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.

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.

So: You’ve decided to force a multibillion-dollar technology company with ties to China to divest from its powerful social-video app. Congratulations! Here’s what’s next: *awful gurgling noises*

Yesterday evening, the Senate passed a bill—appended to a $95 billion foreign-aid package—that would compel ByteDance, TikTok’s parent company, to sell the app within about nine months or face a ban in the United States. President Joe Biden signed the bill this morning, initiating what is likely to be a rushed, chaotic, technologically and logistically complex legal process that is likely to please almost no one.

The government’s case against TikTok is vague. Broadly speaking, the concern from lawmakers —offered without definitive proof of any actual malfeasance—is that the Chinese government can use TikTok, an extremely popular broadcast and consumption platform for millions of Americans, to quietly and algorithmically promote propaganda, potentially meddling in our nation’s politics. According to the U.S. State Department, the Chinese government is set on using its influence to “reshape the global information environment” and has long manipulated information, intimidated critics, and used state-run media to try and bolster the Chinese Communist Party’s reputation abroad. Lawmakers have also cited privacy concerns, suggesting that TikTok could turn American user data over to the CCP—again without definitive proof that this has ever occurred.

This week, Senator Mark Warner told reporters that, although many young Americans are skeptical of the case against the app, “at the end of the day, they’ve not seen what Congress has seen.” But until the American public is let in on the supposed revelations included in these classified briefings, the case against TikTok will feel like it is based on little more than the vague idea that China shouldn’t own any information distribution tool that Americans use regularly. Some of the evidence may also be of dubious provenance—as Wired reported recently, a TikTok whistleblower who claims to have spoken with numerous politicians about a potential ban may have overstated his role at the company and offered numerous improbable claims about its inner workings.

TikTok, for its part, has argued that it has made good-faith efforts to comply with U.S. law. In 2022, it spent $1.5 billion on data security initiatives, including partnering with Oracle to move American user data Stateside. Under the partnership, Oracle is in charge of auditing TikTok data for compliance. But, as Forbes reported last year, some user data from American TikTok creators and businesses, including Social Security numbers, appear to have been stored on Chinese servers. Such reports are legitimately alarming but with further context might also be moot; although the ability to do so has recently been limited, for a long time, China (or anyone else for that matter) could purchase  such personal information from data brokers. (In fact, China has reportedly accessed such data in the past—from American-owned companies such as Twitter and Facebook.)

[Read: It’s just an app]

The nuances of the government’s concerns matter, because TikTok is probably going to challenge this law based on the notion that forcing a sale or banning the app is a violation of the company’s First Amendment rights. The government will likely argue that, under Chinese ownership, the app presents a clear and present national-security threat and hope that the phrase acts as a cheat code to compel the courts without further evidence.

Nobody knows what is going to happen, and part of the reason why is because the entire process has been rushed—passed under the cover of a separate and far more pressing bill that includes humanitarian aid to Gaza, weapons aid for Israel, and money to assist the Ukrainian war effort. This tactic is common among legislators, but in this case, the TikTok bill’s hurried passage masks any attempts to game out the logistics of a TikTok ban or divestiture.

Setting aside the possibility that the courts declare the law unconstitutional, here are just a few of the glaring logistical issues facing the legislation: First, recommendation algorithms—in TikTok’s case, the code that determines what individual users see on the app and the boogeyman at the center of this particular congressional moral panic—are part of China’s export control list. The country must approve the sale of that technology, and as one expert told NPR recently, the Chinese government has said unequivocally that it will not do so. TikTok’s potential buyer may, in essence, be purchasing a brand, a user base, and a user interface, without its most precious proprietary ingredient.

This might make for a tough sell, which raises the second issue: Who is going to buy TikTok? At the heart of the government’s case against the app lies a contradiction. The logic is that TikTok is the beating heart of a social-media industrial complex that mines our data and uses them to manipulate our behavior and, as such, it is very bad for an authoritarian country to have access to these tools. Left unsaid, though, is why, if the government believes this is true, should anyone have access to these tools? If we’re to grant the lawmakers’ claim  that TikTok is a powerful enough tool to influence the outcomes of American elections, surely the process of choosing a buyer would have to be rigorous and complicated. One analysis of TikTok’s U.S. market values the app at $100 billion—a sum that rather quickly narrows down the field of buyers.

Tech giants such as Meta or Microsoft come to mind, which, if approved, would amount to a massive consolidation in the social-media space, giving these companies greater control over how Americans distribute and consume information (a responsibility that Meta, at least, would rather not deal with, especially when it comes to political news; it has overtly deprioritized the sharing of news in Threads, its X competitor). Bids from Oracle and Walmart have been floated in the past—both of which would amount to selling a ton of user data to already powerful companies. That leaves private-equity funds and pooled purchases from interested American investors, such as Steve Mnuchin (who, as Treasury secretary during the Trump administration, was vocally in favor of a TikTok ban) and a handful of billionaires.

[Read: The moneyball theory of presidential social media]

But as we’ve seen from Elon Musk’s purchase of Twitter, putting the fate of a social-media platform into the hands of a few highly motivated individuals can quickly turn into a nightmare. A Muskian ideological purchase would mean a set of owners manipulating the app as part of an extended political project, perhaps even one that works against the interests of the United States—almost exactly what lawmakers fear China might be doing. There is, too, the ironic possibility that any outside investors with enough money to purchase the app might themselves have ties to China, as Musk himself does through Tesla. In this scenario, a sale might end up merely providing the CCP with a helpful veneer of plausible deniability.

There is also the Trump factor. The law gives the sitting president broad authority to judge a worthy buyer, and it gives ByteDance 270 days to find a suitor—a period that the president can extend by 90 days. Close observers might note that there are 194 days until the next election and some 270 days until the next president is sworn into office. It stands to reason that Biden’s qualified buyer might be different from one selected by Donald Trump, who has his own media conglomerate and social app, Truth Social, and is famous for self-dealing.

Trump, for his part, has reversed his opinion on TikTok’s sale (he had previously been in favor, but now opposes it), reportedly after pressure from one of his China-friendly mega donors. If elected, Trump could plausibly attempt a reversal of policy or simply turn around and approve the sale of TikTok to a group with close ties to China. Or, of course, the courts could strike all of this down. Regardless of who is president at the time, this is a lot of authority to grant to one partisan authority. You can play this 37-dimensional game of mergers and acquisitions chess all day long, but, ultimately, nobody knows what’s going on. It’s chaos!

Process matters. If you’re of the mind that TikTok is a pressing national-security threat, you’d be well within your rights to be frustrated by the way this bill has been shoehorned into law. It happened so quickly that the government might not be able to adequately prove its national-security case and might miss this opportunity. And if you, like me, believe that TikTok is bad in the ways all algorithmic social media is bad, but not uniquely bad—that is, if you believe that the harms presented by social media are complex and cannot be reduced to an Axis of Evil designation—you might very well be furious that the first major legislation against a big tech company is, at this point, little more than vibes-based fearmongering. The case for TikTok is debatable, but the path the government has taken to determine its fate is unquestionably sloppy and short-sighted.

U.S. Sen. Bernie Sanders sent letter on Wednesday to Novo Nordisk CEO Lars Fruergaard Jørgensen announcing that the Senate Committee on Health, Education, Labor, and Pensions, which Sanders chairs, has launched an investigation into the high prices the company charges for its blockbuster diabetes and weight loss dugs.

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US State Secretary begins three days of talks with Chinese officials after Senate approves an aid package to Taiwan.

The U.S. Senate passed the TikTok bill on Tuesday evening in a vote of 79-18. The bill, which bans TikTok unless Bytedance sells it to a U.S. owner, flew through Congress this week as part of a broader package to provide $90 billion in foreign aid to Ukraine, Israel, and Taiwan. President Joe Biden said in a statement…

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