Republicans Against the Rule of Law

Clear signals from MAGA members of Congress and the Court.

U.S. Supreme Court Justice Samuel Alito in the Oval Office on July 23, 2019. (Photo by Alex Wong/Getty Images)

AS DISGRACED FORMER PRESIDENT DONALD TRUMP campaigns to return to power and remake the executive branch, last week brought evidence of the spread of the virus of Trumpism into the two other branches of government. One central role of the Supreme Court and Congress is to check a demagogic president’s power, not to aid and abet it; but last week’s stories suggest that neither will be fully up to the task should Trump return to the White House next January.

Let’s start with the Court. Last Thursday, the New York Times published a photo showing an upside-down American flag flying outside Justice Samuel Alito’s home three years ago. A traditional symbol of distress, the upside-down flag had been adopted by various “Stop the Steal” and QAnon Trump admirers and was carried by some of the January 6th insurrectionists who attacked the Capitol. Alito’s version was flying eleven days later, on January 17, 2021.

At the time, the Court still had before it one of Trump’s 2020 election challenges. The show of bias and support for lawlessness exemplified in the flag-flying incident was so stunning that Justice Alito couldn’t just shrug off the Times story or attack it with a pugnaciously political statement.

So, stalwart spouse that he is, he said his wife Martha did it: “I had no involvement whatsoever in the flying of the flag. . . . It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Remarkably, Alito still declines to recuse himself from considering Trump’s pending claim of immunity for alleged crimes in his conduct leading up to the January 6th Capitol siege, along with that of convicted insurrectionist Joseph Fischer. It’s the sort of unethical and selfish refusal to acknowledge partiality, or at minimum the appearance of partiality, that we have already learned to expect from Alito’s fellow Republican appointee to the high court, Justice Clarence Thomas. His wife did a whole lot more than hang up a flag.

An independent, unbiased judiciary is a bulwark against authoritarianism and a guarantor of liberty. No objective person can think Alito is a fair-minded judge in Trump’s case after a symbol associated with violence and the defiance of law waves over his home. He might as well have shown up on the bench at the hearing on Trump’s case with a judicial robe bedecked with Proud Boys patches and later explained he hadn’t noticed that his wife had sewn them on.

Let’s be serious about what we should be demanding. As Michael Podhorzer wrote Sunday: “The immediate business the media and Congress should be putting to Chief Justice Roberts is, at a minimum, to demand a full accounting of Alito’s and Thomas’s roles in agreeing to hear the Trump and Fischer appeals, as well as their roles in the Court’s ongoing consideration of those cases.”

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THE ALITO HOME PHOTO was preceded last week by a parade of GOP members of Congress strutting like political concubines in front of the Manhattan courtroom where Donald Trump is on trial.

Describing the bevy that flocked from D.C. to New York last Tuesday, late-night host Seth Myers said that the men—several of whom wore matching navy blue suits with overlong red ties in a coordinated sartorial tribute to Trump—looked like a “doo-wop group called ‘The Four Treasons’” or “the Men’s Wearhouse softball team.” But Trump’s MAGA acolytes went to New York on a seriously seditious mission.

They channeled Trump’s dangerous assault on the integrity of a court committed to giving him a fair trial. Ohio’s Republican Senator J.D. Vance, who made the pilgrimage last Monday, forthrightly admitted that he was there to say what Trump “is prevented from saying.” He was referring to Justice Juan Merchan’s court order barring Trump from “making or directing others to make public statements” about witnesses and family members of participants in the proceedings.

House Speaker Mike Johnson (R-La.), during his visiting last Tuesday, went after the prosecution’s key witness, Michael Cohen: “This is a man who is clearly on a mission for personal revenge. . . . No one should believe a word he says in there.” Sens. Vance and Tommy Tuberville (R-Ala.) added their voices to the surrogate attack on Cohen.

The dangers to the rule of law are impossible to overstate. Instead of lending their voices to support American institutions, Trump’s loyalists are using their official position as lawmakers to attack them.

Johnson called the court system “corrupt.” For a speaker of the House and his troops to so flagrantly attack the judiciary—and to personally attack a judge and to go after a witness then on the stand—adds a disturbing dimension to the approval structure Trump is creating for Americans to disrespect the administration of justice.

As a headline in the New Republic rightly observed, “Republicans aren’t just showing ‘loyalty to Trump.’ They’re saying that Trump is more important than the rule of law.”

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THERE YOU HAVE TRUMPISM IN A NUTSHELL. The end—promoting the party and its leader in pursuit of power—justifies the means of destroying the institutions that make America a constitutional republic. Exploit every loophole in a court order or the law to defy its purpose and erode their constraints on the would-be strongman’s assertions of dominance.

You don’t need to be Sherlock Holmes to understand that Trump, at the very least, had signaled Johnson and his colleagues to come and blast out the former president’s talking points. It would have been obvious to Inspector Clouseau that the messages of Trump’s copycat surrogates were coordinated.

Trump is using his puppets to prepare the country to discount and discredit his possible conviction. His political prospects—and his freedom—may well depend upon it if the New York jury finds him guilty. So outside the courtroom, he and his loyalists continually repeat that the trial is rigged.

And the attacks on judges are inspiring calls for violence against them from Trump’s most militant fans.

So far, the Trump lackeys’ assaults on the New York court and the jury system defy what Americans believe. A Yahoo/YouGov poll this month, with the trial underway, found that by a margin of 52 to 22 percent, Americans believe that Trump falsified records.

But one thing we know, conviction or no conviction, if Trump is re-elected, he won’t be held in check by a Congress populated by representatives like those who showed up in Manhattan last week, or by a Court with Justice Alito and his fellow ideologues in the majority.

It’s clearer than ever that we the people are the only real check and balance to stop him from becoming a “dictator on Day One.” Our votes in November are the only way to ensure that we keep our republic.