An editorial shift at the NYT: Authoritarian institutional capture

An incoherent opinion defending the indefensible

Context

One astute observer of politics recently noticed that something strange seemed to be going on at the NYT (New York Times). The newspaper openly positions itself as pro-democracy and staunchly opposed to Trump and MAGA authoritarianism and corruption. Despite that public face, the observer pieced together information that led to an assessment that the NYT has undergone a major editorial shift. The shift constituted what the observer called "a retreat from pluralism and from the democratic purpose the NYT so recently claimed to defend".

That assessment was based on several congruent observations. One was that NYT reporting and editorializing about threats to democracy, the rule of law, civil liberties and the public interest generally from Trump and MAGA elites had shifted. There was an apparently intentional, strategic omission of context and facts readers needed to assess what was being reported. What the NYT left hidden was the scope and depth of MAGA authoritarianism. Instead of core facts needed to assess MAGA politics and actions, NYT reporting and commentary had degraded into superficial reporting of selected facts and MAGA propaganda without context or mention impacts on democracy or the public interest.

In essence, the argument is that the NYT and a lot of other national reporting and commentary frame Trump and MAGA authoritarianism in ways that normalize and justify what is clearly abnormal and unjustifiable.

The Trump administration has waged unprecedented lawfare against the NYT. Direct legal attacks include a $15 billion defamation lawsuit filed in Sept. 2025 over 2024 election coverage. However, it is unclear if the NYT shift results mostly from public threats that Trump and MAGA elites have leveled at the NYT, or if other factors dominate. Authoritarian capture of political discourse has become widespread and that could easily be a major factor in the NYT editorial and reporting changes. NYT journalists reported explicit pressure to avoid appearing biased, leading to both-sides framing even when one side openly defies democratic norms. There is fear at the NYT of (1) loss of access to news sources, and (2) being labeled partisan for accurately describing MAGA's authoritarian actions.

The NYT hasn't become pro-Trump or pro-authoritarian, at least not yet. But it is institutionally captured. Its commitment to "viewpoint diversity" now includes perspectives that, if implemented, would destroy the free press it claims to defend.

An incoherent opinion defending the indefensible

An NYT opinion by Sarah Isgur (not paywalled), senior editor at The Dispatch, argues that the USSC (US Supreme Court) knows what it is doing, and it is good. Her argument is pretty simple. To increase accountability of executive agencies, the USSC is merely rebalancing power among the branches of government. She asserts that this not just transferring power to a unitary executive with legal immunity for committing crimes while in office. A unitary executive is close to a dictator, since he is now legally above the law while in office. 

In her opinion Isgur also claims, incoherently, that the Founders would be "shocked" not by a presidency that has accumulated vast new powers, but by a Congress that has given up a lot of its power. She argues that congress has too little power. But in the same opinion she notes that the USSC is on the verge of giving the president a whole lot more power at the expense of congress. The case, Trump v. Slaughter, could decide the fate of dozens of independent administrative agencies and the president’s ability to control them.

Isgur denigrates members of congress like this:

They [the Founders] would be confused that so many of its more than 500 members seem to have no further ambition than to act like glorified Instagram influencers**.**  

That may be true to some extent, but not very much. That aside, how that justifies giving an already too powerful and corrupt but above the law president more power is clear as mud. Her NYT opinion claims to strengthen Congress but she directly proposes supporting the USSC to weaken it further by transferring congressional delegations to unlimited presidential control in Trump v. Slaughter.

Points for consideration

Does this opinion mostly amount to the NYT publishing legal arguments that sanitize authoritarian power grabs as constitutional theory, the Founder's intent or some other rationalization?

If Isgur is right that the Founders would be shocked at how wimpy congress has become, is it irrational for her to argue that the presidency needs more power, which would be taken from congress in the pending Trump v. Slaughter case? Do her arguments amount to a blatant contradiction that exposes intellectual dishonesty? Does that dishonesty extend to the NYT itself, or is the newspaper walled off from criticism by saying it's her opinion, not ours?

Current GOP on Conspiracies.

 

https://manhattan.institute/article/the-new-gop-survey-analysis-of-americans-overall-todays-republican-coalition-and-the-minorities-of-maga

 On specific theories:

• The 2020 election: Just over half of the Current GOP (51%) believes that the 2020 U.S. presidential election was fraudulent, while 41% say that view is probably or definitely false. Among New Entrant Republicans, support for this belief rises to 60%.
• Vaccines and autism: One in three in the Current GOP (33%) believe that childhood vaccines cause autism. This view is more common among college graduates (42%) than non-graduates (29%), and among New Entrant Republicans (47%).
• 9/11 conspiracies: Four in ten in the Current GOP (41%) believe that the 9/11 attacks were likely orchestrated or permitted by U.S. government actors. Belief is highest among men (48%), college graduates (51%), Republicans under 50 (53%, compared with 34% of those over 50), and New Entrant Republicans (53%). Among black GOP voters the figure is 58%, and among Hispanic GOP voters, 56%.
• Holocaust denial or minimization: Nearly four in ten in the Current GOP (37%) believe the Holocaust was greatly exaggerated or did not happen as historians describe. Younger men are especially likely to hold this view (54% of men under 50 vs. 39% of women under 50). Among men over 50, 41% agree, compared with 18% of women over 50. Racial divides are particularly striking:
  • 77% of Hispanic GOP voters
  • 30% of white GOP voters
  • 66% of black GOP voters
• Moon landing: A similarly sized chunk of the Current GOP (36%) believes that the Apollo 11 moon landing was faked by NASA. Again, younger men are more likely to hold this view (51% of men under 50 vs. 38% of women under 50). There are stark racial divides: while only 31% of white GOP voters believe the conspiracy, this rises to 59% among Hispanic Republicans and 63% among black Republicans.                           

Damn, now THAT above link breaks down a lot of the attitudes of today's GOP and MAGA types. Too much to post all of it here but worth delving into that link by the Manhattan institute.

I just posted the conspiracy theory parts because it is just too bizarre that there are still this many folks who believe those conspiracies. 

Made me laugh.

Balancing of interests in the law is under attack

 Context

Since the founding of the Republic, American laws have generally taken into account cost-benefit for affected people and interests when a law has significant impacts. Balancing of interests has been ubiquitous in constitutional law since the early 20th century. Even when absolutists claim the Constitution is silent about balancing, e.g., clauses asserting a right "shall not be infringed" or congress "shall make no law", their decisions are usually crafted in ways that actually do some balancing, even when that is denied.

Although absolutism and hostility toward balancing of interests is a minority legal view, it is arguably dogma among MAGA legal practitioners, generally including all six Republicans on the US Supreme Court bench. That makes absolutism a powerful influence on modern law despite it being a minority position. The majority view is that constitutional rights and laws must be interpreted in a manner that is sensitive to their purpose and to the necessities of society and the law.

Some legal scholars have called out the hypocrisy of selective anti-balancing originalism in the law. That brand of originalism almost always results in partisan outcomes, not principled outcomes. It uses the law as means to partisan ends. One scholar asserted that originalism is a form of a living constitution that is simply not honest about its values, aims, and commitments. In the hands of MAGA US Supreme Court judges, originalism functions as an after-the-fact rationalization, and an anti-democracy weapon, for partisan decisions made on partisan grounds.

In short, anti-balancing legal scholars and judges are, or at least look like they are, asserting anti-balancing absolutism as a smoke screen for MAGA authoritarianism. The current US Supreme Court is increasingly extending absolutist levels of protection to current favored rights, e.g., speech, religious exercise, bearing arms, and holding property, while zeroing out protection for currently" disfavored rights, e.g., abortion, voting rights and consumer rights and protections.

The Founders' Approach

The Founders explicitly embraced balancing. James Madison cautioned against "absolute restrictions in cases that are doubtful, or where emergencies may overrule them". He understood that rigid rules will not be well-respected when they significantly oppose the public interest. Jefferson similarly acknowledged that declarations protecting free press will not take away the liability of the printers for false facts printed" and that protecting religious freedom "does not give impunity to criminal acts, dictated by religious error. The historical record makes clear that the Founders assumed rights had limits.

MAGA Hypocrisy

Today's conservative Supreme Court majority claims to reject interest balancing in favor of "text, history, and tradition." However, historian Eric Foner has observed that originalism is intellectually indefensible because there is no important document in the world that has only one original meaning or one original intention.

The hypocrisy is glaring. The same justices who eliminated interest balancing for gun safety laws (the 2022 Bruen decision) employ balancing when it favors preferred outcomes. Preferred outcomes include expanding executive power (under the authoritarian unitary executive theory), religious exemptions (allowing discrimination against target groups), and weakening protections for voting rights. Legal scholars document that when convenient, conservative originalists announce decisions and doctrines that have no basis in the Constitution's original meaning.

The Authoritarian Threat

The net effect of MAGA's selective anti-balancing dogma is authoritarian. Recent scholarship argues that the widespread adoption of originalism has diminished the ability of the United States to stare down anti-democratic threats because it has eroded two key bulwarks against authoritarianism, namely individual rights and an independent judiciary.

Since January 2025, the Supreme Court has sided with the Trump administration in 20 of 23 shadow-docket rulings. Lower-court judges who ruled against the administration have been consistently overturned by a Supreme Court majority that claims fidelity to constitutional text while functionally expanding executive power beyond anything the Founders contemplated. There's little to no balancing in that.

Public Ignorance

Most Americans remain unaware that abstract-sounding debates over "originalism" versus "balancing" determine whether their rights have practical meaning. When courts refuse to balance, they either make rights absolute by blocking all regulation, or they defer to government or special interest power. Neither outcome reflects the Founders' nuanced understanding that liberty requires both protection and prudent limits. Both are anti-democracy

The stakes are democracy itself. Empowered originalism creates a legal environment where authoritarianism is viable and democracy weakened. When a an anti-democratic constitutional dogma becomes a weapon wielded for partisan ends, the rule of law and democracy have eroded. Understanding this battle is an important first step toward defending democracy and self-governance.

Supporting democracy: Citizen's assemblies

 

Context

Decades of polarizing and often anti-democratic rhetoric have contributed to declining trust in democratic institutions and processes, especially among Republicans. The radical right MAGA wealth and power movement that is dominated by elites envisions some form of corrupt authoritarianism to replace democracy and the rule of law as they exist now. Government infrastructure to enable that is being built now by MAGA elites in power in the federal executive branch, the courts and congress. The goal is to have in place enduring authoritarian government and law in place once Trump is gone. To attain power, decades of radicalizing demagoguery was necessary for the rise of MAGA to its current position of federal government power.

Upgrading democracy

A Scientific American article, Citizens’ Assemblies Are Upgrading Democracy: Fair Algorithms Are Part of the Program, points to a way that can augment trust in democracy. The article describes a case of a group of 99 Irish citizens who were chosen to be representative of all of the Irish people in terms of age, gender, and where they lived. This citizen's assembly heard from experts, learned about the topic, extensively discussed and debated among themselves, and then made recommendations about legalizing abortion in Ireland. Its recommendation to allow abortions in all circumstances, subject to limits on the length of pregnancy, was supported by a significant majority of the 99. That paved the way to a national referendum that resulted on voters adopting the assembly's recommendations.

The episode was remarkable. Irish politicians would not touch the subject, fearing they would get voted out of office. Since the 99 citizens were not worried about getting voted out of office, they dealt with the issue rationally and reflected that most Irish people, 66%, wanted abortion legalized. The assembly was trusted because the people on it were chosen to represent or be like the Irish people generally.

Citizens’ assemblies bring together ordinary people, selected by lot, to learn about an issue, deliberate, and recommend policies. They often work complex or contentious topics such as climate policy or major reforms. Because participants are not professional politicians, they are insulated from reelection and other pressures such as such as party discipline, campaign incentives, donor blowback, special interests lobbyists, etc. They are free to simply focus on relevant evidence, learning the complexities and deliberation among themselves.

What makes citizen assemblies at least somewhat trusted by the public is selection to make them representative of the rest of the country, state or locality. Some of the people in the assemblies are like many other people in multiple ways. That tends to foster trust to some extent.

Why descriptive representation matters: The article points out that descriptive representation for assemblies should roughly match the population in gender, age, geography, and other characteristics. That boosts public perception that decisions are made by “people like us”. This contrasts with elected legislatures that remain skewed, for example, underrepresentation of women, which undermines perceived legitimacy compared to well-balanced assemblies.

Naive random sampling rarely yields a group that closely resembles the broader population, especially when many demographic and attitudinal criteria are tracked, so practitioners face a trade-off between randomness and representativeness. The piece frames this as an optimization problem: choosing a subset of volunteers that best matches target quotas across multiple dimensions while retaining the core idea of random selection.

The article discusses an algorithm (developed with collaborators and now used by organizations like the Sortition Foundation) that first defines target distributions for demographic categories, then uses computational search to randomly select a panel that satisfies these constraints as closely as possible. This approach allows the “dice” to be loaded in a transparent, rule‑based way to correct for practical biases—such as some groups being less likely to respond to invitations—without letting organizers handpick participants.

By combining sortition with fairness-focused algorithms, citizens’ assemblies can better uncover the will of the people and help build consensus on divisive issues. Assemblies offer a complement to electoral democracy, not a replacement. The article suggests that as citizen assemblies and how they are created become better known, and the underlying algorithms remain open and auditable, they can help counter distrust in institutions and democracy itself. All of this can also show how carefully designed procedures can make democratic representation both more inclusive and more representative, e.g., by eliminating anti-democratic influence by special interests and political parties.

Points for consideration

Would you at least consider recommendations from a citizen assembly if it's makeup and means of selecting people for it are transparent and reasonably representative of "people like you"?

Does this article at least somewhat change the way you view the working of American democracy, which is seriously undermined by corrosive, and often irrational, special interest money, propaganda and influence?

The epitome of moral rot

Context

Cognitive biology: Although some people are uncomfortable with linking subjective, personal morality to politics, social science makes clear that moral reasoning cannot be completely avoided. Humans are inherently moral thinkers and actors. Humans perceive the world and think about it through a human lens. For better or worse, our perceptions and reasoning are usually heavily influenced by personal moral values. That influence tends to arise mostly or completely unconsciously before conscious reasoning is brought to bear. To a large extent, we are basically unaware of much of our moral reasoning and attendant behavior.

News reporting: Various sources report about Trump's pardon of the drug kingpin and Honduran president Juan Orlando Hernández. Hernández was involved in the trafficking of hundreds of tons of illegal drugs into the US. US Senator Tim Kaine asserted that Hernández was aggressive and arrogant in his attitude, allegedly commenting that Hernández said he wanted to ‘shove the drugs right up the noses of the gringos by flooding the United States with cocaine’.

When asked why he pardoned Hernández, Trump gave these reasons:

“I was asked by Honduras, many of the people of Honduras. The people of Honduras really thought he was set up, and it was a terrible thing. They basically said he was a drug dealer because he was the president of the country. And they said it was a Biden administration set-up. And I looked at the facts and I agreed with them.” 

Trump provided no evidence of a setup. In his US trial, Hernández was convicted by a jury who carefully considered the evidence of criminal culpability. Hernández told the jury he was innocent and was set up. But based on available reporting, Hernández provided no verifiable evidence to the court that he was framed or set up. Despite his unsupported claims of innocence, the jury convicted him and then Trump pardoned him. The jury vindicated the rule of law in a fair trial based on evidence. But Trump reversed that and in doing so he denigrated the law and disrespected the jury on the basis of no tangible evidence.

Moral rot

As explained here before, when there is sufficient evidence of dishonesty and bad faith dealings by players and interests doing politics, it is rational for people who support democracy and the rule of law to distrust those players and interests.

Years ago, Trump reached a point where significant numbers of reasonable, fair-minded people could conclude that Trump cannot be trusted. He is not just an aggressive chronic liar[1], which is beyond rational dispute. His authoritarian behavior over the years made clear that his character is grounded in moral rot. Whatever his morality is, it does not include respect for either facts and honest rhetoric, or democracy and the rule of law.

Pro-democracy, pro-rule of law people acting and thinking in good will can rationally argue that Donald Trump is a profoundly morally rotted person. His moral rot manifests in various ways, e.g., inciting insurrection on 1/6/21, fornication with Stormy Daniels (and lying about it), running a fraudulent charity, defaming people, and being convicted of business fraud felonies.

Points to consider

Morality is almost always assessed from different points of view. It depends on who is doing the assessing. From his own point of view, is it more likely that Trump sees himself as a mostly honest player who is at least as moral and good as other politicians? Or does he understand who and what he really is, e.g., mendacious, corrupt, authoritarian, etc., but that's acceptable in his moral world?

Is Trump's pardon of Hernandez an example of moral rot regardless of what point of view it is assessed?

Footnote:

1. PolitiFact's assessment of Trump's lies was blunt: "American fact-checkers have never encountered a politician who shares Trump's disregard for factual accuracy". PolitiFact's assessment noted that Trump's fast-and-loose style with facts persisted from his 2011 promotion of crackpot birther conspiracy theories through his presidency and into his political activities as of Feb. 2024 when PolitiFact published its 1000th fact check of Trump.

Evidence of moral rot

Fact checking technology update

A paper submitted to Arxiv, FlashCheck: Exploration of Efficient Evidence Retrieval for Fast Fact-Checking, considers the obvious idea of using AI (artificial intelligence) to try to counter some of the power of demagoguery and its effectiveness in deceiving and manipulating people. 

The FlashCheck concept addresses a critical bottleneck in automated fact-checking: the high computational cost and time lag in retrieving evidence from massive knowledge bases like Wikipedia. Current systems rely on "dense retrieval" (vector search), which is accurate but resource-heavy, making real-time verification difficult. 

To reduce the problem, the researchers propose a two-pronged optimization strategy, Corpus Pruning, which is indexing only factual statements instead of full text, and Index Compression using joint product quantization (JPQ)[1], a data compression technique. To move closer to real time fact checking, the researchers reduced Wikipedia size by ~93% from 9.70 GB to ~673 MB using JPQ. That resulted in​ a shorter latency time with up to a 10-fold speedup on CPUs and 20-fold speedup on GPUs compared to reference standards. The researchers used their AI model to fact-check the 2024 US Presidential Debate in real-time. The result was a 3.4-fold fact checking speed increase over existing fact check methods. Despite aggressive data compression, negligible performance loss was observed.

As time passes, continued fast fact checking will very likely further improve. A big question is whether it will make much difference. At present, a significant minority of the American public has been conditioned to treat MAGA's blatant lies and flawed reasoning as acceptable and reasonable. As long as that remains the case, it is unclear what effects might flow from improved fact checking.

Footnote for wonks:

1. JPQ employs (1) Joint Optimization to align the query encoder and the compressed index codewords using a shared ranking-oriented loss function, ensuring they work perfectly together, and (2) Hard Negative Sampling during training, where the program retrieves "hard negatives" (incorrect but similar answers) directly from the quantized index, teaching the model to distinguish subtle differences even in compressed data. The result was a massive compression effect that reduced the data size by ~93%, but with faster retrieval speeds without the same level of accuracy drop usually associated with compressing data.

From the human condition files: Fused minds and the slow-rising tide of American awareness

Democracy isn't edible, but food is

Some wonder why it has taken Americans so long to see the threats of both authoritarianism and profound corruption in Trump and allied Republican Party leadership. Some of those who do see the threats wonder why far more people and most of the mainstream media still do not see it. Early on, researchers dissecting the 2024 election of Trump found three main sources of votes for him. They were immigration, inflation and woke/DEI, all three of which were expertly exaggerated and weaponized against Democrats and liberalism. If nothing else, MAGA demagoguery is superb. By contrast, Democratic messaging isn't.

More recent research indicates a different major source of support for Trump, namely identity fusion with attendant cult/social loyalty. Apparently most researchers now see identity fusion—a powerful, visceral sense of oneness with their leader—as among the top reasons people voted for Trump, with some arguing it is the single most important reason. People fused with Trump tend to be more likely to take extreme positions, which includes a tendency to abandon past values, e.g., support for democracy, when doing so supports the identity-fused leader. 

When a voter fuses their identity with that of a politician like Trump, inexplicable reasoning and behavior become understandable. People will knowingly vote against their interests if doing so aligns with the needs of the fused identity. Attacks on and criticisms of Trump become personal attacks on and criticisms of the fused identity. For voters who exhibited strong identity fusion traits, Trump's policy positions were essentially irrelevant to their support for him.

So, when Trump is criticized for attacking democracy and the rule of law, and for demagoguing inflation as being 100% the fault of Biden and Democrats, voters supported Trump in defense of their own attacked and criticized identity. Inflation makes food too expensive, and you can't eat democracy. So in a sense, it was rational for fused minds to vote for Trump despite him (1) openly advancing authoritarianism and corruption at the expense of democracy, and (2) openly not caring about voters everyday concerns or their democracy. Fused minds simply did not, and could not, see their leader that way. Many or most of those minds still cannot see it.

The slow awakening continues

Early on, a few observers saw major threats of autocracy and kleptocracy in Trump. The warnings were dismissed out of hand as crackpottery, lies, idiocy, brainwashed Democrat stupidity, etc. A Russian reporter who chronicled the fall of Russian democracy to Putin's kleptocratic dictatorship, Masha Gessen, wrote this in Nov. of 2016:

“Thank you, my friends. Thank you. Thank you. We have lost. We have lost, and this is the last day of my political career, so I will say what must be said. We are standing at the edge of the abyss. Our political system, our society, our country itself are in greater danger than at any time in the last century and a half. The president-elect has made his intentions clear, and it would be immoral to pretend otherwise. We must band together right now to defend the laws, the institutions, and the ideals on which our country is based.” 

That, or something like that, is what Hillary Clinton should have said on Wednesday [in her concession speech to Trump].

These days, people like Gessen aren't criticized so harshly by so many people. There has been and continues to be a slow awakening to the authoritarian, kleptocratic MAGA threat to our inedible democracy, rule of law and civil liberties. Regarding Trump and his threats, unfused minds, just like enquiring minds, want to know about what's going on. Fused minds, not so much.

Over at the r/law subreddit, more evidence of the awakening has bubbled up in the cauldron of public opinion. The title reflects both the concern and the frustrating, irrational restraints that still poisons so many minds to unvarnished truth:

Early in Trump's term we asked, “Is it a constitutional crisis?” Yeah, it was. But it’s over. We lost. Trial Courts fought valiantly, but the Supreme Court keeps abdicating & giving Trump more power. They won’t save us. And for reasons I can’t fathom, they seem to want authoritarianism - LegalEagle

Yes, those minds see the constitutional crisis. No, those minds still cannot see the pure authoritarianism and corruption that drives Trump and MAGA elites. Specifically, USSC judges do not merely seem to want authoritarianism, they openly show they are authoritarian by deciding lawsuits as authoritarians. Project 2025, an American manifesto of authoritarianism is explicit about supporting a form of authoritarianism called the unitary executive.

At pages 19-20, Project 2025, MAGA elites explain why they believe, and the USSC has acted in accordance with, an all powerful unitary executive who is and must be above the law and all meaningful restraints:

Highlighting this need, former director of the Office of Management and Budget Russ Vought writes in Chapter 2, “The modern conservative President’s task is to limit, control, and direct the executive branch on behalf of the American people.” At the core of this goal is the work of the White House and the central personnel agencies. Article II of the Constitution vests all federal executive power in a President, made accountable to the citizenry through regular elections. Our Founders wrote, “The executive Power shall be vested in a President of the United States of America.” Accordingly, Vought writes, “it is the President’s agenda that should matter to the departments and agencies,” not their own.

Therein lies the legal basis and reasoning that supports a president that now has almost unlimited power to subvert and weaponize federal agencies in support of the president's own agenda. The agenda and needs of the American people and the US Constitution are subordinate to what the unitary executive personally wants.

Discussion

Despite being explicit, core MAGA legal dogma, many or most fused minds cannot see significant authoritarianism in a corrupt dictator called the unitary executive or anything else. That is understandable in human psychology and social behavior. People simply do not or cannot see themselves as supporting corrupt dictator. So to them Trump is not a corrupt dictator, whether he is called a unitary executive or something else.

But why can't nearly all unfused minds clearly see the threat? Presumably most people working in the mainstream news media see the threat. But they rarely call it out in direct terms. The MSM almost always uses softening euphemisms like "conservative" and "libertarian" that normalize, justify and frame MAGA as being something it clearly is not.

Is that harsh assessment of the MSM's failure to inform fair and reasonable or not? Is the MSM engaged in a large-scale disinformation campaign, presumably driven mostly by corporate ownership and Trump's explicit threats (his personal agenda) to profits and revenues?

Thoughts about presidential immunity

SUMMARY

In 2024, the USSC decision in Trump v. US granted American presidents two kinds of immunity for crimes they commit while in office. One was absolute immunity for crimes committed in connection with a president's exercise of core duties, the scope of which is moderately well defined. The other is presumptive immunity for other official duties, the scope of which is intentionally highly ambiguous. There is no immunity for acts that are purely unofficial, the scope of which is moderately ambiguous. 

The evidence prosecutors need to overcome the presumption of immunity is so high and difficult to meet that it can reasonably be seen as very close to absolute immunity. Presumptive immunity bars prosecutors from proving criminal intent for crimes under presumptive immunity. Since proof of criminal intent beyond a reasonable doubt is necessary for proof of criminal culpability, presumptive immunity is very close to absolute immunity.

TRUMP V US

The USSC granted Trump (and all other presidents) a broad shield of immunity in its 2024 decision in Trump v US.  

Presumptive immunity applies to official acts within "the outer perimeter of the President's official responsibilities" where authority is shared with Congress. Here, the government bears the burden of rebutting the presumption by showing that prosecution "would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'" That's not clear.

The burden placed on prosecutors to overcome presumptive immunity is extraordinarily high, and worse yet it is deliberately ambiguous. The government must establish that there is "no" danger "of intrusion on the authority and functions of the Executive Branch," with no other factors to consider or balance. Legal scholars note that this test is "a bastardization" of the balancing test from Nixon v. Fitzgerald (the civil immunity precedent), which originally required weighing "broad public interests," including "vindication of the public interest in an ongoing criminal prosecution."

Under presumptive immunity, courts cannot (1) inquire into the president's motives when determining whether conduct was official or unofficial, (2)​ deem an action unofficial merely because it allegedly violates a generally applicable law., and (3) cannot use evidence of official acts to prove criminal intent even for unofficial conduct.

The presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President's official behavior might be. In other words, presumptive immunity is so close to absolute immunity that there isn't a significant distinction between the two kinds of immunity.

The grant of immunity is vast: The Court granted absolute immunity for Trump's attempts to weaponize the DOJ to overturn the 2020 election—declaring that "Trump's threat to remove the Acting Attorney General also enjoyed absolute immunity." Even his pressure campaign on Vice President Pence to reject electoral votes received "at least" presumptive immunity.

In her dissent, Justice Sotomayor wrote:

 

Today's decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.

Thus, as is generally the case with dictators, Trump is above the law at least as long as he is in office. 

Q: If a Democrat is again elected president of the US, currently an uncertain prospect, would the threat to democracy and rule of law likely be as great as it now is in Trump's hands? In other words, how likely is the Democratic Party shift from its current nominally pro-democracy and pro-rule of law stance to the more authoritarian and anti-rule of law stance that dominates the current MAGA Republican Party?

Nostalgia: A blast from my academic past

One in a while, I see echoes of what sprouted and grew from where I did my academic research (not my research per se). A NYT article (not paywalled) discusses a successful gene therapy treatment for ADA-SCID. That is a genetic  disease that leaves babies without a functioning immune system. Most of those babies die within a year of birth. 

The lab I did my dissertation research in was at the NIH, in the institute we called Giblets, the National Heart, Lung & Blood Institute. That lab worked a couple of other NIH labs that were developing gene therapy treatments for human genetic disease. The targeted disease was ADA-SCID. The first treatment procedure with human patients was done in 1990. 

I was in one of the key labs, but not directly involved in developing and administering the first human gene therapy protocol. I worked on peripheral research developing improved means to transfer genes into sick people. 

Cora Oakley, had ADA-SCID, 

but now she's cured

Here we are 35 years later and an apparently practical ADA-SCID gene therapy has finally arrived on the scene. 

Discussion about the first treatment protocol:

it was extremely complex, extremely expensive 

and not practical for widespread use

Progress is being made and gene therapy is becoming increasingly practical. Other targeted diseases include (1) sickle cell disease and β‑thalassemia, which is treated by stem‑cell gene addition and gene editing using CRISPR technology, and (2) hemophilia A and B, which is treated using virus (AAV)-based liver-directed gene therapy to increase blood clotting factor activity reduce or nearly eliminate spontaneous bleeding and the need for regular clotting factor infusions. 

There's still a long way to go, but gene therapy has gone a heck of a long way since 1990.

Regarding the end of the criminal prosecution of Trump

Prosecutors in Georgia dropped a criminal lawsuit against Trump claiming that it would be inconvenient. Specifically, prosecutors dropped the case because it allegedly would take years to litigate. The RICO criminal case against Trump was strong:

• Trump's team had fake electors forge and submit fraudulent documents to Congress and the National Archives dishonestly claiming to be the official Georgia results. This was straight up fraud.

• Kenneth Chesebro, a Trump lawyer, pleaded guilty to felony fraud for the fake elector scheme.

• Jenna Ellis, another Trump lawyer, pleaded guilty to felony perjury for making false statements about election fraud at a Georgia legislative hearing

• Sidney Powell and Scott Graham Hall, more Trump lawyers, pleaded guilty to tampering with voting machines in Georgia

• Trump didn't just tell Raffensperger to find 11,780 votes. He threatened to have Raffensperger prosecuted if he didn't find the votes. Raffensperger, who is a Republican and was a Trump supporter, has maintained that Trump was demanding that he illegally manufacture votes for Trump.

This lawsuit clearly was a viable RICO prosecution. The evidence of Trump crime is solid. If convicted, Trump probably could have easily gone to prison for a number of years.

Now Trump supporters are claiming that the prosecution was weaponized and bogus. That further erodes faith in both the rule of law and trust in government generally. For example, Fox News reports that Trump and allies describe the Georgia election case as a “witch hunt” and part of broader “lawfare” against him.

Once the statute of limitations for those crimes ends, apparently by January 2029, no further prosecution will be possible.

The core reason for the dismissal boils down to a purely subjective judgment by prosecutors. Did Trump, without explicitly stating it, instruct Georgia's Secretary of State to fictitiously or fraudulently produce enough votes to secure a victory in Georgia,” Or, did Trump genuinely believe that fraud had occurred, and was asking the Secretary of State to investigate to determine whether sufficient irregularities exist to change the election outcome. When multiple interpretations are equally plausible, the accused is entitled to the benefit of the doubt and should not be presumed to have acted criminally.

The ultimate question for whether the criminal prosecution against Trump should have been filed in the first place is simple: Are both interpretations equally plausible, or was Trump's track record sufficient to given him the benefit of a doubt about his own clearly false stolen election claims?

In his 2021 book, Integrity Counts, Georgia's Secretary of State, Brad Raffensperger, was unequivocal about his interpretation of Trump's phone call asking him to "find" 11,080 votes. Raffensperger wrote: "the president was asking me to do something that I knew was wrong, and I was not going to do that.”

Given Trump’s documented pattern of anti‑democratic conduct and the one‑sided benefits of this dismissal, it is reasonable to treat dismissing the prosecution as a partisan accommodation unless and until the people involved can clearly and convincingly show a nonpolitical justification that truly matches the gravity of the case. Whatever self‑described motives drove the decision to drop the prosecution here, the effect is indistinguishable from a partisan decision to shield a president from accountability for attempting to subvert a free and fair election.

Discussion

By the time the Georgia RICO indictment was filed in August 2023, the public evidentiary record that the 2020 election was not stolen was already massive, multi‑layered, and years old. In view of Trump's solid track record of chronic lying, coupled with the evidence of a free and fair 2020 election, did all the evidence warrant giving Trump the benefit of a doubt that he really believed the 2020 election was stolen?

Was dismissal of this criminal prosecution unwarranted, unjustifiable and completely partisan, or were there legitimate concerns that dictated dismissing a criminal case of such enormous gravity?

Has the rule of law been vindicated here, or subverted?