Micah Loewinger: This is On the Media. I'm Micah Loewinger.
Brooke Gladstone: I'm Brooke Gladstone. This week Trump took to the witness stand again to confront the rider he was previously found to have sexually abused and defamed, E.Jean Carroll.
News clip: Trump sat on the stand and testified in his own defense for just three minutes yesterday afternoon. He denies Carroll's claims.
Male Speaker 5: When he said before taking the stand, I don't know who the woman is, Judge Kaplan reprimanded him for interrupting. Exiting the courtroom, Trump was overheard saying, "This is not America."
Donald Trump: Now, we're here, and this is the campaign folks--
Brooke Gladstone: Pared by SNL in a recent Cold Open.
Donald Trump: This is all there is, me yelling in courthouse lobby.
Brooke Gladstone: In what is apparently an effective strategy.
Donald Trump: We've seen a lot of success with saying things that did not happen. I think we'll continue to do that. It's an innovation I'm particularly proud of, seems to be working very well.
Brooke Gladstone: Yes. His legal woes seem to have no impact on his march to the nomination, except perhaps to invigorate his base, losing this case again as he did on Friday. Incurring an $83 million fine does not deter this candidate. Dahlia Lithwick recently laid out the lessons of New Hampshire in a Slate piece titled The Law Alone Cannot Curb Donald Trump's Lawlessness. She's frustrated by the mainstream media's preoccupation with horse race questions and political implications in much of the coverage of Trump's various trials.
Dahlia Lithwick: Overwhelmingly, what I was hearing, the big brains in the legal academy fighting about was tactical questions. Is it just going to foment the next insurrection to disenfranchise a bunch of Trump supporters? Whether constitutional democracy can withstand the Supreme Court signing off on that. Then, I think the sense that the trials are taking too long, the question then becomes how do we make this happen in time to have meaningful accountability before the election? Those questions are not legal questions. They're political questions that are coming in the garb of legal questions.
Brooke Gladstone: There are narrower questions too, like, should the Judge impose a gag order on Trump if he tries to intimidate members of the court or the jury because if he does, he'll be charged with bias and that'll have blowback as well.
Dahlia Lithwick: Right. Why are all these trial Judges treating Donald Trump differently than they would treat any other defendant? Of course, their answer is because he's running for president. If a Judge says to him, "You cannot use my courtroom to intimidate the court staff, you cannot use my courtroom to threaten the prosecutor." He just does it on Truth Social. All of these questions are, in my view, different versions of the same question, which is, "Why can't law be better?"
Brooke Gladstone: You write that Americans have, "Somehow been convinced that the justice system alone can somehow be deployed or in the parlance of the insurrectionists weaponized into becoming the shiny entity that could preserve democracy," but you also say, we get into trouble when we think of the law as a tactic.
Dahlia Lithwick: The law is not a toolkit that you can pull out to make fascism end, but I think that there is a uniquely American fascination with the kind of morality play of we'll all sit back and we'll watch the arc of this thing play out and it's going to be just like law and order, and at the end, the right thing will happen and the guy will go to jail. That is a part of what accountability for Donald Trump must include. I think principally the judicial system is something that we use to determine what happened. By definition, that is a slow exacting process. It's really built to do something quite different from, "Stop Donald Trump from being the next president."
Brooke Gladstone: Trump, you observed has always managed to evade legal accountability because he doesn't allow the legal system to look back at facts. He disputes them even after they've been adjudicated. Look at the case of E. Jean Carroll just this past week. He has an entirely different goal for the mechanisms of the legal process you say.
Dahlia Lithwick: He loses the first E. Jean Carroll trial. The jury finds that he defamed her. What does he do? He says he won, and throughout the weeks of this trial continues to defame her in Real Time. He uses law as a tactic, not as a search for truth.
Brooke Gladstone: His goal then isn't to win the case?
Dahlia Lithwick: If he's determined to have criminal responsibility, that will be a material loss, I think, if he eventually actually pays fines. Right now, none of this matters to him. It's just free airtime. He is very good at winning for losing.
Brooke Gladstone: You argue that the narrow focus on Trump's various trials actually plays in his hands because he's using them as campaign stops because his numbers seem to go up, at least he says with every indictment. I'm not sure what the alternative is.
Dahlia Lithwick: This goes back to the old Jay Rosen quote, "Not the horse race, but the stakes." I think when we get really, really in the weeds of covering these trials as a series of, "Oh my God, did you see what Alina Habba did today?" Cover them as a series of really dramatic horse races. It's of a piece with the sort of much bigger indictment of how the press is covering elections.
Brooke Gladstone: Competitions.
Dahlia Lithwick: Competition contests, good guys-bad guys, oopsie moments. All that stuff is incredibly interesting. My question is whether it really surfaces what the stakes are of no legal accountability for Donald Trump.
Brooke Gladstone: Case in point, you mentioned the Colorado Supreme Court ruling that Trump is ineligible to run for president because of his involvement in the January 6th effort to stop the certification of Biden's win last time. The 14th Amendment bars those who violate the oaths of office from holding government positions. The Supreme Court will hear the case and though you support the pursuit of legal accountability for Trump, you don't see that happening in this case.
Dahlia Lithwick: I don't think that a majority of the Supreme Court is going to vote to uphold the Colorado Supreme Court's ruling. I think it's for exactly the reason that we started at, Brooke, which is this is fundamentally a political question that comes to the court dressed as a legal question.
Brooke Gladstone: Is that what the founders were thinking when they wrote the 14th Amendment?
Dahlia Lithwick: No, I think it's fairly clear that removing Donald Trump insurrectionist from the ballot so that he cannot get office again was exactly what the framers were thinking about. I don't think that's very much in dispute. The question is whether the Supreme Court, which is at the lowest public approval in your and my lifetimes. Since they've started Gallup polling, their numbers have never been this low. Does the Supreme Court want to be the entity that yanks Donald Trump off the ballot? By the way, if Colorado was allowed to take Donald Trump off the ballot, Texas and Florida will take Joe Biden off the ballot and say he's an insurrectionist. There are very, very real, and I would say urgent political questions that are undergirding this. I think in a sense we are hoping that law is going to solve our politics problem.
Brooke Gladstone: As you said, the law can't be boiled down and reconstituted as a vitamin and then chugged down with a Gatorade to save us from an authoritarian strong man. Back in 2016, the journalist Masha Gessen who was raised in Russia warned us that our institutions won't save us. Clearly, it's not a lesson we've learned.
Dahlia Lithwick: 100%. I think the point is all of these things absolutely should be pursued and absolutely this is not a call to say we should pump the brakes on what Fani Willis is doing or Jack Smith is doing, or Alvin Bragg is doing. No, no, no. I'm not saying that. I'm saying the idea that we can sit around and pop popcorn and watch that happen and think that it's going to be in and of itself, the basis for him not winning the election just strikes me as deeply dangerous.
Brooke Gladstone: You fear that thinking and resources are being diverted from other perhaps more effective avenues. What should we be doing instead?
Dahlia Lithwick: Americans at this present moment have a very thin relationship with the work of democracy.
Brooke Gladstone: What do you mean, "a thin relationship to the work of democracy"?
Dahlia Lithwick: For most of us, most of the time, Brooke, I think their notion is that the system works and we're going to go out and vote, and the system doesn't work. The system barely held in the 2020 election by the skin of our teeth. We got out of a meaningful effort to set aside the election results. The Electoral Count Act, which is the reason that Donald Trump was almost able with the help of John Eastman and some of his flying monkeys to set aside the 2020 election that's been reformed. There was a loophole in there that has been fixed by a lot of democracy projects working very hard.
Brooke Gladstone: That was that maneuver that was going to try to get Pence to set things aside, right?
Dahlia Lithwick: Yes, they were going to capitalize on vague language and that's been fixed. Things are fixable. Voting rights are fixable, mail-in voting is fixable, gerrymandering is fixable.
Brooke Gladstone: What are you proposing that listeners do?
Dahlia Lithwick: I would listen to the folks at the Brennan Center or Protect Democracy who do this work every day as their bread and butter. Here's a practical answer. There are a lot of election workers who are older, who used to do this out of the goodness of their heart. They are nonpartisan and they are scared to go be poll workers on election day. Every single person listening to this show who is capable of signing up to go work at a polling place should do that because we see when folks are driving up in trucks in Arizona to polling places with guns and scaring folks, this is what happened to Shaye Moss and Ruby Freeman, terrorized as people working at a polling place.
Shaye Moss: The flame that Giuliani lit with those lies and passed to so many others to keep that flame blazing, changed every aspect of our lives, and we're still working to rebuild. Our greatest wish is that no one, no election worker or voter or school board member or anyone else ever experiences anything like what we went through.
Dahlia Lithwick: The reason people are losing confidence in voting is because we are not performing what it is to be confident about voting. Almost more than anything, we have to believe that our vote matters. That finding out about the candidates matters. That our state elections matter. That races like State Supreme Court races matter. We have learned this over and over again since Dobbs. We have the scaffolding for a really cool democracy and we are so unwilling to throw ourselves into the machinery of that democracy, or we want to think about it in October before the election. I think the pragmatic answer I'm giving you, which is so boring, is structural democracy reform. That's the answer. I always remember in the hours and days after Donald Trump enacted the travel ban after the 2016 election.
Brooke Gladstone: The Muslim ban.
Dahlia Lithwick: The Muslim ban, the first one, and every lawyer that I knew showed up at an airport and went to baggage claim and held up a sign that said, "Dude, I'll be your lawyer." Some of them were real estate lawyers, some of them were family lawyers, and they just realized that this is not a spectator sport, I guess I can teach myself immigration law. Remember all those people who showed up at JFK, and all of the people who weren't lawyers who showed up, the taxi drivers, and the Uber drivers. What I think is we can very quickly tilt into what I'm describing as a very thick relationship with democracy preservation, but it's a muscle, Brooke, and we have to use it and we have to use it much sooner than October of 2024.
Brooke Gladstone: Thank you so much, Dahlia.
Dahlia Lithwick: Thank you for having me.
Brooke Gladstone: Dahlia Lithwick writes about the courts for Slate.
Micah Loewinger: Coming up, having a laugh at public radio's expense.
Brooke Gladstone: Because this is On the Media.
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