Politics / April 30, 2024

The Media’s Coverage of Trump’s Immunity Case Has Been Appalling

By covering the Supreme Court’s hearing of Trump’s immunity claim as if the court were impartial and nonpartisan, the media has done the American people a serious disservice.

Elie Mystal

Justices of the US Supreme Court pose for their official photo at the Supreme Court Building in Washington, D.C., on October 7, 2022.

(Olivier Douliery / AFP via Getty Images)

In the few days since the Supreme Court heard oral arguments in Trump v. United States—the case that will determine whether Donald Trump has lifetime immunity from crimes he committed while in office—the national media has failed. The reports about what happened during the hearing, and how the Republican justices are likely to rule, range from credulous simplicity to outright gaslighting. The court will almost certainly take the extreme, unprecedented, and previously unfathomable position that Trump cannot be held criminally accountable for all of his actions—and the reason it is likely to do so is that the court knows the media will carry its water and normalize its ruling to a public that lacks the time and acumen to fully appreciate what it’s doing.

I’m not talking about Fox News or Newsmax, whose coverage I have not read or watched but assume it’s ranged from cultish to clownish, as it always does. I’m talking about the mainstream press, the so-called “liberal” press, which is taking its cue from the Supreme Court and trying to normalize the proposition that presidents should be immune from at least some crimes.

The idea of presidential criminal immunity is wholly unprecedented in the American experience. Other than Donald Trump, only Richard Nixon has claimed it, and Nixon’s argument was roundly rejected, not just by the courts but also by the media-industrial complex. This time, however, Trump’s claim—and the court’s bankrupt willingness to back it—is finding purchase in the national media.

At oral arguments, the conservatives on the court introduced the novel idea that a president may be immune to criminal prosecution for some acts—specifically, some “official” acts—that are performed in his (or her, theoretically) role as president. That idea runs counter to the very principle of the rule of law, but it’s one the Republican justices entertained in order to accomplish their central goal of preventing Trump from facing trial before the election. It’s also a convenient way for conservative justices to foster the idea of an “imperial presidency”—one where conservative presidents are fully free to trample on civil rights and use maximal force to accomplish their “official” goals, unrestrained by the rest of society.

That’s not how it’s meant to be. The president of the United States has a lot of power that you and I don’t have, but that does not extend (and never has extended) to the power to commit crimes without being subject to the law. I think people get confused by this because the president can lawfully order his military to, say, murder thousands of people in a far-flung country. But there are rules, laws, statutes, and both national and international standards governing the president’s ability to go on a killing spree. The very ability to start a war is technically (and only technically in the modern setting) an act of Congress, not the president. It is simply not the case that the president can unlawfully murder people, just like it’s not the case that the cops can unlawfully murder people based on the color of their skin. That the cops do sometimes unlawfully murder people doesn’t mean that they can’t or shouldn’t be held accountable later, and the same must be true of presidents. The president has the power to murder, but not illegally, and that’s pretty much the difference between living in a nation of laws and living under the whims of a despot.

Instead of explaining how dangerous and unprecedented it would be for a president to be able to commit crimes without the possibility of future legal accountability, most press reports chose to act as if this were a normal and acceptable choice for the court and the country. And while this would be bad enough, it hasn’t been the media’s only failure. The media has also fallen for the whole bogus charade behind the case to begin with. The entire reason that Trump filed his immunity claim was so that the courts—including, ultimately, the Supreme Court—could delay his trial until after the election. And that’s why the Supreme Court took the case. It’s also why they waited until late April to argue it and why they’ll likely send it back down to the D.C. Court of Appeals for an additional hearing.

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By covering the case as if the Supreme Court were impartial and nonpartisan—and as if it’s blithely unaware of its own delaying tactics—the media does the American people a disservice. Most of the coverage has felt like reading a report about the Chicxulub meteor, from the perspective of the placental mammals: “Today, a large rock in the sky seems poised to land on our humble planet. Whatever happens, the collision is sure to be spectacular and could well have a lasting impact on life on this planet, though our opposable-thumbed experts assure us that the future remains bright for all who survive.”

You can see the media’s various blinders in this report from The Washington Post titled “Supreme Court seems poised to allow Trump Jan. 6 trial, but not immediately.” First of all, the headline misses the point. The Supreme Court is not “poised” to allow Trump to stand trial… because they are in the process of delaying that trial indefinitely. The Post may as well write, “We’re all poised to die, but not immediately.”

From there, the Post, like many other news outlets, goes into the conservative back-and-forth over whether “official acts” by the president are subject to criminal liability. Because the conservatives on the court treated it as an open question, the media reports have treated it as an open question, but this is part of the normalization of the unthinkable.

The Associated Press was the only mainstream, legacy media outlet I saw that framed the issue correctly. It wrote: “Since conservatives on the court gained a supermajority with the confirmation of three Trump appointees, they have cast aside decades-old precedent on abortion and [affirmative] action. Now Trump is asking them to rule that one of the fundamental tenets of the American system of government—that no person is above the law—should be rejected as well, at least as it applies to him.” The AP showed that you can report on the hearing without making it sound like committing crimes is just part of a president’s job. Normalizing Trump’s behavior is what the Republicans on the Supreme Court want us to do, but there’s no reason the media has to go along for the ride.

The AP was the exception. In most publications, the six conservative justices said it was sunny, and the reporters did not look outside to report that they were, in fact, in the middle of a Category 5 hurricane. But you can almost forgive news reporters on deadline from uncritically repeating what the justices said they were doing instead of telling people what was actually happening. More troubling to me are the people who should know better. I cannot fathom what made NPR’s Nina Totenberg write a piece titled “Trump’s immunity arguments and the experiences of the justices who might support it,” because it sounds like she’s doing crisis management for the conservative justices.

The second paragraph offers a particularly wild recharacterization of the issue. She writes: “Perhaps it’s Trump Derangement Syndrome that led lots of legal eagles, from liberal to conservative, to believe that former President Donald Trump’s claim of immunity from criminal prosecution was preposterous. But it’s more likely that court observers didn’t properly account for the personal experiences of the conservative justices.”

Okay, first of all, Trump’s immunity claim is preposterous. It is not deranged to think that the 45th president should be subject to the laws just as his 44 predecessors were. The only instances of Trump Derangement Syndrome are coming from people who think otherwise. Speaking for myself, I properly accounted for the fact that Republican justices operate in bad faith and are eager to help Trump win reelection. I just happened to think that’s bad.

More important, Totenberg’s suggestion that conservative justices are likely to accept Trump’s preposterous arguments because of their “personal experiences” is a hell of a way to give license to partisan hackery from this Supreme Court. She’s basically concern-trolling all of us—trying to justify the court’s allowing Trump to abuse presidential power by claiming that all these poor conservative men (as in my piece, Totenberg noted that Amy Coney Barrett did not seem to go along for the ride) were witness to Democratic abuses of legal power.

What I find truly unforgivable in the article, however, is how Totenberg characterizes those personal experiences: “Five of the six conservatives spent much of their lives as denizens of the Beltway. As young men, the five served in the White House and Justice Department, working for Republican presidents, often seeing their administrations as targets of unfair harassment by Democratic majorities in the House and Senate.” This sentence should have come with a visual aid so Totenberg could show us on the doll where John Roberts thinks the mean Democrats hurt Ronald Reagan.

Look, it would be one thing if Totenberg were simply explaining why the conservative men had turned their back on the rule of law. But she’s not explaining; she’s justifying it, and you can tell she’s doing it by how she cherry-picks the life and career of alleged attempted rapist Brett Kavanaugh. Here’s what she tells us about Justice Brett: “Justice Brett Kavanaugh worked for George W. Bush for five years, three of them as staff secretary, a position that’s been described as the ‘nerve center’ of the White House. ‘Conspiracy to defraud the United States can be used against a lot of presidential activities, historically, with a creative prosecutor who wants to go after a president,’ Kavanaugh cautioned.”

It is true that Kavanaugh worked for Bush. But, do you know whom Kavanaugh worked for before Bush? That would be independent counsel and presidential semen-hunter Ken Starr, who led a political prosecution that began as an investigation into a real estate deal involving the Clintons and kept going and growing until he found an unreported (though lawful) blow job. Kavanaugh’s personal experiences do not point to a consistent legal position but to rank hypocrisy. How can you possibly write a piece portraying Kavanaugh as nervous about political prosecutions because of his prior jobs without at least mentioning that one of those jobs was working for the most politically motivated prosecutors of the 20th century?

Finally, there is this article in The New Yorker from Jeannie Suk Gersen, “the supreme court appears poised to protect the presidency, and donald trump.” Gersen is generally very good at explaining the court, so it was absolutely distressing to read this piece that somehow combined all of the conservative talking points into one. Gersen, like Totenberg, seems convinced that the Republican justices are primarily worried about zealous political prosecutions, as opposed to simply trying to keep Trump out of jail any way they can. Here again, the frame is entirely off, as it credulously parrots what the Republican justices say they are concerned about without addressing the hypocrisy, delay, and utter lawlessness of the Republican position.

Ultimately, Gersen does exactly what the conservatives want her to do: twist the argument away from what Trump did, toward what Trump will do should he be reelected. She writes:

With the prospect of Trump winning the election this November, their concerns about criminal law being used to target a former chief executive are not at all unrealistic. Trump has told supporters, “I am your retribution.” He can be expected to deploy his Justice Department to achieve it. Indeed, it is the conservatives who seem most likely to rule in a way that would protect Democratic former Presidents.

This is the lawless loop I’ve seen too many liberals fall for ever since Trump came down his golden escalator more than eight years ago: the argument that holding Trump accountable will become a weapon in Trump’s hands when he has the power to hold his enemies accountable. The argument holds only if you accept two crucial premises:

  1. Trump will somehow be limited by what people have done in the past.
  2. Protecting against Trump’s future crimes is more important than holding him accountable for his previous crimes.

Both of these premises are wrong. On the first point, there has been absolutely no evidence, at all, that Trump’s use of power is somehow limited by past norms and prior restraints. It is simply ridiculous to suggest that Trump will not try to prosecute Joe Biden just because the Supreme Court rules in favor of Trump now and says that presidents can commit crimes. And it’s naïve to think that the Republican-controlled Supreme Court won’t reverse itself the moment Trump shouts at them on Truth Social to attack former Democratic presidents. Neither Trump nor the conservatives on the Supreme Court give a rat’s ass about their prior precedents or logical consistency. There is nothing the Supreme Court can do now to protect Democratic former presidents from Trump and his vengeance, because both Trump and the Supreme Court itself will ignore their prior rulings should Trump regain power. The argument that Trump will be restrained in the future if he’s given immunity for his unlawful acts of the past makes no freaking sense.

On the second point: Even if you somehow believe that the Supreme Court will apply its rules equally to presidents from both parties, that is no reason to let Trump get away with crimes. The man attempted to overthrow the government. What is the point of criminal law if that cannot be prosecuted? If future vindictive prosecutions really are the price we have to pay for holding Trump accountable, it’s still worth it to hold Trump accountable because he literally disrupted the democratic transfer of power. Political prosecutions are dangerous to republics, but stealing elections and using violence to stay in power literally kills them. If your house is on fire, you douse it with water. You don’t tell the firefighters, “Be careful about causing water damage to my home.”

Reading these media justifications of the Supreme Court’s actions makes me think that this is what it must have been like to be a theologian during Europe’s dark age, when the Bible was maintained in Latin and most people were illiterate. Back then, people had to rely on what the clergy said was in the book, and the clergy wanted the people to be compliant with the rulers of the day. It took the Gutenberg press, and the translations of the Bible into the common tongues, to break the Vatican’s iron hold on society. But once that happened, yada yada the Protestant Reformation.

In our day, the Supreme Court speaks in a language most people are unfamiliar with and acts with the presumed authority of gods. People rely on the press to tell them what’s really happening at the court, so when the press tells them that everything happening is normal or justified or just part of the process, the people have almost no choice but to believe them.

But what’s happening is not normal. It’s not OK. This isn’t how the law and the Constitution is supposed to work. The president is not above the law, which means he cannot be immune from accountability for the rest of his life. The president should be, must be, and always has been subject to prosecution for crimes. Anybody telling you anything else is trying to keep you docile and compliant while they pretend that the Supreme Court has access to mystical knowledge we little people cannot comprehend.

The Supreme Court is poised to crown Donald Trump as king of America. That is the headline. That is the thesis that should be nailed to a church door.

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Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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