Arizona, Abortion and All-Powerful Presidents
The major headlines all relate to where Trump has now driven the GOP.
It seems the further we proceed through 2024, the more packed and impactful the news becomes. To make sense of the many stories, it’s often helpful to identify and return to a common theme.
The four big legal stories I’ll touch on today contain a through-line: All of them relate to the wedges driven into the GOP by Donald Trump.
Arizona and the rule of law
In a previous piece, I identified Arizona as a key battleground state whose chance of staying blue went up recently because of the battle over abortion ignited when Trump’s three appointees to the Supreme Court helped overturn Roe v. Wade.
On Wednesday, all eyes were on Arizona again as the state’s Attorney General, Kris Mayes, indicted what appear to be several Trump allies. Their names were redacted, but we can figure out who they’re talking about from context. These include Rudy Giuliani, John Eastman, Mark Meadows, Boris Epshteyn, Mike Roman, Jenna Ellis and Christina Bobb, and all of the fake Arizona electors, on charges of conspiracy, fraud and forgery related to the 2020 presidential election.
Democracy and the rule of law are issues Trump has placed front and center in this election. These folks are in the news as criminal defendants precisely because of their activities and association with him.
And yet, Trump’s name is conspicuously absent among the defendants, as is the name Kenneth Chesebro, the primary architect of the fake elector scheme.
Chesebro is very likely a cooperating witness, and he may have sold out his co-conspirators in exchange for leniency. We don’t know the details of that, but he has been making something of a confessional tour around the swing states where he helped organize the fake electors. It really does pay to be the first to come forward.
There are many possible reasons Trump, who is identified as “Co-conspirator 1,” was kept off the defendants’ list. Of course, it’s possible they don’t have enough evidence to tie Trump to the scheme in Arizona, but that seems unlikely given what we know about him calling most of the shots on the fake elector scheme.
To my mind, it actually makes sense to leave Trump off, for now, given that other jurisdictions are already prosecuting him for similar crimes. Adding him to the indictment in Arizona would only slow down the case against the other defendants as Trump’s well-financed legal team lobs motion after motion to delay.
It would also feed into Trump’s narrative that there is a coordinated, Democratic-led effort to interfere with his presidential ambitions and campaign. With his name withheld from among the defendants in Arizona, it now seems the opposite is true: Trump is now being cut significant slack, rather than hounded because of who he is, precisely because of his unique position as a leading presidential candidate. After all, prosecutors are supposed to be at pains to ensure their actions aren’t perceived as putting their fingers on the scales so close to an election—a memo James Comey didn’t seem to receive.
The indictment raises the stakes considerably for all of the named defendants who are also facing criminal charges in Georgia. The costs of defense, the time spent in a courtroom far away, the risks of a guilty verdict and sentence—everything just went up. Moreover, many of the legal arguments they would like to make, including removal to federal court and sovereign immunity, were already rejected in Georgia. They are unlikely to succeed in Arizona, overseen as it is by the Ninth Circuit.
Now would be a good time for the most vulnerable defendants to cut a deal and agree to testify against the others.
Arizona and the right to abortion
Meanwhile, also in Arizona, the abortion battle—one ignited by Trump’s appointees on the Supreme Court—raged on. But on Wednesday there finally was a big victory for Arizona women. The state House narrowly voted to repeal a draconian 1864 abortion ban that the state’s supreme court had revived following Dobbs.
Earlier efforts to repeal the ban had failed along near universal party lines in contentious sessions where Democrats called repeatedly for the ban’s repeal. But now Republicans from Donald Trump to Kari Lake, who had once supported the ban, are weighing in, criticizing the state supreme court’s decision. Yesterday, three GOP state House members crossed over to vote with the Democrats. The bill now goes to the state Senate where passage looks likely.
An observation: In a closely divided legislature, whether it’s the Arizona House or the U.S. Congress, the power of a few or even one Republican who chooses to do the right thing is something we have seen play out of late, These Republicans are bucking their own party—whether over the budget, Ukraine aid or abortion—to further the will of the vast majority of their constituents rather than the extremist positions of a vocal minority. It is too soon to tell if the radical dam has been breached, but there are growing signs that the stranglehold of the Christian Nationalist MAGA right may be loosening.
Repeal of that law still leaves in place Arizona’s harsh 15-week abortion ban. And voters now understand that unless there are constitutional guarantees for abortion rights, a radical legislature and court can strip them away. Enthusiasm behind a referendum to add the protections of Roe into the state’s constitution is unlikely to wane, and it could produce turnout levels among women and young voters sufficient to power Democratic victories from the top of the ticket on down.
That is the strength of the abortion wedge Trump has driven into the side of the GOP. An electoral college win for Biden in Arizona makes the path to 270 very tricky for Trump. A Senate win for incumbent Rep. Ruben Gallego over Kari Lake keeps the hope of maintaining that chamber’s Democratic majority alive. And two Democratic House flips in swing districts in Maricopa and Pima counties could see Rep. Hakeem Jeffries as Speaker in 2025.
All eyes on Arizona, indeed.
SCOTUS on abortion, again
The Arizona abortion battle is a microcosm of the larger abortion war being waged across the nation, one that Trump ignited with his three anti-abortion appointments to the High Court. Yesterday SCOTUS waded again into the fray, for the second time this year, no doubt reluctantly. After all, the conservative justices had been hoping, rather naively, that sending the question “back to the states” would end the need for federal review of abortion rights for good.
Not so much. Shortly after Dobbs came down, the Biden Administration issued a statement reminding health care providers who receive federal Medicare funds that, under a law known as the Emergency Medical Treatment and Labor Act, they are obliged under federal law to provide stabilizing medical care to patients arriving at their ERs. This includes abortion services for pregnant women where necessary to preserve the life of, or prevent serious health risk to, the mother.
That set up a battle between the federal government and the 14 strict anti-abortion states, such as Idaho, whose abortion ban was before the Supreme Court yesterday. Idaho’s draconian law only allows a narrow abortion exception when the life of the mother is at risk. Serious bodily injury isn’t enough, even when the fetus is almost certainly unviable. And even when the life of the mother is at risk, at least according to a doctor’s good faith medical judgment, a prosecutor could conclude otherwise and bring a case, as Idaho admitted during oral argument. That leaves doctors in Idaho in a precarious and untenable position, and it leaves pregnant women facing health emergencies with few to no options.
The justices appeared split along gender lines over whether federal law preempts state law when mandating emergency abortion services. Justice Amy Coney Barrett, who voted with the conservative supermajority to strike down Roe, is now witnessing many of the real-life consequences of that decision, and she appears distressed by them. If Justice Barrett votes this time with the liberal women justices, whether federal law will have any say over state abortion law, even when it comes to providing necessary, stabilizing emergency room services, will come down to two men: Chief Justice John Roberts and Justice Brett Kavanaugh—a man credibly accused of sexual assault.
That is really where we are. A ruling is expected later in this term, likely at the very end of it.
A side note that helps tie this together: The gender split on the Court mirrors a growing political split between men and women that we are seeing in the polling. Women see and understand the intrusions that Trump and the GOP have made into their bodily autonomy and personal and medical decisions, while most men either don’t recognize them or don’t care. Further, a majority of men support Trump against Biden, while most women understandably do not.
A recent New York Times poll highlighted this disconnect, with 54 percent of male respondents actually believing that Trump respects women “a lot” or “some.”
Women disagreed. Only 31 percent believed that about Trump, a 23 point gap in perception.
Immunity and justice delayed
The High Court also hears arguments today over another key Trump-era question: whether we still have a democracy at all. The Court will address ex-president Trump’s claims of “total presidential immunity” from criminal prosecution. According to Trump, this encompasses any and all acts he undertook while in office.
Few observers believe the Court will rule Trump’s way. After all, if Trump is right, then it opens our nation up to rule by a dictator, unrestrained by anything but the power of the Senate to remove him from office, which requires a nearly insurmountable two-thirds vote. Most are predicting a 7-2 or 8-1 decision against him. (And the fact that Justice Clarence Thomas has not recused himself, given his own wife’s involvement in January 6, should be much bigger headlines.)
Instead, the ruling largely will determine another important question: whether Trump’s January 6 D.C. trial can even proceed this year before the election. A common fear legal observers share is that the Court will fashion a new kind of rule or test for presidential immunity against which Trump’s alleged behavior must be tested. That would require the trial court to hold a hearing and make factual findings under the new rubric, and then another likely trip up and down the appellate courts, this time with a possible delay of well into the next term, long after the election.
That could of course be the whole point for conservatives on the Court. There was no real need to take this appeal in the first instance, given how strong and well-reasoned the unanimous D.C. Circuit opinion was. There was also no need to delay a hearing on it until today, with a ruling not likely until months later, unless delay was the whole point. The Court is perfectly capable of moving quickly when it wants to; the majority just doesn’t seem interested.
Trump’s main weapon is delay, and the Supreme Court granted him a gift with its own harmful slow roll. Still, Trump is on trial in Manhattan on serious felony charges as we speak, and it isn’t going well for him. The optics are poor, he is low energy and sounds petty, and his followers have not rallied to be near him at the courthouse by the thousands as he had hoped.
And a weakened Trump, with his party in disarray, opens the door just a tad wider, perhaps enough to allow for greater courage from a few Republicans willing to buck the extremists, whether in the U.S. or the Arizona House. They might just continue to do so, if not for the sake of their constituents, then for their own political survival as the voters, particularly women in states like Arizona, prepare to unleash their anger in the form of a massive rejection of the GOP.
If SCOTUS rules president has immunity, can Joe Biden order seal team six to eliminate a corrupt political rival?
Since his election, I have striven (strived?) to hold on to a glimmer of hope that conservatives of good conscience and strong patriotism would stand up and speak truth and good sense, followed by honest voting. I look to writers like Jay, Simon Rosenberg, Joyce Vance and the other sisters in law, Dan Rather and a few others to help me maintain an even keel. The degree of philosophical turmoil in the body politic is stunning but not as much as the overt antagonism toward fellow citizens stemming from disinformation and misinformation. What I had thought unequivocal is the notion that no one is above the law. I don’t believe it’s true in practice. I thought the Nixon era had brought common understanding of the red lines around the actions of a president. I’ve held onto the belief that basic education in civics and law would further open the eyes of the conservatives who saw the dangers ahead of electing a narcissistic ego maniac and bring them to vote against him.
I’m ashamed of my naïveté. It saddens me that my expectations and hopes for restorative outcomes of the trials ongoing and pending is so weak. But I’m grateful to you, Jay, and to the members of this community who continue to bring out and collectively consider the truth of our current situation.