On Tuesday, Josh Gerstein and Kyle Cheney reported that some of the rats were looking to jump off the SS Trump to save their own skins. “[S]ome of his aides, allies and co-defendants are pointing at the former president” as the trials get closer. “In court documents and hearings, lawyers for people in Trump’s orbit— both high-level advisers and lesser known associates— are starting to reveal glimmers of a tried-and-true strategy in cases with many defendants: Portray yourself as a hapless pawn while piling blame on the apparent kingpin.”
So far all the turncoats have been lower level co-conspirators. The one everyone is waiting for is former chief of staff Mark Meadows, a former real estate agents-turned-shady-extremist who helped found the “Freedom” Caucus. Gerstein and Cheney wrote that Meadows “signaled that his defense is likely to include blaming the former president as the primary driver of the effort. It’s not uncommon for co-defendants facing serious prison time to point fingers at each other to make themselves look less culpable to an eventual jury. But rarely has it played out in such an extraordinary fashion, where the alleged ringleader is a former president.”
During a hearing Atlanta, a defense attorney for Meadows called attention to Trump’s prominent role in what is certain to be a crucial element of prosecutors’ case there: the infamous Jan. 2, 2021, phone call in which Trump demanded that Georgia Secretary of State Brad Raffensperger, a Republican, “find” enough votes to declare Trump the winner.
Meadows arranged that pivotal call. But after prosecutors played audio of the call in the courtroom, an attorney for Meadows emphasized that his client’s part in the actual discussion was both more minor and less provocative than Trump’s.
“There’s a lot of statements by Trump. Meadows’ speaking roles were quite limited,” Meadows’ lawyer, Michael Francisco, observed as he cross-examined Raffensperger, who was called to testify by prosecutors.
“He didn’t make a request that you change the vote totals— Meadows, himself?” Francisco continued.
“Correct,” Raffensperger replied.
Although Francisco made the point delicately, one could almost hear the screech of the bus tires. Trump, of course, did make such a request— something the defense attorney didn’t need to mention directly since the whole courtroom had just heard Trump’s voice doing just that.
It’s a strategy that could sharpen as the Georgia case moves closer to a jury. The case includes numerous defendants with much smaller alleged roles than those of Trump or his top aides. If a jury primarily blames Trump for the events that played out in the aftermath of the 2020 election, the lower-profile co-defendants may seem less culpable by comparison.
“Strategically speaking, if you are one of the lesser important players, you would definitely want to be in the same trial with Donald Trump. All of the focus is going to be on him,” said Scott Weinberg, a Florida-based attorney who represented one of the Oath Keepers in a high-profile trial stemming from the Jan. 6 attack on the Capitol. “They don’t want the little guys, they want Trump. You’re always compared to who you’re next to.”
…Meadows made clear in his own testimony at last week’s hearing that Trump viewed the false electors as a significant part of his strategy to remain in power. He said he sent an email pushing the campaign to assemble those slates because he feared a tongue-lashing from Trump.
In her take, Bess Levin wrote that “Trump has made [it] abundantly, absurdly clear over the past several years, he is obsessed with loyalty, and requires complete and total devotion from everyone in his orbit, or even on the periphery of his orbit, like the loyalty required by a mob boss. Not surprisingly, since leaving the White House in disgrace some three and a half years ago, the ex-president has continued to demand such fealty. But unfortunately for the former guy, it appears the threat of prison time is testing some people’s allegiance to the king.”
“For his part,” she wrote, “Trump is presumably not thrilled about his coconspirators claiming they were just taking his orders— but he shouldn’t be surprised by the tactic. As Rolling Stone reported last month, the ex-president is expected to defend himself against election-related charges in part by claiming he was just taking his lawyers’ advice.”
Yesterday, CNN reported that "Mar-a-Lago IT worker Yuscil Taveras has struck a cooperation agreement with the special counsel’s office in the federal case over Trump’s handling of classified documents... According to the terms of the deal explained in the filing, Taveras agreed to testify in the classified documents case and in exchange will not be prosecuted. He has not been charged with any crimes. The filing marks the first public acknowledgment that special counsel Jack Smith has won the cooperation of key witnesses as part of his prosecution of Trump, his longtime valet Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira."
When I was a kid and as former colony after former colony, primarily in Asia and Africa, gained their independence, the U.S. was often a model they aspired to emulate. No one in their right mind would be emulating the U.S. now— which made Harvard professor Steven Levitsky and Daniel Ziblatt try to figure out what the fuck has happened U.S. democracy? Spoiler: it isn’t all Trump’s fault. “Despite its flaws,” they wrote, “the U.S. Constitution was a pioneering document. America became the first large nation to rule itself without a monarchy and instead fill its most important political offices via regular elections. Over the next century, the American Constitution served as a model for republican and democratic-minded reformers across the world. The United States no longer seems like a good model today. Since 2016, America has experienced what political scientists call ‘democratic backsliding.’ The country has seen a surge in political violence; threats against election workers; efforts to make voting harder; and a campaign by the then-president to overturn the results of an election— hallmarks of a democracy in distress. Organizations that track the health of democracies around the world have captured this problem in numerical terms. Freedom House’s Global Freedom Index gives countries a score from 0 to 100 each year; 100 indicates the most democratic. In 2015, the United States received a score of 90, roughly in line with countries such as Canada, France, Germany, and Japan. But since then, America’s score has declined steadily, reaching 83 in 2021. Not only was that score lower than every established democracy in Western Europe; it was lower than new or historically troubled democracies such as Argentina, the Czech Republic, Lithuania, and Taiwan.”
But, like I said, it’s not just Trump, nor even just his cult-like following. The causes of the crisis, they wrote, “are more endemic than that. Over the past two centuries, America has undergone massive economic and demographic change— industrializing and becoming much larger, more urban, and more diverse. Yet our political institutions have largely remained frozen in place. Today, American democracy is living with the destabilizing consequences of this disjuncture.” Yep… they blame a now dysfunctional Constitution written in the 18th Century to confront 17th and 18th Century problems, which it did very well. The Constitution was “designed in a pre-democratic era in part to protect against ‘tyranny of the majority,’ has generated the opposite problem: Electoral majorities often cannot win power, and when they win, they often cannot govern. Unlike any other presidential democracy, U.S. leaders can become president despite losing the popular vote. The U.S. Senate, which dramatically overrepresents low-population states by giving each state equal representation regardless of population, is also frequently controlled by a party that has lost the national popular vote. And due to the Senate’s filibuster rules, majorities are routinely blocked from passing normal legislation. Finally, because the Supreme Court’s composition is determined by the president and Senate, which have often not represented electoral majorities in the 21st century, the Court has grown more and more divorced from majority public opinion. Not only does the Constitution deliver outsize advantages to partisan minorities; it has also begun to endanger American democracy. With the Republican Party’s transformation into an extremist and antidemocratic force under Donald Trump, the Constitution now protects and empowers an authoritarian minority.”
They noted that over the course of the 20th century “most of the countries that are now considered established democracies dismantled their most egregiously counter-majoritarian institutions and took steps to empower majorities… Indirect elections also disappeared… Undemocratic upper chambers were tamed or eliminated beginning, in the early 20th century, with Britain’s House of Lords. Britain experienced a major political upheaval in 1906 when the Liberal Party won a landslide election, displacing the Conservatives (or Tories), who had governed for more than a decade. The new Liberal-led government launched ambitious new social policies, which were to be paid for with progressive taxes on inherited and landed wealth. Outnumbered by more than two to one in Parliament, the Conservatives panicked. The House of Lords, which was dominated by conservative-leaning hereditary peers, came to the Tories’ rescue. Inserting itself directly into politics, the unelected upper chamber vetoed the Liberal government’s all-important tax bill of 1909… The Liberal chancellor of the Exchequer, David Lloyd George, the main author of the budget bill, called the House of Lords a plutocratic body— ‘not a watchdog’ but rather the ‘poodle’ of the Conservative Party leader. In a speech to a roaring crowd in London’s East End, the sharp-tongued Lloyd George ridiculed the aristocrats who inherited their seats in the House of Lords as ‘500 ordinary men, accidentally chosen from among the ranks of the unemployed,’ and asked why they should be able to ‘override the deliberate judgment of millions.’ Facing a constitutional crisis, the Liberals drew up the Parliament Act, which would strip the House of Lords of its ability to veto any legislation at all. If the House of Lords lost its veto, its Conservative members warned, political apocalypse would follow. It wasn’t just taxes they feared. They worried about other items on the Liberal-led majority’s agenda, including plans to grant Catholic Ireland greater autonomy, which Conservatives viewed as a fundamental affront to their traditional (Protestant) vision of British national identity. Ultimately, the bill passed not only the House of Commons but also the House of Lords. It took some hardball. The Lords were persuaded after the Liberal government, with the King’s support, threatened to swamp the House of Lords by appointing hundreds of new Liberal peers to the body if it did not relent.”
Judicial review can be a source of what we call “intergenerational counter-majoritarianism”— when judges appointed decades ago routinely strike down legislation backed by present-day majorities. Democracies across the world have attenuated this problem by replacing life tenure with either term limits or a mandatory retirement age for high-court justices. For example, Canada adopted a mandatory retirement age of 75 for Supreme Court justices in 1927. The law was a response to two aging justices who refused to retire, including one who became inactive in court deliberations and another whom Prime Minister William Lyon Mackenzie King described in his diary as “senile.”
…Every democracy that has introduced judicial review since 1945 has also introduced either a retirement age or term limits for high-court judges, thereby limiting the problem of long-tenured judges binding future generations.
In sum, the 20th century ushered in the modern democratic era— an age in which many of the institutional fetters on popular majorities that were designed by pre-democratic monarchies and aristocracies were dismantled. Democracies all over the world abolished or weakened their most egregiously counter-majoritarian institutions. Conservative defenders of these institutions anxiously warned of impending instability, chaos, or tyranny. But that has rarely ensued since World War II. Indeed, countries such as Canada, Denmark, Finland, France, Germany, New Zealand, Norway, Sweden, and the U.K. were both more stable and more democratic at the close of the 20th century than they were at the beginning. Eliminating counter-majoritarianism helped give rise to modern democracy.
…America’s 20th-century reforms did not go as far as in other democracies. For example, whereas every other presidential democracy in the world did away with indirect elections during the 20th century, in America the Electoral College remains intact.
America also retained its first-past-the-post electoral system, even though it creates situations of minority rule, especially in state legislatures. The United States, Canada, and the U.K. are the only rich Western democracies not to have adopted more proportional election rules in the 20th century.
The country’s heavily malapportioned Senate also remains intact. The principle of “one person, one vote” was never applied to the U.S. Senate, so low-population states like Wyoming continue to elect as many senators as populous states like California. As a result, states representing a mere 20 percent of American voters can elect a Senate majority. America’s state-level “rotten boroughs” persist.
America also maintained a minority veto within the Senate. Much like in legislatures in France, Britain, and Canada, the absence of any cloture rule led to a marked increase in obstructionist tactics beginning in the late 19th century. And as in Canada, the filibuster problem took on added urgency in the face of German naval threats in the run-up to World War I. But Canada, like France and Britain, put in place a majoritarian 50 percent cloture rule, while the U.S. Senate adopted a nearly insurmountable super-majoritarian 67-vote cloture rule. The threshold was lowered to three-fifths in 1975, but it remains highly counter-majoritarian. America thus entered the 21st century with a “60-vote Senate.”
Finally, unlike every other established democracy, America did not introduce term limits or mandatory retirement ages for Supreme Court justices. Today, on the Supreme Court, the justices effectively serve for life. It’s an entirely different story at the state level. Of the 50 U.S. states, 46 imposed term limits on state-supreme-court justices during the 19th or 20th century. Three others adopted mandatory retirement ages. Only Rhode Island maintains lifetime tenure for its supreme-court justices. But among national democracies, America, like Rhode Island, stands alone.
The United States, once a democratic innovator, now lags behind. The persistence of our pre-democratic institutions as other democracies have dismantled theirs has made America a uniquely counter-majoritarian democracy at the dawn of the 21st century. Consider the following:
America is the only presidential democracy in the world in which the president is elected via an electoral college, rather than directly by voters. Only in America, then, can a president be “elected against the majority expressed at the polls.”
America is one of the few remaining democracies that retains a bicameral legislature with a powerful upper chamber, and it is one of an even smaller number of democracies in which a powerful upper chamber is severely malapportioned because of the “equal representation of unequal states” (only Argentina and Brazil are worse). Most important, it is the world’s only democracy with both a strong, malapportioned Senate and a legislative-minority veto (the filibuster). In no other democracy do legislative minorities routinely and permanently thwart legislative majorities.
America is one of the few established democracies (along with Canada, India, Jamaica, and the U.K.) with first-past-the-post electoral rules that permit electoral pluralities to be manufactured into legislative majorities and, in some cases, allow parties that garner fewer votes to win legislative majorities.
America is the only democracy in the world with lifetime tenure for Supreme Court justices. All other established democracies have either term limits, a mandatory retirement age, or both.
One reason America has become such an outlier is that, among the world’s democracies, the U.S. Constitution is the hardest to change. In Norway, a constitutional amendment requires a supermajority of two-thirds support in two successive elected Parliaments, but the country has no equivalent to America’s extraordinarily difficult state-level ratification process. According to the constitutional scholars Tom Ginsburg and James Melton, the relative flexibility of the constitution allows Norwegians to “update the formal text in ways that keep it modern.” Americans are not so fortunate.
Of the 31 democracies examined by the political theorist Donald Lutz in his comparative study of constitutional-amendment processes, the United States stands at the top of his Index of Difficulty, exceeding the next-highest-scoring countries (Australia and Switzerland) by a wide margin. Not only do constitutional amendments require the approval of two-thirds majorities in both the House and the Senate; they must be ratified by three-quarters of the states. For this reason, the United States has one of the lowest rates of constitutional change in the world. According to the U.S. Senate, 11,848 attempts have been made to amend the U.S. Constitution. But only 27 of them have been successful. America’s Constitution has been amended only 12 times since Reconstruction, most recently in 1992—more than three decades ago.
…Our excessively counter-majoritarian Constitution is not just a historical curiosity. It is a source of minority rule. The Constitution has always overrepresented sparsely populated territories, favoring rural minorities, but because both major parties had urban and rural wings throughout most of American history, this rural bias had only limited partisan consequences. This changed in the 21st century. For the first time, one party (the Republicans) is based primarily in small towns and rural areas while the other party (the Democrats) is based largely in urban areas. That means that our institutions now systematically privilege the Republicans. The Republican Party won the popular vote in only one presidential election from 1992 to 2020— a span of nearly three decades. But thanks to the Electoral College, Republicans occupied the presidency for nearly half of that time.
In the U.S. Senate, Republican senators not once represented a majority of Americans from 2000 to 2022, but they nevertheless controlled the Senate for half of this period. As often as not during the 21st century, then, the party with fewer votes has controlled the Senate.
In 2016, the Democrats won the national popular vote for the presidency and the Senate, but the Republicans nonetheless won control of both institutions. A president who lost the popular vote and senators who represented a minority of Americans then proceeded to fill three Supreme Court seats, giving the Court a manufactured 6–3 conservative majority. This is minority rule.
What makes the situation so dangerous is that this privileged partisan minority has abandoned its commitment to democratic rules of the game. In other words, the Constitution is protecting and empowering an authoritarian partisan minority.
But that Constitution appears nearly impossible to reform.
To escape this predicament, we must begin to think differently about the country’s founding document and about constitutional change itself— more like the Founders thought about it and more like Norwegians think about their own constitution today. In 1787, just after the Philadelphia Convention, George Washington wrote, “The warmest friends and best supporters the Constitution has, do not contend that it is free from imperfections; but found them unavoidable.” He went on to write that the American people
"can, as they will have the advantage of experience on their side, decide with as much propriety on the alterations and amendments which are necessary as ourselves. I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us."
Born of compromise and improvisation, the U.S. Constitution is not a sacred text. It is a living embodiment of the nation. Throughout our history, from the passage of the Bill of Rights to the expansion of suffrage to the civil-rights reforms of the 1960s, Americans have worked to make our system more democratic. But that work has stalled over the last half century. It is essential to reawaken the dormant American tradition of democratic constitutional change. Doing so will enable America to realize its unfinished promise of building a democracy for all.
