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    Will Trump put a Fox News host on the US supreme court? Mark Tushnet can’t rule it out

    Should Donald Trump get the chance to nominate a new justice to the supreme court, to join the three rightwingers he installed in his first term, he might pick “the equivalent of Pete Hegseth”, Mark Tushnet said, referring to the Fox News host who is now US secretary of defense.“Trump as a person has his idiosyncrasies, I’ll put it that way,” Tushnet said, from Harvard, where he is William Nelson Cromwell professor of law, emeritus. “And … I have thought about potential Trump nominees, and actually, what comes to mind is the equivalent of Pete Hegseth: a Fox News legal commentator.”Justice Jeanine Pirro? It’s a thought. Perhaps future historians will debate “The Box of Wine that Saved Nine”. Perhaps not.“I wouldn’t rule it out,” Tushnet said, of his Fox News theory, if not of Pirro, per se. “I don’t think it’s highly likely, but given the way those things work, and given the idea that you want people who aren’t simply judges, it’s not a lunatic thought, I guess.”The reference to “people who aren’t simply judges” is to arguments laid out in Tushnet’s new book, Who Am I to Judge?, in which he makes his case against the prevalence of judicial theories, particularly originalism, to which conservatives adhere, and calls for a rethink of how justices are selected.Tushnet is a liberal voice. Provocatively, he writes that Amy Coney Barrett, the third Trump justice who in 2022 helped remove the federal right to abortion, at least has a hinterland different from most court picks, as a member of People of Praise, a hardline Catholic sect.“I think her involvement in that group has exposed her to a much wider range of human experience than John Roberts’s background, for example,” Tushnet said, referring to the chief justice who was a Reagan White House aide and a federal judge. “And so if you’re looking for people who have been exposed to human experience across the board, I think she’s a reasonable candidate for that.”View image in fullscreenConey Barrett cemented the 6-3 rightwing majority that has given Trump wins including rejecting attempts to exclude him from the ballot for inciting an insurrection and ruling that presidents have some legal immunity. Now, as Trump appears to imagine himself a king and oversees an authoritarian assault on the federal government, reading Tushnet and talking to him generates a sort of grim humor.Looking ahead, to when Trump’s executive orders might land before the justices, Tushnet suggests “the court will put … speed bumps in the way of the administration. They won’t say: ‘Absolutely you can’t do it,’ except the birthright citizenship order.”That order, signed on Trump’s first day back in power, seeks to end the right to citizenship for all children born on American soil and subject to US jurisdiction, as guaranteed under the 14th amendment since 1868.On 23 January, a federal judge said Trump’s order was so “blatantly unconstitutional” that it “boggled” his mind. Should it reach the supreme court, Tushnet can see the rightwing justices “saying: ‘Look, yeah, if you want to do this, we’re not saying you can, but if you want to do it, you got to get Congress to go along. You can’t just do it on your own.’ So that would be a speed bump.”That said, Tushnet sometimes thinks “about how in the US, there are these traffic-calming measures that are literally speed bumps but sometimes, if you go over too fast, you fly”. Trump, he said, has licensed rightwing justices to take decisions that “may not count as speed bumps if you fly off them”.Tushnet was happy to answer a question he thinks all supreme court nominees should be asked: what’s your favorite book and favorite movie?Tushnet’s favorites are Middlemarch by George Eliot and Heaven, a 2002 film directed by Tom Tykwer from a script co-written by Krzysztof Kieślowski. He wrote his book containing such questions, he said, “because I had this longstanding sense that the [supreme court] nomination process has gotten off the rails, mostly by focusing exclusively on judges as potential nominees, and secondarily by focusing on constitutional theory.“For the past 20 years, the court … has been dominated by people whose background was as judges or appellate advocates, and historically that was quite unusual. There are always some judges but there always had been people with much broader kinds of experience, including a former president, William H Taft [chief justice between 1921 and 1930], and several candidates for the presidency, including Charles Evans Hughes [1916], Earl Warren [a vice-presidential pick in 1948], senators like Hugo Black. And those people had disappeared from consideration for the court, and that seemed to be a bad idea.”Tushnet describes a “political reconstitution of the nomination process provoked in large measure by the Republican reaction to the Warren court”, which sat from 1953 to 1969, the era of great civil rights reforms.“I think their view was the Warren court was not composed of judges, they were politicians, some called them ‘politicians in robes’, and Republicans sort of thought the way to get away from the substantive jurisprudence of the Warren court was to put judges on the court, rather than people with what I call broad experience,” Tushnet said.One justice on the current court was not previously a judge: Elena Kagan, one of the three besieged liberals, was dean of Harvard Law School, then solicitor general under Barack Obama.Tushnet “went into the project thinking that I would find more great justices who had been a politician than I actually did. When I was teaching, I would do this thing about who the justices were who decided Brown v Board of Education”, the 1954 ruling that ended segregation in public schools, “and I think it’s fair to say that not one of them’s primary prior experience was as a judge, and like seven or eight of their prior primary experiences were as a politician. And if Brown v Board is the premier achievement of the supreme court, the fact that it was decided by a court primarily made up of politicians counts in favor of thinking about politicians when appointing to the court.”“Why not do it? For me, the main feature of having been a politician is not that you’ve taken stances aligned with one or another political party at the time, but that you’ve provided reasons in many different ways, you’ve grown up amongst people with a wide range of life experiences that you’ve had to think about, as a politician, in order to get their votes, in order to get your way,” he said.Tushnet’s ideal might be Charles Evans Hughes, an associate justice from 1910 to 1916 and chief justice between 1930 and 1941, but also governor of New York, Republican candidate for president and US secretary of state.On the page, Tushnet imagines asking Hughes a question – “What constitutional theories do you use?” – and getting an appealing answer: “I try to interpret the constitution to make it a suitable instrument for governance in today’s United States.”Tushnet says modern judges and justices should say the same, rather than reach for judicial theories. His new book is in part an answer to a demolition of originalism by Erwin Chemerinsky, dean of UC Berkeley law school: “I distinguish, I think, more clearly than other people have, including Erwin, between what I call academic originalism and judicial originalism.”Either form of originalism concerns working out what the founders meant when they wrote the constitution, then advocating its application to modern-day questions. Tushnet “think[s] a good chunk of academic originalism is not subject to many of the criticisms that Erwin levels. It’s not perfect but it’s an academic enterprise, and people work out difficulties, and there’s controversy within the camp and so on.View image in fullscreen“Judicial originalism is different because it has a couple of components. One is, we now know it’s quite selective. To get originalism into the TikTok decision, for example, you have to do an enormous amount of work. It’s not impossible, but it’s not an originalist opinion, fundamentally. So [justices are] selectively originalist, or, as my phrase is, opportunistically originalist. They use it when the sources that they’re presented with support conclusions they would want to reach anyway, and the adversary process at the supreme court isn’t a very good way of finding out what they say they’re trying to find out. And so as a judicial enterprise, originalism just doesn’t do what it purports to do.”To Tushnet, the late Antonin Scalia, an arch-conservative and originalist, is “the leading candidate to be placed on a list of great justices” of the past 50 years, “because of his influence and his contributions to the court.“But one bad contribution was his widely admired writing style. Now, writing styles change over time. And having read an enormous number of opinions of the 1930s, I know there’s an improvement in readability since the 1930s. But the idea that [opinions] become more readable, accessible and memorable by including Scalia-like zingers, short phrases that are quotable and memorable, seems to be just a mistake. But he’s very influential, and so people try to emulate him … Justice Kagan does it in a gentler way. I guess my inclination would be to say: ‘If you’re going to do it, do it the way Justice Kagan does, rather than the way Justice Scalia did.’”Tushnet agrees that some of Scalia’s pugilistic spirit seems to have passed into Samuel Alito, the arch-conservative author of the Dobbs v Jackson ruling, which removed abortion rights, if while shedding all vestiges of humor.In his book, Tushnet shows how Alito’s Dobbs ruling contained a clear mistake, the sort of thing that is largely down to the role clerks play in drafting opinions, as Tushnet once did for Thurgood Marshall, the first Black American justice.“Times were quite different then,” Tushnet said. “The year I was there, the court decided 150 cases. Now they’re deciding under 50 a year … the year I was there was the year Roe v Wade was decided [1973, establishing the right to abortion, now lost]. It had been resolved fundamentally the year before, so they were just cleaning things up, but we knew these were consequential decisions.”The court will soon have more consequential decisions to make. In the meantime, talk of a constitutional crisis, of a president defying the courts, grows increasingly heated.“My sense is that we’re not at the crisis point yet,” Tushnet said. “Like many administrations before it, the Trump administration is taking aggressive legal positions, which may or may not be vindicated. If they’re not vindicated, they’re muttering about what they’ll do. That’s happened before.“My favorite example is that in the 1930s, Franklin Roosevelt, while a major decision was pending, had his staff prepare two press releases, one saying: ‘Actually the court has upheld our position,’ the other saying: ‘The court mistakenly rejected our position, and we’re going to go ahead with it anyway.’ Now, they didn’t have to issue that press release, because the court went with the administration. But, you know, muttering about resistance is not historically unusual. Resisting would be quite, quite dramatic, but we’re not there yet.”

    Who Am I to Judge? is published by Yale University Press More

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    Tom Cotton gingerly steps on Trump’s toes as he eviscerates TikTok in book

    Tom Cotton stands a better chance of becoming Senate majority leader than a Republican presidential nominee. After all, with Mitch McConnell of Kentucky, the Arkansas senator worked to undermine Donald Trump’s efforts to overturn the 2020 election – an unforgivable sin in Trumpworld.Cotton branded those who stormed the Capitol “insurrectionists” – a label he previously affixed to those who rioted amid protests over the police murder of George Floyd.In 2022, Cotton mulled a presidential run, taking multiple trips to Iowa and New Hampshire. He never announced and Trump again claimed the prize. Cotton’s dream may never die but for now he is chair of the Senate intelligence committee and the third-ranking Republican in the upper chamber – not a bad perch from which to publish his latest book.With Seven Things You Can’t Say About China, Cotton seeks to shine a light on a major threat to US interests. In the process, he gingerly steps on Trump’s toes; trashes Trump’s right-hand man, Elon Musk; and repeatedly dings TikTok, which is owned by China but also by Jeff Yass, a professional investor and a convert of convenience to Trump’s cause. Cotton may come to regret all three moves as missteps.He obliquely criticizes Trump regarding Chinese investment in US educational institutions. “A senior Chinese Communist purchased New York Military Academy, Donald Trump’s alma mater, and then appointed several of his Chinese associates to its board of trustees,” Cotton writes. That sale was finalized in 2015. “The Department of Defense has granted the academy hundreds of thousands of dollars since its Chinese takeover,” Cotton adds. Federal records show such grants made during Trump’s first term, between 2017 and 2021.Elsewhere, the senator slams Musk for “chasing Chinese dollars”. For 2024, Tesla reported revenues from China of $20.94bn.On top of being the driving force of Trump’s evisceration of the federal government, via the so-called “department of government efficiency” (Doge), Musk is chief executive of companies including Tesla and SpaceX, which in turn owns Starlink internet. In such roles, Cotton writes, “Musk told China’s state television, ‘I’m very confident that the future of China is going to be great and that China is headed towards being the biggest economy in the world and a lot of prosperity in the future.’” This hardly sounds like “America first” or “Make America great again”.Cotton groups Musk with American “tech titans” he views as putting profit ahead of the national interest, including the Microsoft founder Bill Gates and Mark Zuckerberg, chief executive of Meta. Collectively, writes Cotton, they have “shamefully supplicated China’s Communist rulers”.But the senator reserves a special place in hell for TikTok.“No social-media app has harmed our kids more than TikTok,” he declares. “If your kid uses TikTok, I urge you to stop reading now and immediately delete the account.”Here, Trump and Cotton are no longer on the same page. In 2020, Trump branded TikTok a threat to national security and sought to force its divestment. But now money, votes and vengeance appear to have supplanted national interest.For starters, there is Yass, co-founder of Susquehanna International Group, a trading company that holds a 15% stake in ByteDance, the Chinese company that owns TikTok. Yass is also a key funder of the Club for Growth, a deep-pocketed and libertarian-minded tax-exempt organization. Trump met with him late last winter. His thinking on TikTok changed. As it happens, Yass hasn’t donated to Cotton since 2013.Now Trump looks to rescue TikTok and ByteDance, a move Cotton openly criticized. On taking office, Trump imposed a 75-day moratorium on the deadline, under US law, for ByteDance to find a US buyer. At the inauguration, Shou Chew, CEO of TikTok, sat alongside Tulsi Gabbard, now director of national intelligence.Cotton has bitten his lip. “Our point in passing that law,” he told Fox News, was not to ban TikTok in the US. Rather, it was to compel ByteDance to divest, and ostensibly have a “TikTok that is not influenced by Chinese communists”. For the moment, TikTok remains in such control.In his book, Cotton urges Americans to shun “avoid other Chinese apps like Temu, Alibaba, Shein, WeChat, and Alipay. A few dollars savings or a little extra convenience isn’t worth the threat to your family’s privacy and data security or the indirect help these apps provide to the Chinese communists.” Talk about timing.Kash Patel, the new FBI director, is an investor in Elite Depot, Shein’s corporate parent. The Wall Street Journal blared: “Trump’s FBI Pick Stands to Make Millions From Fashion Brand Shein … Critics question potential conflicts of interest in owning shares of [a] foreign company with China ties.” Patel values his Elite Depot stock between $1m and $5m.Cotton voted to confirm. “Congratulations, FBI Director Patel!” he posted. “America will be safer and more secure with Kash leading the FBI.”Trump has helped Shein and Temu, mail-order retailers, stay great. Initially, Trump imposed a 10% tariff on Chinese imports and closed the “de minimis” loophole, which had enabled packages from China valued at less than $800 to be processed duty-free. Then Trump reversed himself. The loophole stood.As for data security and privacy, so close to Cotton’s heart? Musk and the boys of Doge are hoovering that stuff up as you read.Cotton remains a China hawk and an economic nationalist, but is no longer a darling of Trumpworld. In the run-up to the vote to confirm Gabbard as DNI, Cotton and John Thune, the Senate’s majority leader, received a stern warning from Matt Boyle of Breitbart, a Trump-adjacent media organ.“They will be heroes assuming they usher Tulsi to confirmation but if Tulsi is not confirmed then Cotton and Thune are in deep personal trouble with the base. I’m optimistic on this one at this point. The consequences of failure are too dire.”Love is conditional. Cotton lives to fight another day.

    Seven Things You Can’t Say About China is published in the US by HarperCollins More

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    Julianne Moore’s freckles? How Republican bans on ‘woke’ books have reached new level

    When the actor Julianne Moore learned her children’s book, Freckleface Strawberry, a tale of a girl who learns to stop hating her freckles, had been targeted for a potential ban at all schools serving US military families, she took to Instagram, posting that it was a “great shock” to discover the story had been “banned by the Trump Administration”.Moore had seen a memo that circulated last week revealing that tens of thousands of American children studying in about 160 Pentagon schools both in the US and around the world had had all access to library books suspended for a week, while officials conducted a “compliance review” to hunt out any books “potentially related to gender ideology or discriminatory equity ideology topics”.Although whether Moore’s book would be selected for “further review” or banned entirely remains unclear, the episode brought into stark relief that the movement to ban books in the US – which has been bubbling up for several years, mostly in individual states – had reached a whole new level: the federal one.Donald Trump’s re-election, and his subsequent crackdown on diversity, equity and inclusion (DEI) programs, has many campaigners fearing that the Pentagon move to scrub its libraries of anything it opposes ideologically could be the first of a series of broad attempts to eliminate any discussions of race, LGBTQ+ issues, diversity and historical education from public schools.The Trump administration has scoffed at the idea that it is banning books, and last month it instructed the Department of Education to end its investigations into the matter, referring to bans as a “hoax”. Indeed, many deny that banning books is censorship at all – a disconnect that stems not just from the historical context of book banning, but from a semantic dispute over what it means to “ban” something.In the early 20th century, books such as Ulysses by James Joyce and The Grapes of Wrath by John Steinbeck were banned due to “moral concerns”.Likewise, the red scare of the 1950s saw increased censorship of materials perceived as sympathetic to communism, while the 1980s saw attacks against books dealing with race and sexuality, such as The Color Purple by Alice Walker, which was nearly banned two years after its release in 1984 after a parent petitioned against its use in an Oakland, California, classroom.The difference today, however, is that instead of coming primarily from conservative community organizers, the book banning movement is now coming from government – school boards, local governments and now, with the Pentagon move, even the federal government, increasingly working in lockstep.The modern wave of book bans could be said to have started with a backlash against The 1619 Project, a journalistic anthology by Nikole Hannah-Jones published by the New York Times. The project aimed to reframe US history by centering the contributions of Black Americans, but conservative politicians – including Trump – claimed it taught students to “hate their own country”.View image in fullscreenIn response, Republican lawmakers moved to ban the work in schools, marking the beginning of an intensified campaign against so-called “anti-American” literature.According to PEN America, a non-profit dedicated to defending free expression in literature, more than 10,000 book bans occurred in public schools during the 2023-2024 school year. Books that address racism, gender and history were disproportionately targeted.“The whole principle of public education is that it is not supposed to be dictated by particular ideologies that aim to censor what other people can learn and access in schools,” Jonathan Friedman, the managing director for US free expression programs at PEN America, said.Rightwing politicians, however, have increasingly used book banning as a rallying cry, portraying certain books as tools of “indoctrination” – failing to note the irony that indoctrination is the process of carefully limiting ideas, like banning books.One key figure has been the governor of Florida, Ron DeSantis. He has echoed Trump’s dismissal of book bans as a “hoax”, and spearheaded multiple attempts to reshape education to reflect only conservative values, including the Stop Woke Act, which restricts discussions on systemic racism, and the Parental Rights in Education Act, widely known as the “don’t say gay” law, which limits discussions of gender identity and sexuality in classrooms.Banned titles in Florida schools now include Beloved and The Bluest Eye by Toni Morrison, Normal People by Sally Rooney, Slaughterhouse-Five by Kurt Vonnegut, The Handmaid’s Tale by Margaret Atwood and The Perks of Being a Wallflower by Stephen Chbosky.What DeSantis and other rightwingers often say is that these efforts don’t truly constitute “bans” because they only remove books from schools, rather than totally outlawing them from being bought in the US, and therefore don’t encroach on free speech. John Chrastka, the executive director and founder of EveryLibrary, argued that this is faulty reasoning.“The private marketplace is protected by the first amendment in ways that the government is not beholden to,” he said. “The idea that because a book is still available for sale means that it’s not being banned outright is only the difference between a framework that was in place prior to the 1950s” and today.skip past newsletter promotionafter newsletter promotionHe noted that Lady Chatterley’s Lover, which was first published in 1928 in Europe, was banned in the US for several years before finally getting its American publication in 1959 in what was a watershed affirmation of the right to free speech. Realizing that the first amendment prevented them from blocking the book from US bookstores, critics turned their attention to libraries instead, a grayer area in terms of constitutional protections.DeSantis and other rightwing politicians have taken the lesson: if the constitution prevents you from banning a book from being bought or sold in Florida, the next best thing is to ban it from the places most people would have the easiest access to it – schools and libraries.“It doesn’t add up,” Chrastka added, “the idea that a teenager in a state where it’s impossible for them to get to an independent bookstore because they don’t exist any more somehow has enough liberty to buy the book when the school library is blocked from having it available for them.”Another key distinction is between banning books from classroom curriculum versus removing them from school libraries – which, unlike classrooms, are historically protected spaces for free access to ideas.“What you read for a class supports the curriculum,” says Chrastka, whereas “the school library is supposed to support independent reading. One of them is required reading and the other one isn’t, but [the reading material] is meant to be available.”The landmark supreme court case Island Trees School District v Pico in 1982, when a school board in New York removed books from its libraries it deemed “anti-American, anti-Christian, anti-Semitic, and just plain filthy”, established that school boards cannot restrict the availability of books in their libraries simply because they don’t like or agree with the content.Critics contend the new wave of book bans, although not yet about preventing sales at bookshops, fails to meet the intended purpose of libraries: to preserve and provide a variety of ideas and information that may not be readily or equally accessible to everyone.Now, many fear that once certain books are established as unacceptable in schools, the censorship could spread to colleges, bookstores and eventually nationwide bans. Even if that does not happen, experts say one of the most reliable ways to ensure ideas are suppressed is to dismantle the education system, making Trump’s repeatedly stated goal of eliminating the Department of Education a particular concern.“The vast majority of the budget for the Department of Education and the laws and regulations that make sure that the department is functional go to help students succeed and protect students who are otherwise vulnerable,” said Chrastka.With the education system having been chipped away at for decades with budgets cuts, low literacy rates and high dropout rates, book bans only make it weaker.“What we need in this country is for students to feel supported and to find their own identities, and reading is a core component of that,” Chrastka said. “Let’s let the kids discover themselves and discover their own path forward in the process.” More

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    ‘X-rays into the president’s soul’: Jeffrey Toobin on Trump, Biden and the pardon power

    To Jeffrey Toobin, author of The Pardon: The Politics of Presidential Mercy, pardons are “X-rays into the soul” of the American president who gives them, revealing true character. Pardons can show compassion and mercy in the occupant of the Oval Office. More often, they expose venality and self-preservation.Toobin said: “One thing you can say about Donald Trump is that his moral compass always points in the same direction, and his motives are always the same, which are transactional and narcissistic. This is a good example, I think, of my thesis that pardons are X-rays into the president’s soul.”In his first term, Trump “wanted to settle a score with Robert Mueller, so he pardoned everyone Mueller prosecuted” in the special counsel’s investigation of Russian election interference in 2016 and links between Trump and Moscow, Toobin said.“Trump wanted to take care of his family, so he pardoned his daughter’s father-in-law, Charles Kushner,” who is now nominated as US ambassador to France, the author added. “He wanted to reward his House Republican allies, so he pardoned several who were engaged in egregious corruption, and he pardoned people who were [his son-in-law and adviser] Jared Kushner’s friends.”Asked why he wrote his 10th book to come out now, so soon after such a momentous election, Toobin, a former CNN legal analyst and New Yorker writer, said: “I saw that from a very early stage in the campaign Trump was talking about January 6 pardons. But I also recognized that if Kamala Harris won, there would be pressure on her to pardon Trump” on 44 federal criminal charges now dismissed.“I think the proper way to understand the January 6 pardons [issued on day one of Trump’s second term] is to remember that Trump himself was a January 6 defendant, Toobin said. “He wasn’t charged with the riot the way the others were, but he was charged with trying to overthrow the election with the fake electors scheme. And if you look at the way in the beginning part of his second term he is settling scores and rewarding his friends, the January 6 pardons told you exactly how he was going to go about conducting his administration.”Reportedly saying: “Fuck it, release ’em all”, Trump gave pardons, commutations or other acts of clemency to the absurd, such as the J6 Praying Grandma and the QAnon Shaman, and to the outright sinister: hundreds who attacked police, militia leaders convicted of seditious conspiracy, Toobin wrote.He said: “If Trump had tried to carve out the non-violent January 6 rioters [for clemency], that that would have been somewhat more defensible than what he wound up doing, which was, in my view, completely indefensible.”His point about pardons being an X-ray for the soul applies to Joe Biden too.On the page, Toobin decries the 46th president’s decision to pardon his son, Hunter Biden, on gun and tax charges and any other grounds, having said he would not do so.Toobin said: “When you think about Hunter, this is a guy who was convicted of a crime, who pleaded guilty to other crimes. So it’s not like these were made-up accusations against him. Yes, the criminal justice system came down hard on him, but the criminal justice system comes down hard on a lot of people, and their father wasn’t president of the United States, so they don’t get this kind of break. And I just think that’s not how the system is supposed to work.”Publishing schedules being what they are, The Pardon does not cover the last-minute pre-emptive pardons Biden gave his brothers, his sister and their spouses, as well as public figures held to be in danger of persecution by Trump, Liz Cheney and Gen Mark Milley among them.But Toobin told the Guardian: “The family pardons were just bizarre, because these people, as far as I’m aware, are not even under investigation. But [Biden] was so worried and fixated on his family that he took this extraordinary step, which is just egregious to me.”The pardon is older than America. British kings could pardon people. When the states broke away, they kept the pardon for presidents. George Washington used it after the Whiskey Rebellion of 1794, for men convicted of treason. Abraham Lincoln used it during the civil war to reprieve Union soldiers sentenced to die and to forgive Confederates in the name of peace.Such acts of mercy continue, memorably including Jimmy Carter’s clemency for those who dodged the draft for Vietnam and Barack Obama’s record-setting issue of commutations for people mostly jailed for minor crimes. Even Trump handed down mercy in his first term, amid the push which produced the First Step Act, criminal justice reform he swiftly seemed to forget.Asked which modern president has best used the pardon power for the public good, Toobin picks Obama. Inevitably, though, most public attention falls on use of the power for controversial ends, including George HW Bush’s mop-up of the Iran-Contra scandal and Bill Clinton’s last-minute pardon for Marc Rich, a financier turned fugitive.The most famous pardon of all, the one Gerald Ford gave Richard Nixon after the Watergate scandal, hangs over every president. As Toobin sees it, had Harris taken office in January, pressure to pardon Trump of his alleged federal crimes would have been great, and it would have sprung from “an interesting shift in the conventional wisdom” about Ford and Nixon.skip past newsletter promotionafter newsletter promotion“It was widely considered a disaster in 1974” – Carl Bernstein told Bob Woodward, his Washington Post partner in reporting Watergate, “The son of a bitch pardoned the son of a bitch” – “but now you’ve had Ted Kennedy giving Gerald Ford an award, saying he was right about the pardon. You have Bob Woodward changing his mind [to say the pardon was ‘an act of courage’]’, and at the oral argument of the Trump v United States supreme court case [about presidential immunity, last April], Justice Brett Kavanaugh said, ‘Well, everyone now agrees Ford did the right thing.’”Toobin thinks Ford did the wrong thing, given Nixon’s clearly criminal behavior. He was also “struck by the absence of a book heavily focused on that issue of the Ford pardon. So all those combinations led me to try to not only write a book, but have it come out in early 2025.”He duly devotes most of that book to the Nixon pardon: how Ford agonized about it, decided to do it, then employed an obscure young lawyer to make sure Nixon took it.“I had certainly never heard of Benton Becker when I went into this,” Toobin said. “And I think his central role illustrates how ill-prepared Ford was for the whole issue of dealing with Nixon, because if you want to address an issue that will be the central event of your presidency, maybe you want to entrust it to someone who is not a young volunteer lawyer, who is himself under criminal investigation.“Now, if you say that, you should say that Becker [who died in 2015] was completely cleared. But it struck me as ludicrous that a president with the entire resources of the White House counsel’s office, the justice department and the entire American government, chose to invest so much authority in this young man. I think that just illustrates how Ford’s anxiousness to get the whole Nixon subject behind him led him to fail to consider the consequences of what he was doing.”The rights and wrongs of the Nixon pardon echo to this day. Looking again to last year’s supreme court arguments over presidential immunity, which the justices decided did apply in relation to official acts, Toobin said: “I thought the best question at that oral argument was Justice [Ketanji Brown] Jackson saying, ‘If presidents are immune, why did Ford need to pardon Nixon?’ Which is a great question, and doesn’t really have an answer. The only real answer is that [Chief Justice] John Roberts just completely changed the rules” in Trump’s favor.The Pardon is Toobin’s guide to how presidential pardons work, for good or often ill. He is not optimistic that the power can be reined in or usefully reformed:“The both good and bad news is that our constitution is almost impossible to amend, and no one cares enough about pardons one way or the other to undertake the massive task of of trying to amend the constitution. It’s not even clear how you would amend it. My solution to pardon problems is not changing the constitution, it’s getting better presidents.”That will have to wait – at least for four more years.

    The Pardon is out now More

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    Presidents at War: how battle has shaped American leaders

    In his new book, Presidents at War, Steven M Gillon considers how the second world war shaped a generation of presidents, a span that takes in eight men – but not all of them served in uniform between 1941 and 1945.Gillon likes to “ask people, ‘There are seven men who served in uniform in world war two and who went on to be president: who are they?’ And most people think Jimmy Carter did, and they forget Ronald Reagan.”Carter was born in 1924 and came of age in wartime. But the submariner turned peanut farmer turned politician, who died aged 100 in December, graduated the US Naval Academy in 1946, the year after the war. Reagan, meanwhile, joined the Army Reserve in the 1930s and spent the war years enlisted – but stayed at home in Hollywood, where he made his name as an actor, narrating films and joining fundraising drives.“Reagan was the most fascinating for me,” says Gillon, emeritus professor of history at the University of Oklahoma and scholar-in-residence at the History Channel. “I once bought the story about: ‘Oh, he wanted to go and fight but his eyes were too bad.’ In fact, there’s all these machinations going on behind the scenes that keep him from going overseas, to make sure he stays in California so he can make movies, while at the same time creating this public image of a guy who has been off to war, and he comes home to his wife [Jane Wyman], and there’s a picture of him in his uniform, kissing his wife – who in fact he slept with every night during the war.”Gillon focuses on how the war affected men who led their country through the cold war with Russia, into the quagmire of Vietnam, and eventually into the first Iraq war. To Gillon, “those presidents who came closest to combat were the ones who were most restrained in their use of force afterwards,” meaning Dwight Eisenhower, who commanded Allied forces in Europe, and John F Kennedy and George HW Bush, who flirted with death in the Pacific, JFK as a torpedo boat captain, Bush as a navy flier.“Reagan is the exception of so many of these things,” Gillon says. “Reagan never sees war. He thinks he saw the Holocaust camps, but he didn’t. He just makes stuff up, and he thinks it’s true. But what I did not know was how he came out of the war with the real fear of nuclear weapons, and he belonged to an organization for international control of atomic weapons, largely a liberal organization, as he was involved in other liberal organizations like Americans for Democratic Action.“While he shed all the other liberal ties, he never shed that fear of nuclear weapons. And despite all his bombastic language, he was very restrained in the use of force. I mean, the only thing he did was create a phony war in Grenada [in which 19 Americans died] and see 241 Americans killed in Lebanon [both in 1983], and that was a peacekeeping mission.”View image in fullscreenIn response to the Beirut embassy bombing, Reagan launched limited strikes. He also bombed Libya, in 1986, and funded and fueled conflicts elsewhere, his efforts in Nicaragua creating the Iran-Contra scandal. But on the global scene, Gillon “was surprised at how restrained Reagan was. And then his fear of nuclear weapons made him open to [Mikhail] Gorbachev’s overtures” for detente and arms control “during his second term … this was where Reagan followed his own instincts and in this case his instincts were right, and he was the right person to do it because he had such strong anti-communist credentials. So that was a twist I had not appreciated before.”Gillon’s book contains more twists. Many involve Lyndon Baines Johnson, like Reagan no stranger to distorting facts for political gain. A congressman when the US entered the war, LBJ got himself into uniform for a Pacific fact-finding tour. Hitching a ride on a bomber, he survived an attack by Japanese fighters.“There’s controversy over whether that took place the way he described it,” Gillon says. “There was an article written by some aviation historians who said it never could have happened. And then, years later, the Japanese pilot who had actually led the attack against the American planes said he remembered Johnson’s plane. He remembered crippling it, and he said the plane was so wounded that he knew it wasn’t going to do any damage, so he broke off and went back into the main attack.”Johnson’s plane made it back to base, leaving him alive to tell tales of his own bravery on the campaign trail. Gillon shows how those tales grew more shameless but thinks the basic story “is definitely true”, including how a bathroom break meant Johnson lost a spot on a plane which was shot down, killing all onboard.“Yeah, Johnson was just cool as a cucumber. And I’m sure he was thrilled when he landed.”Gillon was born in working class Philadelphia in 1956, in the shadow of the war. Too young for the Vietnam draft, fascinated by the presidency, he graduated from Widener and Brown and then taught at Yale and Oxford. Recent books include America’s Reluctant Prince, about his late friend John F Kennedy Jr, and The Pact, about Bill Clinton and Newt Gingrich, a Democratic president and a Republican House speaker whose relationship resonates loudly today.With his latest book, Gillon focuses on the major lessons of the second world war, particularly the cost of appeasement, Hitler’s triumph at Munich in 1938 a constant ghost at the feast. Such lessons, he says, “some forgot, like Lyndon Johnson in Vietnam, while others, like Kennedy and Bush, those who really saw battle and the horrors of war, you see them thinking about world war two all the time when they’re making big decisions, whether it’s the Cuban Missile Crisis for Kennedy or it’s the invasion of Iraq with George Bush”.View image in fullscreenLooking to Richard Nixon and Gerald Ford, Gillon describes how both served but did not see battle. Both were in the navy. Ford’s closest brush with action involved a fire aboard his ship during a Pacific typhoon. Nixon was posted to tropical islands, working logistics and supply, failing to reach the front line.Vietnam dominates Gillon’s book. US involvement began under Eisenhower, accelerated under Kennedy, swirled into nightmare under Johnson and finally ended under Nixon – though he had lengthened the horror by thwarting peace talks for his own political gain. Gillon retells the extraordinary Anna Chennault affair, in which a Washington socialite acted as a go-between with the government of South Vietnam, relaying Nixon’s urge to boycott talks till the 1968 election was done. When Johnson learned of it, he told a senior Republican: “This is treason.” The senator agreed. Johnson called Nixon, who denied it. Gillon writes: “According to some reports, after hanging up, Nixon collapsed with laughter.”In 1968, Nixon beat Hubert Humphrey. The war did not end until 1973. Reading Presidents at War, it is striking to realize that no future president who was of an age to serve in Vietnam did so.Bill Clinton opposed the war, studied abroad and denied accusations of dodging the draft. Joe Biden secured student deferments then was exempted on account of teenage asthma. George W Bush, the son of a war hero, went into the Texas Air national guard, which, Gillon notes, “is a place notoriously where rich, powerful people put their kids during war”. Al Gore, John Kerry and John McCain did go to Vietnam – but lost presidential elections.As so often, Donald Trump is a whole other matter. He obtained student draft deferments but also found a doctor to say “bone spurs” in his heels rendered him unfit for service. He has also said avoiding sexually transmitted diseases while dating in New York was his “personal Vietnam”, making him feel like “a great and very brave soldier”. It’s not a line to endear him to Gillon, who says he cast his first vote for a Republican president, Ford, but whose epilogue to Presidents at War makes clear his distaste for Trump, his view of military matters and his reported negative comments about those who serve.“I have my political point of view but when I write history, I try to be really fair-minded,” Gillon says. “And I can’t be fair-minded toward Trump. I just dislike him so much that I don’t think I could write a book about him. I wrote a book about Bill Clinton and Newt Gingrich, and what made me happy was that both Clinton and Gingrich liked it. I take great pride in being fair of mind towards someone like Newt Gingrich, who I have no political affinity for, but I just can’t get to that point mentally with Trump. I can’t write a book that I feel I can’t be fair.”

    Presidents at War is out now More

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    JD Vance and those threats from within | Letters

    Among the justified furore around America’s new position in the world, one part at least triggers a bit of nostalgia (JD Vance stuns Munich conference with blistering attack on Europe’s leaders, 14 February). JD Vance’s description of the “threat from within” brings back memories of Margaret Thatcher’s designation of those who disagreed with her as “the enemy within”. I still have a badge with that somewhere. Maybe it’s time I dusted it off.Steve TownsleyCowbridge, Vale of Glamorgan As JD Vance lectures European leaders about freedom of speech, Louisiana is banning health officials from promoting vaccinations and libraries across the US are having to purge their shelves of any books that make mention of subjects that Republicans dislike. No hypocrisy there, then?Tony GreenIpswich, Suffolk Britain thought it had a special relationship with the US. Seems we got dumped on Valentine’s Day.Emma TaitLondon Your report (‘Guess who’s back?’: the inside story of Nigel Farage’s quest for power, 15 February) confirmed what I already suspected: Reform is basically a party run by millionaires, for the benefit of millionaires, with a good dollop of nativism added to the mix.Alan PavelinChislehurst, Kent Re remarks in school reports (Letters, 14 February), my favourite is from around 1971, courtesy of a great history teacher: “Intelligent answers, a mastery of the facts would help.” I’m sure CP Scott would have agreed with him.Kevin McGillPrestwood, Buckinghamshire More

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    How the left can win back the working class

    View image in fullscreenDemocrats can win back sections of the working class they lost to Donald Trump without compromising their commitment to equal rights and compassionate government, according to a new book.They can do so by seizing control of rightwing talking points and reframing debate around issues like the climate crisis and LGBTQ+ rights.The left can fight back, too, against how the right wing has claimed masculinity – offering an alternative to Trump’s bellicose interpretation of what it means to be a man.Such is the verdict of Joan C Williams, a professor at the University of California, whose work focuses on social inequality and race and gender bias. Her book, Outclassed: How the Left Lost the Working Class and How to Win Them Back, is due out in MayDemocrats have too often talked about issues in abstract language or in ways that don’t resonate with people’s lives, Williams writes. On climate, some Democrats and liberal “elites”, Williams says, can talk too frequently about vague risks of global warming rather than discussing the real world impact on people’s lives.When it comes to immigration, talking points about increasing cultural diversity in the US have found little appeal with the white working class, in particular. That’s a voting bloc which has found Trump particularly alluring, and Democrats, Williams said, have failed to make the case that immigrants may well be just as proud of living in America, if not more, than people who have lived here for generations.Williams gave the example of how Democrats should present climate policies – an issue that Trump, Republicans and the rightwing media have categorized as a waste of money and inconsequential to Americans’ lives.“Do you talk about climate change as: ‘There are climate deniers that deny science and in their ignorance, are taking us to a toasty future?’ Or do you talk about climate change as creating situations where farmers can no longer farm what their grandfathers farmed – how you have a situation where insurance companies are refusing to offer fire insurance to middle-class people?” Williams asked.Similarly, Democrats can reclaim messaging over masculinity, Williams believes. Part of Trump’s appeal is his image as a tough, hyper-masculine guy, whether talking tough about confronting foreign leaders, bullying members of even his own party or telling crowds at his rallies to beat up protesters, or claiming that he would be among those marching to the Capitol ahead of what became the January 6 insurrection.There’s little evidence that Trump is actually the strong figure he presents himself as: he’s nonconfrontational when firing people, often doing so by tweet rather than in person; he avoided the Vietnam draft because of alleged bone spurs; and he left the January 6 rally in a car as his fired-up supporters set off for the Capitol.Still, his messaging has been effective. But Williams thinks it can be countered without simply mirroring Trump’s puffed-up rhetoric.“You can characterize Trump’s behavior as not seemly for a grownup man. You can [say] that seemingly behavior for a grownup man is not whining, being strong enough to stand up for yourself, and those you love, and the values that you all share,” Williams said.“That’s what being a grownup man is all about. That’s not selling out our values.”The phrase working class is frequently interpreted as describing white, blue-collar workers in the US, despite Black people being more likely to be working class than white people – something historian Blair LM Kelley explained in her book Black Folk: The Roots of the Black Working Class.Black working-class voters have not followed the exodus from the Democratic party to Trump that the white working class or, to a much lesser extent, Latino working-class people have.skip past newsletter promotionafter newsletter promotionBut Williams writes that despite consistent support for Democrats from Black Americans, that support should not be taken for granted. She believes that Democrats’ positions on some issues are more likely to reflect the positions of white elites rather than Black, Latino or white, working-class voters, who may hold conservative views on issues like abortion.The left can appeal to working-class people of all races in similar ways, Williams said. In Outclassed, she quotes Ian Haney López, a scholar on race whose work on “race class narrative” suggests that the left can engage Black, Latino and white working-class voters by emphasizing that the right wing has deliberately set out to divide them in order to distract from economic policies that have created devastating income inequality in the US.And despite some working-class voters holding conservative beliefs on social and cultural issues, Williams said Democrats do not have to abandon their principles on things like equal rights for LGBTQ+ people, support for women’s rights and commitment to racial equality in order to appeal to what she refers to as “middle-status voters”.“I don’t think it’s as hard as people make it. I mean, the debate in the United States now is that [some Democrats] are saying: ‘Just talk about the economy. Don’t talk about culture at all.’ And that’s because they assume that if they talk about culture, they have to appeal to these middle-status voters in the same way the far right does – by, for example, bullying trans kids, and they don’t want to do that.”Williams says “that’s a failure of imagination” and that the left needs to “find our own ways of connecting with these middle-status voters.”Something telling, Williams notes, is that the Gadsden flag, a yellow flag emblazoned with a coiled snake and the words ‘Don’t tread on me,’ has been co-opted by the right as a stance against government interference and is frequently flown at Trump rallies.“This is a standard flag among Trump-voter types. Well: ‘Don’t tread on me, butt your nose out of my family.’ Are we talking there about abortion? Or how parents can raise their kid, if the kid is gender non-binary? We don’t talk about that,” she said.“It’s a process of imagination, of understanding what the values are of the folks who are flocking to the far right and rethinking how we can build bridges, respectful bridges to them, without becoming the far right.” More

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    ‘Stand up for what’s right’: Melville House co-founder on publishing Jack Smith and Tulsa reports

    A US publishing house has decided to publish official reports into sensitive matters in US politics and history against the backdrop of a new Donald Trump administration committed to a radical rightwing agenda of reshaping American government and fiercely aggressive against its opponents, especially in the media.The publisher, Melville House, will on Tuesday release The Jack Smith Report, a print and ebook edition of the special counsel’s summation of his investigation of Donald Trump’s attempt to overturn the 2020 election.Later in February, the company will then publish another report the Department of Justice issued shortly before Trump returned to power, concerning the Tulsa Race Massacre of 1921.Dennis Johnson, co-founder of Melville House with his wife, Valerie Merians, said The Jack Smith Report would be published with no frills: “It is just a report, and we’re just reprinting it. We’re not doing anything to it. We’re not adding anything in the front or back. We’re not getting star introductions or anything. We just wanted it to speak for itself.”But he also described an urgent need to put out physical copies, in light of Trump’s push to revenge himself on prosecutors who worked for Smith and FBI agents who investigated the January 6 attack on Congress.Johnson said the same for the Tulsa report, amid a drive to stamp out diversity, equity and inclusion policies which has resulted in the disappearances of official online resources related to the history of racism and civil rights.Johnson has published federal reports before, achieving notable sales for the CIA Torture Report (2014) and the Mueller Report (2019), the latter concerning Russian election interference and links between Trump and Moscow.Melville House has always been “mission-driven”, Johnson said, describing a company “founded as a minor but sincere attempt to stand up to the [election] of George Bush”.Nonetheless, after Trump’s victory over Kamala Harris in November, Johnson and his staff found themselves “just stumped. We had no ideas … we just felt totally defeated … and then there was this murmuring about the Jack Smith report coming. And when we heard that, after two or three months of being in a bunk and a daze, we just immediately thought we should do that.”Smith was appointed in November 2022, under the Biden administration. He investigated “whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election”, as well as Trump’s retention of classified documents after leaving power.Ultimately, Smith filed four criminal charges relating to election subversion and 40 concerning retention of classified records. Trump pleaded not guilty but his lawyers and a compliant Florida judge secured delays, meaning neither case reached trial before November.After Trump’s election win, Smith closed his cases. Before Trump returned to power, the Department of Justice released part one of Smith’s report, covering his work on Trump’s election subversion. Part two, on Trump’s retention of classified information, remains under wraps.Melville House has moved fast. Johnson said such “crash publishing” required hard work and help from printers, retailers and more. But the Jack Smith Report, he said, would “launch into a very different book culture than the last time we were in this predicament, in 2016. People are very afraid.“We did the Mueller Report and there were two other significant publications. There was Simon and Schuster, they’re one of the biggest publishers in the world, and there was Skyhorse, which is independent but much bigger than us … and yet we got our book on the bestseller list.“We knew that wasn’t going to happen this time, because the big houses, we’re guessing, are intimidated – don’t want any hard feelings with the White House. Trump has already informed Penguin he’s going to sue them about a critical biography they published last year [Lucky Loser, by Susanne Craig and Russ Buettner.] And the publisher with Skyhorse [Tony Lyons] actually worked on the presidential campaign of Robert F Kennedy Jr [now Trump’s nominee for health secretary] so we knew he wasn’t going to put [the Smith report] out. So we’d have the field to ourselves, which is good.”skip past newsletter promotionafter newsletter promotion“I think there’s a world of independent booksellers who are eager to be supporting something that speaks to the moment, that somehow stands up for what’s right.”It took the Department of Justice more than 100 years to stand up a proper investigation of the Tulsa Race Massacre – one of the most unjustly obscure episodes in US history, in which hundreds were killed when Greenwood, Oklahoma, a prosperous Black neighborhood, was destroyed by a white mob.No charges were brought. Under Joe Biden, a new investigation was carried out by a cold case unit of the justice department civil rights division named for Emmett Till, a Black teen murdered by white men in Mississippi in 1955. The Tulsa report was released on 10 January. Ten days later, Trump returned to power – and announced sweeping changes at the civil rights division.Calling the new Tulsa report “nauseating and gripping”, Johnson said: “We went to the Library of Congress and found a lot of the photos which might have been part of the initial report when the massacre happened, that the predecessor of the FBI did, the investigation this report criticizes. They supplement the information but it only takes a few pictures to make the point. They’re just aerial shots of devastation. It’s like Munich in world war two. Hiroshima. Total devastation.”Johnson hopes his editions of the Jack Smith and Tulsa reports will find places in “libraries and classrooms” as well as homes. When he was a boy, he said, adults he knew “had the Pentagon Papers paperback in their home, they might have had the Warren Commission and later the Starr Report. I want people to feel these reports are part of the American historic record.”

    The Jack Smith Report is published in the US on Tuesday More