“If an incumbent who loses a close, hotly contested election knows that a real possibility after leaving office is not the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted, by a bitter political opponent…will that not lead us into a cycle that destabilizes the functioning of our country as a democracy…?”
— Justice Sam Alito during oral arguments concerning Trump’s claims of “absolute immunity” from criminal prosecution
I am going to try really, really hard to avoid using expletives in today’s round up, but I tell you, it will be an act of incredible restraint. Whiskey Tango Foxtrot, y’all. I am truly at a loss for words after news broke on Thursday that, days after January 6 and before President Biden was inaugurated, the Alito residence had an upside-down American flag — a symbol used officially to signal “distress” that was coopted by the “Stop the Steal” movement and insurrectionists who attacked the Capitol — flying outside. For DAYS. For reasons that are still unclear, we are only learning of this now despite the fact that photos of this have existed for three years.
There are a lot of criticisms of the Supreme Court, but in my opinion, Alito is by far the justice who has most exhibited a pattern of extremist behavior and rhetoric that suggests that his brain has been completely pulverized into MAGA mush.1 Take, for instance, the quote at the top of this post. During the immunity argument, this seemed like a very bizarre framing of the possible negative consequences of not granting a former president any kind of criminal immunity: Really? Allowing a president to be held accountable for actual crimes is what would destabilize democracy??? Not, say, telling him that he has nothing to lose by staging a coup?
At the time, I struggled to make legal sense of Alito’s question (taking into account his obvious bias towards Trump), and thought: maybe he knows that Trump is vindictive, and he’s thinking ahead if Trump wins, and what he might do to Biden. In other words, maybe Alito sees where the country is headed, and figures he can throw Biden (andObama and George W. and poor Jimmy) a bone or something.
In light of the flag story, however, it’s clear that Alito wasn’t speculating about the future. That’s how he sees the situation now. Trump is the president who lost a “close, hotly contested election” (let’s keep in mind that it was only “hotly contested” because the Trump team made false allegations of voter fraud and filed dozens of frivolous lawsuits) — and I guess in Alito’s mind, Trump was just trying to live a quiet life down in Mar-a-Lago until his “bitter political opponent,” Joe Biden, decided to destabilize democracy and go after him. Newsflash: Alito was a prosecutor. He knows (maybe buried under the MAGA mush) that Biden has no role in the Special Counsel cases, and certainly has nothing to do with the Manhattan and Georgia prosecutions. But according to Alito, the real problem is a weaponized justice system, not a president who tried to overthrow the country — in his view, January 6 wasn’t a coup, it was a legitimate response to the threat of a country ruled by a Democrat president. In other words, Alito was spinning a Fox News narrative in the well of the highest judicial chamber in the country. Give it a listen:
Listening to that whole exchange again, I was struck by the whole bizarre line of questioning regarding self-pardons. Why even bring that up, when it is not only an unsettled point of constitutional law, but one that was not even presented to the Court in this case? It’s makes you wonder whether Alito is so sympathetic to Trump’s plight that he is thinking through other ways Trump could try to get out of it in the event that he doesn’t win this November.
In any event, I’ve always considered myself an institutionalist — someone who believes that our institutions are strong enough to withstand even Trump. That confidence has waned over the last six years; after all, institutions are only as strong and principled as the humans who run them. And as I wrote in this post back in January, we are sadly at a point where the Supreme Court was really the one institution that might save us from diving off the cliff of democracy into the abyss of authoritarianism…and clearly that avenue isn’t looking so good.
Renato and I will discuss Alito more this week, but in the meantime here is our discussion on how the Manhattan trial went last week, and whether Trump’s lawyers were effective in their cross examination of the D.A.’s star witness, Michael Cohen:
My articles this week:
My piece for CAFE Insider on Judge Aileen Cannon’s real endgame in indefinitely postponing Trump’s classified documents trial
Other articles worth reading:
I have bookmarked this American Autocracy Threat Tracker published by Just Security that keeps track of all of the crazy (and is continually updated)
Upcoming events:
THIS SUNDAY! Wine & Fries Happy Hour with CNN National Security Analyst Juliette Kayyem, Sunday, May 19, 8 p.m. EDT. I’m so excited to be hosting my friend and colleague (and CNN national security analyst) Juliette Kayyem for the next Wine & Fries Club! We’ll have lots to talk about, some serious and some not-so-serious. Link will be sent to founding members at 5 p.m. This will not be recorded.
RESCHEDULED: Guest Speaker, Jacob Hacker, Tuesday, May 28, 4-5 p.m. EDT. Yale professor and co-author of Let Them Eat Tweets: How the Right Rules in an Age of Extreme Inequality will join us to discuss some of the driving forces behind asymmetrical polarization, a topic we are currently covering in our Substack course. (You can enroll in the course at anytime, and this topic is new — check out the short assignment to jump in!) The talk will be recorded and posted for anyone who can’t make the live event.
Freedom Academy Book Club, Date/Time TBA (likely June/July). I’m very excited that my former CNN colleague, Jim Sciutto, will be joining us to discuss The Return of Great Powers: Russia, China, and the Next World War. I love Jim’s work and insights into national security issues and this is a discussion you won’t want to miss!
Have a wonderful weekend!
Trust me, I am not letting Justice Clarence Thomas off the hook, just noting that even Thomas, who is clearly corrupt, isn’t also writing ranty essays in the Wall Street Journal attacking publications that criticize him, politically-tinged public speeches, and interviews with Fox News. But yes, he is a big problem, too.
Thank you for discussing Alito. That’s some crazy Sierra Hotel India Tango!
Thanks for the link to Just Security's page. It is an excellent resource for my own campaign: "Get the Word out, not just the Vote."
The method goes like this. Make a checklist of bullet points on the likely policies under Trump 2.0. Ask your "not really political" friends and family what they think of each policy, in a way that makes you seem curious about their opinion, not challenging it. Unless they go consistently "yeah, yeah, yeah"(in which case they are a lost cause) tell them at the end of the conversation what the source of the questions is (Project 2025, trump's Time interview, the speeches listed on the Just Security page.) Tell them to "do their own research" because the right isn't HIDING the plan, it is trumpeting it. Doesn't matter whether they look on Fox or OAN or MSNBC.