COMMENTARY
Chief Justice John Roberts Isn’t Our Savior From Trump — He’s the President’s Chief Enabler
When the Justice Department and the Commerce Department announced on Tuesday that the case was closed on the Census’ citizenship question and the query would be left off the 2020 survey, I was immediately confused. Though Supreme Court Chief Justice John Roberts had written a majority opinion for last week ruling that the Commerce Department’s fake justification for the question warranted blocking the agency from including it, he left an opening for the Trump administration to push forward with the effort as long as it provided another excuse.
And right on cue, President Donald Trump tweeted Wednesday that his administration wasn’t dropping the question after all, and the Justice Department announced that it is exploring paths to keep the query on the Census. Thursday morning, Axios reported that the president is considering an executive order directing the Commerce Department to include the question after all.
Some are arguing that this shows Trump is preparing to disobey the Supreme Court. Former federal prosecutor and legal analyst Joyce Vance said that by including the question, Trump could be committing an “unconstitutional” act.
But unfortunately, this does not appear to be the case. Roberts’ ruling was particularly narrow, and he appears to have given Trump plenty of room to wiggle out of it.
When Roberts affirmed a lower court’s decision to block the citizenship question and remand the issue back to the agency, he did so for one reason: its justification for the questions’ inclusion was obviously false. Commerce Secretary Wilbur Ross had claimed that he included the question based on the Justice Department’s view that it needed the answer to enforce the Voting Rights Act. The public record contradicted these claims, and Robert concluded that the reason the administration provided “seems to have been contrived.”
Many hailed this as a bold move for the chief justice, essentially calling out the administration for lying. However, saying that the Trump administration is lying is no more praiseworthy that accurately describing the present weather. Of course the president and his officials are lying. It’s what they do. Not calling it out would be a derogation of duty.
And Roberts made it quite clear that it was only because the administration had been so brazen in its dishonesty that the Census question could be blocked:
Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. The reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. The explanation provided here was more of a distraction. In these unusual circumstances, the District Court was warranted in remanding to the agency.
This makes quite clear that Roberts is leaving Trump a loophole. It’s “typical,” he said, that an agency may conceal some of its reasons for taking a certain enforcement step. Since the VRA explanation was the sole reason given for the citizenship question, and yet it was “more of a distraction” than a believable claim, Roberts upheld the lower court’s ruling.
But this leaves open the possibility that the Trump administration could come up with another, non-fake reason for including the citizenship question, and that should suffice to allay Roberts’ doubts. It doesn’t matter if the administration has other, “unstated” reasons for including the question, because Roberts said this is “typical.” All it needs is a non-bogus justification in addition to whatever the true reason was that the question was initially proposed.
Perhaps it seems that, since the administration was obviously trying to hide its genuine reason to include the question — which was almost certainly to discriminate against Hispanic people and disadvantage Democrats — any additional justification that Trump officials might provide would also clearly be a pretext. But this isn’t so. To satisfy Roberts, the only thing Trump officials should have to do is imagine some possible benefit to including the citizenship question on the Census. It’s not clear the administration even has to actually think this supposed benefit is, in fact, a benefit — the explanation would only have to not be obviously false. That would remove the “unusual circumstances” that Roberts said merited blocking the citizenship question.
To be clear, I’m not defending Trump or Roberts. The question was clearly designed for discriminatory and illegitimate purposes. But as Joshua Matz argued at the law blog Take Care, Roberts seemed to dismiss many of the good reasons he might have endorsed for blocking the citizenship question:
The result is a Supreme Court opinion that eliminates nearly every constitutional, statutory, and regulatory objection that has been raised against the citizenship question, and that describes the decision to include this question as reasonable in light of empirical uncertainty about the best way to calculate the total number of citizens.
Ultimately, the Chief’s only complaint is that Ross offered a rationale for this decision that—to borrow a phrase from Scalia—taxes the credulity of the credulous…
At bottom, then, the Chief’s objection concerns only the shamelessness of the administration’s bad faith. Before he dirties his hands upholding Ross’s decision, he has required Ross to clean things up a bit, thus ensuring that the citizenship question enjoys a patina of legitimacy when he finally okays it.
The Justice Department, it seemed, did not initially agree with my or Matz’s assessment of the ruling, because it concluded that the citizenship question was dead. But Trump seems likely to be proven right in the end, and he will probably get his way.
One reason the Justice Department may have been inclined to throw in the towel is that its own credibility was on the line. It argued multiple times before the court that the administration had a hard June 30, 2019 deadline before it had to begin printing the Census forms in order to comply with the legally mandated deadline. Trying to find a new justification for including the citizenship question, and having that justification vetted by the courts, could extend well past that deadline. Trump, however, doesn’t put much stock in his administration’s credibility.
And while the court won’t be happy about having been lied to on this matter, it’s hard to see how this could make a difference in the final decision of including the question. The Trump administration could always say it previously believed June 30 to be a hard deadline, but it found an alternative route by, say, printing an addendum to the Census forms that includes the citizenship question.
If Trump goes through with these shenanigans, as he seems intent on doing, he will have made a mockery of the judiciary. But Roberts will have let him. The chief justice has made clear that he intends on giving the Trump administration an excessive amount of leeway, as the decision to allow the Muslim ban to stay in effect first demonstrated.
Undoubtedly, Roberts doesn’t seem to like Trump very much. Last December, he took the rare step of appearing to respond directly to some of Trump’s claims when the chief justice declared that there are no “Obama judges or Trump judges.”
And yet Roberts was elevated to the court for a purpose, and that purpose was the protection and promotion of the conservative movement. That means empowering the executive branch and letting Republican presidents get away with abusing their office. By directly lying to the court and the American people, the Trump administration went farther than even Roberts was willing to bear in this instance. Not so far, though, that Roberts wasn’t willing to let Trump have a do-over.
He’s willing, in other words to be Trump’s enabler, even if he doesn’t like him.
It’s possible Roberts will surprise me and block another attempt by Trump to include the question. I seriously doubt it, but Roberts does have the capacity to surprise. Nevertheless, the chief justice gave Trump the window in his latest ruling to push the envelope even further, to try to see what he could get away with. By writing a more decisive ruling, he could have stopped this nonsense with the citizenship question in its tracks. Instead, he allowed Trump to drag out the fight.
Image: Screenshot via YouTube
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National security, legal, and political experts are lining up to sound the alarm about the potential national security risks swirling around Donald Trump, and those warnings are getting stronger.
One month after Trump descended the Trump Tower escalator in 2015 to announce his run for president, CNN reported on the real estate mogul’s repeated claims of great wealth. At one point Trump told supporters he was worth “well over $10 billion.” At other points Trump says, “I’m very rich,” and “I’m really rich.” CNN’s John King noted, “some voters see this as a virtue, in the sense that they think politicians are too beholden to special interests.”
Days later Politico ran with this headline: “Donald Trump’s new pitch: I’m so rich I can’t be bought.”
Fast forward nearly a decade later.
Donald Trump’s attorneys declared in court documents Monday that 30 companies all refused to secure a $464 million bond for Trump, which he owes the State of New York after losing his civil business fraud trial.
The sirens are now wailing.
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Citing a Washington Post report, MSNBC’s Steve Benen writes, “it’s now ‘expected’ that Manafort will be hired” to work on the Trump 2024 presidential campaign, “at least in part because the former president is ‘determined to bring Manafort back into the fold.'”
Manafort is Paul Manafort, Trump’s former 2016 campaign chairman who in 2017, “surrendered to the F.B.I. and pleaded not guilty to charges that he laundered millions of dollars through overseas shell companies,” according to a New York Times report in October of 2017.
The Times also noted that Special Counsel Robert Mueller had “announced charges … against three advisers to President Trump’s campaign,” including Manafort, “and laid out the most explicit evidence to date that his campaign was eager to coordinate with the Russian government to damage his rival, Hillary Clinton.”
In 2019, NPR reported, almost as a footnote, that “a court filing that was inadvertently unsealed earlier this year, revealed that Manafort shared polling data with a business associate who has ties to Russian intelligence services.”
In his MSNBC report, Benen noted, “the Republican-led Senate Intelligence Committee concluded that Manafort ‘represented a grave counterintelligence threat‘ in 2016 due to his relationship with a Russian intelligence officer.”
“’The Committee found that Manafort’s presence on the Campaign and proximity to Trump created opportunities for Russian intelligence services to exert influence over, and acquire confidential information on, the Trump campaign,’ the Senate report added.” Benen also reported: “When the Senate Intelligence Committee’s report literally pointed to a ‘direct tie between senior Trump Campaign officials and the Russian intelligence services,’ it was referring in part to Manafort ‘directly and indirectly’ communicating with an accused Russian intelligence officer, a Russian oligarch, and several pro-Russian oligarchs in Ukraine.”
Benen reinforced his thesis, writing on social media: “When the Senate Intelligence Committee pointed to a ‘direct tie’ between the Trump campaign and Russian intelligence services, it was referring in large part to Paul Manafort — who’s reportedly now headed back to Team Trump.”
Add to all that this plea from The Atlantic’s Tom Nichols, a retired U.S. Naval War College professor and expert on Russia, nuclear weapons, and national security affairs.
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“According to reports last week, the U.S. intelligence community is preparing to give Donald Trump classified intelligence briefings, a courtesy every White House extends to major-party candidates to ensure an effective transition. An excellent tradition—but not one that should be observed this year,” Nichols wrote at The Atlantic in a piece titled, “Donald Trump Is a National-Security Risk.”
“Indeed, if Trump were a federal employee, he’d have likely already been stripped of his clearances and escorted from the building.”
After discussing “Trump’s open and continuing affection” for authoritarian dictators, Nichols notes, “even if Trump could explain away his creepy dictator crushes and clarify his byzantine finances, he is currently facing more than half a billion dollars in court judgments against him.”
“That’s a lot of money for anyone, and Trump’s scramble to post a bond for even a small portion of that suggests that the man is in terrible financial condition, which is always a bright-red light in the clearance process.”
Political strategist Simon Rosenberg on Monday warned: “If Trump is given access to national security briefings he will now have someone with a proven history of selling stuff to the Russians on his team to help facilitate the movement of our intel to our adversaries.”
Also on Monday, Citizens for Responsibility and Ethics in Washington (CREW) wrote on X: “We cannot emphasize this enough: Trump’s mounting court fines make him a massive national security risk.”
“After multiple losses against E. Jean Carroll and New York Attorney General Letitia James, Donald Trump is facing judgements that could end up costing him upwards of $600 million,” CREW reported February 29. “But these rulings are more than a financial headache for Trump, they are an unprecedented opportunity to buy influence with a leading presidential candidate and a sitting president should he be re-elected.”
Diving deeper, CREW notes, “Trump left the presidency with at least $1.1 billion dollars in debt tied to the COVID-weakened commercial real estate market, the vast majority of which would come due in a hypothetical second term in office. These rulings would make that number 50% higher.”
“Giving the highest and most powerful office in the land to someone deeply in debt and looking for ways to make back hundreds of millions of dollars he lost in court is a recipe for the kinds of corruption that aren’t theoretical when it comes to Trump. There’s a reason that you can’t get a job in the military or the financial services industry, or even referee a major sporting event, if you have a massive amount of debt. And you certainly aren’t getting a security clearance because you become too big of a target for corruption.”
Bloomberg Opinion senior executive editor Tim O’Brien, an MSNBC political analyst and author of “TrumpNation: The Art of Being the Donald,” observed, “Trump’s financial trap — he can’t come up with the cash to appeal his $454 million civil fraud judgment — may ravage his business. More directly: It intensifies his threat to national security by making him an easy mark for overseas interests.”
“There’s no reason to believe that Trump, whose businesses collected millions of dollars from foreign governments and officials while he was president, won’t have a for-sale sign out now that he’s struggling with the suffocating weight of court judgments,” O’Brien continues at Bloomberg. “Trump is being criminally prosecuted for allegedly misappropriating classified documents and stashing them at Mar-a-Lago, his home in Palm Beach, Florida. Without a trial and public disclosure of more evidence, Trump’s motivations for taking the documents are unknown, but it’s reasonable to wonder whether he pondered trying to sell them. Monetizing the White House has been something of a family affair, after all. His son-in-law, Jared Kushner, has been busy trading financially on his proximity to the former president, for example.”
O’Brien concludes, “the going is likely to get rough for Trump as this plays out, and he’s likely to become more financially desperate with each passing day. That’s going to make him easy prey for interested lenders — and an easy mark for overseas interests eager to influence US policy.”
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Pro-Trump Republicans over the past two weeks keep asking Americans if they are “better off today” than they were four years ago, and many Americans keep responding “yes.” The latest to serve up an affirmative answer, surprisingly, is Donald Trump’s new hand-picked chair of the Republican National Committee, Michael Whatley.
Appearing on Fox News Friday morning, Whatley gave the Reagan refrain a twist:
“At the end of the day, this comes down to a very simple contrast between President Trump and President Biden. Were you better off four years ago than you are today? The answer for this entire country is ‘no.'”
Trying to immediately clean up his comment, Whatley continued: “I mean, yeah, we are better off today – or we will be.”
RNC Chair Whatley: At the end of the day, this comes down to a very simple contrast between President Trump and President Biden. Were you better off four years ago than you are today? The answer for this entire country is no pic.twitter.com/efCY23KfrB
— Acyn (@Acyn) March 15, 2024
For some, Whatley’s double flub served as yet another reminder of just how bad life was four years ago.
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“Four years ago, I was hitting the grocery store at 5 am, hoping there’d still be toilet paper and face masks there, then coming home and trying desperately to supervise my kids’ remote schooling in between my own Zoom conferences,” wrote jazz critic and journalist Michael J. West in response to Whatley’s remarks.
The resurgence of the “four years ago” question appears to have been kicked off by House Republican Conference chair, U.S. Rep. Elise Stefanik (R-NY) on March 6, when she stood before the cameras at a GOP press conference and told Americans, “As Ronald Reagan famously asked us, ‘Are you better off today than you were four years ago?’ The answer for hard-working Americans across the country is a resounding ‘no.’”
Her remarks were met in some corners with tremendous anger, with some seeing it as an affront to the more than one million Americans who would be dying from a COVID pandemic critics and medical experts say was worsened by then-President Donald Trump’s actions.
As NCRM wrote last week: On March 6, 2020, CNN had reported: “8 cases of coronavirus confirmed in Colorado,” “Kentucky confirms 1st coronavirus case,” “Son of nursing home resident with coronavirus describes fight to get mother tested,” “California’s Santa Clara County confirms 4 new coronavirus cases,” and, “Cruise passengers not told about coronavirus test results prior to Pence announcement.”
There may be a reason pro-Trump Republicans keep asking the question despite the answers they’re getting.
“Republicans don’t actually want you to remember 4 years ago,” Public Notice‘s Noah Berlatsky on Friday wrote. “It’s not much of an exaggeration to say that March 2020 was among the worst months in the history of the American republic.”
Pointing to Stefanik co-opting Reagan’s query, Berlatsky adds, “Lara Trump, the new co-chair of the Republican National Committee, said virtually the same thing to Sean Hannity on Tuesday. South Carolina Sen. Tim Scott echoed that sentiment on Fox News as well, saying, ‘We have to go back to that future, 2017-2020. We want those four years one more time.'”
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To claim Americans actually were better off four years ago, he continues, “requires a bizarre form of political, social, and economic amnesia.”
“Four years ago, in March 2020, the covid pandemic was rampaging across the world and country as the president desperately tried to wish it away. People were getting sick, many were dying, and the economy was shutting down as a result. It’s not a time to look back on with nostalgia.”
“It wasn’t just covid,” Berlatsky adds, reminding Americans who have forgotten.
“2020 was the year police in Minneapolis murdered George Floyd, sparking nationwide protests against police brutality and racism. In response, Trump told police and military leaders that they should ‘beat the fuck out’ of protesters and encouraged authorities to ‘just shoot them.’ In line with those sentiments, National Guard troops tear-gassed protesters in DC’s Lafayette Square while Trump staged a photo-op at a nearby church.”
Have Americans forgotten?
The New York Times apparently thinks so.
“Do Americans Have a ‘Collective Amnesia’ About Donald Trump?” The Times’ asked March 5 – one day before Stefanik invoked Reagan’s “better off” question – before observing, “memories of Mr. Trump’s presidency have faded and changed fast.”
Watch the video above or at this link.
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Former Trump aide Stephen Miller told the MAGA activists gathered near Washington, D.C. last week for the annual Conservative Political Action Conference that conservatives must be willing to use power more aggressively against their opponents. He railed against district attorneys and other officials for not arresting teachers who violate new state laws that restrict teaching on race, gender, and sexuality.
Miller, an architect of the Trump administration’s anti-immigration policies, has been promising MAGA activists that if Trump returns to the White House, he “will unleash the vast arsenal of federal powers to implement the most spectacular migration crackdown.” Miller’s America First Legal group is part of the far-right Project 2025, which has prepared a battle plan for the movement to “take the reins of government” in a new Trump administration. The Heritage Foundation, ringleader of the Project 2025 scheme, was at CPAC recruiting foot soldiers willing to carry out the plan.
In a recent article for Political Research Associates’ “The Public Eye” magazine, I noted that Project 2025 reflected a “movement-level, ideological shift away from a libertarian mistrust of government power and toward an authoritarian view of government power being used ruthlessly—whether as a righteous force wielded to advance a ‘biblical worldview’ or turned against an ‘administrative state’ supposedly captured by a radical Marxist left.”
Miller provided ample confirmation about the MAGA movement’s intentions, down to his dismissal of libertarianism as “a terrible ideology” that might be fine for academic debates but not in the real world, where he said public officials have a responsibility to “defeat evil.”
Excerpts from Miller’s appearance on a Friday, Feb. 23 CPAC panel:
Call it a mental illness, call it a spiritual failing, call it a moral deficiency, call it weakness, softness, or just being pathetic. There is something really broken in the conservative brain. They’re afraid not only of conflict, we know that. But there’s an even deeper fear, a deeper fear than all that, which is having power, and using power. Conservatives are addicted to the language of libertarianism, which is fine–you know, it’s a terrible ideology, but in an academic setting, okay, have these debates. …
You elect a state supreme court justice, you elect an Attorney General, and so on and so forth, to have an office with specific powers, duties, and responsibilities, with the expectation that they will use that authority to defeat evil, to protect the good, and to accomplish positive change in society. And you have to use that power fearlessly. …
A number of states, for example, have passed laws, saying that you can’t have this in the curriculum, or you can’t have that in the curriculum, and you can’t teach DEI and so on and so forth. Without exception, I can promise you, all the commies in the classroom changed the name of their lecture, changed one word, changed one little paragraph in the syllabus and did the exact same damn thing every single day because they’re communists and that’s what they do. Were they sued? No! Were they arrested if they broke a law and it’s applicable? No! Did any D.A. anywhere, if you’re talking about trans issues, think of arresting somebody for abusing children with trans ideology? No, we write blog posts about it. That’s what we do. So until we get serious, all the way down to the local DA, all the way up to the state A/G. and every office in between, including judges, electing people who have power and will use that power and measure their success by change in the real world, then we aren’t going to be able to beat the left.
This article was originally published by Right Wing Watch and is republished here by permission.
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