Editor’s Note: Washington Week With The Atlantic is a partnership between NewsHour Productions, WETA, and The Atlantic airing every Friday on PBS stations nationwide. Check your local listings or watch full episodes here.  

This week, after signing a $95 billion military-aid package into law, President Joe Biden announced that crucial weapons are being rushed to Ukraine. The passage of this bill, which includes funding for Israel, Taiwan, and other foreign allies, marks the end of the drawn-out fight in Congress over foreign funding. Still, lawmakers continue to contend with the future of party leadership on Capitol Hill: Will there be political ramifications for Biden and House Speaker Mike Johnson?

Johnson also traveled to Columbia University on Wednesday, where, along with other Republican lawmakers, he spoke to students as demonstrations against the war in Gaza have erupted on campuses across the country. At Columbia, Johnson was met with boos and pro-Palestinian chants from students. Meanwhile, Biden also faces questions about whether his policy on Israel could hurt his standing among young voters in November.

Joining the editor in chief of The Atlantic and moderator, Jeffrey Goldberg, to discuss this and more: Peter Baker, the chief White House correspondent at The New York Times; Laura Barrón-López, a White House correspondent for PBS NewsHour; David Drucker, a senior writer at The Dispatch; and Mara Liasson, a national political correspondent for NPR.

Watch the full episode here.

Former Attorney General Bill Barr gave an interview to CNN on Friday to explain why he plans to vote for Donald Trump after previously denouncing him as unfit for office. Trump might be an unfit president, Barr conceded. Trump had only recently belittled Barr personally. But President Joe Biden might overregulate kitchen stoves, Barr complained, and faced with that dread possibility, Barr had to prefer Trump as the lesser evil.

Barr feels how he feels. But as a rational matter, he’s not thinking clearly. Even for a conservative Republican such as Barr, who wants to maximize power for conservative Republicanism, Trump is a choice that makes sense only if you have no long-term imagination at all. To see how wrong that choice is, consider a hypothetical: how much better Republicans’ political prospects would look today if the Electoral College had followed the popular vote in 2016 and Hillary Clinton had won the presidency that year. Back then, someone like Barr would have thought that outcome a catastrophe. But in retrospect imagine:

Alongside a President Clinton, voters in 2016 elected a 241–194 Republican House and a 52–48 Republican Senate. A President Clinton would probably not have signed as big a tax cut as President Trump did in 2017. Her regulators would not have been as friendly to the oil and gas industry as Trump’s were. But facing such strong Republican majorities in Congress, and with a popular-vote mandate of only 48 percent, she would have been limited in her ability to advance her own agenda.

Now look at what might have happened next. In the real-life elections of 2018, Republicans got badly beaten. They dropped 40 House seats in the highest-turnout off-year election since before World War I. In our hypothetical–President Clinton scenario, Republicans surely would have added seats to their House majority in 2018, while likely holding the Senate too. The party of the president almost always loses seats in a midterm, and that’s even more emphatically true when the party of the president has held office for three consecutive terms.

In 2020, when COVID struck, a President Clinton surely would have responded more competently and compassionately than Trump did. But the pandemic still would have been a bad experience for most Americans—doubly so if riots broke out in our alternate-history 2020 as they did in the real timeline. Republicans would have been well-positioned for a massive presidential comeback that fall, very possibly with the popular-vote majority they otherwise have not won since 2004.

[Peter Wehner: Trump’s willing accomplice]

Whoever the new Republican president would have been, the GOP could have passed a big 2017-style tax cut in 2021—without having to cover for Trump’s alleged crimes. The post-COVID recovery—inflation in 2021 and 2022, followed by strong growth in 2023 and 2024—would then have put the Republican incumbent on the path to reelection in 2024.

“But what about the Supreme Court?” our Trump-skeptical Republicans might ask. Trump filled seats opened by the deaths of Justices Antonin Scalia and Ruth Bader Ginsburg, and by the resignation of Anthony Kennedy. Even if we suppose that Kennedy would not have resigned during a Clinton presidency, a President Clinton could have remade the Court majority in the liberals’ favor, as Trump did for conservatives.

But a President Clinton would not have had as much leeway on the Court as Trump did. Her nominees would have had to pass the Republican Senate. And if Roe v. Wade had been upheld under a Clinton-appointed majority, the politics might have played out better for Republicans, who have struggled in national and state elections since Roe’s overturning. So long as Roe was law, the anti-abortion position was good Republican politics. Instead, a generation of young women might be alienated from the Republican Party for the rest of their voting lives. Although some anti-abortion true believers would gladly pay the price, most Republicans are not anti-abortion true believers.

All told, victory for Clinton in 2016 would have left Republicans in a much better place in the 2020s—and without the shame and disgrace of complicity with Trump.

Now let’s think realistically about what 2024 could mean for Trump-wary Republicans.

If Trump wins in 2024, the country could plunge almost instantly into a political and constitutional crisis—especially if Democrats hold the Senate and win the House, but even if they don’t. A reelected Trump’s first priority will be to shut down all of the legal cases against him, including trials that have already begun. He’ll want to pardon himself if he has been convicted of any offenses. He’ll try to use presidential power to quash the half-billion dollars of civil judgments against him. Trump’s opponents will not passively submit to any of this. There will be upheaval, unrest, and very likely a third Trump impeachment trial.

A reelected Trump’s second priority will be to sell out Ukraine and bust up NATO. Eighty years of U.S.-led alliance structure will collapse, and the whole system of world peace and security will unravel—with who knows what consequences.

[From the January/February 2024 issue: The danger ahead]

A reelected Trump’s third priority will be to impose tariffs on China, triggering a global trade war. Consumer prices will rise, the stock market will tumble, and the world economy could slide into recession if not outright depression.

Alternatively, imagine if Joe Biden wins in November. A Biden reelection might well mean more regulation of stoves, as Bill Barr worried. Biden might do other things Barr would not like either, but even those things would be an improvement over the outlook of chaos from Trump’s attempt to overturn American law to save himself from prison. The 2017 tax cut would expire in a second Biden term, and might not be renewed. That said, President Bill Clinton signed a capital-gains tax in his second term as a cost of doing business. Biden is even more of a dealmaker.

Meanwhile, the path to Republican revival would open. Republicans could reasonably expect to score gains in the 2026 midterm elections. With Trump a three-time popular-vote loser, even his base would begin to perceive the failure of his corrupt and authoritarian leadership—and turn again to leaders whom Barr himself would much prefer to Trump or the Trump imitators who would proliferate if Trump somehow returns to power in 2025.

In Republican rhetoric, it is always five minutes to midnight. In 2011, future Speaker of the House Paul Ryan delivered a speech warning that the United States was fast approaching a “tipping point” that would “curtail free enterprise, transform our government, and weaken our national identity in ways that may not be reversible.” That way of thinking can justify extreme actions. If the choice really is between constitutional democracy on the one hand, and free enterprise and national identity on the other, that’s indeed agonizing.

But as the history of the Trump years shows, that choice is as phony as Bill Barr’s pretense of integrity. A Hillary Clinton presidency in 2016 would have left both free enterprise and national identity perfectly intact, with no worse consequences for conservatives than a four-year delay of a big tax cut and possibly the benefit of escape from their present predicament over abortion rights. A Biden reelection in 2024 will be annoying to conservatives in other ways. But compared with what Trump threatens?

Before choosing the “lesser of two evils,” Trump-skeptical Republicans must measure the choices accurately. Assessing clearly the recent past helps with that analysis. The Republican Party would today be healthier and more successful if it had lost the presidency in 2016. It will be healthier in 2032 if it loses in 2024.

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In all the years I’ve spent covering American consumerism, I’ve heard one type of question from readers far more than any other: This can’t go on forever, right?

Maybe they’d learned what happens to the huge volume of online purchases that get returned, or saw one too many questionably sourced mascaras and sunscreens hawked on TikTok Shop, or realized that the newly minted e-commerce behemoth Temu is spending many millions of dollars to urge you, quite explicitly, to shop like a billionaire. Whatever the impetus, the people asking this question tend to regard the consumer landscape with a mix of exhaustion and incredulity. The ever-expanding American closet is already swollen with cheap clothes, and our junk drawers and spare rooms and storage units already overfloweth with everything else. Americans have so much excess stuff that much of it can’t even effectively be given away. Can we—the people who have bought so much already—really keep buying more, and at a hastening clip?

As pickled as I am in information and theories about consumption, I’ve never really known how to answer this. I can’t blame anyone for being tired—of the advertising and affiliate links that have eaten search results, of constant prompts to purchase random things, of clothes made of plastic that fall apart after a few washes. Consumer choice is the animating logic of so much of American life, and buying things is how we are taught to assert our agency or express our political views or embrace our identities. Amazon has been on a decades-long push toward a logical extreme of American consumption capacity. The company’s newest crop of even cheaper, China-linked competitors—Temu, Shein, and TikTok Shop, most prominently—seem intent on pushing further.

[Read: Temu is speedrunning American familiarity]

The endgame to all of this, one might reasonably expect, has to be drawing nearer, if only because the United States is already so full-to-bursting with unwanted junk that entire industries and media genres have cropped up to help people pare down their possessions. Surely, one might reasonably expect, something’s got to give. There must be some sort of ceiling, some point of exhaustion—if not emotional, then financial. This can’t go on forever … right?

By the numbers, Americans still seem plenty enthusiastic about high volume and low prices. As the ultra-cheap internet retailers have sprung up, shoppers have rushed by the tens of millions to patronize them. The biggest ones are already pulling in billions of dollars of sales from the U.S. each year. And even though these retailers primarily draw in shoppers through super-low prices, they’re very popular with people who already have plenty. According to a recent report from Earnest Analytics, a credit-card-data firm, almost half of Temu’s American sales come from people making more than $130,000 a year, and the retailer’s popularity is growing the quickest with that same group of high earners. Wealthier people have more buying power in the first place, but that’s exactly the point: If even they haven’t yet gotten their fix of cheap stuff, we might be nowhere close to the extremes we’re ultimately capable of.

“It may seem like the air is getting thin, but we have not reached ‘peak stuff,’” David Garfield, the global head of industries for the consulting firm AlixPartners, told me in an email. According to Garfield, the underlying phenomena all point to continued growth, especially for inexpensive products: Demand is strong; impulsive purchases have never been easier; and the rise of influencers has made sales pitches even more omnipresent and sometimes more difficult to discern from genuine recommendations. On the supply side, a growing number of third parties that Garfield calls “infrastructure players”—transport and logistics companies, easy-setup e-commerce platforms, contract manufacturers—have entered the market in order to move larger volumes of goods into consumers’ hands more and more efficiently.

Garfield also pointed to one of the less discussed ways that pandemic changes have continued to affect how Americans spend their money: Before 2020, he said, consumers were in a slow, steady, long-term pattern of moving their spending incrementally away from goods and toward services—things such as hotel stays and Uber rides. Pandemic shutdowns reversed that trend virtually overnight, and four years later, a greater proportion of consumer spending is still going to goods than it was in 2019. Population-level spending habits move with all the agility and grace of a container ship; without a pandemic-level force to send them swiftly back where they came from, people just seem to be used to buying a little bit more stuff than they used to, especially online.

Much of that stuff, when bought from American retailers, is now significantly more expensive than it was in the recent past. Since 2019, prices for many types of consumer purchases in the U.S. have shot up. On average, goods cost nearly 20 percent more than they did before the pandemic. This, according to the e-commerce analyst and Marketplace Pulse founder Juozas Kaziukėnas, is among the reasons that ultra-cheap retailers that ship to the U.S. from overseas have found such enthusiastic audiences. “During uncertain economic times,” he told me, “price tends to bubble up to become the most important variable” in how even greater numbers of people make purchase decisions.

[Read: It’s too easy to buy stuff you don’t want]

Confounding all of this is the reality that price and quality are not as closely tied to each other as they once were. Kaziukėnas challenged a common assumption that the novelty of stores like Temu and Shein will have to wear off eventually: Not everything they sell is as off-putting or low quality in person as you might think. Much of it, according to Kaziukėnas, is identical to what American brands and retailers sell—it is, after all, coming from existing manufacturers—but at a much lower price. Temu and Shein were designed to drive overhead down to a minimum: They’ve bet that lots of people are willing to trade instant shipping and robust customer service for lower prices, and they’ve largely been right. American retailers’ emphasis on speed and variety requires more overhead because they’ve built systems with more steps between manufacturers and buyers. “Amazon and eBay would happily replicate Temu’s ship-from-China model if they hadn’t spent decades optimizing for a different kind of experience,” Kaziukėnas said.

When you look at the data, lots of people who say they hate this phenomenon of cheap, high-volume consumption tend to be enthusiastic participants in it. Kaziukėnas pointed to a recent report published by The New Consumer and the venture-capital firm Coefficient Capital that found that Shein shoppers are considerably more likely to express concern about the environment and sustainability than shoppers overall. “There is a disconnect between what we tell ourselves, what we tell others, and how we behave,” Kaziukėnas said. Dan Frommer, the founder of The New Consumer, echoed those sentiments: “The allure of cheap stuff is universal, almost, to American culture,” he told me. Some people may get burned by junky products and turn away from these types of retailers, which may raise prices on some of their products as they dial back discounting that was implemented in order to lure an initial customer base, Frommer said. But he thinks they’ll stick around in some significant capacity for the foreseeable future, even if their recent meteoric growth cools.

If Shein, TikTok Shop, and Temu are popular even among the economically comfortable and environmentally conscious, the question of what it would take to turn a meaningful number of Americans away from these kinds of retailers gets significantly more difficult to tease out. Frommer mentioned that the same concerns over foreign ownership that currently threaten to bring down TikTok could possibly be applied to many ultra-cheap internet retailers, if lawmakers were so inclined. Kaziukėnas said that he didn’t think consumers were likely to make this choice themselves anytime soon, but that regulatory measures designed to make foreign retailers’ existing business models less viable could harm their ability to compete against American retailers on price. One such measure—closing the de minimis loophole, which, in effect, allows foreign retailers to import goods into the U.S. one purchase at a time without paying taxes or duties—is currently being considered by Congress.

Ken Pucker, a professor at Tufts University and the former chief operating officer of Timberland, agrees that regulation is likely the most efficient way to reform particularly wasteful consumption and production practices, but he sees the looming possibility of a second path. One of the major things that enables American buying habits, he told me, is the separation of consumption from production. Goods are produced far away, and when we tire of them, the trash they create is also swiftly moved out of our field of vision. Rarely do Americans—and especially the well-off Americans who drive this sort of consumption—experience the downsides of plastics production or discarded cheap goods, such as groundwater contamination. “We no longer see the effect of the consumption that we still enjoy,” he told me. We just experience the upsides of convenience and abundance.

Eventually, this separation will be more difficult to uphold. As the physical effects of climate change become more difficult to outrun even for the relatively affluent, Pucker said, the joys of consumption and realities of production are bound to recouple. You can see it beginning to happen already: A recent report found that PFAS “forever chemicals,” which are used widely in the manufacture of stain- and water-resistant products and linked to a host of medical issues, are present in high concentrations in sea spray the world over.

Maybe, one day, buying cheap stuff as a form of entertainment will run afoul of new behavioral norms that a changed physical reality creates. People might begin to feel ashamed, or at least more self-conscious, about buying things they don’t even really want as a salve for stress or boredom. But if we have to wait for wastefulness to become uncool, then we probably have our answer as to whether this will all slow down anytime soon.

Even by the standards of Congress, the past few weeks have been a lesson in hypocrisy. Last Wednesday, President Joe Biden signed legislation that will require TikTok’s Chinese owner, ByteDance, to sell the app or face a ban in the United States—all over concerns that the Communist Party of China uses the app for surveillance. Yet just a few days earlier, Biden had renewed a law synonymous with American surveillance: Section 702.

You may never have heard of Section 702, but the sweeping, George W. Bush–era mandate gives intelligence agencies the authority to track online communication, such as text messages, emails, and Facebook posts. Legally, Americans aren’t supposed to be surveilled through this law. But from 2020 to 2021, the FBI misused Section 702 data more than 278,000 times, including to surveil Americans linked to the January 6 riot and Black Lives Matter protests. (The FBI claims it has since reformed its policies.)

The contradiction between TikTok and Section 702 is maddening, but it points to lawmakers’ continued failure to wrestle with the most basic questions of how to protect the American public in the algorithmic age. It’s quite fair to worry, as Congress does, that TikTok’s mass collection of personal data can pose a threat to our data. Yet Meta, X, Google, Amazon, and nearly every other popular platform also suck up our personal data. And while the fear around foreign meddling that has animated the TikTok ban has largely rested on hypotheticals, there is plenty of evidence demonstrating that Facebook, at least, has effectively operated as a kind of “hostile foreign power,” as The Atlantic’s Adrienne LaFrance put it, with “its single-minded focus on its own expansion; its immunity to any sense of civic obligation; its record of facilitating the undermining of elections; its antipathy toward the free press; its rulers’ callousness and hubris; and its indifference to the endurance of American democracy.”

[Read: The largest autocracy on Earth]

Congress has largely twiddled its thumbs as social-media companies have engaged in this kind of chicanery—until TikTok. ByteDance is hardly a candidate for sainthood, but who would want to beatify Elon Musk and Mark Zuckerberg? Abroad, America’s surveillance draws much of the same political condemnation Congress is now levying at China. The privacy advocate Max Schrems repeatedly sued Facebook to stop the company from sharing Europeans’ data with the U.S., where the information could be searched by intelligence agencies. He won multiple times. Last year, European Union regulators fined Meta $1.3 billion for transferring Facebook user data to servers in the United States.

Congress’s tech dysfunction extends well beyond this privacy double standard. The growing backlash to platforms such as Facebook and Instagram is not aimed at any of the substantial issues around privacy and surveillance, such as the ubiquitous tracking of our online activity and the widespread use of facial recognition. Instead, they’re defined by an amorphous moral panic.

Take the Kids Online Safety Act, an alarmingly popular bill in Congress that would radically remake internet governance in the United States. Under KOSA, companies would have a duty to help defend minors from a broad constellation of harms, including mental-health impacts, substance use, and types of sexual content. The bill might actually require companies to gather even more data about everything we see and say, every person with whom we have contact, every time we use our devices. That’s because you can’t systematically defend against Congress’s laundry list of digital threats without massive surveillance of everything we say and every person we meet on these platforms. For companies such as Signal, the encrypted-messaging app that political dissidents rely on around the world, this could mean being forced to operate more like Facebook, WhatsApp, and the other platforms they’ve always sought to provide an alternative to. Or, more likely, it would mean that companies that prioritize privacy simply couldn’t do business in the U.S. at all.

Perhaps the biggest protection Americans have against measures such as KOSA is how badly they’re designed. They all rest on proving users’ age, but the truth is that there’s simply no way to know whether someone scrolling on their phone is a teen or a retiree. States such as Louisiana and Utah have experimented with invasive and discriminatory technologies such as facial recognition and facial-age estimation, despite evidence that the technology is far more error-prone when it comes to nonwhite faces, especially Black women’s faces.  

But these misguided bills haven’t completely derailed lawmakers pushing real reforms to U.S. mass surveillance. Within days of the House passing the TikTok ban and Section 702 renewal, it also passed the Fourth Amendment Is Not for Sale Act, which closes the loophole that lets police pay companies for our data without getting a warrant. Yet the bill now finds itself in limbo in the Senate.

Regulating technology doesn’t have to be this hard. Even when the products are complex, solutions can be shockingly simple, banning harmful business and policing practices as they emerge. But Congress remains unwilling or unable to take on the types of mass surveillance that social-media firms use to make billions, or that intelligence agencies use to grow their ever-expanding pool of data. For now, America’s real surveillance threats are coming from inside the house.

Say you’re a college senior, just a few weeks from graduation. For as long as you can remember—even back in high school, before you set foot on campus—older people have talked about free speech. More specifically, older people have talked about free speech and you: whether your generation understands it, whether you believe in it, whether you can handle it.

After watching some of those same people order crackdowns on campus protests over the past few days, you might have a few questions for them.

Last week, from New York to Texas, cops stormed college campuses clad in riot gear. They weren’t there to confront active shooters, thank goodness, or answer bomb threats. Instead, they were there to conduct mass arrests of students protesting the war in Gaza.

As the legal director of a First Amendment advocacy nonprofit, I teach students across the country that the government can’t silence speakers because of their beliefs, even—and perhaps especially—if those beliefs are unpopular or cause offense. That’s a foundational principle of free-speech law. But many of the crackdowns appear to be a direct reaction to the protesters’ views about Israel.

After sending a phalanx of state law-enforcement officers into the University of Texas at Austin campus, for example, Governor Greg Abbott announced on X that students “joining in hate-filled, antisemitic protests at any public college or university in Texas should be expelled.”

But no First Amendment exception exists for “hate-filled” speech. And for good reason: In our pluralistic democracy, everyone has their own subjective idea of what, if any, speech is too “hateful” to hear, making an objective definition impossible. And empowering the government to draw that line will inevitably silence dissent.

At UT, the officers arrested scores of protesters for “trespassing.” But the students don’t appear to have violated school rules. And you can’t trespass on a place where you have the right to be, as students at the public universities they attend clearly do. Even a cameraman for a local news station was tackled and arrested. The next day, the Travis County attorney’s office dropped all of the trespassing charges for lack of probable cause—a telling indicator of the disturbingly authoritarian response. (Shockingly, the cameraman does face a felony charge, for allegedly assaulting a police officer—an allegation difficult to square with video of his arrest.) The government can’t throw Americans in jail for exercising their First Amendment right to peaceful protest.

Governor Abbott’s illiberal show of force has no place in a free country. It’s especially galling given the governor’s previous posture as a stalwart defender of campus free speech: In June 2019, he signed a law prohibiting Texas’s public colleges and universities from shutting down campus speakers because of their ideology. So much for that.

Governor Abbott isn’t alone. During her congressional testimony earlier this month, Columbia University President Minouche Shafik pledged investigations of students and faculty who voiced allegedly anti-Semitic criticism of Israel and Zionism, and agreed—on the fly—to remove a professor from his position as a committee chair because of his speech.

Columbia is a private institution, so it isn’t bound by the First Amendment. But the university promises freedom of expression to its students and faculty—and Shafik’s willingness to sacrifice faculty and student rights to appease hostile members of Congress betrays those promises.

If such things had happened only at UT and Columbia, that would be bad enough—but the problem is spreading. At Emory University, in Atlanta, police officers reportedly used tear gas and Tasers against protesters. State troopers with rifles directed toward protesters stood watch on a rooftop at Ohio State University. At Indiana University, administrators rushed out a last-minute, overnight policy change to justify a similar show of force from law enforcement, resulting in 34 arrests. It’s hard to keep up.

Students nationwide are watching how the adults who professed to care about free speech are responding under pressure. And they are learning that those adults don’t really mean what they say about the First Amendment. That’s a dangerous lesson. Our schools and universities could still teach the country a better one.

“Free Speech 101” starts here: The First Amendment protects an enormous amount of speech, including speech that some, many, perhaps most Americans would find deeply offensive. You may not like pro-Palestine speech; you may not like pro-Israel speech. You may think some of it veers into bigotry. The answer is to ignore it, mock it, debate it, even counterprotest it. But don’t call in the SWAT team.

Granted, free speech is not without carefully designated exceptions, and these exceptions are important but narrow. True threats and intimidation, properly defined, are not protected by the First Amendment. Neither is discriminatory harassment. Violence is never protected.

And public universities can maintain reasonable “time, place, and manner” restrictions on speech. That means, for example, that for the authorities to place a ban on playing heavily amplified sound right outside the dorms at 2 a.m. likely does not violate the First Amendment. A prohibition on camping overnight in the quad probably doesn’t either.

But the enforcement of these rules must be evenhanded and proportionate. The use of force should be a last resort. Students must be given clear notice about what conduct crosses a line. And any student facing punishment for an alleged infringement should receive a fair hearing. Consistency counts. Our leaders—in government, in university administration—must demonstrate their commitment to free expression in both word and deed.

Students are protesting on campuses nationwide, and they’re watching the reaction of university presidents and elected officials closely. The current moment presents a generational challenge: Do older people and people in authority really mean what they say about the First Amendment? Do they believe in free speech—and can they handle it? Right now, too many leaders are failing the test.

The notion that Donald Trump’s supporters believe that he should be able to overthrow the government and get away with it sounds like hyperbole, an absurd and uncharitable caricature of conservative thought. Except that is exactly what Trump’s attorney D. John Sauer argued before the Supreme Court yesterday, taking the position that former presidents have “absolute immunity” for so-called official acts they take in office.

“How about if a president orders the military to stage a coup?” Justice Elena Kagan asked Sauer. “I think it would depend on the circumstances whether it was an official act,” Sauer said after a brief exchange. “If it were an official act … he would have to be impeached and convicted.”

“That sure sounds bad, doesn’t it?” Kagan replied later.

The Democratic appointees on the bench sought to illustrate the inherent absurdity of this argument with other scenarios as well—Kagan got Sauer to admit that the president could share nuclear secrets, while Justice Sonia Sotomayor presented a scenario in which a president orders the military to assassinate a political rival. Sauer said that might qualify as an official act too. It was the only way to maintain the logic of his argument, which is that Trump is above the law.

[David A. Graham: The cases against Trump: A guide]

“Trying to overthrow the Constitution and subvert the peaceful transfer of power is not an official act, even if you conspire with other government employees to do it and you make phone calls from the Oval Office,” Michael Waldman, a legal expert at the Brennan Center for Justice, a liberal public-policy organization, told me.   

Trump’s legal argument is a path to dictatorship. That is not an exaggeration: His legal theory is that presidents are entitled to absolute immunity for official acts. Under this theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president. Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it.

The conservative justices have, over the years, seen harbingers of tyranny in union organizing, environmental regulations, civil-rights laws, and universal-health-care plans. When confronted with a legal theory that establishes actual tyranny, they were simply intrigued. As long as Donald Trump is the standard-bearer for the Republicans, every institution they control will contort itself in his image in an effort to protect him.

The Supreme Court, however, does not need to accept Trump’s absurdly broad claim of immunity for him to prevail in his broader legal battle. Such a ruling might damage the image of the Court, which has already been battered by a parade of hard-right ideological rulings. But if Trump can prevail in November, delay is as good as immunity. The former president’s best chance at defeating the federal criminal charges against him is to win the election and then order the Justice Department to dump the cases. The Court could superficially rule against Trump’s immunity claim, but stall things enough to give him that more fundamental victory.

If they wanted, the justices could rule expeditiously as well as narrowly, focusing on the central claim in the case and rejecting the argument that former presidents have absolute immunity for acts committed as president, without getting into which acts might qualify as official or not. Sauer also acknowledged under questioning by Justice Amy Coney Barrett that some of the allegations against Trump do not involve official acts but private ones, and so theoretically the prosecution could move ahead with those charges and not others. But that wouldn’t necessarily delay the trial sufficiently for Trump’s purposes.

“On big cases, it’s entirely appropriate for the Supreme Court to really limit what they are doing to the facts of the case in front of it, rather than needing to take the time to write an epic poem on the limits of presidential immunity,” Waldman said. “If they write a grant opinion, saying no president is above the law, but it comes out too late in the year, they will have effectively immunized Trump from prosecution before the election while pretending not to.”

Trump’s own attorneys argued in 2021, during his second impeachment trial, that the fact that he could be criminally prosecuted later was a reason not to impeach him. As The New York Times reported, Trump’s attorney Bruce Castor told Congress that “after he is out of office,” then “you go and arrest him.” Trump was acquitted in the Senate for his attempted coup after only a few Republicans voted for conviction; some of those who voted to acquit did so reasoning that Trump was subject to criminal prosecution as a private citizen. The catch-22 here reveals that the actual position being taken is that the president is a king, or that he is entitled to make himself one. At least if his name is Donald Trump.

[David A. Graham: The Supreme Courts goes through the looking glass of presidential immunity]

Democracy relies on the rule of law and the consent of the governed—neither of which is possible in a system where the president can commit crimes or order them committed if he feels like it. “We can’t possibly have an executive branch that is cloaked in immunity and still expect them to act in the best interests of the people in a functioning democracy,” Praveen Fernandes, the vice president of the Constitutional Accountability Center, a liberal legal organization, told me.

The only part of Trump’s case that contains anything resembling a reasonable argument is the idea that without some kind of immunity for official acts, presidents could be prosecuted on a flimsy basis by political rivals. But this argument is stretched beyond credibility when it comes to what Trump did, which was to try repeatedly and in multiple ways to unlawfully seize power after losing an election. Even if the prospect of presidents being prosecuted for official acts could undermine the peaceful transfer of power, actually trying to prevent the peaceful transfer of power is a much more direct threat—especially because it has already happened. But the Republican-appointed justices seemed much more concerned about the hypothetical than the reality.

“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent,” Justice Samuel Alito asked, “will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

Trump has the conservative justices arguing that you cannot prosecute a former president for trying to overthrow the country, because then they might try to overthrow the country, something Trump already attempted and is demanding immunity for doing. The incentive for an incumbent to execute a coup is simply much greater if the Supreme Court decides that the incumbent cannot be held accountable if he fails. And not just a coup, but any kind of brazen criminal behavior. “The Framers did not put an immunity clause into the Constitution. They knew how to,” Kagan pointed out during oral arguments. “And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

At least a few of the right-wing justices seemed inclined to if not accept Trump’s immunity claim, then delay the trial, which would likely improve his reelection prospects. As with the Colorado ballot-access case earlier this year, in which the justices prevented Trump from being thrown off the ballot in accordance with the Constitution’s ban on insurrectionists holding office, the justices’ positions rest on a denial of the singularity of Trump’s actions.

No previous president has sought to overthrow the Constitution by staying in power after losing an election. Trump is the only one, which is why these questions are being raised now. Pretending that these matters concern the powers of the presidency more broadly is merely the path the justices sympathetic to Trump have chosen to take in order to rationalize protecting the man they would prefer to be the next president. What the justices—and other Republican loyalists—are loath to acknowledge is that Trump is not being uniquely persecuted; he is uniquely criminal.

This case—even more than the Colorado ballot-eligibility case—unites the right-wing justices’ political and ideological interests with Trump’s own. One way or another, they will have to choose between Trumpism and democracy. They’ve given the public little reason to believe that they will choose any differently than the majority of their colleagues in the Republican Party.

Congress passed a bill this week that forces TikTok to be sold or face a nationwide ban. President Biden signed it into law Wednesday, starting a 270-day timer for TikTok to decide its future in the United States. There’s been talk about a ban like this for years, but now it’s actually happening.

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Last October, Indian authorities revived legal proceedings against the novelist and activist Arundhati Roy. In a case first registered against her in 2010, Roy stood accused of “provocative speech” that aroused “enmity between different groups” for having said that Kashmir was not an “integral” part of India. The charge carries a maximum sentence of seven years and kept her from traveling to Germany to deliver the opening address at the 2023 Munich Literature Festival.

The assault on expression, and on virtually every other mainstay of democracy, has become commonplace under Prime Minister Narendra Modi’s government, and it is the backdrop against which Indians have begun voting to elect their next Parliament and prime minister. Of the nearly 1 billion eligible voters, perhaps more than 600 million will cast their votes over a six-week-long process. Modi, who heads the Bharatiya Janata Party (BJP), is widely expected to win a third term as prime minister in his bitter contest against a motley alliance of opposition parties, the Indian National Development Inclusive Alliance (INDIA).

[Read: What has happened to the rule of law in India?]

The spectacle of hundreds of millions of Indians—many suffering severe material deprivation—performing their civic duty arouses both hope and wonder, often winning India the title of “world’s largest democracy.” But Indian democracy did not just begin to degrade under Modi: It has been eroding since the first years of independence. Modi has put that process on steroids and today presides over an autocracy in all but name.

For decades, the Indian state has used coercive legal powers to suppress dissent and constitutional mechanisms to delegitimize votes. The judiciary has largely acquiesced, money has gushed into Indian politics, and Hindu nationalism has cast a dark shadow of division. What are treated now as anomalies have been the trajectory all along.

Nonetheless, world leaders, including President Joe Biden, often describe India as a vibrant democracy. Even more nuanced analyses hold that Indian democracy will withstand the current crisis because Indians respect diversity and pluralism, the country’s democratic institutions are strong, and recovery is inevitable.

This romantic view of an inherently democratic India is a fairy tale. According to the Swedish think tank V-Dem, India was never a liberal democracy, and today it is sliding ever more decisively toward autocracy. Even under its first prime minister, Jawaharlal Nehru, India’s impressive electoral apparatus did not guarantee equality before the law or ensure essential liberties to citizens. Subsequent leaders, rather than plugging the cracks in India’s constitutional foundation, expanded them, not least by using the state’s coercive power to circumvent democratic processes for personal or partisan advantage. Fraying democratic norms rendered free speech, dissent, and judicial independence casualties from the start.

The constitution that independent India adopted in 1950 defined the country as a democratic republic committed to justice, equality, and fraternity for its people. But the democratic conception of the state suffered its first blow when the constitution was just 18 months old. Nehru, frustrated that Indian courts were upholding the free-speech rights of his critics, amended the constitution in June 1951 to make seditious speech a punishable offense. Only one person was actually convicted of sedition before Nehru’s prime ministership ended with his death. But several suffered for extended periods after lower courts found them guilty and before higher ones reversed the verdicts. That long legal limbo had a chilling effect on speech.

The Indian constitution had other undemocratic features that Nehru deployed. It evinced a preoccupation with integrity and security, and emphasized the union, rather than autonomy, of the states it federated. If India’s central government deemed a state’s politics to be dysfunctional, it could place the state under a kind of federal receivership called President’s Rule, essentially disenfranchising the state’s electorate. Nehru imposed President’s Rule eight times during his tenure. The constitution had other significant gaps: It didn’t furnish social and economic equality to women, for example. Nehru tried to pass a bill that would override traditional Hindu patrimonial practices, but even in the postindependence glow of national unity, organized Hindu forces asserted their identity and political power. They stymied Nehru’s legislative efforts in 1951 and then the implementation of the laws that did pass later.

Nehru, for all his faults, valued tolerance and fairness. The same could scarcely be said of his daughter, Indira Gandhi, who followed soon after as prime minister and initiated a steep decline from such democratic norms as existed under Nehru. In 1967, she responded to a peasant protest in Naxalbari, West Bengal, by passing the draconian Unlawful Activities Prevention Act, which allowed the police to arrest and hold people without trial, bail, or explanation. This legislation would become an instrument of repression for decades to come. She also placed West Bengal under President’s Rule, and her chosen governor used the police and armed forces to wipe out a generation of idealistic students who supported the peasants. In fact, Gandhi imposed President’s Rule nearly 30 times from 1966 to 1975, when she declared an internal emergency and assumed dictatorial powers. Gandhi called for elections in early 1977, hoping to legitimize her autocratic rule. But when a frustrated Indian populace threw her out, the University of Chicago political scientists Lloyd and Susanne Rudolph—echoing a commonly held view—happily concluded, “Democracy has acquired a mass base in India.”

[From the April 1940 issue: India’s demand and England’s answer]

That proved wishful thinking. Upon reelection as prime minister in 1980, Gandhi accelerated the erosion of democratic norms. She imposed President’s Rule more than a dozen times in her second stint in power, from 1980 to 1984. She also began pandering to the sentiments of Hindus to win their votes, opening the door to the hard-line Hindu-nationalists who have since become an overpowering force in Indian politics.

Perhaps Gandhi’s most pernicious legacy was the injection of “black” money—unaccounted-for funds, accumulated through tax evasion and illegal market operations—into Indian politics. In 1969, she banned corporate donations to political parties. Soon after, her campaigns became extremely expensive, ushering in an era of “briefcase politics,” in which campaign donations came in briefcases full of cash, mostly filling the coffers of her own Congress Party. Criminals became election financiers, and as big-money (and black-money) politics spread, ideology and public interest gave way to politics for private gain. Legislators in state assemblies frequently “defected,” crossing party lines to bag ministerial positions that generated corrupt earnings.

And yet, for all the damage done to it, many analysts and diplomats still cleaved to the romantic view of Indian democracy. Upon Gandhi’s assassination in 1984, a former U.S. foreign-service officer, writing in Foreign Affairs, described the monarchical-style handover of power to her son, the political neophyte Rajiv, as proof of the “strength of the republic and its democratic constitutional system.”

Rajiv’s stewardship could rightly be seen in an entirely different light. He was the prime minister who let the gale force of Hindu nationalism blast through the door his mother had opened. He commissioned for the state-owned television network, Doordarshan, the much-loved Ramayana epic, which spawned a Rambo-like iconography of Lord Ram as Hindutva’s avenger. And he reignited a contest between Hindus and Muslims over the site of a 16th-century mosque called the Babri Masjid, which had been sealed since 1949 to contain communal passions. Hindu zealots claimed that the structure was built on Lord Ram’s birthplace, and Rajiv opened its gates. Then, in December 1992, Prime Minister P. V. Narasimha Rao’s Congress Party–led government dithered as frenzied Hindu mobs demolished Babri Masjid, triggering bloody riots and further advancing the Hindu-nationalist cause.

The decade from 1989 to 1998 saw a series of coalition governments govern India—a development that the historian Ramachandra Guha has described as “a manifestation of the widening and deepening of democracy” because “different regions and different groups had acquired a greater stake in the system.” Democratic norms were, in fact, degrading at a quickening pace during this period. Big-money politics had bred mercenary politicians, who at the unseemly edge were gangsters providing caste representation, protection, and other services that the state could not supply. Politicians paid little attention to the public good—such as creating more jobs and improving education and health services, especially in the eastern states of Bihar and Uttar Pradesh—and learned that they could use plausible corruption charges against one another as a weapon.

Hindu nationalism swelled. From 1998 to 2003, the BJP led a coalition government that began aligning school textbooks with a Hindu-nationalist agenda. A Congress-led government from 2004 to 2014 arrested this trend but presided over a steep descent into corruption: During that decade, the share of members of the lower house of Parliament charged with serious crimes—including murder, extortion, and kidnapping—reached 21 percent, up from 12 percent.

[Read: India’s democracy is the world’s problem]

Both the BJP and the Congress Party embraced a model of economic growth driven by the very rich, and both dismissed the injury to the economic interests of the weak and vulnerable, as well as to the environment, as necessary collateral damage. In Chhattisgarh, a Congress Party leader, with the support of the state’s BJP government, sponsored a private vigilante army to protect business interests, which included the exploitation of minerals and the mowing down of pristine forests in the tribal areas. When the supreme court declared the private vigilante army unconstitutional, Indian authorities responded in the manner of Andrew Jackson, who famously waved off the United States’ chief justice with the statement, “John Marshall has made his decision, now let him enforce it.”

The anti-terrorism and anti-sedition provisions that earlier governments had supplied came in handy when the Congress-led coalition sought to suppress protests and intimidate opponents. The government also introduced and steadily widened the ambit of a new law, ostensibly for the prevention of money laundering, and it used the investigative powers of the state to its own benefit in whitewashing corruption: In 2013, a justice of the supreme court described the Central Bureau of Investigation as a “caged parrot” singing in “its master’s voice.”

India, on the eve of the election that brought Modi to power in May 2014, could thus hardly be described as a robust democracy. Rather, all the instruments for its demolition had already been assembled and politely passed along from one government to the next. In the hands of a populist demagogue such as Modi, the demolition instruments proved to be a wrecking ball.

As a candidate, Modi promised to right India’s feckless economic policy and countervail against the Congress Party’s corruption. These claims were not credible. Worse, as chief minister of Gujarat in 2002, Modi had failed to stop a bloody massacre of Muslims, thereby establishing himself as an avatar of Hindu-nationalist extremism. He couldn’t even get a visa to enter the United States.

Nonetheless, many of India’s public intellectuals were sanguine. Antidemocratic forces could be no match for the pluralistic disposition of India’s people and the liberal institutions of its state, some insisted. The political scientist Ashutosh Varshney noted that Modi had eschewed anti-Muslim rhetoric in his campaign—because, Varshney inferred, Indian politics abhorred ideological extremism. Another political scientist, Pratap Bhanu Mehta, asked the BJP’s political opponents to reflect on their own fascist tendencies. The Congress Party, Mehta wrote, “had done its best” to instill fear in citizens and corrode the institutions that protected individual rights; Modi would pull India out of the economic stagnation that Congress had induced.

Anti-Muslim violence spread quickly after Modi came to power. Prominent critics of Hindu nationalism were gunned down on their doorsteps: M. M. Kalburgi in Dharwad, Karnataka, in August 2015, and Gauri Lankesh in Bangalore in July 2017. And India was tumbling in global indicators of democracy. V-Dem has classified India as an electoral autocracy since 2018: The country conducts elections but suppresses individual rights, dissent, and the media so egregiously that it can no longer be considered a democracy in any sense of the word. Even the word “electoral,” though, in V-Dem’s designation, has become dubious since then.

[Samanth Subramanian: Indian democracy is fighting back]

Under Modi’s rule, India has taken a sharp turn toward autocracy, but to get there, the BJP had only to drive a truck through the fissures in the state’s democratic foundations that earlier governments had already widened. The government has seized the coercive powers of the state to fearsome ends, arresting activists and human-rights defenders under various provisions of the law. Successive Washington Post investigations have concluded that at least some of these arrests were based on planted evidence. One of those arrested, a Jesuit priest and human-rights activist, died in prison for want of medical attention when suffering from complications of COVID-19. Income and wealth inequalities have grown, in tandem with extraordinary expenditures even in state election campaigns. Demands for the demolition of more mosques have mounted. Inevitably, to woo Hindu voters, even opposition parties, including the Congress Party, have adopted a softer version of Hindu-nationalist ideology.

The BJP government regularly brings charges against its critics in the media for tax lapses or anti-nationalism, among other pretexts. Reporters Without Borders describes India as one of the most dangerous countries for journalists. In 2023, it ranked India 161 out of 180 countries in press freedom, citing the takeover of media outlets by oligarchs close to Modi and the “horrific” online harassment by Modi’s “army of online supporters.”

Can Indians really be said to vote freely under such circumstances? Even if the answer is yes, the government seems to have found the means to disenfranchise citizens after the fact. In August 2019, the government withdrew the constitutional provision that gave Kashmir special autonomy. It also downgraded Kashmir from a state to a territory, placing it under the direct control of the central government without consulting the people of Kashmir. Because the supreme court has refused to reverse this move, future central governments might similarly downgrade other states.

The chief ministers of Uttarakhand and Delhi are both in jail, awaiting trial on money-laundering charges, and the government has frozen the bank accounts of the Congress Party on allegations of tax evasion. Many opposition-party members who face criminal charges join the BJP, effectively giving the ruling party greater political power in exchange for the dismissal of the charges against them. A recent supreme-court directive requiring transparency in a segment of campaign financing revealed signs of extensive corruption primarily benefitting BJP politicians but also opposition leaders in charge of state governments.

Nevertheless, after Prime Minister Modi’s visit to the United States last June and his address to a joint session of the Congress, the White House’s joint U.S.-India statement read: “The United States and India reaffirm and embrace their shared values of freedom, democracy, human rights, inclusion, pluralism, and equal opportunities for all citizens.” In January, Secretary of State Antony Blinken referred to India as the “world’s largest democracy” and a vital partner, a position that the State Department continues to hold.

Such statements are at odds with the Indian reality. Over the seven decades since independence, Indian democracy has betrayed its people, leaving the majority without dignified jobs, foundational education, public health, or clean air and water. Alongside that betrayal, the death by a thousand cuts of democratic norms raises the troubling question: Is India now an autocracy?

If Modi wins this election, his victory will surely strengthen autocratic tendencies in India. But in the unlikely event that he loses, the erosion of democracy will merely have paused. Democracy is a fragile construct. When deviation from democratic norms persists for as long as it has in Indian politics, deviance becomes the norm. Reversing it becomes a monumental task. Especially if a winning opposition coalition fails to improve the quality of Indian lives, an electorally resurgent Modi and his Hindutva supporters could potentially seal democracy’s fate.

At Columbia University, administrators and pro-Palestinian students occupying the main quad on campus are in a standoff. President Minouche Shafik has satisfied neither those clamoring for order nor those who want untrammeled protests. Yet a different leader may not have performed any better. The tensions here between free-speech values and antidiscrimination law are unusually complex and difficult, if not impossible, to resolve.

Shafik presides over a lavishly funded center of research, teaching, civic acculturation, and student activism. Such institutions cannot thrive without strong free-speech cultures. Neither can they thrive without limits on when and where protests are permitted—especially when protesters disrupt the institution as a tactic to get what they want. As Shafik told Congress in recent testimony, “Trying to reconcile the free-speech rights of those who want to protest and the rights of Jewish students to be in an environment free of harassment or discrimination has been the central challenge on our campus, and many others, in recent months.”

That is a formidable challenge. The best protest rules are viewpoint-neutral: They constrain equally, rather than coercively disadvantaging one side in a controversy. How strictly should they be enforced? Whatever the answer, it must apply equally to all students. Yet consistent support for viewpoint neutrality is rare inside and outside academia, especially on an issue as fraught as Israel-Palestine, which has divided Columbia’s faculty and students for decades.

All of that context informed a flash point that occurred at Columbia last week: As Palestine-aligned protesters occupied the quad, where many activists covered their face to obscure their identity, Shafik declared, “I have determined that the encampment and related disruptions pose a clear and present danger to the substantial functioning of the University.” After repeatedly warning students to leave and suspending them when they refused, she called the NYPD to remove them from campus, citing vague safety concerns.

[George Packer: The campus-left occupation that broke higher education]

Yet soon after, student activists reappeared on the quad. More activists gathered outside the school’s gates. Observers speculated about whether calling the cops unwittingly escalated the situation. Faculty critics who say Shafik went too far in contacting police held a walkout to show dissent. Some want to censure her for “violation of the fundamental requirements of academic freedom and shared governance, and her unprecedented assault on students’ rights.” Equally vocal critics believe that by not calling police back to campus, she failed to protect Jewish students and let Palestine-aligned activists break sound rules that must apply to everyone in order to be fair. Amid ongoing tumult, Columbia went “hybrid” for the rest of the semester. “Our preference,” Shafik said, “is that students who do not live on campus will not come to campus.”

Columbia’s options are severely constrained because, for better or worse, it cannot merely start applying the viewpoint-neutral ethos that free-speech advocates prefer to these protests. Administrators must weigh the possibility that failing to more tightly regulate these protests could cause the school to be deemed in violation of antidiscrimination law because of their duration, their intensity, and their tenor, as well as pressure from state and federal officials concerned about anti-Semitism.

In a social-media post referencing Columbia, Governor Kathy Hochul put it this way: “The First Amendment protects the right to protest but students also have a right to learn in an environment free from harassment or violence.” As if to underscore the challenge Columbia faces, Hochul misstates Columbia’s legal obligations. As a private university, it is not bound by the First Amendment.

It is subject to Title VI of the Civil Rights Act, which states that no person shall, on grounds of race or national origin, “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under” a program receiving federal funds. To comply, Columbia needn’t be free of harassment. But it must address behavior of sufficient severity or persistence that members of a protected class are denied equal access to education because of their identity. Per current federal guidance, “students who are or are perceived to be Jewish” are covered, and national origin groups are explicitly protected, so Israeli nationals are covered too.

In most campus free-speech disputes that I encounter, the relevant facts are easily grasped in a couple of days, if not a couple of hours. For example, I am confident that the University of Southern California transgressed against viewpoint neutrality when it canceled the valedictorian speech of a Palestine-aligned student, Asna Tabassum. I thought, let her speak. (Protests followed her removal, and USC has now canceled its entire main commencement ceremony.) But at Columbia, I cannot say with confidence whether, in my own free-speech-friendly interpretation of Title VI, Shafik is doing enough or too little to adhere to it.

An example helps clarify the uncertainty here.

If every day protesters on Columbia’s quad were blocking the path of all Jewish students as they tried to walk to class, or shouting ethnic slurs at any student they perceived to be Jewish, Columbia would clearly have a legal obligation to intervene in those protests. Whereas if one time, one protester acting alone blocked the path of one Jewish student, or shouted a slur at a Jewish student, Title VI would not compel Columbia to intervene in ongoing protests. So in between those poles, what is required? The answer is up for debate. Shafik is required to meet a murky legal standard amid protests that she can observe only in part, where a single violent act or viral clip of one charged moment could instantly alter public and official perception about six months of events.

Even insiders charged with analyzing the matter are unsure about Columbia’s legal obligations. In March, a task force convened to study anti-Semitism at the institution released the first in a series of reports, titled “Columbia University’s Rules on Demonstrations.” After studying what antidiscrimination law might require, the report stated, “We urge the University to provide more guidance on the meaning of ‘discriminatory harassment,’ including antisemitic harassment.” It speculated that “at some point, courts and the Department of Education are likely to offer additional guidance.” Until then, it urged that “the University’s legal team should provide more guidance”—but Columbia’s legal team doesn’t have the answer either. Bureaucrats at the Department of Education regularly take extreme liberties in interpreting what antidiscrimination law means, with some conclusions shifting dramatically under different presidents.

In theory, Title VI could be construed in a matter that reinforces the need for viewpoint neutrality: Israel- and Palestine-aligned students would each get no more and no less latitude to protest than Columbia would extend to any other group, regardless of how urgent or pointless, enlightened or abhorrent their position. In practice, counterfactuals cannot guide administrators or regulators, and as the Duke professor Timur Kuran observed on social media, students on both sides of the issue plausibly feel discriminated against by their universities, because “identity politics has inevitably led to arbitrariness and inconsistencies in applying rules.”

In fact, it may be the case that Columbia is both failing to provide its Jewish students with equal access to its educational experience and (as the Knight Foundation has argued) engaging in viewpoint discrimination against Palestine-aligned students.

Those who believe Columbia is overpolicing the Israel-Hamas protests should rationally desire reforms to Title VI, so that more campus speech is deemed acceptable. In reality, most social-justice-oriented faculty and students are either highly selective about whose controversial viewpoints they want protected or loath to recognize the long-standing conflict between tolerance for free speech and antidiscrimination law. Vilifying Shafik without acknowledging the regulatory environment she confronts is much easier.

On the ideological right, meanwhile, is sudden zeal for draconian Department of Education enforcement of antidiscrimination law. “This is what’s known as a Title VI violation,” Ilya Shapiro of the Manhattan Institute posted Monday on social media. “Send in the National Guard and otherwise put Columbia and its morally bankrupt leadership into federal receivership.”

[Adam Serwer: The Republicans who want American carnage]

That is terrible advice, but stakeholders seem to disagree radically about the overall tenor of protests to date. Have they violated the Civil Rights Act as they’ve actually unfolded? The American Association of University Professors doesn’t seem to think so. In a recent statement, it declared that “Shafik’s silencing of peaceful protesters and having them hauled off to jail does a grave disservice to Columbia’s reputation and will be a permanent stain on her presidential legacy.” In contrast, as protesters flooded back onto campus Sunday, Jake Tapper of CNN reported that an Orthodox rabbi at Columbia sent a WhatsApp message to almost 300 Jewish students urging them to leave campus and go home because the institution “cannot guarantee Jewish students’ safety in the face of extreme antisemitism and anarchy.”

Calls for Shafik to resign have come from people on both sides of the conflict. On Wednesday, House Speaker Mike Johnson piled on. But under a new president all of the same challenges and constraints on resolving them would remain. Debate about Columbia would improve if it focused on the thorniest, most contested conflicts between protest rights and antidiscrimination law rather than imagining that a better leader could reconcile the most expansive versions of both projects.

At today’s hearing on Donald Trump’s claim of absolute immunity from criminal prosecution, the Republican-appointed Supreme Court majority appeared poised to give him what he most desires in the case: further delays that virtually preclude the chance that he will face a jury in his election-subversion case before the November election.

But the nearly three hours of debate may be even more significant for how they would shape a second Trump term if he wins reelection. The arguments showed that although the Court’s conservative majority seems likely to reject Trump’s claim of absolute immunity from criminal prosecution, four of the justices appear predominantly focused on limiting the possibility that future presidents could face such charges for their actions in office, with Chief Justice John Roberts expressing more qualified sympathy with those arguments. Among the GOP-appointed justices, only Amy Coney Barrett appeared concerned about the Court potentially providing a president too much protection from criminal proceedings.

The conservative majority appeared determined to draw a lasting line between presidential actions that could and could not be subject to criminal prosecution; Justice Neil Gorsuch at one point insisted, “We’re writing a rule for the ages.” But many observers fear that any grant of immunity, no matter how the majority tries to limit it, would enormously embolden a reelected Trump to barrel through constraints of custom and law in pursuing his self-described agenda of “retribution.”

“The Supreme Court may be inclined to split hairs, but Donald Trump is not,” Deana El-Mallawany, the counsel for the bipartisan group Protect Democracy, told me after the hearing. “The arguments today made clear that Trump seeks absolute unchecked power. Trying to rein in an imperial vision of presidential power like that with an opinion that draws fine lines would be akin to trying to hold water with a net.”

After today’s hearing, the hope that a trial could proceed expeditiously now “seems fruitless, and the question is whether the Court will issue an opinion that will provide expansive, albeit not unlimited, immunity, which would be a giant step toward rejecting the idea the president is not a king, a fundamentally anti-constitutional principle,” the former federal prosecutor Harry Litman, the host of the podcast Talking Feds, told me.

In claiming absolute immunity from criminal prosecution, Trump’s lawyers relied heavily on the 5–4 1982 Supreme Court decision Nixon v. Fitzgerald, which ruled that former presidents could face civil suits only for actions that could not be defined as official, even under a very broad definition of that term.

Although providing that expansive protection from civil litigation, the Court in that earlier case did not address whether the president should enjoy comparable immunity from criminal prosecution. The majority opinion dropped only fleeting and somewhat contradictory breadcrumbs about the Court’s view on criminal prosecution. At one point, the decision implied that the president deserves less protection from criminal charges. But later, the decision omitted criminal charges when it listed means other than civil suits that could hold a president accountable for his actions.

The three-judge panel on the Washington, D.C., Circuit Court of Appeals, in its ringing ruling earlier this year denying Trump’s immunity claim, concluded that the Nixon v. Fitzgerald limits on civil cases should not apply to criminal allegations against a former president. At the hearing, though, Roberts openly disparaged the circuit-court opinion for failing to provide enough protection to a president.

[Read: The Supreme Court goes through the looking glass on presidential immunity]

Groups of both constitutional-law scholars and historians of early America filed briefs to the Supreme Court arguing that there is no evidence that the Founders intended to provide the sweeping protection Trump is seeking and asserting that they had consciously omitted from the Constitution any grant of immunity to the president for official acts. “The President’s susceptibility to prosecution was an express theme of the ratification debates,” the historians wrote in their brief. “Critical figures in multiple [state ratifying] conventions converged on the same understanding: The President can be prosecuted.”

To varying degrees, the Republican-appointed justices seemed to accept the idea that former presidents could be prosecuted in theory, while devoting much of their question time to minimizing the circumstances in which they actually would be. Today’s hearing validated the predictions of legal analysts who told me earlier this week that the conservative majority would be drawn to a version of the Fitzgerald distinction immunizing the president against legal challenge for some circle of acts within his official responsibilities but not against acts that fall outside that boundary.

“I think they will do what they should do, which is they will hold that Nixon v. Fitzgerald applies to criminal as well as civil matters against the president, which means that Trump will get part but not all of what he wants,” Michael McConnell, the director of the Constitutional Law Center at Stanford Law School, told me before the hearing. “Nixon v. Fitzgerald distinguishes between presidential acts that are within ‘the outer perimeter’ of his presidential authority and acts that are private. I think it is clear that some of what he is being charged with falls into each category.”

If, as seems likely after today’s hearing, the Court majority seeks to establish such a distinction between some official acts that are protected and private acts that are not protected, it would virtually extinguish the chances that Trump will face a trial before the November election on the charges that he tried to overturn the 2020 election.

“Even if it’s pellucidly clear that the standard [for immunity] wouldn’t apply to Trump, I do think he likely would get another trip back up and down the federal courts, very likely dooming the prospect of a trial in 2024,” Litman said.

The longer-term implications of a ruling providing immunity for some substantial portion of official conduct, though, could be even more profound. The hearing suggested that the conservative Supreme Court majority is unwilling to consider, or simply unconcerned, that the real-world political context of a second Trump term could undermine any distinction it draws between presidential behavior that is and is not protected from criminal prosecution.

“As we heard today, Donald Trump is trying to take the most maximal approach to executive power,” El-Mallawany told me. “If the Supreme Court is willing to give an inch, then I think he’ll take a mile in a second term.”

Trump has already made clear that he views presidential authority as essentially unlimited. Responding to the dramatic hypothetical that Judge Florence Pan raised during the proceedings in the D.C. Circuit Court, Trump’s lawyer D. John Sauer said that a president could not be criminally prosecuted unless first impeached and convicted even if he ordered SEAL Team Six to assassinate a political rival.

[Read: Trump’s misogyny is on trial in New York]

At today’s hearing, Sauer again insisted that Trump could not be criminally prosecuted for killing a rival, selling nuclear secrets to an enemy, or even staging a coup unless he was first impeached and convicted. “They took assassinating an opponent and upped it to a full-bore coup,” John Dean, the White House counsel under Richard Nixon who helped expose the Watergate scandal, told me after the hearing.

Even short of that extreme, Trump has indicated that in a second term he intends to send federal forces into blue states and cities over the objections of local officials and deploy the Justice Department and the FBI against his political opponents.

If he wins in November, Trump would inevitably interpret the victory as a public endorsement, or at least acceptance, of his views about presidential power. And all signs suggest Trump has already concluded that hardly any elected officials in his party have the stomach to confront him. That degree of loyalty functionally eliminates the possibility that Congress could impeach him and remove him from office, almost no matter what he does.

As El-Mallawany told me, that means the reality facing the Supreme Court as it considers this case is that a second Trump term would come only after “defeat at the ballot box, impeachment by Congress, and self-policing by the party” are all effectively eliminated as prospective checks on Trump’s actions.

If, against that backdrop, the Court also chooses to weaken rather than fortify the last legal barriers against egregious presidential actions, Trump could easily conclude that he faces few practical limits on his authority. Given Trump’s baseline inclination to view his presidential authority as virtually unlimited, Dean said he didn’t think the Court could distinguish between protected and unprotected presidential actions in a manner that will constrain Trump’s behavior if he wins again.

“That’s why it is very troublesome for the Court to try to fashion some sort of immunity even with the core functions [of the presidency], because it’s all hypothetical and speculative at this point as to what it would mean, and lawyers have a wonderful facility for finding permission for actions that are not really permissible,” Dean told me.

Justice Ketanji Brown Jackson, echoing such concerns, forcefully raised the risk in the hearing that broad immunity from criminal prosecution could leave a president “emboldened” to undertake illegal acts, because he would arrive in office aware that he was immune from criminal accountability. Maintaining the possibility of criminal charges, she argued, was essential to deterring a president inclined to misuse his or her authority.

But several justices in the conservative majority seemed more concerned, however implausibly, about the opposite risk. Justice Samuel Alito argued that opening a president to criminal liability would not deter illegal activity but actually increase the risk that he or she would break the law. In Alito’s somewhat head-spinning logic, a president who feared potential criminal prosecution after he left office would undertake illegal acts to stay in power and avoid that legal exposure.

After the hearing, the prospect that Trump would face trial before November seemed minimal. Barrett surprisingly joined Jackson in suggesting that while the courts sorted out which of a president’s official actions deserved immunity, a trial could proceed around the elements of Trump’s behavior that were clearly private in nature. However, four of the other Republican-appointed justices appeared entirely uninterested in that idea, and Roberts seemed more inclined to send the case back to lower courts.

As Harry Litman noted, those who went into the hearing wishing to preserve a preelection trial against Trump emerged from the proceedings reduced to hoping that the Court doesn’t eviscerate the possibility of criminal consequences for any president who breaks the law. Even a decision that allows Trump to delay any further criminal trials until after the election could look relatively small next to the consequences of a ruling that causes him to conclude that, if he wins again, the Supreme Court would lack the will to restrain him.