How Things Are—and Aren’t—Supposed To Be

Image from The Atlantic : Getty

The news lately is filled with moments for hope alongside reasons for anxiety. I took some time this morning to think about whether there are commonalities to what we are experiencing and feeling as we collectively process events. And something occurred to me:

After experiencing for so long how things aren’t supposed to work, we’re finally getting a taste of how they are supposed to. 

And that can feel both exciting and worrisome. After all, much as we deeply appreciate that the wheels of justice are visibly rolling, we also know how badly the pushback to things like accountability will likely be from the extremists.

Things are beginning to culminate in many legal and political matters, and predictions necessarily become fuzzy. So let me provide a few examples of this phenomenon for your consideration.

Donald Trump

This one is obvious for many reasons, but it’s still worth discussing within this framework. For decades, Trump exemplified how things are not supposed to work in America. People who act like mob bosses should be investigated and jailed, for example. Trump skated all those years without charges, at least until last week.

For that matter, men who make fun of disabled people, talk about grabbing women by the p*ssy, and call Mexicans rapists and murderers should not get elected president. Yet the American people, through an archaic Electoral College system, voted him into office with a minority of the popular vote. 

And leaders who incite insurrections, steal top secret documents, and spread lies about a stolen election in order to justify overturning it and remaining in power should be prosecuted swiftly, not left to continue to foment chaos from their modern palaces in Florida.

Now that dam of “not supposed to” is breaking. On Tuesday the nation will experience, for the first time, the arraignment of a former president on criminal charges. 

But even with this, many of us are left wondering, “Is this really how it’s supposed to go?” After all, there are far more serious charges than falsifying business records and possible enhancing charges like campaign finance violations and tax evasion. Aren’t those supposed to be what we focus on, if only so that the right won’t claim it’s just political persecution on a petty offense?

To help gain perspective, let’s zoom out to 30,000 feet and take a look at how things are supposed to work.

As commentator Asha Rangappa observed, a local prosecutor like Alvin Bragg is responsible for ensuring that the law is followed by all citizens, rich or poor, powerful or weak, within his jurisdiction. Donald Trump has lived and worked in New York City for decades, and so if he has committed a crime, it’s Bragg’s responsibility to determine whether it’s worth prosecuting.

If any other politician instructed someone else to pay hush money on their behalf, and then—and this is important—bill it back falsely as legal expenses so that it wouldn’t be clear to voters what had happened, that would be a crime. So it’s important to ask this: Has the Manhattan DA ever prosecuted such a crime? Yes, in fact, this is precisely what happened with another politician in New York.

The case is one of Richard Brega, just one among many examples. As Sivan Watt and Norman Eisen note in Just Security, the Brega case involved campaign finance violations prosecuted as a felony violation of falsifying business records—something that sounds exactly like what Trump is facing. 

Brega ran Rockland County’s bus system, which transported students under a multi-million dollar contract. He was indicted in 2017 for using “straw donors” to secretly funnel over $40,000 in cash donations to the 2013 county executive campaign of legislator Ilan Schoenberger.

The indictment charged Brega with 10 felony counts of falsifying business records because the campaign contributions were falsely reported as individual contributions of ten fake donors. Brega was “accused of causing those records to be false, as the money that was funneled into the Schoenberger account was his own.” Brega pled guilty to one count of first-degree falsifying business records, and admitted to using his brother-in-law “as a go-between to conceal the origin of a $6,000 donation” to Schoenberger. He was sentenced to a year’s imprisonment for this crime.

Here, the facts are strikingly similar. Trump caused the hush money payments to be falsely recorded as legal expenses. The money that was funneled to Stormy Daniels for the benefit of the Trump Campaign was that of Michael Cohen, his personal fixer. By agreeing to help conceal the nature of these payments, Trump used Cohen “as a go between to conceal the origin” of a $130,000 hush money payment to Daniels.

If Brega was prosecuted for this, it is only fair and right that Trump be as well. Alvin Bragg is doing his job, in fact, because to let Trump off on behavior that was functionally the same as Brega’s would be unjust. No one is above the law, and this isn’t some kind of special prosecution.

That’s how it’s supposed to work.

Fox and Dominion

An outfit calling itself a “news” network ought to report the facts, not false claims. It should center its values upon exposing the truth, and not permit the platforming of crazy conspiracy theorists. It shouldn’t permit its hosts to level and amplify baseless claims against another company about its software being from Venezuela and about vote counts being switched en masse during the 2020 election, not only because this is defamatory but because it is outright dangerous to the bedrock of our democracy. 

That’s not how it’s supposed to work, and yet that’s precisely what Fox did after the 2020 election and continues to do today. As I wrote about earlier, what Dominion’s discovery efforts have since confirmed is that Fox actually knew the claims of a stolen election were false, but it made a conscious decision to continue to air them anyway so that it would not lose viewers to more extreme right wing networks like Newsmax and OANN. That’s definitely not how it’s supposed to work.

On Friday, however, the system caught up a bit to Fox. As a years-long, $1.6 billion defamation action gets set for trial, the two sides filed dueling motions for summary judgment, meaning they both claimed that, in the absence of any disputes of material fact, they ought to win outright. 

The judge in the case denied Fox’s motion and granted Dominion’s in one critical part: falsity. To maintain a claim for defamation against a media company under Delaware law, you generally have to show that the defendant published a false statement, and that it did so with “actual malice,” meaning with knowledge that was false or with reckless disregard for the truth. 

The judge granted Dominion partial summary judgment, holding that Dominion had proven that the statements made by Fox were in fact false. What remains to be proven at trial, before a jury, is whether Fox did so with knowledge that they were false or with reckless disregard for the truth.

Fox is in big trouble. I wouldn’t want to head into a jury trial with the question of falsity already determined, and the only question being whether Fox knew or ought to have known its statements were false. We’ve already seen many internal emails and communications from top Fox hosts and producers that the network knew they were allowing false claims to air and that people like Sydney Powell and Mike Lindell were nuts. Fox is going to have a tough time explaining why its management and talent privately knew one thing but publicly said another.

It’s almost hard to believe that Fox might finally face some consequences for over a decade and a half of false statements that rile up their viewers and create an alternate reality based on grievance, hate and lies. That possibility is enticing but admittedly could also prove elusive, which sets us all on edge, just as the notion of indicting and convicting Trump does. But for all our anxiety, Fox is likely melting down far more over the lawsuit and the ruling, because it poses a possible existential threat to its continued ability to spew lies to its viewers. The case is also just one of the actions Fox faces; it also must answer to Smartmatic, the voter software company that also filed a massive defamation suit. 

Bans on abortion, books, drag acts, and gender affirming care

GOP-controlled legislatures aren’t busy fixing crime, the nation’s roads and bridges, and inflation. Instead they are making headlines by waging cultural wars and targeting women, racial minorities and the LGBTQ+ community. They have passed sweeping bans on abortion and reproductive access, but they didn’t stop there. Now they are targeting books, education, community activities and even trans care and identity, all under the guise of “protecting children.”

Liberal democracies aren’t supposed to work this way. Majorities aren’t supposed to be able to trammel the rights and freedoms of other citizens, particularly over our bodies; what our doctors and our families privately decide together; what books our children can read; and what medicines we have access to. The GOP is supposed to be the party of limited government, but in every aspect of our lives they have declared themselves, often in the name of Christianity, the gatekeepers of morality and behavior. 

The traditional role of the courts in America is to provide a backstop for our rights and to ensure overzealous legislatures and the executive do not overstep their authority. And despite huge losses of those rights inflicted by SCOTUS, particularly around abortion rights, we are starting to see individual courts step up and protect freedoms.

Two separate federal judges in Texas and Tennessee recently ruled that the states’ book ban and drag ban, respectively, were likely unconstitutional and put a hold on recent laws enacted there. Notably, both of the judges who issued these opinions are Trump appointees, reminding us that we should not assume that political affiliation necessarily will dictate outcome. 

That is how it’s supposed to work. 

These rulings could become precedent for other courts and could lay the groundwork for appellate decisions that reiterate some fundamental values, particularly in the area of freedom of speech, which sees some overlap between both traditionally conservative and liberal values when it comes to our courts. But it’s understandable to feel unease at the prospect of the very conservative Supreme Court having the final say over these cases, particularly when the majority on the Court has shown a willingness to toss out decades of precedent to achieve the ruling it wants.

But for now, we can take heart in the idea that, with a few notable exceptions around abortion and healthcare, the federal courts are acting the way they are supposed to when it comes to legislative overreach that affects fundamental First Amendment rights. We should of course never take that for granted, and so it becomes more essential than ever to ensure that, in 2024, the White House doesn’t fall into the hands of another radical administration that will pack the courts with even more extremists.

It is understandably unsettling to even need to ask whether the system will hold against these onslaughts, from Trump to Fox to radical, red-state legislatures. And there certainly will be breaches and setbacks as the MAGA Christian Nationalists lob hundreds of increasingly horrific, controlling, bigoted bills covering everything imaginable.

But taking that 30,000 foot view again, we can also view these efforts as desperate, last-gasp attempts to cling to power and a way of life that the vast majority of Americans plainly do not share. It is a truism that before they finally lose their grip on power entirely, the far-right will be at its most dangerous. 

And so, taken as a whole, we now face two very different realities and final outcomes: how it’s not supposed to be, and how it is. With all that is already going on, and the chaos that will continue to mount, my best advice is to in each instance imagine how our country and its system are in fact supposed to be, and then to use that as our unwavering, guiding North Star.