge's job description. Still, there is some hope that the federal judge will throw Comey's case out based on vindictive prosecution. We will see. But without regard to the end result of this case, the damage is done.

The overriding problem here is that the usual "American solution" to insanity is to bide time, wait for the public to regain some sense, find this untenable, and democratically throw all things MAGA out of office. Such a move would allow criminal charges to be brought against Trump for personally directing the "payback" while profiting so handsomely from the office. Except we now face two problems with that scenario, and right about there is where someone starts looking two generations down for a real fix.

First and foremost, if an administration is willing to simply charge enemies with crimes, honest prosecutors be damned, there is absolutely no guarantee that this administration will even contemplate allowing a real election ever again. People rarely consider it, but Russia has elections, too. They just don't mean anything because they're predetermined by Vladimir Putin.

Please look at where we are headed and consider whether Trump will ever allow himself to be exposed to "an outsider" who may review his actions. He is already directing what looks to be elections of the Russian variety.

Second, even if this country came to its constitutional senses, wrestled through real elections, and voted in a Democrat with Trump term-limited out, the fact that "Project 2029" should include putting these people in jail then just continues the pattern. The party in power charges the former with crimes, even when it's obvious that only one party does it in bad faith. Even the good answer is catastrophic.

And that's what makes the Comey indictment such a landmark.

Pretend momentarily that this country actually does return to sanity in 2028 with President Newsom, Buttigieg, or Whitmer. One could make a very persuasive argument that it would actually be better to simply wipe the slate clean and pretend none of this ever happened, rather than bringing yet another round of charges against a former administration. Let history imprison these people.

Sadly, even though that might prove to be the best option, that too is a hallmark of a failed government. Simply ignoring blatant criminality in order to "move on" allows future administrations to push further into abject corruption and self-dealing. A lawless Oval Office may be accepted as the price the powerful pay for being rich, free, and alive, all at the same time.

All that said, it becomes too apparent why this indictment is a bomb of a development.

Noted above, this could easily take two generations to fix, but keep in mind that there's no rule saying it ever must be. And so here we are. As far as critical dates and developments in the Trump attack on real American exceptionalism? This matter is actually every bit as important as January 6th. Don't be fooled.

One could spend all day analyzing and critiquing Comey's tenure as head of the FBI. Some of us fully believe that he had no good choice when presented with Hillary Clinton's emails. But no sane person believes he is a criminal, and even if Comey shaded his testimony in favor of one view, he would be no different, indeed likely less so, than anyone else to ever testify before Congress, especially an independent director answering to hostile political hacks.

It all just makes it worse. Comey is just so obviously not a criminal, but he is equally clearly someone Trump just hates.

Mark this day as the one on which a U.S. president simply called for the head of someone who infuriated him. Know, of course, as history surely will, that Trump did it, almost alone. It took 240 years to get here and one man to bring it all down. But stop licking wounds for a moment and try to track where it all goes into the near future.

Take an honest look at the lay of the land. There doesn't appear to be an off-ramp in sight. Perhaps President Malia Obama and Gen Z can sort this out.

But they'd better start thinking about it now because this is far bigger than even the headlines relate.

  • Jason Miciak is a past Associate Editor at Occupy Democrats, author and American attorney. He can be reached at jasonmiciak@gmail.com

Trump just opened another front in his all-out war on U.S. media

Donald Trump has sued the New York Times for, well, reporting on Donald Trump.

Rather than charging the Times with any specific libelous act, Trump’s lawsuit is just another of his angry bloviations.

The lawsuit says he’s moving against "one of the worst and most degenerate newspapers in the History of our Country, becoming a virtual ‘mouthpiece’ for the Radical Left Democrat Party.” And so on.

At least he sued the Wall Street Journal’s parent company for something specific — reporting Trump’s birthday message to Jeffrey Epstein (which Trump continues to deny even though it showed up in the Epstein files).

Last year, Trump sued ABC and its host George Stephanopoulos for having said that Trump was found liable for rape rather than "sexual abuse" in the civil suit brought by E. Jean Carroll. The network settled for $16 million.

Trump sued CBS for allegedly editing an interview with Kamala Harris on 60 Minutes to make her sound more coherent. CBS also agreed to pay $16 million.

Defamation lawsuits are a longstanding part of Trump’s repertoire, which he first learned at the feet of Roy Cohn, one of America’s most notorious legal bullies.

In the 1980s, Trump sued the Pulitzer-winning Chicago Tribune architecture critic Paul Gapp for $500 million, for criticizing Trump’s plan to build the world’s tallest building in Manhattan, a 150-story tower that Gapp called "one of the silliest things anyone could inflict on New York or any other city.”

Trump charged that Gapp had "virtually torpedoed" the project and subjected Trump to "public ridicule and contempt." A judge dismissed the suit as involving protected opinion.

But such lawsuits are far worse when a president sues. He’s no longer just an individual whose reputation can be harmed. He’s the head of the government of the United States. One of the cardinal responsibilities of the media in our democracy is to report on a president — and often criticize him.

The legal standard for defamation of a public figure, established in a 1964 Supreme Court case New York Times Co. v. Sullivan, requires that public officials who bring such suits prove that a false statement was made with knowledge of its falsity or with reckless disregard for the truth.

That case arose from a libel suit filed by L.B. Sullivan, the police commissioner of Montgomery, Alabama, against the New York Times for an advertisement in the paper that, despite being mostly true, contained factual errors concerning the mistreatment of civil rights demonstrators.

The Supreme Court ruled in favor of the Times, finding that the ad was protected speech under the First Amendment and that the higher standard of proof was necessary to protect robust debate on public affairs.

Under this standard, there’s no chance Trump will prevail in his latest lawsuits against the Times or Wall Street Journal. Nor would he have won his lawsuits against ABC and CBS, had they gone to trial.

But Trump hasn’t filed these lawsuits to win in court. He has sought wins in the court of public opinion. These lawsuits are aspects of his performative presidency.

ABC’s and CBS’s settlements are viewed by Trump as vindications of his gripes with the networks.

He’s likewise using his lawsuit against the New York Times to advertise his long standing grievances with the paper.

His lawsuit against the Wall Street Journal is intended to send a message to the Journal’s publisher, Rupert Murdoch, that Trump doesn’t want Murdoch to muck around in the Jeffrey Epstein case.

These lawsuits also put the media on notice that Trump could mess up their businesses.

Not only is it costly to defend against them — requiring attorney’s fees, inordinate time of senior executives, and efforts to defend the media’s brand and reputation.

When a lawsuit comes from the president of the United States who also has the power to damage a business by imposing regulations and prosecuting the corporation for any alleged wrongdoings, the potential costs can be huge.

Which presumably is why CBS caved rather than litigated. Its parent company, Paramount, wanted to be able to sell it for some $8 billion to Skydance, whose CEO is David Ellison (scion of the second-richest person in America, Oracle’s Larry Ellison). But Paramount first needed the approval of Trump’s Federal Communications Commission — which held up the sale until the defamation lawsuit was settled.

Here we come to the central danger of Trump’s wanton use of personal defamation law. The mere possibility of its use — coupled with Trump’s other powers of retribution — have a potential chilling effect on media criticism of Trump.

We don’t know how much criticism has been stifled to date, but it’s suggestive that a CBS News president and the executive producer of 60 Minutes resigned over CBS’s handling of the lawsuit and settlement, presumably because they felt that management was limiting their ability to fairly and freely cover Trump.

It’s also indicative that CBS ended Stephen Colbert’s contract. Colbert’s show is the highest-rated late night comedy show on television. He’s also one of the most trenchant critics of Trump.

Among the capitulations CBS’s owners made to the Trump administration was to hire an “ombudsman” to police the network against so-called bias — and the person they hired was Kenneth R. Weinstein, the former president and chief executive of the conservative-leaning Hudson Institute think tank.

Note also that on Wednesday ABC pulled off the air another popular late-night critic of Trump — Jimmy Kimmel — because Kimmel in a monologue earlier this week charged that Trump’s “MAGA gang” was trying “to score political points” from Charlie Kirk’s assassination.

ABC announced the move after Brendan Carr, the chairman of the FCC, appeared to threaten ABC, and its parent company Disney, for airing Kimmel’s monologue —ominously threatening: “We can do this the easy way or the hard way.”

Jeff Bezos, owner of Amazon and related businesses, has muzzled the editorial page of the Washington Post — prohibiting it from endorsing Kamala Harris in the 2024 election and imposing a stringent set of criteria on all editorials and opinion columns, which has led to the resignations of its opinion page editor and a slew of its opinion writers.

Trump hasn’t sued the Washington Post for defamation, but Bezos presumably understands Trump’s potential for harming his range of businesses and wants to avoid Trump’s wrath.

Make no mistake. Trump’s efforts to silence media criticism of him and his administration constitute another of his attacks on democracy.

What can be done? Two important steps are warranted.

First, the New York Times v. Sullivan standard should be far stricter when a president of the United States seeks to use defamation law against a newspaper or media platform that criticizes him.

Instead of requiring that he prove that a false statement was made with knowledge of its falsity or with reckless disregard for the truth, he should have to prove that the false statement materially impaired his ability to perform his official duties.

Better yet, a president should have no standing to bring defamation suits. He has no need to bring them. Through his office he already possesses sufficient — if not too much — power to suppress criticism.

Second, antitrust authorities should not allow large corporations or ultra-wealthy individuals with many other business interests to buy major newspapers or media platforms. They cannot be trusted to prioritize the public’s right to know over their financial interests in their range of businesses.

The richest person in the world was allowed to buy X, one of the most influential news platforms on earth, and has turned it into a cesspool of rightwing lies and conspiracy theories.

The family of the second-richest person in the world now owns CBS.

The third-richest person now owns the Washington Post.

The Disney corporation — with its wide range of business enterprises — owns ABC.

The problem isn’t concentrated wealth per se. It’s that these business empires are potentially more important to their owners than is the public’s right to know.

If Democrats win back control of Congress next year, they should encode these two initiatives in legislation.

Democracy depends on a fearless press. Trump and the media that have caved in to him are jeopardizing it and thereby undermining our democracy

  • Robert Reich is an emeritus professor of public policy at Berkeley and former secretary of labor. His writings can be found at https://robertreich.substack.com/
  • Robert Reich's new memoir, Coming Up Short, can be found wherever you buy books. You can also support local bookstores nationally by ordering the book at bookshop.org.

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