On Colorado and the Supreme Court, acquiescence has consequences

The media sanitizes Trump. Durbin does the rest.

Welcome to a Wednesday edition of Progress Report.

I was all set to hit send on part two of our deep dive into the best political news of 2023 yesterday when the Colorado Supreme Court dropped its bombshell. I’m not interested in vapid predictions or politics as fantasy sports, but the Colorado decision does connect neatly to other important developing stories worth discussing.

Instead of jamming it all into one super-long newsletter, tonight’s edition will dig into the new developments while a newsletter already scheduled to send on Thursday afternoon will reveal the absolute best political stories of 2023.

And quickly, before we get to the news, please check out my latest piece at More Perfect Union. The activists are adorable, the issue is deadly serious.

OK, now to the news!

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⛰️ 🗳️ The Colorado Supreme Court made history by ruling that Donald Trump’s role in the Jan. 6th insurrection disqualified him from being on the state’s presidential primary ballot. The state court paused the decision until Jan. 4th so that the Supreme Court has a chance to intervene. Should Trump appeal as promised, it would allow him to retain his spot on the ballot.

It took me a while to figure out the potential legal scenarios because most news coverage has already pivoted to speculation over whether the Colorado decision will help or hurt Trump’s campaign. Reporters defaulted to punditry, declaring that being thrown off the ballot for treason would be a boon to Trump’s chances — see here, here, here, and here, for starters.

Speculation is cheap and easy, but here, it’s also inexcusably dangerous. By quickly jumping into the binary of electoral politics, and asserting that trying to overthrow the government will be helpful to a presidential candidate, they defuse the severity of the crime, turning it into a matter of opinion and tribalism. It becomes nothing simply a new storyline in a nihilist soap opera.

I’m sort of agnostic on whether Trump remains on the ballot in Colorado. He’s not going to win the state in the general election, the case won’t set precedent elsewhere, and honestly, it should probably require an actual guilty verdict to be thrown off a ballot.

I’d do almost anything to prevent another Trump presidency and don’t believe in the nobility of asymmetrical warfare or taking the high road against a Republican Party with a bottomless capacity for cheating and moral treachery.

That mendacity is actually an argument for caution, because to deny people the opportunity to vote for their preferred candidate based not on any formal conviction but instead the gut feeling that he should be convicted is a dangerous precedent that Republicans are far more likely to weaponize going forward.

For all the indictments that Trump is currently facing, only a few of them could lead to a verdict that could arguably disqualify him from any ballot. None are likely to be decided before the bulk of the primary elections are finished, even though special prosecutor Jack Smith has asked the Supreme Court to expedite a ruling on whether Trump has presidential immunity.

The blame for this falls squarely on the shoulders of Attorney General Merrick Garland, who spent two years refusing to investigate Trump’s fundamental role in the insurrection and blatant attempts to illegally overturn the 2020 election. It was only the findings and proper spectacle of the House’s bipartisan committee on Jan. 6th that shamed Garland into doing anything at all.

⚖️ 💸 On Monday, ProPublica revealed that ultra-right billionaires began showering Supreme Court justices with lavish gifts and forgiven loans after Clarence Thomas complained about his salary.

Thomas’s complaint, expressed to a member of Congress in mid-2000, came with an explicit threat: Unless Congress raised the annual $173K salary (around $300K in today’s money) and the court lifted its ban on accepting speaking fees, some conservative justices might just resign and go make a ton of money in the private sector. It triggered a panic among conservatives, who were desperate not to lose Thomas or Antonin Scalia, then a top secret effort to up their compensation.

To keep their ideological ringers on the court, conservatives ultimately established the tradition of billionaires pampering GOP justices with everything from private island vacations to free luxury RVs and private school tuition. They are essentially accepting semi-annual bribes from the people who want them to hear their cases and provide favorable rulings.

Clarence Thomas can no longer simply insist that Nazi swag collector Harlan Crow treats him like a prince simply because they are best buddies.

It took the Senate Judiciary Committee more than six months to subpoena Crow to answer questions about the purpose and extent of his role as Clarence Thomas’s personal Santa Claus. The Texas billionaire’s lawyer immediately told the committee to go to hell, a response that’s far easier to fire off when it’s clear that there will be no consequences.

Republicans swore to filibuster any vote to hold Crow and Federalist Society honcho Leonard Leo in contempt for their refusal to answer the subpoenas; Democrats, who love to blame chamber procedural rules for preventing them from taking decisive action, seem happy to embrace that roadblock. But as Durbin undoubtedly knows, it may be standard procedure, but there’s no actual requirement for the entire Senate to vote on a criminal contempt citation.

Instead, the Judiciary Committee could simply refer the noncompliance to the Justice Department, which would then work on securing cooperation or prosecuting the holdouts. Preemptively surrendering that power continues to compound problems for Democrats. Last week, when Jack Smith asked the Supreme Court to quickly decide on Trump’s claims of immunity, Durbin called on Clarence Thomas to voluntarily recuse himself due to his wife’s deep involvement in the insurrection.

There is absolutely no reason for Clarence Thomas to honor that request, because he knows from experience there will be no consequences if he refuses to do so — Durbin has been calling on Thomas to recuse himself from Jan. 6th cases since they began, a request that has been met exactly zero times.

American democracy is hanging by a thread, and much of it comes back to Dick Durbin, who can either step up right now or let the far-right trample over all of our rights. Whichever is easier, I guess.

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