Category: politics

The Ordinary course of law

On 1 July 2024, the Supreme Court awarded former and current Presidents sweeping immunity from criminal prosecution—protecting them from criminal liability for almost any act performed while in office, so long as the act was performed in the President’s capacity as President.

Writing for the majority, Chief Justice John Roberts ruled that a President is absolutely immune from criminal prosecution for any exercise of his “core constitutional powers,” such as issuing pardons, nominating ambassadors, and firing heads of department [Roberts 9], and must be presumed immune from criminal prosecution for any other official act, unless it can be shown that prosecution won’t in any way conflict with the “authority and functions of the Executive Branch” [Roberts 14]. The Roberts court also ruled that a President may not be subjected in court to any examination of his motives [Roberts 18], which implies, according to Roberts, that even in a trial of a President for his unofficial acts, a prosecutor may not introduce any of a President’s official acts as evidence [Roberts 30].

The three liberal justices on the court wrote strong dissents, which so irritated Roberts that, toward the end of his opinion, he accused them of adopting “a tone of chilling doom” and relying on “cherry-picked sources” [Roberts 37–38]. Why so emotional? he seemed to be asking. He himself had raised his eyes toward legal eternity (“we cannot afford to fixate exclusively, or even primarily, on present exigencies,” he wrote [41]), and if he had made the effort of rising to the dispassionate, slightly inhumane plane where eternity may be duly thought through, why couldn’t they? It’s a mistake to pay too much attention to the messy, distracting corporeality of Donald J. Trump, was his implication. Instead of the mere case at hand, focus on its abstract and perpetual ramifications.

There is something to the empyrean angle, of course. Supreme Court decisions often get turned inside-out like gloves by the justices of later generations, so there’s virtue in thinking beyond the case at hand. Speaking just for myself, a part of me is always ready to worry that I’m listening to my heart when I should be listening to my head. So let’s consider; let’s be cool. Is Roberts’s reasoning sound? Has Sotomayor, who wrote the stronger of the two dissents, misread the historical evidence of the intent of the Constitution’s Framers, or failed to take into account the implications of intervening rulings and case law?

One of the things that seems to have most annoyed Roberts is that Sotomayor quoted scripture at him, scripture in this case being The Federalist Papers, the preeminent source, especially among originalists and other legal conservatives, for documenting the Framers’ own rationale for the Constitution. Sotomayor noted that in Federalist No. 69, Alexander Hamilton wrote that Presidents, in addition to being subject to impeachment by the House and conviction by the Senate for “treason, bribery, or other high crimes or misdemeanors,” are “liable to prosecution and punishment in the ordinary course of law” [Sotomayor 6, quoting Federalist 69]. What a lovely phrase that is, by the way: “the ordinary course of law.” There’s another off-handed reference by Hamilton to the President’s vulnerability to plain-old criminal prosecution in Federalist No. 65, where it is again seen as a punishment supplementary to impeachment: “After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country; he [the President] will still be liable to prosecution and punishment in the ordinary course of law.” And Hamilton refers to the liability yet again in Federalist No. 77, where he suggests that the Constitution makes the Presidency safe “in the republican sense” (i.e., arranges the Presidency so that it will not easily turn into dictatorship) by subjecting Presidents to election every four years, by making them vulnerable to impeachment by Congress, and by keeping them vulnerable to “the forfeiture of life and estate by subsequent prosecution in the common course of law.” Life! In the good old days, take note, a politician as unradical as Hamilton seems to have believed that a President who committed treason might have to pay with his head.

Roberts complains that in the quotes that Sotomayor takes from Hamilton, Hamilton doesn’t specify whether the President could be prosecuted “for his official conduct” as opposed to his private conduct [Roberts 39]. Roberts’s implication is that the verses of scripture aren’t therefore all that pertinent. But as Sotomayor points out, Hamilton doesn’t specify because Hamilton doesn’t seem to have seen the need to make any such distinction. He seems to have believed Presidents were responsible for all their crimes.

As did other Framers of the Constitution. Sotomayor quotes a speech that Charles Pinckney, a delegate to the Constitutional Convention of 1787, gave in the U.S. Senate on 5 March 1800. Pinckney recalled that

No privilege of this kind was intended for your Executive, . . . . The Convention which formed the Constitution well knew that this was an important point, and no subject had been more abused than privilege. They therefore determined to set the example, in merely limiting privilege to what was necessary, and no more. [Records of the Federal Convention of 1787, 3: 385, quoted in abridged form by Sotomayor at 7]

Roberts considers Pinckney’s testimony to be “the principal dissent’s most compelling piece of evidence” [Roberts 39], and he rebuts it in two ways. First, by writing that Pinckney is merely stating an argument that has long since been discredited, namely, “that any immunity not expressly mentioned in the Constitution must not exist” [Roberts 39].

In this sentence of Roberts’s, the word “any” is doing a lot of work. In Nixon v. Fitzgerald, decided in 1982, the Supreme Court did rule that Presidents are immune from civil suits for damages even though no such immunity is spelled out in the Constitution. The 1982 court reasoned that the separation of powers implied by the Constitution was meaningless unless the President’s time and attention were protected from interference; the court judged that having a “vigorous” (Hamilton’s word) executive branch was more important than redressing the injuries that a President’s actions might happen to cause to individual private citizens. So yes, there now exists a Presidential immunity from civil lawsuits, not expressly mentioned in the Constitution. Moreover, courts have long been chary of forcing the executive branch to make public its internal deliberations, even when such disclosures might be of use in a trial, because courts have judged it important for the President to have access to candid advice, which might not be forthcoming if advisers worried that their words could appear as trial exhibits some day.

There is no evidence, however, that the particular immunity at stake here—a Presidential immunity to criminal prosecution—existed before 1 July 2024, certainly not in any explicit form. Perhaps sensing that he hasn’t altogether put paid to Pinckney, Roberts moves on to a second line of attack against Pinckney—a rather strange one. “Pinckney,” Roberts writes, “is not exactly a reliable authority on the separation of powers: He went on to state on the same day that ‘it was wrong to give the nomination of Judges to the President’—an opinion expressly rejected by the Framers” [Roberts 39].

The first thing to say about this attack is that Roberts seems to be engaging in a forensic method no more searching than the one I’m deploying in this blog post—namely, looking up Sotomayor’s footnotes. He doesn’t seem to have at his disposal any historical resources he has discovered for himself. The second thing to say is that even just on the face of it, Roberts’s comment doesn’t seem likely to be true. When I first read it—before I had even read Sotomayor’s dissent, let alone looked up the relevant page in the Records of the Federal Convention of 1787—I scribbled in the margin, “But why would Pinckney’s having an opinion not later considered canonical make him an unreliable reporter of the consensus at the Convention?” And indeed, if you go look at the source that records Pinckney’s comments, you’ll see that in his remarks in the Senate in 1800, Pinckney is clearly distinguishing (a) his longstanding personal opinion that it was wrong to have the President nominate judges, from (b) his recollection that it was the sense of the Convention that the executive branch should not be shielded by any privilege. How could Roberts have looked at the page in question without seeing this? Is he that sloppy a reader? Or that tendentious a one? One begins to suspect he may not be operating on a plane quite as empyrean as he would like his readers to believe.

Furthermore, Hamilton’s and Pinckney’s belief seems to have been widely shared in early America, as Sotomayor documents by quoting a speech that James Iredell, later one of the Supreme Court’s first justices, gave on 28 July 1788, when North Carolina was debating whether to ratify the Constitution: “If he [the President] commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life” [Debates on the Constitution4:109, quoted in abridged form by Sotomayor at 7 n 2]. Life again! One gets the impression that the possibility of hanging the President was rather dear to the hearts of the first generation of Americans.

Even more telling, the same belief is also present in the text of the Constitution itself, Sotomayor argues. The Impeachment Judgment Clause limits Congress’s potential punishment of the President to removal from office and the stripping away of honors and pay, but then adds that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”“[U.S. Constitution 1.3.7]. Sotomayor puts the word “nevertheless” in italics, to emphasize that the Framers did not intend for impeachment to preclude or preempt criminal prosecution, and points out that bribery, one of the “high crimes” explicitly named as a matter for impeachment elsewhere in the Constitution, involves a President’s official acts almost by definition. If anything, Sotomayor may be underselling her case here. It’s also hard to imagine how a President could commit treason—the other “high crime” called out by the Constitution for impeachment—without deploying his official powers as President. How could a President commit treason if not by taking advantage of his command of the military, or by mounting the bully pulpit and calling for insurrection or civil war? It’s unimaginable that the Framers of the Constitution would have wanted to immunize from criminal prosecution a traitor who turned the armed forces, or a segment of the public, against the Constitution he had sworn to uphold. Indeed, what else could the Framers have been thinking of when they referenced the potential hanging of Presidents so often and so cherishingly? When the Impeachment Judgment Clause is read in the context of the quotes from Hamilton, Pinckney, and Iredell, all of which follow the same semantic pattern—stating that the Constitution provides for impeachment of the President by Congress, and then clarifying that this punishment is in addition to criminal prosecution in the ordinary course of law—it becomes irrefutable that the Constitution states that Presidents are notimmune from criminal prosecution. A Presidential immunity from criminal prosecution is literally, explicitly unconstitutional.

Roberts makes the same retort to the Constitution that he makes to Hamilton, namely, that the Impeachment Judgment Clause “does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular” [Roberts 38]. This is weak, since Roberts doesn’t provide any evidence that Hamilton, or any other Framer, thought any such distinction should or could be made. But I’m not an originalist, nor, for that matter, is Roberts, though most of his conservative allies on the Supreme Court are. Let’s go ahead and admit that a criminal immunity for the President’s official acts is being established by decision in Trump v. United States—is being made up. Or, to speak more politely, is being inferred. And let’s take a look at this new construction.

Once you admit it’s new—once you strip away the gilding of historical inevitability and admit that the Roberts majority is working a change in America’s political economy—the change becomes easier to see. Sotomayor for her part insists on the novelty of the Roberts majority’s creation. “Every sitting President has so far believed himself under the threat of criminal liability,” she writes; the threat “has been shaping Presidential decision-making since the earliest days of the Republic” [Sotomayor 17]. If Ford hadn’t pardoned Nixon, she writes, Nixon would likely have been found guilty of deploying the FBI to obstruct justice in the Watergate case—an official act and therefore immune, under the new Roberts dispensation. Indeed, Ford’s pardon of Nixon was only meaningful because Nixon was understood to be liable to criminal prosecution [Sotomayor 9]. Reagan was investigated for the Iran/Contra program because if he had been found to have been aware of and to have directed it, he would have been prosecuted for it even though that illegal operation, too, would as of this week be considered an immune exercise of the President’s official powers [Sotomayor 10].

Sotomayor is biting about the clumsiness of the new construction. In the case before the court, she points out, Trump isn’t charged with any crime that involves what Roberts labels a “core” power of the Presidency, so there was no need, juridically speaking, for Roberts to isolate the President’s “core” powers and bestow on them absolute immunity [Sotomayor 23]. Moreover, since Roberts is willing to include in his “core” exemption any discussion between the President and the Department of Justice, the boundaries around the created category are so extensive as to be almost indistinguishable from the official acts to which Roberts claims to be granting only presumptive immunity [Sotomayor 24]. That presumptive immunity, by the way, Sotomayor considers to be a hollow game. The conditions that Roberts sets for overcoming presumptive immunity, after all, are a near impossibility, just by inspection. How could a risk of criminal prosecution fail to hem in the power of the executive branch? “It is hard to imagine a criminal prosecution for a President’s official acts,” Sotomayor writes, “that would pose no dangers of intrusion on Presidential authority in the [Roberts] majority’s eyes” [Sotomayor 11]. Justice Ketanji Brown Jackson, similarly, calls Roberts’s claimed distinction between absolute and presumptive immunity “illusory” [Jackson 14].

Roberts’s whole edifice, Sotomayor shows, turns out to be sucked not from between the lines of the Constitution but from between those of the Supreme Court’s 1982 Nixon v. Fitzgerald ruling, which she calls the “one arrow in its [the Roberts majority’s] quiver” [Sotomayor 12]. An arrow shot far beyond its target, she argues. To insulate the President from civil lawsuits is to grant him a significant privilege, but to immunize him from criminal liability is to place him almost entirely above the law (even Roberts, it should be said, preserves a President’s liability for private crimes like theft or sexual assault). In Nixon v. Fitzgerald, the court weighed the vigor of the executive branch against the value of remedying private civil torts, and chose executive vigor, but even in that decision, the justices wrote that “there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions” [Sotomayor 14]. Indeed, the more powerful a public official is, the greater the public’s interest in keeping him accountable. “When Presidents use the powers of their office or personal gain or as part of a criminal scheme,” Sotomayor writes, “every person in the country has an interest in that criminal prosecution” [20]. The amount of interference to be fended off, meanwhile, is radically different. Anyone can file a civil lawsuit, however frivolous, but justice departments are constrained in issuing criminal charges by department policy and by grand juries [15]. It’s a little weird, moreover, that Roberts considers it “a great burden” for the President to have to obey laws; the Constitution already requires him to “take Care that the Laws be faithfully executed,” so presumably he’s already paying a fair amount of attention to them [18].

And it’s absurd to treat executive vigor as if it were the only governmental virtue. Jackson, in her dissent, quotes a 1926 dissent by Louis Brandeis, explaining that the separation of powers—the crux of America’s political economy—was adopted by the Framers in spite of its obvious inefficiency. “The purpose was, not to avoid friction,” Brandeis writes, “but . . . to save the people from autocracy” [Jackson 19]. If the Roberts majority genuinely valued governmental efficiency more highly than civil damages, there would have been no reason for them to rule last week, in Loper Bright, that experts in federal regulatory agencies are no longer entitled to deference in the courts when challenged by private business interests.

The list of flaws in Roberts’s reasoning goes on. Even one of the justices who concurs with him, Amy Coney Barrett, finds his willingness to exclude a President’s official acts from evidence unwarranted [Barrett5–6]—an exclusion that Sotomayor, for her part, calls “nonsensical” [Sotomayor 26n5]. Sotomayor further points out that the risk that jurors in the criminal trial of a President might be politically biased isn’t “unique” to a case like Trump v. United States, as Roberts claims, but is inextricable from any effort to hold a politician accountable in the American justice system [Sotomayor 27].

The Roberts majority doesn’t seem to want the American justice system to try. Its ruling in Trump v. United States is remarkable for the paucity of the historical evidence behind it, its slipshod construction, and its failure to balance the concerns of democracy and justice against those of executive efficiency. It is opposed in spirit to the distinction Hamilton tries to make, in Federalist No. 69, between President and king:

The President of the United States would be an officer elected by the people for four years. The King of Great-Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace: The person of the other is sacred and inviolable. . . . What answer shall we give to those who would persuade us that things so unlike resemble each other? [Federalist 69, quoted in abridged form by Sotomayor at 6–7]

In the country Hamilton helped found and frame, his question can no longer be answered.

Laughing at fascists

“I will have free speech at my meetings,” the statuesque teenage heiress Eugenia Malmains insists, in Nancy Mitford’s 1935 novel Wigs on the Green. Eugenia, a fascist, has been interrupted mid-harangue by her nanny, who thinks Eugenia is disgracing herself. Eugenia proceeds to threaten her nanny with violence: “Now will you go of your own accord or must I tell the Comrades to fling you out?”

From time immemorial, the rage of fascists has styled itself as more-grown-up-than-thou, but in feeling-tone it in fact more closely resembles that of teenagers—grandiose, spirally, counterdependent. If only we lived in a world where it was safe to believe that it was just as harmless! And if only the right little old lady could be found to tug every fascist down from her washtub. Further deflating fascism’s pretensions in this particular case: In Mitford’s novel, Eugenia is seen largely through the eyes of two gold-digging cads, Jasper Aspect and Noel Foster, who don’t take her politics very seriously (“batty” is the word one of them uses) because they regard her not as a person but as an opportunity to marry into the moneyed aristocracy.

“Oh! I think that’s all a joke,” a middle-class woman in the novel protests, when her left-wing bohemian-artist friends upbraid her for being swept up in the fascist excitement. But what kind of a joke is it, exactly? Some of the novel’s humor takes advantage of fascism’s abrupt rhetorical extremes. On several occasions, Eugenia calls for “jackshirt justice,” i.e., beatings or worse, but when a flapper heiress wants to ditch a husband who has grown tiresome, Eugenia insists on the sanctity of marriage. “Well, well, what a governessy little thing it is,” Jasper observes. Even from the distance of nearly a century, Mitford makes clear how hackneyed and familiar fascist language was, much as it has become to us in the past few years. “Let me see, where had I got to—oh! yes,” Eugenia resumes, once she has surmounted her nanny’s interruption:

Patriotism is one of the primitive virtues of mankind. Allow it to atrophy and much that is valuable in human nature must perish. This is being proved today, alas, in our unhappy island as well as in those other countries, which, like ourselves, still languish ‘neath the deadening sway of a putrescent democracy. Respect for parents, love of the home, veneration of the marriage tie, are all at a discount in England today, society is rotten with vice, selfishness, and indolence.

Viktor Orban could do no better. An idealized past? Check. A hearkening back to patriarchal morals? Check. A jeremiad against sexual sophistication? Check. Scorn for democracy? Check. Fetishization of patriotism and strength? Check. Not to mention indignant cries of “free speech” at even the mildest interruption.

Even the great replacement theory, as it is now called (aka racial purity, as it was known then), puts in an appearance, a few scenes later. When Jasper makes a casual reference to beautiful women and their lovers, Eugenia reproves him: “Under our régime, women will not have lovers. They will have husbands and great quantities of healthy Aryan children.” Also familiar is Eugenia’s persistent dunning of her audience. Fundraising may be done to MAGA followers by text message today but in the early 20th century, it had to be inflicted in person. “You are asked to pay ninepence a month, the Union Jack shirt costs five shillings and the little emblem sixpence,” Eugenia says, to almost everyone she meets, in almost every scene in which she appears.

Is it okay to laugh at all this? Humor has become suspect lately, because of rightwingers’ strategy of using it to normalize racist and misogynist ideas—dodging them past the moral censors under cover of unseriousness. It is true that Mitford plays Eugenia’s calls for violence, for example, for laughs only. Eugenia is always talked out of her momentary enthusiasms—her nanny is not actually ever beaten up—so her talk never has consequences, and the danger remains hazy.

Confusingly, if one turns to Mitford’s letters, one finds her claiming that her mockery of fascism was meant, of all things, fondly. The inspiration for the book, it turns out, was the avid fascism of two of her sisters, Unity and Diana. Unity signed letters, “Heil Hitler,” and wrote home swoonily from Munich about conversations with the Fuhrer, and Diana was to marry Oswald Mosley, the leader (or “Leader,” as he was styled by his followers) of the British Union of Fascists—a political party that Nancy, too, for a while joined, as Charlotte Mosley explains in her introduction to the 2010 (pre-Brexit, pre-Trump) Vintage paperback edition. Having written a novel satirizing her sisters’ fervor, Nancy faced some tricky family diplomacy. She boldly told Unity that the novel was “about you” and assured her that the portrait was so attractive that “everyone who has read my book longs to meet you.” At the end of another letter to Unity, however, she took the opposite tack and drew a caricature in which Unity’s head is labeled “bone” and her heart “stone,” while one of Unity’s hand holds an object labeled “rubber truncheon,” and a foot is shod in what is described as a “hobnail boot for trampling on jews.” Yikes. There’s nothing so openly anti-Semitic in Wigs on the Green, but the ugliness of the caricature reveals that in 1935, at least, Nancy either didn’t understand that the brutality in fascist rhetoric was eventually going to be realized, or didn’t much care so long as it looked as though the violence was going to be inflicted on people outside her family’s social circle.

By means of flattery and kidding, Nancy seem to have succeeded in jollying Unity out of being offended by the novel’s satirical portrait. Diana, however, was not so easy to placate. In an effort to appease her, Nancy removed nearly three chapters about “Captain Jack,” a character modeled on Oswald Mosley. (In the novel as published, the character appears only off-stage.) Far from arguing that her humor cuts fascism down to size, as a modern antifascist reader might hope, Nancy tried to convince Diana, in a letter written on 18 June 1935, that humor like hers couldn’t possibly do fascism any harm:

Honestly, if I thought it could set the Leader back by so much as half an hour I would have scrapped it, or indeed never written it in the first place. The 2 or 3 thousand people who read my books, are, to begin with, just the kind of people the Leader admittedly doesn’t want in his movement. . . . I still maintain that it is far more in favour of Fascism than otherwise. Far the nicest character in the book is a Fascist, the others all become much nicer as soon as they have joined up. But I also know your point of view, that Fascism is something too serious to be dealt with in a funny book at all. Surely that is a little unreasonable?

Appeasement seems not to have worked. After the novel’s publication, Diana kept Nancy at a distance for years.

The awkward truth seems to be that Nancy was to some extent complicit with fascism when she wrote Wigs on the Green, thanks to family ties, personal history, and, to put it politely, thoughtlessness. But she went on appreciate fascism’s threat more keenly. In 1940 she wrote to the Foreign Office that Diana, though a British citizen, should be imprisoned as a Nazi sympathizer, and Diana was in fact imprisoned. In 1943, Nancy wrote again, to urge the government not to release her sister yet—she was still too dangerous. Half a dozen years after the war, she told Evelyn Waugh she was ruling out a reprint of Wigs because humor about Nazis, including her own, couldn’t at that point be in “anything but the worst of taste.”

Is it tacky that I enjoyed her disowned novel anyway, even though (because?) we’re currently living through a resurgence of fascism? Much of the book’s humor is Waughian: comely young heroes and heroines, some of them sickeningly rich, have spines too weak to resist louche and alcoholic pleasures; practically the only devoir they can manage with rigor or regularity is the application of face cream. The fascism in the novel could almost be incidental, if the contrast between the Jazz Age demoralized irony and fascism’s grotesque earnestness weren’t so perfect. As Nancy suggested in her 1935 letter to Diana, her crowd is what fascism defined itself against: dissipated, cosmopolitan, promiscuous. Despite Nancy’s attempts to butter up her sisters in private, it’s clear who she sides with in the novel: the hopeless sophisticates are us, and the fascists, them.

Maybe what I enjoyed was that the novel allowed me to visit a time before fascism was world-historical—before it had murdered so many people that it had to be taken seriously. In the world of Wigs, it still seems as if, were you to point out with sufficient perspicuity how laughable fascism is, its devotees might blink a few times and walk away, wondering what they had been thinking.

The worst possibility is that humor about fascism is a sort of sundial of history. A big question weighing on me lately is where we are in the cycle—toward the end or still only at the beginning? What if I’m able to laugh at Mitford’s novel now because we’re only at the dawn of the current outbreak, and some day, when its shadow has lengthened, I, like the author, won’t be able to find it funny any more?

Readings

“. . . to live like a soldier but not as a soldier, figuratively but not literally, to be allowed in short to live symbolically, spells true freedom.” —Thomas Mann, Confessions of Felix Krull, Confidence-Man

“The art of life, of a poet’s life, is, not having anything to do, to do something.” —Henry D. Thoreau, Journal, 29 April 1852

“I think she regarded my career as akin to a religion she didn’t understand but would of course respect.” —Siobhan Phillips, Benefit, describing how a scholar of English literature feels she is perceived by a former classmate who has gone into consulting

A kiss is but a kiss now! and no wave
Of a great flood that whirls me to the sea.
—George Meredith, Modern Love

“She neither embroidered nor wrote—only read and talked.” —Henry James, “A London Life”

“And so for me the act of writing is an exploration, a reaching out, an act of trusting search for the correct incantation that will return me certain feelings whenever I want them. And of course I have never completely succeeded in finding the correct incantations.” —Thom Gunn, “Writing a Poem,” Occasions of Poetry

“. . . so I went on leisurely, as a trifling man does, sometimes writing a sentence—then taking a turn or two—and then looking how the world went, out of the window . . .” —Laurence Sterne, A Sentimental Journey

“You talk like a Rosicrucian, who will love nothing but a sylph, who does not believe in the existence of a sylph, and who yet quarrels with the whole universe for not containing a sylph.” —Thomas Love Peacock, Nightmare Abbey

“. . . for beauty with sorrow / Is a burden hard to be borne . . .” —Walter de la Mare, “The Old Summerhouse,” in Reading Walter de la Mare, ed. William Wootten

Other means

Early in the federal indictment of former President Trump that was released yesterday, special counsel Jack Smith admits that Trump, “like every American,” has the right to say whatever he wants about the 2020 presidential election—and even has the right to lie about it. But it was a crime, Smith asserts, for Trump to use lies to obstruct and distort the tallying and certifying of election results. Smith goes on to indict Trump for conspiracy to defraud the United States, conspiracy to obstruct the certification of presidential election results, and conspiracy to deprive Americans of their right to vote.

The distinction between lying that is free of legal consequences and lying in order to commit fraud and obstruction isn’t a terribly subtle one, but there are going to be people who will pretend they don’t understand it. If Trump has the right to lie to NBC News, they will ask, why doesn’t he also have the right to lie to Georgia’s Secretary of State about Georgia’s election results? So let’s get this out of the way: If I announce at my favorite local gay bar that Ryan Gosling and I have just gotten married, and I succeed in making all my friends jealous, I’m not committing a crime. But if Gosling and I file our taxes together, falsely claiming on the forms that we’re married, in an attempt to pay less tax than we would otherwise have to, it’s fraud. And it’s still fraud even if we don’t get away with it.

There are probably also going to be people who claim that Trump and his conspirators may not have been aware that the claims they were making were untrue. Smith’s indictment shivs that defense pretty brutally. In paragraph 30 (¶30) of the indictment, to take just one bald-faced example, John Eastman, aka “Co-Conspirator 2,” acknowledges in an email that he and Trump have learned that some of the allegations in a verification they have signed are “inaccurate” and that signing a new verification “with that knowledge (and incorporation by reference) would not be accurate”—and then he and Trump go ahead and put Trump’s signature on the new verification anyway.

Yesterday’s indictment isn’t as much fun to read as Smith’s earlier indictment of Trump for withholding classified security documents, partly because a more serious matter is at stake (national security secrets are important, but they’re not as important as the right to vote, and Trump seems to have been treating the secret documents as memorabilia, anyway, a motivation so entertainingly venal that it’s hard to treat the earlier matter with the gravity it deserves) and partly because the way Trump and his allies lied—over and over again, shamelessly—is exhausting. The catalog of their lies in Smith’s indictment is practically Homeric. They lie, are told they are lying, and then tell the same lie again. Remember the years we spent trying to argue in good faith with people who were repeating lies in bad faith? These are those people. “It’s all just conspiracy shit beamed down from the mothership,” (¶25) admits a senior advisor to the Trump campaign, in a private email, dismayed by his team’s repeated losses in court and exasperated that the team’s political strategy obliges him or her to pretend publicly to believe in repeatedly debunked claims.

The particular lie that pushed this senior advisor into venting was about election workers at the State Farm Arena in Atlanta. Giuliani (“Co-Conspirator 1”) told the lie to Georgia state senators on December 3, 2020 (¶21), the lie was publicly debunked by the Georgia secretary of state’s chief operating officer on December 4 (¶23), Georgia’s attorney general told Trump there was no evidence for the claim on December 8 (¶24), Giuliani told the lie again in a public hearing before a committee of Georgia’s state representatives on December 10 (¶26), Trump’s acting attorney general and acting deputy attorney general told Trump the actions at State Farm Arena had been “benign” on December 15 (¶27), Trump’s chief of staff told him the election tallying at State Farm Arena had been “exemplary” on December 22 (¶28), Trump nonetheless tweeted that Georgia’s election officials were “terrible people” who were hiding evidence of fraud on December 23 (¶28), Trump repeated the lie to his acting attorney general and acting deputy attorney general on December 27 (¶29), Trump signed a verification incorporating the lie on December 31 (¶30), and Trump repeated the lie one more time on January 2, 2021, to Georgia’s secretary of state, during the infamous conversation when Trump said he was looking to “find” 11,780 more votes (¶31).

After Giuliani told the lie in Georgia’s House of Representatives on December 10, “the two election workers received numerous death threats,” Smith observes (¶26). The identities of the people who made those death threats are very likely unknown, but almost certainly neither Trump nor any of his co-conspirators made the threats.

Why are they nonetheless part of Smith’s indictment? If the case ever reaches trial, Trump’s lawyers may try to argue that he shouldn’t be held responsible for threats made by a third party. But keep in mind the distinction that is the crux of the case, between lying for the sake of vanity or entertainment and lying in order to obstruct or impede the workings of democracy. A death threat is not an innocuous speech act. It is a promise to use violence. A public lie about a government employee or official, if a reasonable person would expect the lie to trigger death threats, is therefore a kind of force, applied on a government employee or official with respect to the performance of their duties. “An act of force to compel our enemy to do our will”: that’s Clausewitz’s first (if less famous) definition of war. With good reason, the laws in any well-ordered republic forbid acts of war between politicians and/or citizens. Hobbes writes, in Leviathan, that “because all signs of hatred, or contempt, provoke to fight, . . . we may . . . , for a law of nature, set down this precept, that no man by deed, word, countenance, or gesture, declare hatred, or contempt of another.” In a state of war, one isn’t necessarily bound by the laws of nature, Hobbes writes, and we don’t want to be living in a state of war.

On November 11, 2020, Trump disparaged a Philadelphia City Commissioner who had said there was no evidence of voter fraud in Philadelphia, and the commissioner and his family were sent death threats (¶42). And on January 6, 2021, famously, Trump tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” and one minute later, the Secret Service felt obliged to evacuate Pence to a secure location. Rioters who broke into the Capitol that afternoon chanted, “Hang Mike Pence!” (¶111–13). If Trump knows anything about himself, and it may be the only thing about himself he knows, it is that he has a gift for summoning and directing the rage of his followers. It is his instinct in a crisis, almost a reflex. Words for him are instrumental, not representative. He knew what he was doing.

The prospect of violence recurs at two other moments in the indictment. On January 3, a deputy White House counsel warned Jeffrey Clark (“Co-Conspirator 4”) that if Trump were kept in power on the basis of false claims of voter fraud, there would be “riots in every major city in the United States.” Clark replied, “Well, . . . that’s why there’s an Insurrection Act.” Clark, in other words, looked forward to repressing with military force any protest of the power grab he and his conspirators were trying to effect.

In its legal specifics, the scheme to keep Trump in power depended on the theory that Pence had the authority to reject or return to the states their slates of legitimate electors. On January 4, John Eastman acknowledged to one of Trump’s senior advisors that no court was likely to back the theory, and the advisor warned Eastman that by drumming up public fury on the strength of a theory that could never be put into effect legally, Trump and his allies were “going to cause riots in the streets.” Eastman replied that it wouldn’t be the first moment in American history when violence was needed to protect the republic (¶94). Eastman, in other words, looked forward to bolstering with street violence a legal theory he conceded was unjustifiable.

Clark looked forward to putting down rioters, and Eastman looked forward to being backed by them, but both knew that through lies they were welcoming violence into politics. Clausewitz’s second, more famous definition of war is “a continuation of political activity by other means”—the implication being that politics has its own means. To maintain the rule of law, politicians who go beyond them must be kept out of politics, if not sent to jail.

A novelist visits the Trump Presidential Library

On Thursday, 8 June 2023, the Department of Justice indicted former President Donald Trump on charges of willful retention of national intelligence documents, conspiracy to obstruct justice, and lying to the FBI. On Friday, 9 June, the indictment was unsealed. Like many people curious about American politics, I printed out a PDF of the indictment on Friday night and read it a few times over the weekend. Here’s the DOJ’s own version, which has the photographs in color, if you’d like to read it and haven’t yet.

A lot of pixels have been toggled already over the political and legal ramifications, but I found myself thinking about a different angle: If Trump were a character in a novel, what would the scenes recounted in the indictment say about him? Some are quite vivid.

The genre of the indictment is odyssey: banker’s boxes full of presidential papers take a journey into exile, which ends, for some but far from all of them, in an eventual homecoming back into federal custody. Trump helped to pack the boxes in January 2021. When he left the White House, he had them moved to Mar-a-Lago, his Florida resort. The indictment doesn’t say how many boxes there originally were, but I think I count eighty-one in the photo on page 10 of the indictment, which shows them stacked on the stage of a Mar-a-Lago ballroom (the first four rows seem to be two boxes high, and of these, the front row is eleven boxes across, the second row ten across, the third nine across, and the fourth seven across; at the very back of the stage, there also seems to be one stack of three boxes and another stack of four). According to the indictment, the boxes spent January, February, and March 2021 on the ballroom stage.

Why did Trump take so many papers with him when he left the White House? It seems doubtful he meant to read through them. He doesn’t seem like the sort of person who would want to come to a deeper understanding of the past he had just lived through. “He doesn’t really read anything,” said one of the intelligence officials who struggled to keep Trump informed while he was in office. I suspect that very few of the papers were written by him, or even written on by him, in his childlike black-marker all caps. The best that can be said is that the papers happened to him. Or that they constitute evidence of things that happened to him. In the photo on page 14 of the indictment, where a few of the banker’s boxes have spilled open, what’s visible are front pages of the Washington Times, the Wall Street Journal, and the Financial Times; color print-outs of him speaking to the press on a tarmac; the print-out of a webpage with a headline that reads, in part, “honesty about security clearances” (a nice piece of sortes webiana; it could be this article); and a piece of paper redacted with a long black rectangle at the top that obscures what the DOJ calls “visible classified information.” The last document is the kind that has put Trump in legal jeopardy. According to the indictment, this particular one was labeled “Secret” and “Five Eyes,” was dated 4 October 2019, and was concerned with “military capabilities of a foreign country.” Out of 102 documents labeled Secret, Top Secret, and Confidential that the DOJ seized from Trump, the DOJ has itemized thirty-one that it is charging him with illegally retaining, and the DOJ has assigned this particular document the number 8. In an issue of his newsletter Pwnallthethings, Matt Tait has made educated guesses about the specific contents of the thirty-one documents listed in the indictment, though he hasn’t (yet) made headway with #8.

Maybe Trump thought of the documents as trophies. That could be a powerful motivation for a personality like his. After all, what O. J. Simpson went to prison for, in the end, was not murder but the theft at gunpoint of pieces of memorabilia that he felt belonged to him.

Whatever the nature of Trump’s attachment to these papers, it’s safe to say that people close to Trump saw through it. By April 2021, some of the boxes had been put in Mar-a-Lago’s business center, and on 5 April 2021, according to the indictment, “Trump Employee 1” asked “Trump Employee 2,” believed to be a woman named Molly Michael, if it would be okay to move the boxes out.

“Woah!!” Molly Michael replied, using the internet’s preferred spelling. “Ok so potus specifically asked Walt for those boxes to be in the business center because they are his ‘papers.’ ”

Note the scare quotes. In another exchange later the same day with Trump Employee 1, Michael’s contempt for the “papers” is even more pronounced. When Trump Employee 1 asks if he can put into storage a few things stored in the business center that aren’t paper, Michael replies, “Yes, anything that’s not the beautiful mind paper boxes can definitely go to storage.”

“Beautiful mind paper boxes.” It has been suggested that she is alluding to a scene in the movie A Beautiful Mind in which the hero, a mathematician who has descended into schizophrenia, is revealed to have covered the walls of his study with newspaper clippings and connected them with dark lines while diagramming his conspiracy theories. But I think it’s more likely that she’s using the movie title as shorthand to refer to Trump’s habit of praising his own intellect; he has famously called himself as “a very stable genius” who has “a very good brain.” Michael could be deploying both possible meanings, of course. In any case, she’s not fooled.

I don’t think anyone is ever fooled by Trump. The Dunning-Kruger effect notwithstanding, I think even his ardent supporters know he isn’t literate or well informed about the world, and that his only accomplishments are in the dark sports of bullying, misleading, and emotional manipulation. They like it that he’s mediocre and seethes with grievance about it; that he wasn’t even able to live off an inheritance in a humane, damage-limited way; that despite being given great wealth and opportunity, he has remained small. The better to represent resentment with, my dear. The psychoanalyst Wilfrid Bion wrote about “the hatred of learning by experience,” that is, the wish that people harbor for magical, instant solutions, for shortcuts that bring the rewards of development without any of the tedium and effort that are customarily required: the dream of becoming rich by winning the lottery, of becoming strong by joining an armed militia, of becoming intelligent by having intelligence reports given to you. In Trump, the hatred of learning by experience had an impossible triumph. He wouldn’t mean the same thing if he had become the leader of the free world by working for it.

Trump’s supporters probably like it, therefore, that he doesn’t understand how the documents he collected function in a bureaucracy, and that he is willing and able to use his ignorance to distort the testimony that the documents do offer. For example, on page 15, the DOJ’s indictment quotes from a meeting at Trump’s Bedminster club on 21 July 2021 between Trump, a writer, a publisher, and two Trump staffers, one of whom, believed to be Margo Martin, recorded it. At the time of the meeting, Gen. Mark Milley, formerly chairman of the joint chiefs of staff, had recently told the press that during Trump’s last days in office, he had taken steps to stop any attempt by Trump to start a war. During the interview at Bedminster, Trump brandishes a plan to attack Iran that was prepared by the Defense Department, claiming that the plan was Milley’s and that the document detailing it proves that it was Milley not Trump who flirted with war. “This totally wins my case, you know,” Trump says. In fact, the plan had been drawn up earlier, when the chair of the joint chiefs was Joseph Dunford, and even if it had been produced under Milley’s chairmanship, it’s the responsibility of the Defense Department to draw up such contingency plans—there are almost certainly detailed plans for an invasion of Canada on a hard drive somewhere in the Pentagon at this very moment—and there’s nothing exceptional about the document itself. What’s exceptional is that it ended up in Trump’s hands, because that means that, while Trump was President, he asked to see it. In other words, if the document is evidence of anything, it’s evidence that Milley was right to be anxious that late in his regime, Trump might have been considering war. (This recorded conversation more or less proves the Justice Department’s case against Trump, by the way, because during it, Trump acknowledges that “This is secret information,” acknowledges that “as president I could have declassified it,” and acknowledges that “Now I can’t [declassify it], you know, but this is still a secret.” As the indictment drily comments, “At the time of this exchange, the writer, the publisher, and TRUMP’s two staff members did not have security clearances or any need-to-know any classified information about a plan of attack.”)

Though in this one instance, Trump seems to have tried to use a classified document as a political weapon, the primary meaning of the papers seems to have approached the sentimental. On 24 June 2021, Trump’s valet, Walt Nauta, texted Molly Michael two photos from the Mar-a-Lago storage room, showing banker’s boxes spilling their papers onto the floor. Two texts came from Michael’s phone in reply: “Oh no oh no” and “I’m sorry potus had my phone.”

“Oh no oh no”: an immediate, almost instinctual response. Was the injury inflicted on Trump by the sight of the spilled papers so sharp that he forgot whose phone he was holding? Or maybe he’s just in the habit of casually overwriting the identity of those around him. In the second text, Michael distances herself from the expression of dismay that Trump sent through her phone. She wants it to be clear to Nauta that she, at least, knows it’s not a tragedy if a box neglected in a storeroom has tipped over. Solicitude for things is embarrassing, especially when the things are being used to prop up vanity. Or maybe what’s embarrassing is when vanity so baldly takes a place in the psyche that should be reserved for emotions felt for people. In a text exchange reported on page 23 of the indictment, a “Trump family member,” probably Trump’s wife, Melania, also shows little patience with Trump’s investment in the boxes. “Not sure how many he wants to take on Friday on the plane,” this family member writes on 30 May 2022. “We will NOT have a room for them. Plane will be full with luggage.” The papers are just stuff, to the people around Trump. In a kind of self-defense, his intimates deny the papers have any larger import.

They know he doesn’t understand the papers, that the papers have no meaning for him beyond the greatness he thinks they reflect on him. In January 2022, Trump returned 15 boxes of papers to the National Archives, which, after the archivists found classified material in the boxes, triggered the DOJ’s investigation—and if you’re keeping score, left about 66 boxes in his keeping. Between 23 May 2022 and 2 June 2022, Nauta moved roughly 64 boxes from the Mar-a-Lago storage room to the rooms in Mar-a-Lago where Trump and his family live, at Trump’s request. Then, at around lunchtime on 2 June, Nauta and another employee returned 30 boxes to the storage room, in anticipation of a visit from “Trump attorney 1,” who has been identified as Evan Corcoran, who was arriving that afternoon to look through the boxes for government documents marked as classified, in response to a subpoena from the Department of Justice.

For the DOJ’s purposes, what’s telling here is that 34 boxes were withheld from Corcoran, deliberately and at Trump’s direction, so that Corcoran was never able to inspect them. For an understanding of Trump’s relationship to the papers, however, it’s perhaps also telling that Trump thought he could meaningfully sort through so many boxes in just a few days. Of the 64 boxes brought to Trump before Corcoran’s visit, 50 were brought to him on 30 May, and 11 on 1 June. In less than three days, therefore—and he probably didn’t spend the entirety of any of the three workdays on the task—Trump made a meaningful selection from more than sixty boxes of papers? On what basis? If he had been scanning only for security markings, maybe he could have grabbed most of the papers so marked, but if that had been his goal, why not let Corcoran see everything? No, Trump’s time with the papers was more personal. “I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes,” Trump told Corcoran, according to Corcoran’s notes. What kind of selection was Trump making? Was he deciding which pages he could bear to surrender? There’s a hint here that he felt some mystical connection to the papers. During an earlier sorting, in January 2022, in advance of Trump’s surrender of fifteen boxes to the National Archives, Nauta seems to have helped Trump with the sorting; toward the end of the process, Nauta had to ask a colleague for “new box covers,” explaining that “They have too much writing on them…I marked too much.” The markings probably had to do with the contents of each box; it’s possible that the markings made it dangerously obvious that Trump and Nauta knew they were playing with classified material. In late May and early June, however, Trump seems to have done his sifting alone. Maybe his work was sped up by his having previously worked through the boxes with Nauta in January. Still, not even a crackerjack professional archivist at the top of his game could process more than sixty banker’s boxes of paper in less than three days. At best what Trump was doing, I suspect, was childish magic. A sorting by touching: one for me, one for them.

The odyssey of Trump’s papers doesn’t come to a neat conclusion. The indictment reports that on 3 June 2022, “NAUTA and others loaded several of TRUMP’s boxes along with other items on aircraft that flew TRUMP and his family north for the summer.” Presumably these boxes contained the papers most precious to Trump. Had these boxes returned south by the time the FBI searched Mar-a-Lago on 8 August 2022? At the time of the raid, Trump was in the New York area. If the precious papers were with him then, they would have escaped the FBI’s trawl. Perhaps they were seized by the FBI in a search of a Trump property in New York or New Jersey that hasn’t yet been reported. But they might still be in his hands.

Information hygiene

[This post is also available as an issue of my newsletter, Leaflet.]

In the early onset of adulthood, one often samples reckless hedonism—drinking away weekends, maxing out credit cards, counting peanut butter swirled into spaghetti as “dinner,” punctuating relationship conflict with cigarettes—but the obverse of utterly unimpeded freedom is that one is free to die alone in a cancer ward if one really wants to, and at some point, there is usually an accommodation with prudence and fear, and one sets about acquiring boring, sensible habits. Never drink juice or soda, for instance. Just buy baby shampoo, because then you don’t have to find a new brand every six months. One even becomes grateful for habits like brushing one’s teeth that come as it were pre-installed.

Information hygiene is one such regimen. It was probably easier in the era I grew up in. Sources of information then had distinct edges and well-known, widely agreed upon reputations, in part because information was almost always delivered in a physical form. By and large, in those days, the only way to read a news article in, say, the Evening Gazette of Worcester County, Massachusetts, was to read it in the ink-on-paper Evening Gazette. In a pinch you could catch the bus into Worcester and read an old article on microfilm in the library downtown, but in general if you were reading an Evening Gazette story it was because you were holding the Evening Gazette in your hands. And well before that, you knew—either because you grew up knowing or because you had quizzed the neighbors when you moved to town—that the Gazette was ever so slightly more liberal than the Worcester Telegram, the only local alternative, which was the morning paper in the area, and you knew that both papers were pretty reliable about facts and a little stodgy. (Not perfectly reliable, however. When the Gazette ran a candid photo of me one spring day, sitting on a swing in our backyard reading a collection of short stories about vampires, I was shocked to see my name misspelled, our address garbled, and the vampires miscategorized as “homework.”)

Nice people didn’t read the flimsy magazines for sale in supermarket checkout lines. (By the way, these were not the glossy perfect-bound tomes you find in supermarkets today, blandly commemorating World War II, or vegetarian recipes, or a pop star who has through death recently achieved embourgeoisement. These were more ludicrous, meaner in spirit, and much cheaper-looking.) This wasn’t because nice people thoughtfully upheld the values of curation and fact-checking. It was because of class war. It was understood to be a little soiling to be seen even leafing through such magazines. It was understood that Tom Brokaw delivered real news, and that the Evening Magazine TV show that preceded him didn’t (despite that one segment on Chippendales dancers that did have some special news for me in particular, one fateful Thursday). At 5:30pm we knew that what was coming out of the television wasn’t serious, and at 6pm we knew that it was.

Channels of information are not so sharply delimited today. A talk-show host you follow tweets a line from a Washington Post story: you can’t simply say you learned about it on a talk show, or that you learned about it by browsing Twitter, or that you learned about it from reading the Washington Post. It’s all mixed up. And partly as a corollary, the reputations of channels of information are no longer so clearly demarcated, either. Even people like me, who consider The Washington Post to be reliable in matters of fact, have to keep in mind that a line from one of its articles that’s been cherry-picked by a media personality might acquire a slant on Twitter that it didn’t have in its original context—that the line might even have been selected with the intention that it will be misunderstood. Moreover, nowadays there exists a community of readers in which the consensus is that the Washington Post is a duplicitous lackey puppet of some dire neoliberal conspiracy. A third novelty of our environment: the consumption of information is for the most part invisible. Is it déclassé to read TMI Feedzweb? Who cares! No one sees you reading it. And even if they could, the shame and scorn that once enforced information hygiene have been so overthrown that nowadays reading downmarket sleaze probably qualifies you as edgy, in a downtown, post-moral kind of way.

What’s a boring adult to do? As I see it, there are two desiderata here: not to have your time wasted, and not to have your mind poisoned. I immediately, humbly confess that I have let a lot of my time be wasted over the past decade or so of Twitter use. My husband and I have print subscriptions to more than a dozen periodicals, but whole issues of these have been recycled unread into sock fibers and Patagonia jacket liners while I was clicking through to try to figure out why someone I was a little scared of on Twitter was so indignant about the intellectual misprisions of someone else on Twitter whom I kind of liked. I didn’t want to get attacked someday myself, you know. Was it worth it? Sometimes it felt like it was, at the time. I got to be a spectator at the front lines; I got to see the bayonets going in, to hear the flump of the bodies falling into the mud. But sometimes it didn’t feel worth it. Even hot takes that feel urgent while you’re reading them usually evanesce a minute or two later. I’ll never get back all those hours I spent reading about why it was unforgivable/imperative to call out as fascist politicians who up to that point had only gotten as far as openly longing to become fascist. In retrospect, what if I had just read the stories in each week’s New Yorker that looked interesting to me, instead of scrolling slack-jawed until I could tell which ones were being either denounced or overpraised by my disembodied frenemies?

I have a pretty good b.s. detector. While a denizen of Twitter, I prided myself on never having retweeted that picture of the shark swimming down the street during a hurricane, or, for the most part, any of its text equivalents. I don’t think my own mind ever got poisoned, in other words, but I did see minds poisoned. (“Who goes redpill?” is an article I would like to read someday.) The thing is that on Twitter there’s always a hurricane, and a shark is always swimming toward you through its chum-filled waters. Repeatedly batting it on the nose takes effort, and is that how you want to spend your one and only life? I love my friends, but it isn’t by and large for their news judgment that I love them, so why should I let them choose what I read instead of trusting the professionals at the New York Times, the Atlantic, n+1, the New York Review of Books, and so forth? I’m actually pretty happy when I find a site like Four Columns that is willing to send me a small number of smart review-essays on varied topics once a week. I wish Bookforum’s Paper Trail came out as a newsletter, but as a certified internet old, I know how to plug its feed into my RSS reader.

I wish I could say that I logged out of Twitter last week because I finally started listening to all my own arguments against myself on this topic. The truth is, I logged out because of disgust. Musk had recently been carrying water for Putin, so when Musk took possession of the site, I logged out on a wait-and-see basis. I had promised myself that I would quit if he let Trump back on, as he has signaled he will; I can’t face swimming in unmediated sewage again. The end came sooner, as it happened. A few days ago, Musk tweeted (and then deleted) a link to a conspiracy theory about the violent assault on Paul Pelosi that was so nauseating that I couldn’t bear to contribute even my tiny and insignificant content stream to a media company that he owns. I’m logged out indefinitely now. (Not deleting, yet; things are changing too fast.)

A couple of weeks ago, I listened to a podcast discussion about artificial intelligence (AI) between the New York Times reporter Kevin Roose and the podcaster Derek Thompson, who believe we’ll someday look back on the text-generating and art-making AI released this summer as epoch-shifting. Quite possibly! Some of the dystopian side effects that Roose and Thompson foresee may already be with us, though. Roose imagines, for example, that writerless news websites will spring up, full of articles penned by text-generating AI. In fact, the internet is already overrun with sites that pose as trustworthy sources of local news but have ulterior, usually political, motives—one such site was the source of the vile story linked to by Musk—and though these sites are not yet written by AI (as far as I know), they might as well be. AI could hardly be worse than low-rent paraphrases of wire stories, republication of corporate press releases, and rightwing dog-whistles. Roose also wonders how the nature of art will change once machines are able to replicate technical facility in any medium and any imaginable style, but much the same reckoning was forced on art by photography more than a century and a half ago. At the high end of the art market today, mere craft is already of rather little value. Donald Judd structured his whole career as an artist around being hostile to craft, deliberately designing artworks that could be manufactured to specification without any special skill. At the higher levels of the market, art now consists mostly of innovations in the idea of what art is, or the way it is understood. Recruiting AI into that project won’t slow anyone down even for long enough to hiccup.

This morning, Tiffany Hsu reported for the New York Times about fears that manipulated videos and photos are spreading unrecognized on Tiktok. Again, to some extent, we’re already there, and we’ve been there for a while. When I watched a recent Tiktok of a deepfake Tom Cruise flirting with a person who seemed to be Paris Hilton, it was not at all clear to me that Hilton was real. I googled, and had to resort to an Entertainment Weekly article that explained what I had been looking at. In other words, I determined that Cruise was fake and Hilton real only by means of trusting Entertainment Weekly. This is startling for someone who grew up when fake photos were almost always too clumsy to fool anyone, but it isn’t a situation that exceeds humanity’s epistemological capacities. It’s photography that’s recent, after all; unreliability has been with us forever, and has been accelerating ever since printing presses became widespread. Welcome to the 17th and 18th centuries! How to distinguish truth from fake news was a major concern during the Enlightenment, and the answer philosophers came up with then was not to try to stop the spread of newsprint but to set up laws, institutions, and protocols that would make trust reasonable in a world where anyone was capable of ventriloquizing anyone else thanks to new technology. (Spoiler alert: Copyright was quite useful.) Maybe at the moment you have sharper eyes than I do and can see that Fake Tom Cruise’s head doesn’t attach to his neck at quite the right angle, but in another few iterations or so, AI will defeat even the sharpest human eyes. The only anchor to be found will be in regimens of information hygiene. In such a world, people in positions of authority who spread disinformation knowingly, or even just with reckless disregard for the truth, will have to be sanctioned as untrustworthy—or else we’ll all drown in an AI-generated video swamp. Or rather, they will have to be identified as untrustworthy and stigmatized as such by any community—by any subset of society—that is willing to adopt measures that further the spread of truth. There’s some bad news here: if you’re Diderot, you don’t really even hope that someday everyone in France will want to, much less be able to, distinguish truth from falsehood. All you’re aspiring to is a self-limiting network of fellow philosophes willing to adhere to a sufficiently rigorous information hygiene protocol. Your hope is that truth will be discoverable to the happy few.

It’s always been a mistake to think of news organizations as manufacturers of a product called news, and it’s a mistake, therefore, to imagine that AI might be able to manufacture the product more cheaply. What you are paying for, when you subscribe to a newspaper, is trust. Trust that the newspaper’s reporters will tell the truth about what their sources have said. Trust that they are doing their best to unearth and share all sides of each story. Trust that the editors will not suppress evidence that is unflattering to the rich and powerful, including the newspaper’s owners. Trust that if the newspaper does fuck up, it will publish its errors and leave intact a record of its mistakes. You are paying for a relationship, but it isn’t a personal relationship—when individuals fail in this department, alas, they tend to fail catastrophically—it’s an institutionalized relationship. Musk’s approach to Twitter so far gets basically everything wrong. He’s reckless with the truth, he believes in the myth of individual judgment while having terrible judgment himself, he erases his mistakes instead of going public about his errors, and he seems poised to gut what little mechanism Twitter has had in place for content moderation up to this point, which wasn’t great to begin with. Oh well! Parts of it were fun while it lasted.