One of the few fresh governing concepts to emerge from the Trump White House was the realization that many rules are really just suggestions. If you don’t follow them, you might get tut-tutted, and a court might eventually force your hand, but a lot of the time you just get away with it. This is a powerful and dangerous insight, and unfortunately the Biden White House has not completely shunned it.

A perfect example of this dynamic involves the Hatch Act, which bans federal employees from being involved in electoral politics in certain circumstances. Usually, a federal employee who violates the law can be punished by the Office of Special Counsel, an agency whose job it is to enforce this particular law. But when it is White House officials who break the law, OSC’s only recourse is to recommend a consequence to the president. The Trump administration blithely flouted the law, refusing to follow OSC’s rulings. Now the Biden administration seems to be doing the same, reacting to one OSC opinion (a very silly one, but still) by simply refusing to heed it.

The path here was blazed by Kellyanne Conway, a top adviser to Donald Trump, who OSC determined had repeatedly and brazenly violated the Hatch Act by making comments directly aimed at boosting Trump’s and other Republicans’ campaigns. Trump refused to take action, so Conway kept it up. The OSC chief, Henry Kerner, a Trump appointee, was aghast, telling NPR he was “unaware of any multiple offenders on that level.” To call Conway unrepentant would be understatement. “If you’re trying to silence me through the Hatch Act, it’s not going to work,” she smirked. “Let me know when the jail sentence starts.”

[Kate Shaw: The reactions that reveal everything about Trump vs. Biden]

Now Joe Biden’s press operation seems to be taking the same tack. Press Secretary Karine Jean-Pierre has often used MAGA as a pejorative term, and Protect the Public’s Trust, a watchdog group run by a Trump-administration appointee, complained to OSC last year, writing that her comments “appear to be political in nature, seeking the defeat of her political opponents in the Republican party.”

OSC replied this month, concluding that Jean-Pierre did in fact violate the Hatch Act: “The timing, frequency, and content of Ms. Jean‐Pierre’s references to ‘MAGA Republicans’ established that she made those references to generate opposition to Republican candidates. Accordingly, making the references constituted political activity.” But OSC recommended no discipline, noting that the White House Counsel’s Office had believed that the reference was acceptable. OSC also issued a memo on the term:

MAGA remains the campaign slogan of a current candidate for partisan political office, and therefore, its use constitutes political activity. This is true regardless of whether the slogan is used positively or negatively to describe—e.g., MAGA officials, MAGA Republicans, MAGA policies, or MAGA Members of Congress. Accordingly, federal employees should not use “MAGA” or “Make America Great Again” while on duty, in the workplace, or when acting in their official capacity, including communicating through social media, email, or on government websites.

This ruling should appear absurd to anyone who has a glancing familiarity with contemporary politics. Although OSC is correct that “MAGA” is an active slogan, it has long since become a more nebulous descriptor that applies to a movement or strain in conservatism—one that government officials could easily have non-electoral reasons to refer to. Candidates who are not Donald Trump refer to themselves as “MAGA”; in casual discourse and in straightforward news articles, the term is a simple and easily understood shorthand for an ideology.

In one study of southern voters, political scientists asked participants to group themselves as “Traditional Republican,” “America First Republican,” or “MAGA,” labels that respondents had no trouble grasping. “People don’t put on the MAGA label like a pair of pants—it’s an identity that some people have more of and some people have less of,” one of the authors, the Western Carolina University professor Chris Cooper, told Poynter last year. As Jean-Pierre noted at a briefing, “Congressional Republicans have also used ‘MAGA’ to refer to policies and official agenda frequently, for years now—even, clearly, before we entered the administration.” OSC also assented to officials’ use of “MAGAnomics” during the Trump administration.

Regardless of its merits, OSC’s ruling is inconvenient for the White House, which has made a strategic decision to define itself against the MAGA movement and thus wants to be able to refer to it. And so the administration has apparently just decided to disregard it. As Axios reports, the press office continues to use “MAGA” even after the ruling. (The White House did not respond to a request for comment.)

[David A. Graham: Justice comes for Hunter Biden]

Progressives sometimes complain that the Democratic Party is unwilling to engage in what I’ve called “total politics”—the practice of stretching the law as far as it will go—leaving it as a wimpy counterpart to a Republican Party that is eager to charge through guardrails. In some situations, a muscular approach may be beneficial and even justified. But this is not one of those instances. Democrats by and large understood why ignoring Hatch Act rulings was bad during the Trump administration, when they lined up to criticize Conway’s lawlessness. Now that we have a Democratic president, the caucus has been muted. I asked Representative Dan Goldman, a New York Democrat who earlier this year sponsored an unsuccessful “Kellyanne Conway Amendment” to make violations of the Hatch Act a felony, for his view on the White House’s decision, but his office didn’t reply.

The impulse to just ignore the ruling is understandable—the ruling is, after all, nonsensical—but the proper functioning of government requires that the White House follow OSC’s opinions whether they’re sensible or not. You don’t need a lot of imagination to see why it’s dangerous for an administration to decide whether it agrees with a conclusion before it decides whether to abide by it, or how such a precedent could expand beyond the marshy and unenforceable realm of Hatch Act violations. That’s the kind of lawlessness that voters rejected in 2020. If nothing else, the Biden administration’s thumbing its nose does inadvertently prove its own point: Trump doesn’t have exclusive dominion over MAGA tactics.

Trump’s falsehoods about the federal case against him threaten to undermine public confidence in law enforcement — just as his lies about the 2020 election ...

Donald Trump’s media company, Trump Media & Technology Group (TMTG), the parent company of the right-wing social media app Truth Social, has long had designs on going public. The plan: merge with a blank-check corporation called Digital World Acquisition Company (DWAC). But the deal has been delayed for years awaiting…

Read more...

Trump remains the clear favourite for the 2024 nomination, but many fear he could lose to Joe Biden.

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The Supreme Court released a somewhat surprising—and pretty important—decision yesterday. Should it change the way we think about the Court? Before we get into it, here are three new stories from The Atlantic:

The comic strip that explains the evolution of American parenting The new Republican litmus test is very dangerous. Stop firing your friends.

Conservative, Not MAGA

It’s good to be back at The Daily! I spent a lot of time last year writing about candidates trafficking in election denial. Looming above all of my coverage was a case at the Supreme Court that would determine the future of election law and, by extension, American democracy. That case, Moore v. Harper, was decided yesterday. I talked with my colleague Russell Berman, a staff writer on our Politics team, about what the decision means, and whether it shifts the dominant narrative about the Roberts Court.

Elaine Godfrey: Russell! I’m so glad we get to talk about this. Yesterday was a big SCOTUS day. In a 6–3 vote, the Court rejected the independent state legislature theory in a case called Moore v. Harper. What is that theory—and why were people so anxious about it?

Russell Berman: The theory basically interprets the Constitution as giving near-total authority over elections to state legislatures, over and above state courts, election administrators, secretaries of state, and even governors. What this means in practice is that because Republicans have overwhelming majorities in many of the closest presidential swing states, including Wisconsin, Georgia, and North Carolina, the adoption of this theory by the Supreme Court would have allowed GOP lawmakers in those states to overrule or simply ignore election decisions they didn’t agree with.

Democrats believed that Republicans would then have used that power to overturn close elections in 2024, just like former President Donald Trump tried to get his allies to do in 2020.

Elaine: Thanks to Trump, there were all kinds of Republicans denying the outcome of the 2020 election, as well as sowing doubt ahead of the midterms. A lot of those candidates lost in the midterms, though, including Kari Lake in Arizona. Is this SCOTUS decision the final coda on the election-denial fight? Are we finally done with that stuff now?

Russell: Not so fast, Elaine. As Rick Hasen points out at Slate, the Supreme Court’s decision doesn’t totally quash the opportunity for election-related shenanigans in the courts. Although the Court declined to give state legislatures unfettered power over elections, it simultaneously warned state courts that federal courts—including the Supreme Court—could still overrule them on cases involving federal elections. That’s what happened in Bush v. Gore, when a conservative majority on the Supreme Court essentially decided the 2000 election in favor of George W. Bush. And let’s say that in 2024, the Democratic-controlled state supreme court in Pennsylvania issues a ruling on a big election case in favor of Joe Biden. The Court’s decision today served as a reminder that its members could still have the final say.

Elaine: Two Trump-appointed justices, Brett Kavanaugh and Amy Coney Barrett, joined three liberal justices in the majority decision in this case. That felt surprising to me. Was it to you?

Russell: Not entirely. Although both Kavanaugh and Barrett joined the majority overruling Roe v. Wade in the Dobbs abortion decision last year, they have not always joined what is now the Court’s far-right wing in election cases: Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, who all dissented from yesterday’s decision. Kavanaugh voted with the majority earlier this month in upholding a key part of the Voting Rights Act, while Barrett joined the dissent.

Elaine: So what does this mean for our understanding of the Court at this moment? Is it more liberal-leaning than Dobbs might have suggested?

Russell: It’s a stretch to call it more liberal. But these decisions suggest that there is a limit to the Court’s rightward shift of the past several years. Chief Justice Roberts in particular continues to resist efforts to upend decades of judicial precedent, and he has had some success in persuading newer justices like Kavanaugh and Barrett to join him. If anything, the Court’s decisions over the past few years suggest it’s conservative but not MAGA. Its ruling in Dobbs was a victory for conservatives, but Trump’s own commitment to the anti-abortion cause has wavered. And in addition to this state-legislature ruling, the Court ruled against Trump several times toward the end of his presidency—and, of course, rejected him in his Hail Mary bid to overturn his defeat in 2020.

Elaine: So you’re saying that Democrats shouldn’t start buying those celebrity prayer candles with Roberts’s face on them?

Russell: Only if they also start buying candles with Mitch McConnell’s face on them. Roberts is playing a role similar to the one McConnell has played in the Senate over the past few years. Roberts either wrote or joined several opinions that have been devastating to liberal causes. He’s helped to eviscerate Section 4 of the Voting Rights Act, dramatically expand the scope of the Second Amendment, and limit Congress’s ability to enact campaign-finance regulations. But he’s obviously attuned to public attitudes toward the Court and to that end has tried, with limited success, to restrain the most aggressive impulses of his more ideological colleagues.

Elaine: There are a few other really important cases coming down the pike, including one about college affirmative-action programs and another related to President Joe Biden canceling student debt. If there’s a limit to the Court’s rightward shift, does that tell us anything about how these cases will go? Should progressives plan to be happy?

Russell: Probably not. If the pattern of recent years holds, the relief that progressives are experiencing following their victories in this case and in the voting-rights decision will give way to more anger and disappointment when the Court releases its final opinions of the term. Most legal observers expect the Court to deal a fatal blow to affirmative action after a series of decisions that limited its use in college admissions. And they also believe the Court will rule against President Joe Biden’s effort to unilaterally forgive up to $20,000 in student debt for millions of borrowers.

Related:

The Roberts Court draws a line. The Court eviscerates the independent state legislature theory.

Today’s News

Wildfire smoke from Canada has blanketed large portions of the United States, leading more than a dozen states to issue air-quality alerts. Former President Trump countersued E. Jean Carroll for defamation after being found liable for sexually abusing her. Carroll’s attorney said that Trump’s counterclaim is “nothing more than his latest effort to delay accountability.” Daniel Penny pleaded not guilty in the killing of Jordan Neely on the New York City subway after being indicted on counts of second-degree manslaughter and negligent homicide.

Evening Read

(Illustration by The Atlantic. Source: Getty.)

The Harry and Meghan Podcasts We’ll Never Get to Hear

By Caitlin Flanagan

The Meghan Markle and Prince Harry content farm is facing contradictory supply and demand challenges. On the one hand, Netflix is reportedly threatening that the couple had better come up with some more shows, or $51 million comes off the table. On the other, Spotify has found that the 12 episodes of Markle’s podcast, Archetypes, were 10 episodes too many (the Serena Williams and Mariah Carey interviews were blockbusters, but after that: crickets). And—in a mutual decision! mutual!—it has cut the couple loose from their $20 million deal. Together, the news stories formed a classic example of the macroeconomic principle of too much, too little, too late.

In rapid response to the Netflix needling came word that the couple was working on a possible prequel to Great Expectations, centered on the life of a young Miss Havisham. It was exactly the kind of project you could imagine them dreaming up and an improvement, perhaps, on one of Harry’s earlier pitches, “Jude the Obscure, but in Vegas.”

Read the full article.

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P.S.

I am turning the big 3-0 this summer, and the milestone has triggered a mixture of all the usual emotions associated with aging: relief at having survived this long, despite my clumsiness and bad sense of direction; anxiety about not having accomplished enough; and horror at the fact that I’m edging toward the end of it all. You know, normal stuff. I feel happy but also in need of closure, some sort of commemoration of this moment. To that end, I’m seeking the wisdom of our (older-than-30) readers: What are the best books, articles, poems, or podcasts you might recommend to someone on the precipice of their 30s? What advice would you like to go back and tell your 29-year-old self? I want to hear it all! Email egodfrey@theatlantic.com.

— Elaine

Katherine Hu contributed to this newsletter.

War with Mexico? It’s on the 2024 ballot, at least if you believe the campaign rhetoric of more and more Republican candidates.

In January, two Republican House members introduced a bill to authorize the use of military force inside Mexico. They were not know-nothings from the fringes of the MAGA caucus. One was Dan Crenshaw of Texas, a former Navy Seal who received a master’s degree from Harvard’s Kennedy School of Government. The other was Mike Waltz of Florida, a former Green Beret who served as the counterterrorism adviser to Vice President Dick Cheney and was a successful entrepreneur before he entered Congress.

Military operations inside Mexico have been endorsed by Republican senators too. Last September, Tom Cotton of Arkansas published an op-ed that proposed:

We can also use special operators and elite tactical units in law enforcement to capture or kill kingpins, neutralize key lieutenants, and destroy the cartel’s super labs and organizational infrastructure. We must work closely with the Mexican government and ensure its continued support in this effort—but we cannot allow it to delay or hinder this necessary campaign.

At a committee hearing in March, South Carolina’s Lindsey Graham also favored military operations: “America is under attack. Our nation is being attacked by foreign powers called drug cartels in Mexico.” He concluded: “They are at war with us. We need to be at war with them.” That was not a figure of speech. Along with fellow Republican Senator John Kennedy of Louisiana, Graham has repeatedly urged military operations against cartels backed by the “fury and might of the United States.”

[Anne Applebaum: How do you stop lawmakers from destroying the law?]

Also in March, Rolling Stone reported that former President Donald Trump—who is once again the Republican presidential front-runner—has asked advisers for war plans and has speculated about deploying Special Operations teams into Mexico.

At a campaign event in Eagle Pass, Texas, Trump’s closest rival, Florida Governor Ron DeSantis, proposed a selective naval blockade of Mexican ports.

“These precursors are sent into Mexico,” he said, referring to chemicals used in the production of fentanyl. “The cartels are creating the drug. And then they’re moving the drug into the United States of America. We’ll mobilize the Coast Guard and the Navy to interdict precursor chemicals.”

Sometimes the proponents of military operations inside Mexico add a caveat about cooperating with the Mexican government, as Cotton did in his op-ed and as DeSantis does in the written supplement to his naval blockade proposal.

But DeSantis did not mention the caveat in his spoken remarks yesterday, and the caveats get dropped when the idea is promoted on television and in social media. The Fox News star Greg Gutfeld argued on his program in December 2022 that it didn’t matter whether Mexico agreed or not:

It’s time to take out cartels in Mexico, bomb the bleep out of them. It’ll be over in minutes … And it doesn’t matter if Mexico won’t agree, when their cartels are free to invade us anyway. We didn’t ask Pakistan if we could drop in and kill bin Laden.

Probably very little of this talk is meant to be taken literally. Much of it functions as a rhetorical escape from the political dilemma that Republicans and conservatives face.

Synthetic opioids are inflicting death and suffering across the United States: 70,000-plus Americans died of overdose in 2021. The Republican brand is to sound tough, to promise decisive action. In the past, that impulse led Republicans to vow a war on drugs inside the United States: harsher penalties for users and dealers, more powers for police to search and seize. But this time, the users are Americans whom Republicans regard as their own. Five out of every eight victims of opioid overdose are non-Hispanic white people. Whereas historically, fatal overdoses have been an urban problem, synthetic opioids have been taking lives almost exactly equally between urban and rural areas. In deep-blue states such as California and New York, the death rates from synthetic opioids are even worse in rural areas than in the cities.

Republican lawmakers have little appetite for a domestic crackdown that would criminalize so many of their own constituents and their constituents’ relatives. At the retail level, many a “dealer” is also a user, a member of the community seeking to finance his or her own addiction by spreading addiction to others. Contemporary conservatism tells a fable about virtuous middle-Americans beset by alien villains. Apply that fable to the fentanyl crisis, and you arrive where Fox’s Gutfeld did at the conclusion of his December monologue: “So that’s my plan, bomb the supply, reduce harm among the demand by availing safer, clean alternatives.” Compassion for us. Violence for them.

But even if bomb-Mexico talk is intended only to shift blame—to redirect anger toward politically safer targets—the talk carries real-world political dangers.

The first danger of these calls for unilateral U.S. intervention is that it alienates opinion inside Mexico. Trump, DeSantis, Graham, and the others are speaking to Americans. But Mexicans can hear too. Are Americans dying because of Mexican drug sales? Mexicans are dying because of American drug purchases. Mexico has about one-third the population of the United States, but four times the homicide rate. Many, if not most, of those homicides are casualties of the battles for market share set in motion by American drug demand. Does Mexico do too little to halt the flow of opioids northward? The United States does nothing to halt the flow of guns southward.

Mexican resentment of U.S. hypocrisy has weakened Mexican leaders who want to strengthen the partnership with the United States—and empowered exploiters of anti-American sentiment, including the current president, Andrés Manuel López Obrador. As American politicians shift from merely blaming Mexico to outright threatening Mexico, the resentment will only intensify.

[David Frum: The autocrat next door]

The second danger is an even more sinister effect within Mexico: American threats of war upon Mexico will enhance the political power of criminals against the Mexican state.

Criminals have often benefited from nationalism in protecting and supporting their operations inside Mexico. One notorious example: In 1985, Mexican cartel criminals abducted, tortured, and murdered a Drug Enforcement Agency officer, Enrique Camarena. The crime boss Rafael Caro Quintero was identified by the United States as the “intellectual author” of the murder. He was immediately arrested, but never extradited. Caro Quintero was rearrested by Mexican marines in July 2022. But President Lopez Obrador took exception at his daily morning press conference to reports that the U.S. Drug Enforcement Agency had located Caro Quintero, suggesting the Americans had overstepped. The Mexican courts meanwhile seemed to interpret U.S. Attorney General Merrick Garland’s request for “immediate extradition” of Quintero as a potential infringement of the accused’s rights as a Mexican citizen. Nor unfortunately is this a unique case of Mexican officials using nationality as a justification to protect criminals from American justice. If Republican politicians revive ancient memories of past U.S. aggression against Mexico, it will make any such justifications more plausible and acceptable to Mexican opinion.

A third danger of the war talk is that Republican politicians are radicalizing their own voters. Three years ago, proposals to bomb Mexico would have sounded crazy. But if enough people repeat the talk—if it is debated, amplified, and validated by trusted commentators—the talk gains power. It becomes thinkable, sayable, and then ultimately doable. “Doable” is not the same as “done.” But an atmosphere is being created in which Republicans who do not speculate about war with Mexico may be perceived as weak.

DeSantis may imagine that his call for a naval blockade offers a moderate alternative to outright war. But he is still training Republican primary voters to expect a promise of some kind of military action against Mexico. It could be conducted beyond Mexican waters, farther from cameras that could record images of explosions or injured civilians. But think harder, and it’s actually an even more invasive idea than air strikes, because the blockade would need to continue for months, years, maybe forever.

The fourth danger is that the Republicans have ceased to consider even the most obvious risks. Despite Lindsey Graham’s vivid language, the Mexican criminal cartels are not in fact at war with the United States. They are doing business with the United States—a lethal business, but business all the same. As rational profit-maximizers, they take care to avoid direct confrontations with American power. In March, criminals abducted four Americans in Matamoros, Mexico, killing two. After the survivors were released, the local cartel issued a public letter of apology and surrendered five men whom it blamed for the abduction. “We have decided to turn over those who were directly involved and responsible in the events, who at all times acted under their own decision-making and lack of discipline,” the letter stated. Whatever was really going on in this murky story, clearly the cartel was worried about consequences for the murders.

But what if the U.S. begins bombing and rocketing cartel operations? Will the old restraints still apply? What would then deter the cartels from extending their violence across the border? “The enemy gets a vote,” goes an old warning. If the United States opts to escalate a law-enforcement challenge into a military conflict, it must prepare for its well-financed, well-armed antagonist to respond in kind. And unlike previous irregular antagonists, such as al-Qaeda or the Islamic State, this is one that intimately understands and has deeply penetrated U.S. society.

The risks to the United States extend beyond U.S. and Mexican territory. Right now, the United States and its allies are assisting Ukraine against a Russian invasion. What happens to the consensus behind that effort if, 18 months from now, the United States has bombed, invaded, or blockaded its own neighbor? What if U.S. forces unintentionally inflict civilian casualties or destroy the property and livelihoods of nearby innocents? The U.S. military campaigns in Afghanistan in 2001 and against Iraq in 2003 were joined by global coalitions and supported by United Nations resolutions. There will be no such international legitimation for a U.S. attack inside Mexico, or blockade of Mexico, without the consent of the Mexican government.

There have been occasions in the past when the threat of unilateral U.S. action has pressured Mexican authorities to step up to their responsibilities. But in those cases, the threat was delivered behind closed doors, such that the Mexican side could yield without public humiliation. Today’s threats are creating the opposite pressure—so much so as to raise the question, disturbing on both sides of the border, “Is public humiliation maybe the real point of this otherwise futile exercise?”

The toll of opioids upon American life and American homes is indeed horrific. The cooperation of the Mexican state has been unsatisfying, as López Obrador has proved an especially unreliable and double-sided partner. U.S. frustration with Mexico has a valid basis, and nobody should pretend that the Mexican government is innocent amid the fentanyl traffic. The point is that the American government should not act brutishly, stupidly, and self-defeatingly.

[From the November 2021 issue: ‘I don’t know that I would even call it meth anymore’]

Daniel Patrick Moynihan, who advised President Nixon on domestic affairs, told the following story in The American Scholar about his attempts to curb drug abuse by squeezing supply. In the late ’60s, the drug of concern was heroin; an important source of supply was via the port of Marseilles in France—the fabled “French Connection.” Over many months, Moynihan negotiated agreements to stop the flow through Marseilles, mercifully without the threat of rockets or Special Forces operations.

I found myself in a helicopter flying up to Camp David to report on this seeming success. The only other passenger was George P. Shultz [then the secretary of labor ], who was busy with official-looking papers. Even so, I related our triumph. He looked up. “Good,” said he, and returned to his tables and charts. “No, really,” said I, “this is a big event.” My cabinet colleague looked up, restated his perfunctory, “Good,” and once more returned to his paperwork. Crestfallen, I pondered, then said, “I suppose you think that so long as there is a demand for drugs, there will continue to be a supply.” George Shultz, sometime professor of economics at the University of Chicago, looked up with an air of genuine interest. “You know,” he said, “there’s hope for you yet!”

Drug interdiction has not worked in Southeast Asia, in Afghanistan, in Andean South America. American demand and American wealth will summon supply from somewhere, and if one channel of commerce is stopped, another will open. The drug problem is located here, and the answer must be found here. Belligerent snarls and growls may excite American emotions, and they may win some American votes. But if those snarls and growls are acted upon, they will plunge the United States into troubles compared with which the fentanyl problem of today will seem the least of evils. Unfortunately, it’s too late to silence the threats. They have become the price of entry to Republican politics. But it’s not too late to challenge and rebut them—and to elect leaders who understand that Mexico will be either America’s partner or America’s disaster.

Former president tries to turn tables on woman awarded $5m after jury found Trump liable for sexual abuse, defamation.

Right up until the Supreme Court handed down opinions yesterday morning, the justices seemed likely to flinch from ruling on one of the major remaining issues left on their docket—a case with the power to weaken the already failing health of American democracy. Because of recent developments in North Carolina, the Court could have declared the case moot. Instead, it decided to tackle the case, Moore v. Harper, head-on. And it did so in a way that has many lawyers and democracy advocates breathing a sigh of relief.   

The question in Moore involved the “independent state legislature” theory, which suggests that the Constitution reserves special powers for state lawmakers in how they choose to administer federal elections. The contours of the theory are fuzzy and disputed. But in the most extreme versions, state legislatures couldn’t be constrained by state constitutional guarantees or rulings by state courts, potentially limiting voters’ protections against partisan gerrymandering or legislative attacks on voting rights. Political candidates or state officials could potentially lean on the theory to challenge aspects of election administration and cast doubt on the integrity of the vote—not unlike Donald Trump’s campaign did in 2020. As a result, when the Supreme Court announced it would hear Moore, onlookers on both the left and the right expressed concern about what the case might portend.

[Adam Serwer: The Roberts Court draws a line]

But by the time that the justices heard oral arguments in Moore in December, the case had become snarled up in the jurisdictional equivalent of a train crash. Moore originated in North Carolina, where the state’s supreme court had ruled that a political gerrymander by the Republican-controlled state legislature was prohibited by North Carolina’s Constitution. After a handful of GOP lawmakers appealed to the U.S. Supreme Court, the legislature continued a protracted back-and-forth with North Carolina judges, which ended when the state’s high court—now under Republican control—tossed out the original ruling in dispute. The Supreme Court ended up ordering multiple rounds of briefing on whether it even still had the authority to rule on Moore. As of May, most of the parties involved, including the Justice Department, were arguing that the Court should simply set the case aside.

Punting on Moore would have had the advantage of allowing the Court to avoid tackling a difficult legal question. But it would also have left that question open for potential 2024 election chaos, including potential bad-faith litigation aimed at generating confusion and distrust over election results. The justices chose a different approach. Writing for a 6–3 majority, Chief Justice John Roberts issued a firm, punctilious opinion rejecting the maximalist vision of the independent state legislature theory and closing the door—most, if not all of the way—on the mayhem it could have created.

The majority’s arguments for why it had jurisdiction to decide the case, despite the developments in North Carolina, are somewhat puzzling—as Justice Clarence Thomas, who would have tossed Moore out, argues in his dissent. Perhaps the Court was motivated less by the cold logic of legal reasoning and more by a simple desire to get the problem of the independent state legislature theory out of the way before a flood of pre-2024 litigation arrived at its doorstep.

But whatever the reason, the majority opinion represents a major defeat for the theory’s strongest boosters. Roberts described how state constitutions have constrained state lawmakers in federal election administration back to the time of the country’s founding, a tradition that the independent state legislature theory would have upended. He emphasized that “when legislatures make laws, they are bound by the provisions of the very documents that give them life”—that is, constitutions. If a state legislature is created by a state constitution, he reasoned, it can’t act outside the constitution’s strictures, and a state court must be able to review those actions.

Roberts also took a moment to gut a particular misrepresentation of a past Supreme Court case, McPherson v. Blacker, which Trump boosters had relied on in 2020 to argue for upending the election and handing the then-president a second term. That argument had always been an extreme distortion of the independent state legislature theory, and now it’s dead for good. (In a fitting touch, the former Trump adviser John Eastman is currently facing disciplinary charges from the California state bar in part for his advocacy of this approach, though his trial was delayed the day of the Moore decision because his lawyer was sick.) What’s more, since the justices agreed to hear Moore, Congress has passed reforms that do a great deal to close the loophole that Eastman and others were relying on for their paperwork coup attempt to work. All of this is reason to be somewhat more cheerful headed into 2024.

But for good or ill, the Court did not entirely foreclose future litigation over the authority of state legislatures in federal elections. “Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law,” Roberts wrote, “state courts do not have free rein.” The majority emphasized that, in certain instances, it may be appropriate for federal courts to step in and push back on state courts infringing on lawmakers’ authority. Justice Brett Kavanaugh, in a concurrence, practically rolls out the red carpet for future legal challenges. Writing in Slate, the election-law expert Rick Hasen worries that this aspect of Moore will “give great power to federal courts, and especially to the U.S. Supreme Court, to second guess state court rulings in the most sensitive of cases”—potentially even in litigation that could decide an election. What happens, for example, if the Court decides to reconsider the ruling of a state judge on election procedures in a swing state?

[J. Michael Luttig: The Court is likely to reject the independent state legislature theory]

Adding to the potential upheaval, the majority explicitly declined to provide a clear sense of just how far state courts can go before they cross the line. As Thomas writes in his dissent, that could be an invitation for future confusion, as both state and federal judges struggle to figure out what the Court has in mind.

At the same time, the majority’s tone is not that of six justices eager to start upending state judicial rulings left and right. “The Court is signaling that the bar is going to be very high” for federal courts to step in, Carolyn Shapiro, of the Chicago-Kent College of Law, who submitted an amicus brief in Moore arguing against an expansive interpretation of the independent state legislature theory, told me.

As with the Court’s recent ruling declining to wipe out the Voting Rights Act in Allen v. Milligan, the conservative supermajority seems to have taken a step back from the brink, at least for the moment. It’s always difficult to divine the currents motivating a famously secretive institution. Perhaps the right-wing lawyers pushing the maximalist independent state legislature theory moved too aggressively for the Court’s comfort. Perhaps the justices are sensitive to mounting public criticism and the perception that the Court is nothing but a purely political body.

Either way, the proof will be in how the justices handle the disputes that inevitably end up before the Court in the coming election cycle. The Court’s decision in Moore sets the worst possible outcomes out of reach, but entirely shielding elections from legal meddling by those acting in bad faith is difficult. If the Court wants to fashion itself as the arbiter of such disputes, the justices will need to be ready to identify and reject that meddling when they see it.

In the space of two weeks, the country witnessed two major announcements from the Department of Justice: the first federal indictment of a former president (Donald Trump) for unlawful retention of classified documents and related acts of obstruction, concealment, and false statements, and a guilty plea by the son of the sitting president (Hunter Biden) to federal tax and gun charges.

The identities of the defendants mark these as highly significant political events. And the responses to both sets of charges tell us a great deal about the competing visions of governance on display in the early days of the 2024 election—one vision that threatens to destroy core principles of American law, and one that seeks to safeguard them.

Take, first, Trump’s reaction to his federal indictment. In his political rhetoric and in the emerging legal arguments in his defense, Trump claims that he did nothing wrong. The inquiry, by virtue of the fact that it was conducted by the Department of Justice in a Democratic presidential administration, is an inappropriate “political prosecution,” full stop. Trump leveled similar accusations of political motivation in response to the news of Hunter Biden’s plea deal, although here Trump’s accusation was one of favoritism, not persecution.  

[David A. Graham: The stupidest crimes imaginable]

Trump has spent years dismissing every investigation into him as a political witch hunt, so this should come as no surprise. But what has more recently become clear is that when he asserts that the charges against him are political, he isn’t actually critiquing the prosecutors for what he claims is their lack of independence, or suggesting that they should behave in a neutral and apolitical fashion. His claims that the inquiries are “politically motivated” are neither pure bad faith nor pure projection (though they may be both in part).

Instead, they are something more sinister and more revealing: a promise—a promise that if allowed to return to office, he will implement a vision of law enforcement in which no separation exists between prosecutors and political leadership, including the president. In the short term, this would mean benefits for Trump and his friends, and punishment for his enemies. But the long-term consequences would be much more dramatic: the abandonment of the core value of equal justice under law.

Viewed in the full context of the Trump presidency and the Trump reelection campaign, Trump’s charge of “political prosecution” seems to be in service of two related and complementary goals. The first is to convince the public that law enforcement and the administration of justice are inherently political, and thus that the charges against him can’t be trusted. There’s some evidence that this is working: A recent ABC News/Ipsos poll found that 47 percent of the public believes that the charges against Trump are “politically motivated.”

The second, related purpose is to begin to prime the public to accept the fundamental changes Trump would like to make to federal law enforcement, and maybe to federal government more broadly, if given the chance. The irony, of course, is that these changes are designed to make law enforcement and government more political. But if Trump is successful enough in destroying the public’s trust and confidence in federal law enforcement, he may encounter little resistance in seeking to radically reshape core features of American governance.

Here the evidence of what Trump would like to do is crystal clear. Trump has explicitly pledged to weaponize the DOJ against political adversaries, telling supporters on the very day of his federal arraignment that he would “appoint a real special prosecutor to go after” President Joe Biden and his family. He’s indicated that in a second term he’d bring back loyalists such as Jeffrey Clark, a key DOJ ally in his efforts to overturn the 2020 election. And he has begun to preview the position that all federal employees should serve at the pleasure of the president, which could mean the elimination of long-standing protections that insulate members of the civil service from politically motivated reprisal or removal.

[David A. Graham: Justice comes for Hunter Biden]

All of this is an extension of what was on display throughout Trump’s presidency. This is a man who, as president, regularly flouted norms of separation between his personal or partisan interests and those of the American government. He was also singularly focused on attacking the career civil service, which he referred to as the “deep state.” He inveighed constantly against the “shadowy cabal” that he suggested was seeking to undermine him, and he worked to weaken standards of independence and nonpartisanship inside the federal government. Late in his term in office, he issued an executive order purporting to create a new federal-employment status, “Schedule F”; had it gone into effect, this order would have allowed political appointees to reclassify large swaths of the civil service in order to bring them under political control.

So when Trump calls these prosecutions “political,” he’s offering a candid account of his understanding of the relationship between the president and federal prosecutors—that federal prosecutors, like all federal employees, are subject to the directive authority of the president, and so Biden must be behind the pursuit of Trump. Trump’s complaint actually isn’t about this as an ordering principle—it’s that at the moment, he isn’t in a position to leverage the power of the state for his personal benefit. This claim may sound startling, but it follows naturally from Trump’s brand of right-wing populism, one that that offers a narrow vision of who is authentically a member of the polity—his supporters—and pledges to both represent and protect that circumscribed population against a shifting “other”: liberals, the media, prosecutors in Democratic administrations. As Trump recently promised supporters, “I am the only one that can save this nation because you know they’re not coming after me, they’re coming after you. And I just happened to be standing in their way. And I will never be moving.”

These views are in profound tension with core features of the American political and constitutional tradition—which since at least the late 19th century has emphasized the importance of nonpartisanship and expertise in the federal government in general, and in law enforcement in particular. But Trump is not alone in dissenting from the consensus. GOP-primary hopeful and Florida Governor Ron DeSantis has suggested that long-standing norms of DOJ independence are inconsistent with the Constitution. Work by Speaker Kevin McCarthy and Representative Jim Jordan on the “weaponization” committee has sought to use congressional-oversight authority to bully and intimidate career officials.

The Trump camp’s response to the news of Hunter Biden’s agreement to plead guilty to two counts of tax evasion, and to accept a diversion agreement to avoid gun charges, is revealing on this score. For years, Trump has fixated on the DOJ’s failure to prosecute Hunter Biden as evidence of political favoritism. Now that Hunter Biden has been charged, and has pleaded guilty, Trump has shifted to accusations that the plea terms are excessively lenient, attributable to—you guessed it—political favoritism. The fact that the investigation and charging decisions were made by Delaware U.S. Attorney David Weiss, a Trump appointee whom Biden asked to remain in office, is immaterial, as is the fact that the FBI is still run by Christopher Wray, who was handpicked by Donald Trump; so is the fact that on many accounts these charges are harsher than those that would have been brought against an individual guilty of similar conduct but with a different last name.

[David A. Graham: This indictment is different]

All of this contrasts profoundly with President Biden’s handling of his son’s legal difficulties. Biden has bent over backwards to abide by essential bipartisan norms of law-enforcement independence and insulation from political interference. His retention of a Trump appointee as the top Delaware prosecutor was clearly driven by a desire to ensure that the Hunter investigation would be carried out by someone he had not chosen. His decision to permit John Durham to complete his investigation into the origins of the Russia investigation was similar, as was his hands-off approach to Attorney General Merrick Garland’s appointment of special counsels to investigate the handling of classified materials by both former Vice President Mike Pence and President Biden himself.

In addition to making these personnel decisions, both Biden and Garland have held their silence on politically sensitive investigations. Biden’s lone remarks about his son’s prosecution pledged love and support “as he continues to rebuild his life.” He has maintained a studied silence on Trump’s indictment, and by all accounts intends to continue it.

In all of this, President Biden has offered, through deeds more than words, a different model of governance. His silence and discretion are admirable, and they grow out of a principled commitment to avoiding any hint of political meddling in sensitive law-enforcement matters. Two strikingly different visions are on offer when it comes to the future of the relationship between law enforcement and politics.

The trouble is, the two visions are not equally apparent. Trump’s vision is on stark display; Biden’s approach is more notable for its lack of action—the refusal to comment, his decision to remain hands-off. Americans have to note these absences as collectively the presence of something else: a demonstrated commitment to a functional system of depersonalized, impartial justice. But Biden’s approach should not be misunderstood as inaction or passivity. It is, rather, an active and considered attempt to preserve the principle that, as Special Counsel Jack Smith put it when announcing the Trump indictment, there is “one set of laws in this country, and they apply to everyone.”

The former president alleges the writer falsely accused him of rape after a jury found he sexually abused her.