The day the world learned that Jeff Bezos would buy The Washington Post, the Amazon founder offered assurances that he would not cower when faced with threats from a vengeful president and his appointees.

He summoned memories of Richard Nixon’s attorney general, John Mitchell, who warned that the legendary publisher Katharine Graham was “gonna get her tit caught in a big fat wringer” if the Post published one of its Watergate stories. “While I hope no one ever threatens to put one of my body parts through a wringer,” Bezos wrote to the paper’s anxious journalists in August 2013, “if they do, thanks to Mrs. Graham’s example, I’ll be ready.”

I led the newsroom at the time Bezos bought the Post. For a long while, he fulfilled his promise to the paper and its readers, exceeding my expectations. Then he faltered badly.

Now we know that Bezos is no Katharine Graham. It has been sad and unnerving to watch Bezos fall so terribly short of her standard as he confronts the return of Donald Trump to the White House. It’s been infuriating to observe the damage he has inflicted in recent months on the reputation of a newspaper whose investigative reporting has served as a bulwark against Trump’s most transgressive impulses.

All the signs lately point to a determined effort by Bezos to either placate Trump or please him outright: quashing an editorial that backed Kamala Harris for president only 11 days before the election and ending a decades-long tradition of presidential endorsements. A gushing postelection message of congratulations to Trump on his “extraordinary political comeback,” with no mention of his sordid resistance to the peaceful transition of power, which marked a historic low in presidential politics. Having Amazon join other tech companies in donating $1 million to the inauguration fund. Making a pilgrimage to Mar-a-Lago for a late-night dinner with Trump, where Bezos and Melania Trump discussed a documentary about her—a chat that led to a $40 million licensing deal with Amazon, reportedly nearly three times the offer of the next-highest bidder. Sitting on the dais, as Trump’s showpiece, during the inauguration ceremony. And, last week, a Bezos memo prohibiting any opinion articles in the Post that weren’t aligned with his own ideology of “personal liberties and free markets,” an imperious intervention that caused the editorial-page editor to resign. Trump himself disclosed that he’d dined with Bezos the very evening the Post owner issued his latest dictate.  

[Read: There are no more red lines]

Hundreds of thousands of readers have canceled subscriptions, no longer confident that this great newspaper will keep faith with the mission implicit in its motto of “Democracy dies in darkness.” Many of the Post’s talented journalists have decamped to other media outlets, unsure of their paper’s strategy and its soul.

Thankfully, the news department continues to operate with admirable independence and vigor, delivering revelatory work about a second Trump administration. That makes it all the more dismaying to witness the Post’s public image repeatedly tarnished as its owner cozies up to Trump with the evident goal of avoiding the president’s wrath and winning his favor.

For more than a decade, it looked as if Bezos would defy the worst expectations of him as a media owner. He did the right thing, surprisingly and encouragingly. I highlighted his many instances of steadfastness and courage in the 2023 book I wrote about my eight-year tenure as the Post’s executive editor, which overlapped with his ownership and the first iteration of Trump in the White House. “In all my interactions with him,” I recounted, “Bezos showed himself to have integrity and spine.”

He oversaw an editorial page that unflinchingly, and with just cause, called Trump “bigoted, ignorant, deceitful, narcissistic, vengeful, petty, misogynistic, fiscally reckless, intellectually lazy, contemptuous of democracy and enamored of America’s enemies.” That was in a 2016 presidential endorsement of Hillary Clinton. In 2020, the Post’s editorial page opposed his reelection, labeling him “the worst president of modern times.” After Trump’s triumph in 2016, many of us at the Post worried that Bezos would capitulate to Trump’s bullying as he acquired the fearsome powers of a president. And yet Bezos allayed our concerns. He fully supported our news coverage, giving us complete journalistic independence. Never once did he interfere, even when stories provoked Trump to retaliate against Amazon and him personally. I admired that, and remain immensely grateful.

“Don’t worry about me,” he told the political staff. “I can take care of myself.” I recall him musing later, in a dinner we had with leaders of The New York Times, how someday we might have to march together in protest if Trump’s attacks on journalists endangered the constitutional right to a free and independent press.

With the passage of time, it’s easy to forget how often Bezos was viciously denounced by Trump over the course of his first presidential campaign and first term as president. With Bezos pegged as a political enemy solely because of the Post’s coverage, Trump pressed to raise postal rates for package deliveries—vowing, depending on the day, to double, triple, or quadruple rates paid by Amazon. He interfered in a $10 billion cloud-computing contract for the Department of Defense with the goal of ensuring it didn’t go to Amazon, which had been perceived to be the leading bidder. He endlessly, and falsely, taunted Bezos with accusations that he was using the “Amazon Washington Post” to lobby for government favors and avoid taxes. He mocked Bezos’s divorce and his extramarital affair, ridiculing him as “Jeff Bozo.”

[Joshua Benton: Jeff Bezos’s hypocritical assertion of power]

Against those attacks and others, Bezos pushed back. In May 2016, I interviewed him at a conference held in the Post’s Washington, D.C., headquarters. I gave his staff a heads-up that I would ask about Trump’s broadsides against him, and for the first time Bezos addressed them. “Most of the world’s population,” Bezos said, “live in countries where, if you criticize the leader, you can go to jail. We live in the oldest and greatest democracy in the world, with the strongest free-speech protections in the world, and it’s something that we are, I think, rightly proud of … We want a society where any of us, any individual in this country, any institution in this country, if they choose to, can scrutinize, examine, and criticize an elected official, especially a candidate for the highest office in the most powerful country on Earth.”

In a 2018 interview with the financier and philanthropist David Rubenstein, Bezos spoke out forcefully and eloquently against Trump’s assault on the press. “If you’re the president of the United States or a governor of a state or whatever, you don’t take that job thinking you’re not going to get scrutinized. You’re going to get scrutinized, and it’s healthy … It’s dangerous to call the media lowlifes. It’s dangerous to say that they’re the enemy of the people.” He commended the work I was doing as the Post’s editor in charge of news coverage and that of Fred Hiatt, who oversaw editorials and opinions. In slang expressing unreserved approval, and to robust applause in a cavernous ballroom, he said we were “killing it.”

Bezos also made the gutsy legal request to have Trump deposed over the loss of the Defense Department contract. “The question is whether the President of the United States should be allowed to use the budget of DoD to pursue his own personal and political ends,” Amazon’s lawyers wrote in late 2019. “President Trump’s animosity toward Mr. Bezos, Amazon, and the Washington Post is well known, and it originates at least in part from his dissatisfaction with the Washington Post’s coverage of him from before he assumed office.”

You no longer hear tough words like that from Bezos and his camp. At least as striking as his recent, highly publicized overtures to Trump is his drastic shift to highly accommodating language.

When Bezos spoke in December at the Times’ DealBook conference, it was as if he were a different person. He looked different, more buff. He sounded different, more meek. There was no expression of appreciation for the Post’s coverage, nor anything about the importance of the Post or the media generally, only his intent to try to talk Trump “out of that idea” that the press is the enemy of the people. “I don’t think he’s going to see it the same way,” he added, elaborating a bit on that minimalist goal. “But maybe I’ll be wrong.” (Predictably he was wrong, spectacularly so.) And then Bezos assessed that Trump was “calmer than he was the first time” and “more settled.” Bezos could not have believed the words he uttered.

Jeff Bezos sits next to U.S. Senate Majority Leader John Thune (R-SD) and Kimberly Thune (second left) during the luncheon following President Donald Trump’s inauguration at the U.S. Capitol on January 20, 2025. (Kevin Dietsch / Getty)

[George Packer: The Washington Post is dying a death of despair]

The big question is why Bezos’s language and behavior have changed so dramatically. I can’t get into Bezos’s head, of course, but one answer must lie in an indisputable fact: Trump is less calm, less settled, and far more vindictive. He campaigned for office pledging retribution against “the enemy from within”—in other words, anyone who opposed him. In August 2023, Trump wrote on Truth Social, “IF YOU GO AFTER ME, I’M COMING AFTER YOU.” By October of last year, NPR had counted 100 instances of Trump threatening to prosecute or punish political enemies.

Bezos has ample reason to worry about the consequences of any retribution. Federal contracts are key to the success of Amazon Web Services, the cloud-computing division that has been delivering more than half of the company’s profits. An arch-competitor is Oracle, whose founder and chairman is Larry Ellison, the GOP megadonor whom Trump hosted recently at the White House and extolled as “one of the most serious players anywhere in the world.” Bezos’s commercial space venture, Blue Origin, has received billions of dollars from his personal bank account. January’s successful launch into orbit of its New Glenn rocket positions Blue Origin to finally compete with Space X, the pacesetter owned by Trump’s seemingly omnipotent best buddy, Elon Musk. The government will be Blue Origin’s essential customer.

You don’t have to look far to see what might happen to businesses in Trump’s crosshairs. Solely because the top-tier law firm of Covington & Burling represents the former special counsel Jack Smith, Trump stripped its attorneys of national-security clearances and ordered federal agencies to cancel the firm’s federal contracts. Smith had received pro bono assistance in anticipation of retributive investigations and prosecution by Trump’s Justice Department. The president, who had sworn only a month earlier to “preserve, protect and defend” the Constitution, aimed to damage a law firm for work that is guaranteed under the Sixth Amendment’s promise of access to counsel.

Newspaper owners have every right to set their paper’s overall direction, and opinions expressed in editorials—or whether to publish any at all—have always been their prerogative. In a note to readers this past October, Bezos argued that calling for a halt to presidential endorsements would help avoid a “perception of bias” and a “perception of nonindependence.” He framed it as an effort to restore reader trust, which has sharply declined for the media. “We must work harder to control what we can control to increase our credibility,” he wrote.

Setting aside whether a presidential endorsement every four years truly weighs more heavily in readers’ perceptions of bias than the daily editorials on sharply polarizing subjects, Bezos’s own behavior since that decision has undercut his stated goals. Appearing on the dais during Trump’s inauguration did not look like working harder to increase the Post’s credibility. Nor did it signal independence. Instead, it suggested dependence on Donald Trump. Bezos denies that fear of retaliation against his other commercial interests had anything to do with the endorsement decision. “That was certainly not on my mind,” he told the Times’ Andrew Ross Sorkin at the DealBook conference. That strains belief.

“We saved The Washington Post once. This will be the second time,” Bezos said during the DealBook interview. “It took a couple of years. It made money for six or seven years after that. In the last few years, it’s lost money again. It needs to be put back on a good footing again … We have a few other ideas.”

The opinion section’s Bezos-mandated pivot to “personal liberties and free markets” appears to be one of them. Bezos is right that his previous strategy for turning the Post into a national news organization was a grand success, and I was glad to execute it as my fellow journalists and I contributed good ideas of our own and scotched some really bad ones. This latest turn seems less promising, not to mention less inspiring. Will readers drawn to the Post outnumber those who lose confidence in it?

[Read: The tech oligarchy arrives]

What’s especially worrisome about Bezos’s instructions is the mandate that alternative views are unwelcome—“left to be published by others.” And neither Bezos nor the Post’s publisher, Will Lewis, has defined what precisely is meant by “personal liberties and free markets,” identified what sorts of opinions would be considered nonconforming, or addressed how this might affect the reputations of columnists who remain on staff. Who exactly in the opinion section has been against personal liberties? Will opinions in favor of regulation (of major tech platforms, for example) not be tolerated? Will it be allowable to speak of instances where markets have failed or gone awry? If columnists take a free-market view, won’t readers conclude that they’re doing so only because they’re required to as a condition of employment?

Lewis, in a note to staff, celebrated the “recalibrated content strategy” for offering “new clarity and transparency.” But Post columnists tell me they have no clue what it foretells and whether they’ll fit in. They’ve asked for explanations from the owner and the publisher, and been met with silence. Opacity, not transparency, appears to be the order of the day.

The White House and its allies, in contrast, didn’t seem confused at all about what was in the offing. Steven Cheung, the White House communications director, responded to the edict by posting a GIF of a typically grumpy Grinch cracking a smile. Elon Musk promptly blasted out, “Bravo, @JeffBezos!” The right-wing activist Charlie Kirk cheered, “Good! The culture is changing rapidly for the better.” None of them worried that Bezos’s directive constituted what they claim to abhor (and what it is): cancel culture.

The most fundamental American liberty is free expression. Newspapers such as the Post have long honored that constitutional right by welcoming a wide range of views in the opinion section, whether their leadership agreed with them or not, so as to encourage civil public debate. Bezos was now decreeing that views out of alignment with his own ideology would not see the light of day in territory that he controls. The paper that proclaims itself to be on the side of democracy had taken a step that was distinctly undemocratic.

As of today, the Post’s editorials continue to take Trump to task. After Friday’s quarrelsome White House meeting between Trump and Ukrainian President Volodymyr Zelensky, the Post judged that Trump “sounded more like Don Corleone than an American president.” In the months ahead, we’ll see if a reconfigured opinion section censures the president for his own abject failures to practice what Bezos preaches.

Trump and the modern Republican Party are anything but models of free-market principle. An affection for punitive tariffs is but one example. The incessant bullying of private enterprise to serve Trump’s political interests is yet another, as Bezos knows from personal experience. “In today’s Republican Party,” the Post columnist Catherine Rampell has written, “the primary economic role of the state is not to get out of the way. It is, instead, to reward friends and crush political enemies.”

[From the March 2025 issue: Capitulation is contagious]

As for personal liberties, it’s difficult to imagine a greater hazard than Trump, a man who speaks admiringly of the world’s dictators. He asserts unprecedented presidential powers and has demonstrated disdain for the rule of law. He is using the federal government as a weapon against his political adversaries, withdrawing security protection from former officials who have crossed him and threatening prosecution of those he deems to have persecuted him. High on the list of targets is the press, a regular object of harassment, intimidation, investigation, litigation, and condemnation, with the goal of further undermining public trust and sabotaging economic sustainability.

If the Post does its job correctly in both its opinion section and its news coverage, it will hold Trump fully accountable when he engages in deceit and as he continues to subvert this country’s democratic institutions. It will report what Trump is seeking to conceal but what the public deserves to know. That, at some point, will make the Post a fresh target for malevolent and punishing attacks. Amazon and Blue Origin might well be in the line of fire too, and Bezos’s postelection outreach to Trump is unlikely to count for much amid his fury.

As Bezos decides how to respond, I urge him to make one of his rare visits to the Post’s newsroom and stare at the wall where its nearly century-old principles are affixed, paying attention to two in particular. No. 1: “The first mission of a newspaper is to tell the truth as nearly as the truth may be ascertained.” And then No. 5: “The newspaper’s duty is to its readers and to the public at large, and not to the private interests of its owners.”

The lawyers were part of former special counsel Jack Smith's team which brought two cases against the president.

Donald Trump promised his supporters that if he won the presidency again, he would pardon at least some of the January 6 rioters who have been prosecuted. “Tonight I’m going to be signing on the J6 hostages pardons to get them out,” he told the crowd at Capital One Arena on Monday night. “And as soon as I leave, I’m going to the Oval Office, and will be signing pardons for a lot of people.”

Many prominent Republicans seem to agree with Trump’s view that the January 6 insurrectionists, including men convicted of assaulting police officers, are government “hostages.” The view seems to be that Democrats are using the events of January 6 as an excuse to carry out what Trump calls a “witch hunt.”

Prominent Republicans weren’t always blasé about January 6. Immediately following the attack on the Capitol, and even into the following year, many leading Republicans condemned the attack on the Capitol and the police officers assigned to protect it.

As an antidote to amnesia, here is an incomplete compilation of remarks about the January 6 violence made by Republicans who now are seeking Cabinet-level positions in the new Trump administration, or are otherwise in Trump’s inner circle.

Elise Stefanik, United Nations Ambassador-Designate, January 6, 2021 (press release now deleted): “This is truly a tragic day for America. I fully condemn the dangerous violence and destruction that occurred today at the United States Capitol. Americans have a Constitutional right to protest and freedom of speech, but violence in any form is absolutely unacceptable and anti-American. The perpetrators of this un-American violence and destruction must be prosecuted to the fullest extent of the law.”

Marco Rubio, Secretary of State nominee, January 6, 2021: “There is nothing patriotic about what is occurring on Capitol Hill. This is 3rd world style anti-American anarchy.”

Kristi Noem, Homeland Security Secretary nominee, January 6, 2021 (tweet now deleted): “We are all entitled to peacefully protest. Violence is not a part of that. What’s happening in the Capitol right now must stop.”

Doug Burgum, Interior Secretary nominee, January 6, 2021: “We support the right to peacefully protest. The violence happening at our nation’s capitol is reprehensible and does not represent American values, and needs to stop immediately.”

Vivek Ramaswamy, Department of Government Efficiency co-leader, September 13, 2022: “It was a dark day for democracy. The loser of the last election refused to concede the race, claimed the election was stolen, raised hundreds of millions of dollars from loyal supporters, and is considering running for executive office again. I’m referring, of course, to Donald Trump.”

Kevin McCarthy, then–Speaker of the House, January 13, 2021: “The president bears responsibility for Wednesday’s attack on Congress by mob rioters. He should have immediately denounced the mob when he saw what was unfolding. These facts require immediate action from President Trump—accept his share of responsibility, quell the brewing unrest, and ensure that President-Elect Biden is able to successfully begin his term. And the president’s immediate action also deserves congressional action, which is why I think a fact-finding commission and a censure resolution would be prudent. Unfortunately, that is not where we are today.”

Lindsey Graham, South Carolina senator, January 6, 2021: “Those who made this attack on our government need to be identified and prosecuted to the fullest extent of the law. Their actions are repugnant to democracy.”

Mike Lee, Utah senator, January 6, 2021: “The violence at the United States Capitol is completely unacceptable. It is time for the protesters to disperse. My staff and I are safe. We are working to finish our constitutional duty to finish counting votes today.”

Ted Cruz, Texas senator, January 5, 2022: “A violent terrorist attack on the Capitol where we saw the men and women of law enforcement … risk their lives to defend the men and women who serve in this Capitol.”

Nikki Haley, 2024 presidential candidate, January 12, 2021: “We need to acknowledge [Trump] let us down. He went down a path he shouldn’t have, and we shouldn’t have followed him, and we shouldn’t have listened to him. And we can’t let that ever happen again.”

Ron DeSantis, governor of Florida and 2024 presidential candidate, January 6, 2021: “Violence or rioting of any kind is unacceptable and the perpetrators must face the full weight of the law.”

[Peter Wehner: No one will remember Jack Smith’s report]

Steve Scalise, Louisiana representative, now–House Majority Leader, January 12, 2021: “Like many Americans, I am deeply upset and outraged over the domestic terrorism we witnessed last week in our nation’s Capitol. It is clear that tensions in our country are dangerously high. It is incumbent upon leaders to be focused, first and foremost, on uniting our country and ensuring a smooth transition of power to the Biden administration over the coming days.”

John Barrasso, Wyoming senator, now–Senate Majority Whip, January 6, 2021: “This violence and destruction have no place in our republic. It must end now.”

Tom Emmer, Minnesota representative, now–Majority Whip of the House of Representatives, January 6, 2022: “One year ago, we saw an unacceptable display of violence that runs counter to everything we stand for as a country. Those responsible for the violence must continue to be held accountable, and Congress must focus on providing our men and women in law enforcement around the Capitol—and across the nation—with the resources, training, and support they need to ensure something like this never happens again.”

Lisa McClain, Michigan representative, now–chair of the House Republican Conference, January 6, 2021: “Today was an atrocious day for Democracy. What started out as Members of Congress following a sacred and Constitutional tradition, quickly was overcome by violent protestors. I wholeheartedly condemn the violence and vandalism at the Capitol and all who participated in such evil behavior. These vile acts are a slap in the face to peace-loving Americans.”

Kevin Hern, Oklahoma representative, now–Chair of the House Republican Policy Committee, January 7, 2021: “Our Capitol building has been a symbol of American freedoms and democracy around the world, yet it was invaded by law breakers seeking to undermine our republican form of government and erode those ideals. There is no excuse for the violent actions witnessed in the halls of Congress. This summer, when Antifa rioters burned American cities to the ground and held Portland hostage for over 100 days, I called for the investigation, arrest, and prosecution of those involved. I consider the crimes committed at the Capitol today to be of the same magnitude, and I support the investigation, arrest, and prosecution of those involved in the violent acts to the full extent of the law.”

Mario Díaz-Balart, Florida representative, January 6, 2021: “The Capitol building is the center and sacred symbol of democracy. Today’s violent actions undermine the principles and values that our nation was founded on. Individuals who broke into the US Capitol or assaulted our law enforcement should face the full consequences of the law.”

[Read: What I saw on the January 6 committee]

Dan Crenshaw, Texas representative, January 7, 2021: “On Wednesday the Capitol of the most powerful nation the world has ever known was stormed by an angry mob. Americans surely never thought they’d see such a scene: members of Congress barricaded inside the House chamber, Capitol Police trampled, and four Americans dead. A woman was shot near the elevator I use every day to enter the House floor. It was a display not of patriotism but of frenzy and anarchy. The actions of a few overshadowed the decent intentions of many.”

Cynthia Lummis, Wyoming senator, January 6, 2021: “Call it what it is: An attack on the Capitol is an attack on democracy. Today we are trying to use the democratic process to address grievances. This violence inhibits our ability to do that. Violent protests were unacceptable this summer and are unacceptable now.”

Cathy McMorris Rodgers, then–Washington representative, January 6, 2021 (press release now deleted): “What happened today and continues to unfold in the nation’s capital is disgraceful and un-American. Thugs assaulted Capitol Police Officers, breached and defaced our Capitol Building, put people’s lives in danger, and disregarded the values we hold dear as Americans. To anyone involved, shame on you. We must have a peaceful transfer of power. The only reason for my objection was to give voice to the concern that governors and courts unilaterally changed election procedures without the will of the people and outside of the legislative process. I have been consistent in my belief that Americans should utilize the Constitutional tools and legal processes available to seek answers to their questions about the 2020 election. What we have seen today is unlawful and unacceptable. I have decided I will vote to uphold the Electoral College results and I encourage Donald Trump to condemn and put an end to this madness.”

Rick Scott, Florida senator, January 6, 2021: “Everyone has a right to peacefully protest. No one has a right to commit violence. What happened today at the Capitol is disgraceful and un-American. It is not what our country stands for.”

John Thune, South Dakota senator, now–Senate Majority Leader, January 6, 2021: “I hope that the types of people who stormed the capitol today get a clear message that they will not stop our democracy from moving forward.”

Marsha Blackburn, Tennessee senator, January 6, 2021: “These actions at the US Capitol by protestors are truly despicable and unacceptable. While I am safe and sheltering in place, these protests are prohibiting us from doing our constitutional duty. I condemn them in the strongest possible terms. We are a nation of laws.”

John Kennedy, Louisiana senator, January 6, 2021: “I condemn this violent assault on the democratic process & will not be intimidated by a mob that confuses chaos & destruction with strength & wisdom. I’ll continue to work for LA.”

[Listen: January 6 and the case for oblivion]

Steve Daines, Montana senator, January 6, 2021: “Today is a sad day for our country. The destruction and violence we saw at our Capitol today is an assault on our democracy, our Constitution and the rule of law, and must not be tolerated. As Americans, we believe in the right to peaceful protest. We must rise above the violence. We must stand together. We will not let today’s violence deter Congress from certifying the election. We must restore confidence in our electoral process. We must, and we will, have a peaceful and orderly transition of power.”

Tim Scott, South Carolina senator and 2024 presidential candidate, January 6, 2021: “The violence occurring at the United States Capitol right now is simply unacceptable, and I fully condemn it.”

The nation is bracing itself for what President-Elect Donald Trump has promised will be the largest deportation effort in American history. Trump has vowed to use the military to assist with deportations, relying on emergency and wartime powers such as the Insurrection Act, the National Emergencies Act, and the Alien Enemies Act. In addition to worrying about the impact on immigrant families, wider communities, and the economy, many Americans are wondering—is this legal?

The deportation of undocumented individuals who are ineligible for asylum or other legal protection is, of course, well within the government’s authority under current immigration law. (As a policy matter, President Joe Biden has chosen to focus on those who have committed serious crimes—a policy that Trump is set to undo, presumably to facilitate broader deportation efforts.) But deploying the military raises an entirely different set of legal questions. Even under the potent authorities Trump has cited, the actions he proposes to take would be, at a minimum, an abuse of power, and they might well be illegal to boot.

Some degree of military involvement in immigration enforcement is already permitted—and has occurred under multiple administrations—without recourse to emergency powers. This may be surprising to many Americans. Anglo-American law has a long tradition of military noninterference in civilian affairs, for the simple reason that an army turned inward can quickly become an instrument of tyranny. In the United States, this tradition finds expression in an 1878 statute, the Posse Comitatus Act, that prohibits federal armed forces from participating in law-enforcement activities unless expressly authorized by law. Although not every American is familiar with the act, the principle it enshrines is deeply embedded in the public consciousness.  

[Quinta Jurecic: Yes, the law can still constrain Trump]

Less well known is the fact that the Posse Comitatus Act is riddled with exceptions and loopholes. For one thing, courts have construed the law to bar only direct participation in core law-enforcement activities, such as arrests or seizures. Federal forces may still provide indirect support to law-enforcement agencies in a number of ways, including conducting reconnaissance, sharing intelligence, and furnishing and operating equipment. In the 1980s, Congress passed several laws authorizing active-duty armed forces to provide these types of assistance.

In addition, the act applies only to federal armed forces. It does not apply to the National Guard—military units within the states that usually operate under state authority—unless the president has called Guard forces into federal service, at which point they become part of the federal military. Congress has passed a law authorizing Guard forces to perform federal missions at the request of the president or secretary of defense even when they haven’t been called into federal service. (Governors have the right to refuse such missions.) The Posse Comitatus Act does not apply to these operations, because the Guard forces remain, at least nominally, under state command and control.

These gaps in the act’s coverage have enabled military involvement in the enforcement of immigration and customs laws at the U.S.-Mexico border for decades, beginning in the 1980s and ramping up after 9/11. Presidents George W. Bush, Barack Obama, and Trump sent thousands of National Guard forces to the border, where they provided support to the Department of Homeland Security in the form of surveillance, transportation, equipment, and the erection of barriers. Trump also deployed active-duty armed forces, as did President Biden. In the summer of 2023, 2,500 National Guard forces and 1,500 active-duty armed forces were stationed at the border.

The seemingly permanent militarization of the U.S.-Mexico border may not violate the Posse Comitatus Act, but it has led to a variety of harms. When thousands of soldiers are routinely arrayed at the border, Americans receive the message that migrants are a threat to national security and public safety—a baseless notion that underlies and fuels support for Trump’s anti-immigration platform. Prolonged deployments at the border are also bad for the military, as they undermine service members’ morale and divert resources and personnel from core military functions.

Trump now reportedly seeks to double down on the militarization of immigration enforcement by invoking a trio of emergency authorities, beginning with the Insurrection Act of 1807—the primary statutory exception to the Posse Comitatus Act. The Insurrection Act gives the president broad powers to deploy federal armed forces (including the federalized National Guard) to quell civil unrest or enforce the law. The criteria for deployment are written in vague, archaic terms that provide few clear constraints. To make matters worse, the Supreme Court held in 1827 that the president is the sole judge of whether the criteria for deployment have been met. In other words, courts generally cannot review a president’s decision to invoke the law.

Although a top aide has said that Trump will invoke the Insurrection Act, the Trump team has provided scant detail on how he plans to use federal forces once deployed. Given that nonemergency authorities already authorize substantial military support to civilian law enforcement, it’s conceivable that Trump’s purpose in invoking the Insurrection Act is purely symbolic—a performative act of “shock and awe.” (The very name of the law suggests that immigrants are attacking from within and must be defeated through force.) At least in theory, though, the law could allow federal forces to perform core law-enforcement functions, such as apprehending and detaining immigrants, in any state in the country and against any governor’s wishes.

Such a use of the Insurrection Act would go beyond a mere expansion of existing military activities. Soldiers rolling into American towns in armored vehicles, knocking on doors, and carting people off to military detention facilities would create risks and harms that current border operations do not. For one thing, direct interactions between military personnel and civilians in fraught circumstances carry a significant potential for violence. After all, soldiers are trained to fight; few receive training in how to peaceably enforce civilian laws while respecting civil liberties. Furthermore, the visible presence of soldiers deployed in the streets would be both alarming and chilling for many Americans. Some would undoubtedly feel less comfortable engaging in protests against Trump’s policies or other basic acts of personal expression.

Heavy involvement of the military in immigration enforcement would also require a massive infusion of resources, both financial and human. That’s where Trump’s plan to declare a national emergency might come in. Under the National Emergencies Act, presidential declarations of national emergency unlock enhanced powers contained in 150 provisions of law spanning almost every area of governance, including military deployment, commerce, transportation, communications, agriculture, and public health. These provisions can supply both additional authority and additional resources for presidential action in a crisis.

Trump has used these powers before. In 2019, Trump declared that unlawful migration at the southern border constituted a national emergency. He invoked an emergency power that frees up funding for “military construction” projects, which he used to secure funds Congress had refused to allocate for the border wall. He might well reprise this effort, and he could attempt to use the same provision to fund the construction of military bases that would serve as immigrant-detention facilities. He could also use emergency powers to call up reservists, amplifying the manpower available to detain and deport immigrants. Indeed, Biden did exactly that in 2023 to supplement forces at the southern border.

[David A. Graham: Why didn’t Jack Smith charge Trump with insurrection?]

Finally, Trump has pledged to invoke the Alien Enemies Act—the last remaining vestige of the notorious 1798 Alien and Sedition Acts. A president may invoke this law when Congress has declared war or when the president proclaims an “invasion” by a foreign government. It allows the president to detain and deport immigrants, including green-card holders and others lawfully in the country, who are not U.S. citizens and who were born in the enemy nation. Immigrants targeted under the act are not entitled to the hearings and other procedural protections afforded by immigration law.

The act was last used in World War II to implement the internment of more than 31,000 noncitizens of Japanese, German, and Italian descent. (U.S. citizens of Japanese descent were detained under a separate authority.) Congress and the U.S. government have since apologized for much of this shameful episode in our nation’s history.

According to reporting in Rolling Stone, Trump may claim that migration from Mexico and other countries south of the border constitutes an “invasion” perpetrated by drug cartels that are operating as de facto governments in those regions. The Alien Enemies Act does not itself authorize military deployment, but it could be combined with the Insurrection Act and other authorities to significantly expand the military’s remit. Most notably, if Trump were successful in invoking these laws, they could allow troops to detain and deport not just undocumented individuals but people who are lawfully present in the United States.

There is no question that the authorities Trump has cited grant the president sweeping powers. The Brennan Center, where I work, has called attention to the dangers posed by each of them. My colleagues and I have urged Congress to reform the laws in order to incorporate safeguards against presidential overreach (or, in the case of the Alien Enemies Act, to repeal it).

But there is also no question that Trump’s proposed actions, as he and his allies have framed them, would be a staggering abuse of these authorities—and quite possibly illegal. Despite the permissive language of the Insurrection Act, it was clearly intended for crises that could not be solved by civilian government actors. That is why it has been invoked only 30 times in the nation’s history and has lain dormant for the past 33 years. In keeping with tradition and constitutional principles, the Justice Department has interpreted the law narrowly, asserting that it should be used only as a “last resort”—specifically, when state and local authorities request military assistance, are obstructing federal law, or have “completely broken down.”

There are many ways to address unlawful immigration short of deploying federal troops. Last spring, for instance, the Senate voted twice on a bipartisan bill that would have dramatically tightened border security. Republicans blocked the measure—reportedly at Trump’s behest, so that he could continue to make the porous border a central focus of his campaign. Having actively obstructed an effort to ramp up civilian enforcement of immigration laws, Trump can hardly argue that military deployment is a “last resort.”  

His cynical behavior could open the door to a legal challenge. Although the Supreme Court has generally barred judicial review of Insurrection Act invocations, it has suggested on various occasions that there might be an exception for deployments undertaken in bad faith. That’s because all of the president’s actions, even those committed to his discretion under Article II of the Constitution, must be consistent with the express constitutional obligation to faithfully execute the law.

In addition, the Supreme Court has distinguished between a president’s decision to invoke the Insurrection Act (which is usually not subject to judicial review) and any actions taken by the military after deployment (which are squarely within the courts’ purview). Soldiers deployed under the act must comply with the Constitution and other applicable federal law. If people’s legal rights were violated under a Trump-ordered deployment—for instance, if military detention conditions failed to meet basic human needs—courts would be able to intervene.

Just as invoking the Insurrection Act would be inconsistent with the law’s intent, declaring a national emergency would be a misuse of emergency powers. To be sure, America’s broken immigration system has led to unprecedented numbers of unlawful border crossings. Emergency powers, however, are designed to address sudden, unexpected crises that can’t be handled by Congress through ordinary legislation. There is nothing sudden or unexpected about the problems at the southern border, and Congress can—and should—address those problems through reform of the immigration system.

[Quinta Jurecic: Trump secures his get-out-of-jail-free card]

As a legal matter, courts will be reluctant to second-guess Trump’s decision to declare an emergency. But they will be less deferential in reviewing whether his administration’s actions are authorized under the specific powers he invokes. Although Trump has not identified which powers he plans to use, none of the 150 provisions available during a national emergency is designed to facilitate deportation. Trump will likely be stretching some of these laws beyond their permissible limits. (During his first administration, some courts struck down his use of the military-construction authority to build the border wall.) Courts will also review whether the actions Trump takes pursuant to a national-emergency declaration comport with other federal laws and constitutional rights.

Perhaps the most glaring abuse would be invoking the Alien Enemies Act. The history and design of the law make clear that it is a wartime authority only. It was intended to address armed attacks by foreign nations, not people fleeing political persecution, drug- and gang-related violence, or economic hardship. Even if a significant portion of migrants were criminals—a myth contradicted by all available evidence—that would not render their border crossing an act of war.

Moreover, whether in wartime or peacetime, the Alien Enemies Act suffers from grave constitutional flaws. It permits the targeting of individuals based solely on their ancestry, rather than their conduct, and it allows those individuals to be detained and deported without a hearing. As a recent Brennan Center report argues, these powers are fundamentally inconsistent with modern understandings of constitutional equal-rights and due-process protections.

Whether the Supreme Court would uphold the actions Trump has threatened is impossible to say with any certainty. In recent years, the Supreme Court has occasionally taken positions previously thought inconceivable, and overturned numerous long-standing precedents. But regardless of how the Supreme Court may rule, these actions should rightly be understood as an abuse of power, an abuse of the public trust, and an abuse of the law. And as soon as there is an opportunity, Congress must reform the emergency authorities in question so that no president can ever commit such abuses in the future.

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Donald Trump has said, at different times, that he will pardon some, most, or even all of the January 6 insurrectionists. He’s also said at least once that he would do this on his first day in office, which is imminent. Given Trump’s past rhetoric about the incident (calling it a “day of love”) and the people who were jailed for acts they committed that day (“political prisoners,” “hostages”), his pardons can be understood only as part of his alarming—and alarmingly successful—attempt to rewrite the history of the day that nearly brought down our democracy. But what if the pardon were to come in a different spirit? That could move the country a long way toward healing.

In this episode of Radio Atlantic, we invite the author and scholar Linda Kinstler to talk about a centuries-old legal theory, embraced at calmer times in American history, of “oblivion.” When two sides have viciously different experiences of an event, how do you move forward? You do a version of forgetting, although it’s more like a memory game, Kinstler says, “a kind of collective agreement about how you’re going to move past something that is fundamentally irreconcilable.”

The following is a transcript of the episode:

Hanna Rosin: What if President Joe Biden had pardoned the January 6 insurrectionists—that is, the 1,500 or so people charged with federal crimes related to the riot?

And yeah. I said Joe Biden, not President-Elect Donald Trump.

This is an idea I’ve heard floated around these past few weeks. And on its face, it sounds illogical. Like, why on earth would the outgoing Democratic president pardon people who damaged property or injured law enforcement officers or plotted to overthrow democracy?

Trump has said many times that he will pardon the J6ers. He said he’ll pardon some of them or most of them, or even consider pardoning all of them, at different times. He’s said he’ll pardon them on his very first day in office, which is just in a few days.

Donald Trump: People that were doing some bad things weren’t prosecuted, and people that didn’t even walk into the building are in jail right now. So we’ll be looking at the whole thing, but I’ll be making major pardons.

Rosin: Right. So why would Biden do that, again?

[Music]

Rosin: I’m Hanna Rosin. This is Radio Atlantic.

The answer to that question requires you to zoom out to different countries and different periods of history to understand the long political traditions that pardons are a part of and what, at their very best, they could accomplish. And it matters who does the pardoning and their motive for doing it.

I myself did a lot of research on the January 6 prosecutions for a podcast series I hosted for The Atlantic called We Live Here Now. And as I was researching, I came across a couple of articles by author and journalist Linda Kinstler that helped me understand these cases and this charged political moment in a new way. Linda is a junior fellow at the Harvard Society of Fellows. She writes about politics and collective memory, and she’s written for many publications, including The Atlantic.

She’s also working on a new book about the idea we’re talking about today, which is: oblivion.

[Music]

Rosin: Linda, welcome to the show.

Linda Kinstler: Thank you for having me.

Rosin: Absolutely. So the J6 prosecutions are, for the most part, unfolding at the federal courthouse in D.C., just a few blocks from where we are now. Linda, you attended some of these cases. I did also. What is your most vivid or lasting impression from these trials?

Kinstler: Oh, wow. I mean, I spent months—I mean, the better part of a year, actually—attending these trials in downtown D.C. And there are so many elements, as you have described, about the courthouse—namely, that it’s right across from the Capitol and overlooks the grounds upon which all of these crimes happened. And there were so many times I was walking through the halls of the courtroom. And some of them had little windows you can peer through, and almost on every single one—there was one day when you could see in the monitors in the courtroom, and you could see that they were all playing January 6 footage.

[Crowd noise from January 6]

Kinstler: You know, different angles. You could hear the sounds of the footage that the prosecuting attorneys had assembled.

[Crowd noise from January 6]

Man: [indistinguishable] We’re trying to make our way through all this.

Kinstler: And you really do get the sense there that in this building, this really pivotal event in history is being litigated and worked through in real time—kind of away from the public eye, even though these are open to anyone who wants to come see them.

[Crowd noise from January 6]

Man: We need to hold the doors of the Capitol.

Rosin: A few of these cases have stuck with Linda, for different reasons. One was the hearing of a member of the Proud Boys: It was the juxtaposition of this violent offender and his young kids, who were playing around on the courthouse benches at his sentencing.

And the other was a woman, a nonviolent offender with no prior record.

Kinstler: She just kind of walked through the building and clearly made horrible, horrible choices that day, as many of them did who were there. And she repented before the judge. And the judge said, I’m choosing to view this as an aberration in your life, as a kind of lapse of judgment. And she cried.

[Crowd noise from January 6]

Man: [indistinguishable] We’ve lost the line. We’ve lost the line. [indistinguishable] Get back.

Rosin: And did you feel—how did you feel in that moment? Did you feel like, Oh, there’s some injustice being done? Or not quite that?

Kinstler: No. I mean, I think this is justice, right? This is actually the levers of justice working. It is absolutely that these people broke the law, and they are being brought to court because they violated public order in different ways, so it is kind of like our ur-definition of justice.

But it’s a different question—and I think this is the one that has kind of been left undealt with in public, is: Okay. This is one version of justice, but this is not a kind of public reckoning with what January 6 was. And the, kind of, how these individual offenders are being treated and punished for what they did is not the same thing as, How is the country going to deal with what January 6 threatened to, kind of, the fabric of democracy? Those are two separate questions, I think.

Rosin: Interesting. So what you’re saying is: There is a legal process unfolding. The courts can do what the courts can do. But what you’re saying is the courts can only do so much.

Kinstler: Correct.

Rosin: Yeah. Okay.

Kinstler: Right. And there’s, in general, been an overreliance, I think, upon the legal process to deal with January 6 for, quote-unquote, “us”—for us, the public—in a way. And I don’t think there has been a broader conversation about what it means in the long haul.

Rosin: Okay. I want to take what you just said and compare it to the public conversation that is happening around these court cases—namely, from Trump, because we’re a few days from him taking office.

Announcer: Ladies and gentlemen, please rise for the horribly and unfairly treated January 6 hostages.

[Recording of “Justice for All” by the J6 Prison Choir]

Rosin: And the way he puts it is that the J6ers were treated unfairly, persecuted by the justice system; they’re hostages. He’s said this in many different ways, with many different degrees of passion throughout the course of his campaign.

Trump: Well, thank you very much. And you see the spirit from the hostages—and that’s what they are, is hostages. They’ve been treated terribly and very unfairly, and you know that.

Rosin: What do you think of that argument, and how does that fit into what you are saying?

Kinstler: Yeah. On the face of it, what they are doing is manipulating historical terminology, right, for their political ends.

Rosin: So you don’t think they were unfairly—your argument is not at all that they were unfairly persecuted.

Kinstler: No, no. I mean, I think that they broke the law, and they should be punished for what they did. I think there’s a genuine argument you could have about which offenders should be facing jail time, but I don’t think that’s the conversation we’re having right now.

But I do think what this question raises is the fact that Trump himself has not been held accountable for what he did on January 6, right? And there were many efforts to do that. And my view of this whole process is that, historically speaking, we’re doing it backwards. Historically, it was the top people in power who oversaw the crime, who would be the first to be held responsible for what they had done.

In this case, we have almost the exact opposite, right? We have the lower-level offenders—the people who are easier to find, the kind of foot soldiers of Trump’s movement—who are being the ones hauled into court. And, obviously, we have seen: The efforts to prosecute Trump himself have sequentially collapsed and now are almost certainly not going to happen.

Rosin: Do you have an example in your head of a time when, historically, it unfolded in the correct way? Like, a way that promotes a sense of fairness and justice?

Kinstler: Yeah. I mean, this is the kind of subject that has fascinated me for many years—is, like: How have societies worked through moments in which you have a population of perpetrators or people who have violated the public order, who nevertheless must remain in the country or the city in some way? How have you dealt with that?

And so in my work, the prototypical example comes from ancient Athens after the reign of the Thirty Tyrants, where you had a population of oligarchs—30 of them—who overtook the city, stripped people of their rights and properties, killed people unjustly, oversaw all of these abuses, and then were deposed by the victorious democrats. After the fact, there was a kind of general amnesty for most of the supporters of the Thirty. But the Thirty Tyrants themselves were made to choose between standing trial and exile from the city.

So in that case, you have this prototype of the people who are responsible having to account for their crimes—verbally and in, you know, a kind of legal system—while the lower level of people were offered a different set of choices.

And, of course, the reason this is so fascinating is because this becomes the blueprint for centuries of leaders after that: if you look at 1660, after the English civil war; it kind of comes after World War II, where there’s this question of, What do we do with Nazi perpetrators? How wide and deep should the justice run? And we know that denazification failed in many ways. So I do think, in our country, we are going through something like this, in a sense.

Rosin: Can we talk about Nazi Germany for a minute? I mean, I realize we always have to be careful when we’re making historical comparisons to Nazi Germany. But you threw out this sentence, Denazification didn’t work. There were, though, a lot of higher Nazi officials who were held accountable. So how can we use what happened in Nazi Germany to inform what you’re saying we have to figure out right now?

Kinstler: Right. So yes, of course. Saying denazification didn’t work is a huge, sweeping claim, and we can argue about that a lot. But what you had there was the Nuremberg trials—of course, what we think of as Nuremberg—did hold the top brass accountable for what they had done. And then you had many, many smaller, sequential trials, both in West Germany and in the former Soviet Union.

But what I often think of—and I want to be careful about making the comparison today, of course—but I have been thinking about this line that the philosopher Judith Shklar said, which was that why denazification failed, in many ways, was because the prosecutors mistook a group of individual offenders for a social movement. So in other words, they thought that by continuing with all these trials that they would squash the kind of violent, virulent sentiment underlying Nazism itself.

Rosin: Which holds some intuitive appeal because you think, I’m holding people accountable. That’s what we’re supposed to do as a society: hold people accountable.

Kinstler: Totally. And it feels good. It appeals to all of our liberal sensibilities about how order and justice are supposed to work.

Rosin: And particularly—you say liberal, because I think right now, we do have this divide where Democrats, or maybe the left, are trusting in institutions, and the right is a lot less trusting in institutions. So Democrats are putting their faith, in this case, in this institution—the court—to go through the paces and do the right thing.

Kinstler: Exactly. We are in a very legalistic society, in that we like to talk about courts and legal cases as solving political problems. And I do think we repeatedly have seen that over the last however many years—about, you know, Oh, maybe the courts will save us from Trumpism writ large. And we have seen, of course, that the legal system is just not capacious enough to do that for many reasons.

Rosin: That’s a really interesting and concise way of looking at it. We have been relying on Jack Smith, the cases against Trump, these January 6 cases, of which there are, you know, 1,500. What’s the gap? What does the legal strategy leave out?

Kinstler: I mean, so much, in that it’s just a legal strategy, right? It doesn’t—and I think I can kind of see this in the almost allergy that people have when talk of pardons comes up, for example, right? There’s this notion that if you pardon someone, you’re letting them off the hook. But that’s not what a pardon does. A pardon confirms the crime.

And I guess I’m saying there is this paucity of a wider understanding of what happened that day because it has become this legalistic football, right? Of, like, Who was standing where? Who was part of the mob? What does it mean to be part of the mob? Who was commanding them? Etcetera, etcetera. You get lost in all these details and all these individual cases. And, of course, this is the role of historians, to say, This is what that event did that day, and this is its lasting impact.

But that’s what I’m saying—that’s the gap, right? The gap is: What is the narrative of this event? How do you protect it from manipulation, particularly when the person who’s about to be inaugurated has been one of its kind of manipulators in chief? And I do think there are answers.

Rosin: Okay. Let’s just ground ourselves in the moment we’re in. (Laughs.)

Kinstler: (Laughs.)

Rosin: Let’s say, on day one, Trump does what he has many times said he’s going to do: pardon the J6ers.

Trump: I’m going to be acting very quickly.

Kristen Welker: Within your first 100 days? First day?

Trump: First day.

Welker: First day?

Trump: Yeah. I’m looking first day.

Welker: And issue these pardons?

Trump: These people have been there—how long is it? Three or four years?

Rosin: Is it possible that it accomplishes any of the goals of putting this to rest? Like, any of the goals of reconciliation?

Kinstler: I mean, reconciliation, I think, is a different question. I think it’s not going to accomplish that. I think the only sense in which it “puts it to rest,” quote-unquote, is that it will, as I said, confirm their crimes, right? A pardon does not erase what people did.

It’s unfortunate, in my view, that Trump will be the one to pardon them, because I do think there was an opportunity for the Democrats to extend a kind of grace towards some of the January 6 offenders—and by no means all of them—if they had been the ones to pardon them.

Rosin: Okay. You said that casually, and there have been a few law professors who floated that idea. It is, on its face, a kind of shocking idea. Like, when you read a headline that says, Should Joe Biden pardon the J6ers? it’s actually kind of hard to get your head around. What do you think of that idea?

Kinstler: Well, I think, first of all, historically, pardons have been almost a routine thing that any new ruler or president has done upon taking office.

Interviewer: Are you glad that you pardoned those people that went to Canada, the draft evaders?

Jimmy Carter: Yes, I am.

Interviewer: Why?

Carter: Well, it was a festering sore and involved tens of thousands of young men.

Rosin: Like, I was reading about Jimmy Carter, who pardoned draft dodgers, and thinking that, like, we can look in retrospect and say they were peaceful, and the January 6ers were violent rioters. But it must have been hurtful to a lot of people whose children, or who they themselves, went to Vietnam, didn’t want to. And it was quite controversial. So to what end does a new president pardon people?

Kinstler: Well, I mean, on the face of it, it’s a gesture of goodwill. But it’s supposed to say, We are all subject to the law, and let’s start on the right foot, etcetera, etcetera.

Rosin: So it sets a national mood.

Kinstler: Yeah.

Rosin: It sets a mood of, I’m the president for all of you. We’re all in this together. And the value of this country is mercy. Mercy is a value.

Kinstler: Yes.

Carter: So after I made my inaugural speech, before I even left the site, I went just inside the door at the national Capitol, and I signed the pardon for those young men. And yes, I think it was the right thing to do. I thought that it was time to get it over with—I think the same attitude that President Ford had in giving Nixon a pardon.

Gerald Ford: We would needlessly be diverted from meeting those challenges if we, as a people, were to remain sharply divided over whether to indict, bring to trial, and punish a former president who is already condemned.

Rosin: I was looking for historical precedent and read about George Washington and the Whiskey Rebellion, because that was a fairly violent rebellion—and it was hundreds of people—and he pardoned some of them. And I was wondering if that was analogous.

Kinstler: Yeah. I mean, I don’t know about the analogy, but it is kind of an instance in which you have a violent community of offenders who nevertheless must remain in the country, right?

Ford: The power has been used sometimes as Alexander Hamilton saw its purposes: “In seasons of insurrection … when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if served [sic] to pass unimproved, it may never be possible afterwards to recall.”

Kinstler: You can’t get rid of all of them. It wasn’t moral forgiveness. It was just a measure that allowed them to remain in the society in a way that wouldn’t cripple the society itself at this moment of extreme fragility.

[Music]

Rosin: So yes, there are presidential pardons. But if we can neither forgive nor forget something, we just may need something else to move forward: an act of oblivion.

That’s after the break.

[Music]

[Break]

Rosin: Linda, you have researched and written about what’s called “an act of oblivion.” Can you lay out the basics of what that is?

Kinstler: Yes. So historically speaking, we see that there were either acts of oblivion, laws of oblivion, or articles of oblivion that appeared in peace treaties or as legislative measures or as kind of kingly edicts that were issued in the aftermath of revolutions, wars, and uprisings. And what they were, essentially, is a kind of resetting of the legal order, where they said—and this is generally happening in the, quote-unquote, “Western world,” but we also see similar measures elsewhere.

But what they would say is: Everything that happened prior to this law—whatever it was, whether hostility, war, killing, theft, etcetera—none of that can be litigated or spoken of, quote, “in public,” which often meant: You can’t bring a lawsuit after this measure is passed.

Rosin: So it’s not actual forgetting. It’s like a public declaration that we shall all forget together.

Kinstler: Right. And in some ways, forgetting isn’t even the right word. And the interesting thing to me is that the word oblivion is the kind of Roman invention that was used to describe it, that Cicero used after the fact, and that was kind of like his spin on it, right? And everyone is telling tales about how to make a democracy work or how to make a state or a kingdom work, right? Not all of these are democracies.

But, yeah, forgetting is, in some ways—it’s not really the correct description of what’s going on. It’s more of a kind of collective agreement about how you’re going to move past something that is fundamentally irreconcilable.

Rosin: Got it. It’s almost a funny word. Like, I’m gonna blast you into oblivion. It’s a very powerful word. I don’t know if it was meant as kind of campy—probably not—by the Romans. (Laughs.) But there is something kind of, like, huge about it, you know?

Kinstler: Yeah. Oblivione sempiterna: “eternal oblivion,” to kind of wash away everything. It’s a totally beguiling word, and it kind of connotes erosion, in English, and erasure. But there’s also, in other languages: in Russian it’s вечное забвение, “eternal oblivion,” right? Eternal forgetting, in a way.

Rosin: So it’s almost so grand and big that it’s not connected to the mundane act of, Oh, I forgot my keys.

Kinstler: (Laughs.)

Rosin: Like, it’s almost so big that it’s on a grand, national scale. Maybe it’s something like that.

Kinstler: Yeah, I mean, like, you’re always rescuing things from oblivion or losing things to oblivion. I mean, it is in a way, right? Because you’re burying something in oblivion. It’s a physical location, right? It’s a noun, oblivion. And so to me, I think of it as, Okay, you’re burying it, but you’re not forgetting where it is, right?

Rosin: Right.

Kinstler: It’s always there.

Rosin: So what’s the difference between what you just described and whitewashing, revisionist history—sort of what we’ve seen happen with January 6 and Trump calling it a “day of love”?

Trump: But that was a day of love from the standpoint of the millions—it’s, like, hundreds of thousands—

Rosin: Like, sort of actively describing it as something it wasn’t. Can you compare those two modes?

Kinstler: Yeah. I would say they’re kind of fundamentally opposite, right? One is constructive, and one is malignant, right? Which is not to say that the two couldn’t be conflated. But for the sake of argument, the oblivions I have been looking at have been kind of, like, ideal types. Obviously, none of these, historically, ever work perfectly, right? It’s more about the idea that people wanted them to work, that there was this desire for reconciliation that would be operative.

And obviously, that’s not what you see at all in the language that Trump has been using and in the way he and his supporters have been framing January 6. Usually, I think, if we were to follow the framework of oblivion, what should have happened was that Biden—upon taking office and kind of restoring liberal order, we could say—would have passed an act of oblivion for the January 6ers that would have mandated that, kind of, Trump and his immediate circle would have to stand trial for their actions that day. And what we have been seeing with the lower-level offenders, that some of them would not have had to explicitly, as a kind of gesture of goodwill.

Rosin: A couple of challenges I can think of to using this approach with January 6: The first, surface one is just the sheer amount of documentation, YouTube videos. Like, what you’re describing—which is a clever act of forgetting or a memory game—I mean, if you’re a prosecutor working in the federal courthouse, this is a gift. You’ve seen these trials. Basically, what you’re doing at these trials is watching videos. Like, some Facebook video that somebody made, saying, Hey. I was at the Capitol. I did this—me. Nobody else did this.

Kinstler: Yeah.

Rosin: Literally, that’s what some of them say because they’re proud in that moment.

[Crowd noise, chanting from January 6]

Man: Whatever it takes. I’ll lay my life down if it takes. Absolutely.

Rosin: And then—I mean, there’s footage from everywhere.

Kinstler: Yeah.

[Crowd noise, overlapping screaming from January 6]

Rosin: So since you are talking about historical examples: What do you do with an era in which everything is über-documented?

Kinstler: Yeah. And it’s actually interesting. I was in a couple of trials where the judge, to the prosecutor, was saying, Listen. I’ve been to so many of these trials. You do not need to establish for me what happened on January 6 writ large. Like, I get it. Can you please fast forward?

But I guess what I’m talking about is not even about, Oh, you know, keep these videos from circulating, or, Don’t talk about what happened. It’s more about: Don’t expect the legal process to achieve something that cannot be achieved through law.

Rosin: Okay. That makes sense. You just have to accept the fact that the footage is everywhere. The footage is—in fact, maybe that makes what you’re saying more urgent. Because I do find, even with myself—like, if I hear a Capitol Police officer on the radio, if I watch that A24 movie that’s a documentary about January 6, it’s, like, right there all over again, and you just have to be, maybe, aware that that’s the age we live in.

Kinstler: Right.

Rosin: Second question I have is: I read your various articles you’ve written about oblivion. And it almost scared me, reading them, only because we live—this is the first era that I’ve lived through, as an adult, where I’ve watched the revising of history happen in real time. I don’t recall a president talking about facts the opposite of what I saw with my own eyes.

It’s a very bad feeling. So in that context, I feel nervous about even entering into a conversation about oblivion, memory games, or anything like that. And I wonder how you’ve squared that.

Kinstler: Oh my gosh, absolutely. This is what fascinates me, precisely because we are in this era of, kind of, historical revisionism, and we have been in for a long time. But the thing about acts of oblivion is that they actually, in my mind, consecrated what happened, right? They protected the historical record. They didn’t literally say, Oh this never happened. And in fact, what you see is that they’re often accompanied by records—like, historical accounts—of what happened, such that an act of oblivion was necessary, right? Like, Okay, actually, what happened here was a civil war or a tyranny or a revolution that totally wiped out the legal order, so we needed to do this extremely drastic thing if we were to reestablish democratic law.

The one that I often point to is: After the Revolutionary War, there were—because you did have the kind of legacy of British law, right—acts of oblivion came to the Americas from the European system. So there you did have, kind of, royalists who were subjected to acts of oblivion. It was individual states passing them over their royalist populations to allow them to remain, even though they had been defeated.

Rosin: So it was essentially an act of mercy saying, The royalists are going to live among us. They’re not going back. And what? How did it define—

Kinstler: It meant that they couldn’t be ostracized, essentially. They couldn’t be perpetually held accountable for what they had done, for everything that they had done against their neighbors, right? And often, it was a kind of very local, proximate question of, like, We’re not going to kick you out unless you want to be kicked out. That kind of thing.

Rosin: So you could imagine that kind of thing would be controversial at first. People would want vengeance. And so in the immediate, it would be difficult to swallow. But then in the long term, it would put things to rest. That’s the idea.

Kinstler: Yeah. And, I mean, there are a lot of failed oblivions. After the Civil War, a lot of the Southern states were, quote-unquote, “crying for an act of oblivion.” And it was a term that was circulating in the papers. And there’s this amazing quote from Frederick Douglass, who said, you know, I look in Congress, and I see the solid South enthroned, and the minute that that is not the case, we will join you in calling for an act of oblivion, but as long as they have not been held accountable, we cannot support this.

Rosin: Okay. So let’s move to the current moment. If you were King Linda—

Kinstler: (Laughs.)

Rosin: So is what you would want an act of oblivion around January 6?

Kinstler: No. No. Because I would never be so bold as to say that. But I do think it’s a useful political concept. I think that there was a missed opportunity during the Biden administration to do something concerted—that wasn’t just the Jack Smith investigation—about it. I think there could have been something really meaningful done.

Rosin: Okay. So you’re not going all the way to saying, you know, an act of oblivion. But you’ve started to eke at little things. Like, what do you mean by Biden could have? I mean, we’re in the very, very last days of the Biden administration. But if he had pardoned some of the low-level offenders, would that have been in the spirit of oblivion?

Kinstler: Yeah. I think that would have been a really potentially transformative thing to do, because it would not have done anything to jeopardize the record of what occurred that day or what it meant to participate in it.

But we are going to move beyond it, and I think we will see the narrative of January 6 begin to settle in some way, right? And as always happens, the conspiracies about it will become part of the narrative of how this is told, right—not in a kind of whitewashing way, but just in, like, it shows how volatile it is and how manipulable.

And I think there’s been this debate about how to memorialize that day, whether it’s through a physical memorial, a memorial to the Capitol officers who died, or to anyone who died that day. I think those are the questions that we haven’t kind of figured out, really.

Rosin: I see. So there is a potential that, even though we’re not figuring them out now, they’ll be figured out in a sideways way through questions down the road—like, questions about how we will ultimately remember that day—not necessarily how we’ll remember it in this charged political moment, but how we’ll remember it 10, 20 years from now.

Kinstler: Yeah. I mean, I was at the Capitol for the year anniversary of January 6 and watched all the ceremonies from the press gallery. And it just struck me how it was almost like a kind of nothing. You know, like how it was—

Rosin: What do you mean?

Kinstler: It was just so quiet, somber, of course. But there was no fan—you didn’t get the sense of the enormity of the event that was being consecrated, right? And it was almost like—and understandable because it was so close and so terrifying—there was this sense that we haven’t figured this out yet.

William Hungate: The Subcommittee on Criminal Justice of the House Committee on the Judiciary today welcomes the president of the United States, Gerald R. Ford.

Ford: As a people, we have a long record of forgiving even those who have been our country’s most destructive foes. Yet to forgive is not to forget the lessons of evil and whatever ways evil has operated against us.

[Music]

Rosin: This episode of Radio Atlantic was produced by Jinae West and edited by Claudine Ebeid. It was engineered by Rob Smierciak and fact-checked by Sara Krolewski. Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor.

I’m Hanna Rosin. Thanks for listening.

Just after noon next Monday, Donald Trump will take an oath to preserve, protect, and defend the Constitution, despite having, four years before, “engaged in an unprecedented criminal effort to overturn the legitimate results of the election in order to retain power.”

That is the conclusion of former Special Counsel Jack Smith’s investigation into Trump’s effort to interfere with the lawful transfer of power following the 2020 presidential election. Smith also found that Trump encouraged “violence against his perceived opponents” from Election Day 2020 to January 6, 2021, when a mob of Trump supporters stormed the Capitol, injuring more than 140 police officers.

The evidence amassed by Smith against Trump is overwhelming; any disinterested reader of the 137-page report will understand why Smith concluded that “but for Mr. Trump’s election and imminent return to the presidency … the admissible evidence was sufficient to obtain and sustain a conviction at trial.” (Justice Department policy prohibits the prosecution of sitting presidents.)

But the fact that the incoming president was indicted on charges that constitute the most serious attack by a chief executive against American democracy in our history may not be the most notable thing about this story. The most notable thing is that, already, more Americans seem to be discussing the Los Angeles fires, Babygirl, and Pete Hegseth’s nomination to be secretary of defense than Smith’s report. Within a matter of days, the report, which very few people will read, will be more or less forgotten.

[Read: Trump’s sentencing made no one happy]

I understand why. The central role Trump played in the effort to violently overturn the election has been known for four years, so the core findings of the special counsel’s report are hardly news. In addition, much of the public has been worn down by the relentless intensity of the Trump era. MAGA world may draw energy and meaning from incessant conflict; the rest of us do not. After a particularly crude and ugly campaign, most people want to take a break from politics, including those whose vocation is politics.

Nor are most Americans, including fierce Trump critics, particularly interested in relitigating the past. Trump was a known commodity to voters; his maliciousness and corrupt character were on display virtually every day. And yet, Trump won the popular vote—the first Republican to do so in two decades—and he easily won the Electoral College. Trump’s ethic represents the American ethic, at least for now.

It will be impossible for Americans to escape Trump over the next four years, but few of us want him to occupy more mental and emotional space than necessary. And to the degree that we do focus on him, it should be more on what he does and less on what he’s done. In the meantime, there are countless things worthy of our attention and our affections, things that are beautiful and fun and edifying.

[Read: The cases against Trump: a guide]

“How small, of all that human hearts endure,” Samuel Johnson wrote, “That part which laws or kings can cause or cure. / Still to ourselves in every place consign’d, / Our own felicity we make or find.”

And still. Politics matters “because of its capacity, when benign, to allow all around it to flourish, and its capacity, when malignant, to make all around it wither,” the columnist Charles Krauthammer wrote. He added that “the task of merely maintaining strong and sturdy the structures of a constitutional order is unending, the continuing and ceaseless work of every generation.”

What Jack Smith’s report shows, for those who have eyes to see and ears to hear, is that the structures of our constitutional order were under assault by a man who is about to become president for a second time. A convicted felon, Trump called the attack on the Capitol “a day of love.” He leveraged the attack to his political advantage. He said that those in Congress who’d investigated his crimes should “go to jail.” He has promised to pardon rioters—calling them “hostages” and “unbelievable patriots”—within the first hour of his second term. And very few people seem to care anymore. Since his victory two months ago, we are witnessing an almost across-the-board capitulation to Trump, in one institution after another. Broken people approach the throne on bended knee.

[Read: The GOP completes its surrender]

In his 1993 essay, “Defining Deviancy Down,” Senator Daniel Patrick Moynihan warned about the tendency of societies to respond to destructive and aberrant behavior by lowering their standards. Crimes that at one time would have shocked the nation were barely noticed at another. “We are,” Moynihan wrote, “getting used to a lot of behavior that is not good for us.”

That includes returning to power a president who “resorted to a series of criminal efforts to retain power,” in the words of the special counsel’s report. The fact that Americans are bored by this is a sign of weariness. But beware: Indifference to truth and honor and the rule of law has a way of catching up with a country.

This is an edition of The Atlantic Daily, a newsletter that guides you through the biggest stories of the day, helps you discover new ideas, and recommends the best in culture. Sign up for it here.

Over the past several months, bird-flu numbers have been steadily ticking up, especially among farmworkers who interact closely with cows. I spoke with my colleague Katherine J. Wu, who reports on science, about her level of concern right now, and the government’s response to the spread of the virus so far.

Lora Kelley: We last spoke in April, after a dairy worker became infected with bird flu. At the time, you described your level of concern about bird flu as “medium.” How would you describe your level of worry now?

Katherine J. Wu: At this point, I would upgrade it to “medium-plus.” I don’t think I will upgrade to “high” unless we start to see strong evidence of human-to-human transmission. I am not ruling out that possibility, but we aren’t there yet.

The situation has gotten quite a bit worse since last spring. We are seeing consistent infection of dairy workers, meaning an especially vulnerable population is exposed in their work environment. Each time the virus infects a new person, it’s an opportunity for it to evolve into something that could eventually become a pathogen that moves easily from person to person.

Lora: What could public-health officials have done differently in recent months to contain the outbreak?

Katherine: Part of the reason I feel concerned is the government’s lackluster response. The movement of the virus into cows was a huge red flag. Cows have never been a known source of this flu, so that was a complete surprise. That should have been a moment when officials said: We really need to contain this before it gets out of control. If some of the first afflicted herds had been kept from moving around, or even culled, it’s possible that the virus might have been contained before dairy workers got sick.

The USDA has ramped up its testing of milk, and the CDC is still working hard to do outreach to farmworkers, who are the population most at risk here. But there could still be more testing at the individual level—individual animals, individual people. There could be more frequent, aggressive sampling of where the virus is in the environment, as well as on farms.

Representatives at USDA and CDC have denied that their response has been inadequate—though independent experts I have spoken with dispute that. To be clear, officials can’t fully predict the future and stop an outbreak the second it starts to get bad, and critics aren’t demanding that. But right now, it’s still a very reactive approach: We see that the virus has been here; I guess we can keep checking if it’s there. But a more proactive approach with testing and better communication with the public would really help.

Lora: How has the government’s response to bird flu compared with its response to COVID?

Katherine: There’s no doubt that having COVID in the rearview affected the government’s response. I think they didn’t want to overreact and cause widespread panic when there wasn’t a need. That’s fair, but there’s a middle ground that I think they missed.

The response to COVID was by definition going to be haphazard, because we didn’t have a preexisting arsenal of tests, vaccines, and antivirals. We hadn’t dealt with a coronavirus like that in recent memory. Here, though, there is a slate of tools available. We’ve dealt with big flu outbreaks. We know what flu can do. We know that flu, in general, can move from animals into humans. We’ve seen this particular virus actually move into people in different contexts across the world.

Lora: Have we missed the opportunity to mitigate the spread of bird flu?

Katherine: Because there has not yet been evidence of sustained human-to-human transmission, there is still time to intervene. Did officials miss some opportunities to intervene more and earlier? Yes. But that doesn’t mean that from here the attitude should be I guess we should just let this roll.

Lora: We may have RFK Jr., a vaccine skeptic, leading the Department of Health and Human Services soon. How might his leadership affect the bird-flu response?

Katherine: I don’t think there is a need to roll out bird-flu vaccines to the general public yet. But I think there are likely to be major changes to public-health policy in this country. RFK Jr. has specifically said that the National Institutes of Health will be taking a break from focusing on infectious disease for the next few years, and that doesn’t bode terribly well. Infectious diseases are not going to take a break from us.

Lora: Are there lessons from the COVID era that the public should better absorb in order to deal with illness more broadly?

Katherine: To be fair, it’s hard to avoid getting sick in general, especially at this time of year. During the worst of the pandemic, when people were still masking more consistently and not going into public places, we did get sick a lot less often because we were avoiding each other.

That said, I think people did forget very, very quickly that the things that worked against COVID work well against a lot of other diseases, especially other respiratory viruses. I am not saying that we all need to go back to masking 24/7 and never going to school or work in person. But maybe don’t go to work when you’re sick—a practice that all employers should enable. Maybe don't send your child to day care sick. Maybe don’t sneeze into your hand and then rub your hand all over the subway railing. Wash your hands a lot.

Unfortunately, there is this tendency for a really binary response of doing everything or nothing. Right now, people seem to be leaning toward doing nothing, because they are fatigued from what they felt like was an era of doing everything. But there’s a middle ground here too.

Related:

Bird flu is a national embarrassment. America’s infectious-disease barometer is off. (From April)

Here are four new stories from The Atlantic:

MAGA’s demon-haunted world How Trump made Biden’s Gaza peace plan happen David Frum: Justin Trudeau’s performative self-regard The one Trump pick Democrats actually like

Today’s News

Israel and Hamas have agreed to a 42-day cease-fire deal that will include an exchange of hostages and prisoners, President Joe Biden announced. Senate confirmation hearings were held for multiple Trump-administration nominees, including Pam Bondi for attorney general and Marco Rubio for secretary of state. During Bondi’s testimony, she refused to say that President-Elect Donald Trump lost the 2020 election. South Korea’s impeached president, Yoon Suk Yeol, was detained and questioned last night over his attempt to impose martial law last month.

Evening Read

Illustration by The Atlantic. Source: Getty.

The Hipster Grifter Peaked Too Soon

By Sophie Gilbert

In the spring of 2009, Vice published a blog post, notorious even by its own standards, titled “Department of Oopsies!—We Hired a Grifter.” An employee had started chatting with the magazine’s new executive assistant, Kari Ferrell; after she reportedly began coming on to him over instant messages, he Googled her, only to find out that she was on the Salt Lake City Police Department’s most-wanted list. Instead of simply firing Ferrell, Vice outed her online.

Read the full article.

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No more Mr. Tough Guy on China No one will remember Jack Smith's report, Peter Wehner writes. What happens when a plastic city burns What is L.A. without its trails? Aspiring parents have a new DNA test to obsess over.

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Test out. Here are 10 practical ways to improve your happiness, according to happiness expert Arthur C. Brooks.

Read. Kindness has become countercultural, James Parker writes. Perhaps Saint Francis can help.

Play our daily crossword.

Stephanie Bai contributed to this newsletter.

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Not long after Secretary of Defense nominee Pete Hegseth read his opening statement and began fielding questions from the Senate Armed Services Committee, I began thinking: I hope neither America’s allies nor its enemies are watching this. The hope was, of course, completely unreasonable. Such hearings are watched closely by friends and foes alike, in order to take the measure of a nominee who might lead the most powerful military in the world and would be a close adviser to the president of the United States.

What America and the world saw today was not a serious examination of a serious man. Instead, Republicans on the committee showed that they would rather elevate an unqualified and unfit nominee to a position of immense responsibility than cross Donald Trump, Elon Musk, or the most ardent Republican voters in their home states. America’s allies should be deeply concerned; America’s enemies, meanwhile, are almost certainly laughing in amazement at their unexpected good fortune.

Most of the GOP senators asked questions that had little to do with the defense of the United States and everything to do with the peculiar obsessions that dominate the alternative reality of right-wing television and talk radio, especially the bane of “wokeness.” Perhaps that was just as well for Hegseth, because the few moments where anything of substance came up did not go well for him. When Senator Deb Fischer of Nebraska, for example, tried early on to draw Hegseth out with some basic questions about nuclear weapons, he was lost. He tried to fumble his way around to an answer that included harnessing the creativity of Silicon Valley to innovate a future nuclear force … or something.

On many other questions, including adherence to the Geneva Conventions, the role of the military in domestic policing, and the obligation to disobey illegal orders, Hegseth fudged and improvised. He seemed aware that he had to avoid sounding extreme while still playing for the only audience that really matters: 50 Republican senators and one former and future president of the United States. His evasions were not particularly clever, but they didn’t need to be. He was clear that his two priorities as secretary will be to lead a culture war within the Pentagon, and to do whatever Trump tells him to do.

If America’s friends and adversaries saw an insubstantial man in front of the committee, they also saw Republicans—members of what once advertised itself as the party of national security—acting with a complete lack of gravity and purpose. Few Republicans, aside from Fischer and a rather businesslike Senator Joni Ernst of Iowa, asked Hegseth anything meaningful about policy. Ernst extracted a promise from Hegseth to appoint a senior official to be in charge of sexual-assault prevention, but most of her colleagues resorted to the usual buzzwords about DEI and cultural Marxism while throwing Hegseth softballs. (Senator Eric Schmitt of Missouri also managed to mention drag queens, but the trophy for most cringe-inducing moment goes to Senator Tim Sheehy of Montana, who asked Hegseth how many genders there are. When Hegseth said “two,” Sheehy said: “I know that well. I’m a she-he.” Get it? Sheehy? She-he? He’s here all week, folks; tip your waiters.)

And speaking of buzzwords, most of Hegseth’s answers relied on his vow to support “the warfighters” and their “lethality,” two words that have been floating around the Pentagon—as things full of helium will do—for years. Hegseth, to his credit, has learned how to speak fluent Pentagon-ese, the content-free language in which the stakeholders help the warfighters leverage their assets to increase their lethality. (I taught military officers for years at the Naval War College. I can write this kind of Newspeak at will.) As Senator Richard Blumenthal of Connecticut noted, Hegseth might not be qualified to be secretary of defense, but he could squeak by as a Pentagon spokesperson.

Some Democrats highlighted that Hegseth has never run anything of any significant size, and that his record even in smaller organizations hasn’t been particularly impressive. Senator Gary Peters of Michigan pointed out that no board of directors would hire Hegseth as the CEO even of a medium-size company. Other Democrats drilled Hegseth on his personal behavior, including accusations (which he has denied) that he has engaged in sexual assault and alcohol abuse. At one point, Senator Mark Kelly of Arizona listed specific incidents, asking Hegseth to confirm or deny them. Each time, Hegseth responded only by saying “anonymous smears,” which he seems to think is like invoking the Fifth Amendment. Hegseth also said he wasn’t perfect, and that he’s been redeemed by his faith in Jesus Christ, whose name came up more often than one might expect during a hearing related to national security.

Senator Tammy Duckworth of Illinois, an Army veteran who was wounded during her service in Iraq, brought out a large poster of the Soldier’s Creed, emphasizing the insistence on standards and integrity embodied in it. She asked Hegseth how the Defense Department could still demand that service members train and serve at such high standards if the Senate lowered the bar for leading the Pentagon just for him. After she quizzed him on various matters and Hegseth again floundered, she put it simply and directly: “You’re not qualified, Mr. Hegseth.”

Not that any of it mattered to the Republicans on the committee, some of whom took great offense at questions about Hegseth’s character. Senator Markwayne Mullin of Oklahoma tried to turn the tables on his colleagues by asking how many of them had ever voted while drunk or cheated on their spouses, as if that somehow obviated any further fussing about whether a possible secretary of defense was an adulterer or struggles with substance abuse.

Unfortunately for Mullin, he doesn’t know his Senate history, so Senator Jack Reed of Rhode Island, the ranking member, helpfully spelled it out for him: If any member of the Senate were nominated to such a position, Reed said, they too would have to answer such questions. And then he added that the late Senator John Tower was in 1989 rejected for the same job Hegseth wants—over accusations of a drinking problem.

Throughout this all, I tried to imagine the reaction in Moscow or Beijing, where senior defense-ministry officials were almost certainly watching Hegseth stumble his way through this hearing. They learned today that their incoming opponent apparently has few thoughts about foreign enemies, but plenty of concerns about the people Trump calls “the enemy from within.” The MAGA Republicans, for their part, seem eager only for Hegseth to get in there and tear up the Pentagon.

After today, I suspect America’s enemies are happily awaiting the same thing.

Related:

Pete Hegseth declines to answer. The perverse logic of Trump’s nomination circus

Here are three new stories from The Atlantic:

Jack Smith gives up, David Frum writes. How Los Angeles must rebuild A secret way to fight off stomach bugs

Today’s News

Israel and Hamas are “on the brink” of accepting an agreement for a cease-fire in Gaza and the exchange of some hostages and prisoners, according to U.S. Secretary of State Antony Blinken. Former Special Counsel Jack Smith’s final report on Donald Trump’s effort to overturn the 2020 presidential election was released last night. The Biden administration announced that Cuba will be removed from the state-sponsor-of-terrorism list, which would help clear the way for the release of some political prisoners.

Evening Read

Illustration by Federico Tramonte

They Stole Yogi Berra’s World Series Rings. Then They Did Something Really Crazy.

By Ariel Sabar

On a Wednesday morning in October 2014, in a garage in the woods of Pennsylvania, Tommy Trotta tried on some new jewelry: a set of rings belonging to the baseball great Yogi Berra. Each hunk of gold bore a half-carat diamond and the words “New York Yankees World Champions.”

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Special Counsel Jack Smith’s report into his investigation of Donald Trump’s 2020 election subversion is an atlas of roads not taken—one to a land where Trump never tried to overturn the election, another where the Justice Department moved more quickly to charge him, and another where the Supreme Court didn’t delay the case into obsolescence.

One of the most beguiling untrod paths is the one where Smith charged Trump with insurrection against the United States. The nation watched Trump try to overturn the election, first through spurious lawsuits and then by instigating a violent riot on January 6, 2021, in a vain attempt to prevent the certification of President Joe Biden’s victory. A conviction for insurrection would have prevented Trump from returning to office, but when Smith indicted Trump in August 2023, he didn’t charge him with insurrection.

Smith’s report, which was released early this morning, finally explains why. In doing so, it shows how the United States legal system is and was unprepared for a figure like Trump. The framers of the law simply didn’t contemplate a sitting president trying to use the vast powers of the federal government to reverse the outcome of an election.

[Read: The cases against Trump—a guide]

Most of the report, which runs to about 150 pages, focuses on the crimes that Smith did charge, the evidence behind them, and why he believes he would have convicted Trump if he’d had a chance to try them. Instead, Smith moved to dismiss the charges in November after Trump won reelection, citing Justice Department rules that bar the prosecution of a sitting president. Even if he had not done so, Trump had vowed to fire Smith and close the case immediately upon taking office. (Smith also dropped charges in another case related to Trump’s hoarding of classified documents at Mar-a-Lago. His report on that case was not released, because charges are still pending against Trump’s erstwhile co-defendants.)

Though the material included is damning, it’s also mostly known. News reports, the House January 6 committee, and Smith’s initial and superseding indictments had already laid out how Trump tried to steal an election that he knew he had lost—first by filing bogus lawsuits and pressuring state officials; then by attempting to corrupt the Justice Department; next by trying to convince Vice President Mike Pence to reject electoral votes; and finally by instigating his followers to attack the Capitol. The evidence is no less conclusive or horrifying for its familiarity.

The insurrection-charges discussion, however, is new. It shows that Smith did seriously consider whether the law applied but concluded he would struggle to convict Trump under it—not because what happened was not an insurrection, but because the laws were written too narrowly, such that although Trump appears to have violated the spirit of the law, he may not have broken its letter. (Smith writes that no one has been charged with violating the law in question for more than a century.)

[Quinta Jurecic: Trump secures his get-out-of-jail-free card]

A conviction of insurrection would have been far more consequential than convictions on the charges of conspiracy to defraud the United States, obstruction and conspiracy to obstruct, and conspiracy against rights, which Smith did bring. Felons are entitled to hold federal office—as Trump will prove on January 20—but the law stipulates that anyone convicted of insurrection or rebellion “shall be incapable of holding any office under the United States.”

But Smith saw several challenges to bringing charges under the law. First, he would have had to prove that what happened on January 6 was an insurrection. As he notes, multiple courts have described the events as an “insurrection.” Smith “recognized why courts described the attack on the Capitol as an ‘insurrection,’” but was still worried about establishing this fact under such an obscure and little-used law. He considered past cases, but they didn’t offer any guidance on what the legal standard for an insurrection is, or how it is different from a riot.

He also found that case law tended to treat insurrection as an attack against a sitting government, rather than an attempt to remain in power—an autogolpe, in political-science terms.

[Read: The paperwork coup]

“The Office [of Special Counsel] did not find any case in which a criminal defendant was charged with insurrection for acting within the government to maintain power, as opposed to overthrowing it or thwarting it from the outside,” Smith writes. “Applying Section 2383 in this way would have been a first, which further weighed against charging it, given the other available charges, even if there were reasonable arguments that it might apply.”

Smith faced yet another complication. Trump cleverly instigated his followers to attack the Capitol, and suggested that he was coming with them, but he instead returned to the White House and watched the chaos unfold on TV, rather than take part. (As The Atlantic’s editor in chief, Jeffrey Goldberg, has written, Trump often uses this mafia-boss tactic of encouraging his minions to act without ever explicitly implicating himself.)

What about inciting an insurrection? Smith saw reasonable arguments that Trump’s actions met even the high legal bar the Supreme Court has set for incitement—“the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay”—but Smith didn’t have any direct evidence of Trump saying the full scope of violence was his goal, so he worried that bringing charges against Trump for inciting an insurrection would be risky.

[David A. Graham: Trump gets away with it]

Besides, Smith couldn’t find any examples of prosecutions where a defendant was charged who didn’t actively participate in the act. “There does not appear to have ever been a prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or insurrection,” he wrote. “Thus, however strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would also have been a first.”

This led Smith to conclude that, given the other charges, “pursuing an incitement to insurrection charge was unnecessary.”

But necessity is in the eye of the beholder, and lawyers can only see so much. Smith’s decision is understandable but shows why criminal law was always an unreliable method for holding Trump to account. Smith’s remit was to hold Trump accountable to the law, a relatively narrow task. And although the Justice Department ought to have moved faster—Smith was appointed to take on the case only in November 2022 and then acted with speed—the more consequential error was the Senate’s failure to convict Trump at his impeachment trial in February 2021.

[Jeffrey Goldberg: Donald Trump’s Mafia mind-set]

As Smith writes in a different context in his report, impeachment has a different aim than prosecution. “When Congress decides whether a President should be impeached and convicted, that process does not depend on rigorously adjudicating facts and applying law, or on finding a criminal violation. Instead, the impeachment process is, by design, an inherently political remedy for the dangers to governance posed by an office holder who has committed ‘Treason, Bribery, or other high Crimes and Misdemeanors.’”

But some Republican senators, led by Minority Leader Mitch McConnell, believed that voters were so irate about the January 6 attacks that Trump was a spent force. As a result, these senators didn’t need to risk the ire of his supporters by voting to convict Trump. The Senate voted 57–43 to convict, short of the two-thirds majority required to convict Trump and then bar him from future office.

Two years later, some legal scholars tried to make the case that Trump had committed an insurrection and broken his oath of office under the Fourteenth Amendment. But courts ruled that only Congress could make such a determination, which was politically never going to happen. Only political processes—voters’ choices and impeachment—could have definitively prevented a second Trump presidency.

Special Counsel Jack Smith says Trump would have been convicted if he hadn't been elected.