Emily Bazelon: Hi, David. Happy May! I know you got to spend some time with your grandchildren last weekend and that’s a cheering sign for how your month is going.
I didn’t expect to start us off with an homage to Jeff Sessions, but the current Trump administration occasions many oddities. I’m thinking about Sessions because when he was Trump’s first attorney general, he issued a memo in 2017 barring the Justice Department from settling lawsuits by directing payments to third parties — people or groups who weren’t directly harmed by whatever gave rise to the suit. The goal was to ensure that settlement funds were “only used to compensate victims,” Sessions wrote.
At the time, Sessions was responding to cases in which the Obama Justice Department negotiated settlements Republicans denounced. One major example was a deal in which banks, sued by the government for their lending practices leading up to the 2008 financial crisis, settled in part by donating money to groups like the National Council of La Raza and NeighborWorks. The money went to groups providing legal aid to people who’d lost their homes or doing community development in hard-hit neighborhoods. Still, Republicans flogged D.O.J. for going around Congress to funnel money to groups Democrats liked.
The Obama-era practice was not the same as the $1.776 billion fund that the Trump Justice Department recently announced. This time, D.O.J. is going around Congress to pay off Trump’s allies in exchange for Trump and his family dropping a dubious $10 billion lawsuit against the I.R.S. over the leak of Trump family tax information.
Notice the repeating proper noun.
To make the self-dealing explicit, Trump also got a grant of immunity from any tax investigations into him, his family, or his businesses “FOREVER” — it’s in all-caps in the document — according to an addendum to the agreement signed by the acting attorney general, Todd Blanche.
David French: You’re right, the Obama-era practice is quaint compared with what Trump is trying to do. He’s creating a slush fund under his total control, to use how he wants, using payment procedures he defines. And the fund is huge — $1.776 billion can make a lot of members of MAGA millionaires.
As the settlement agreement says, the so-called Anti-Weaponization Fund “shall have the power to determine its own procedures for submitting, receiving, processing and granting or denying claims.” In other words, Trump can make it all up. He’s doing all this without judicial supervision, with the aim of rewarding people who weren’t even parties to his initial case and who have claims that have nothing to do with that case.
And let’s not forget that Trump is essentially settling with himself. He sued the Internal Revenue Service, which he runs, and the suit was settled by the Department of Justice, which he also runs. This case virtually defines the phrase, the fix was in. And the fix will be in for all his friends and allies as they grasp for cash.
Emily: Our cash.
David: Trump is circumventing Congress’s power of the purse. He’s circumventing the judiciary’s role in adjudicating disputes. By potentially granting settlements to people who possess no valid legal claim, he’s circumventing civil and criminal law. This is one of the most purely monarchical moments of a monarchical presidency.
But it gets worse! As you noted, the addendum to the agreement contains a breathtakingly broad release of civil claims against the Trumps. Think of it as a version of a civil pardon. Presidents have unchecked authority to pardon federal crimes, but they do not have the power to protect themselves from lawsuits, one of the last ways to hold Trump accountable.
But now Todd Blanche is trying to do just that — protect Trump from any federal accountability at all.
I’m glad you mentioned Sessions. The Obama-era settlements pale in comparison to the Trump slush fund, but it was still a bad idea. Many of us called it (rather derisively) “sue and settle.” The Obama administration didn’t just fund left-leaning organizations; it also used settlement agreements to implement new policies and practices while circumventing the regulatory rule-making process, which is supposed to allow public notice and comment before new regulations are enacted.
But again, one of these things is not like the other.
Emily: So true. I mean, really, why did Jeff Sessions bother? Trump forced him out in humiliation. Blanche knows better. Defending this deal while testifying Tuesday before a Senate committee is his route to remaining in power.
The Jan. 6 rioters are celebrating. First Trump gave them pardons and now they get taxpayer dollars — even though if they sued the government on their own behalf, they would surely lose because of the thicket of government immunity that stands in the way of civil rights plaintiffs.
Trump’s decision to pardon the Jan. 6 rioters polled poorly and presumably the slush fund will as well. But he doesn’t care, so it doesn’t affect how his administration operates. David, do you see any political guardrails on the Hill or anywhere else? The defeat of two Trump semi-critics, Senator Bill Cassidy of Louisiana and Representative Thomas Massie of Kentucky, in Republican primaries in the last week suggest that Trump’s party will be further cowed. Will the midterms change this bad relationship?
And what about a legal remedy? Police officers who defended the U.S. Capitol on Jan. 6 are suing to block the slush fund. What do you think of their lawsuit?
David: Trump is a profoundly unpopular president who still enjoys the deep devotion of his base. This puts Hill Republicans in a terrible position — as we’ve just seen in Indiana, Kentucky and Louisiana, if they defy Trump, they lose their jobs. If they obey Trump, they defend the policies and practices that are hurting the country and courting electoral disaster for the G.O.P.
But I have zero sympathy. If they’d done their duty in 2021 and convicted Trump in his impeachment trial, then Trump would be a private citizen. They made their bed, and must lie in it, but they made our bed also. We’re all paying the price for the decision they made. May history treat their failure with the contempt it deserves.
I will note — to give us at least a faint glimmer of hope — that Representative Brian Fitzpatrick, a Pennsylvania Republican, has vowed, “We’re going to kill it” and is backing legislation to do so. Senator John Thune has expressed his disapproval as well, but when it comes to anything concrete, I’ll believe it when I see it.
Before we get to the police lawsuit, I want to affirm your point about an especially terrible aspect of this slush fund. As you said (and it’s really worth emphasizing), thanks to an incredible web of federal immunities, most citizens have little hope of recovering money from the federal government for violations of their civil rights. So while ordinary Americans suffer, Trump’s thugs may get access to millions of dollars in wholly ill-gotten gains. It’s a travesty.
As for the lawsuit, I think they have a solid case on the merits. The slush fund almost certainly violates the Administrative Procedure Act, which governs how federal agencies enact new rules and regulations, in multiple ways. The key questions are whether they have standing to sue and whether the matter is ripe for adjudication. It’s too early for me to tell.
Emily: I have questions about a perennial source of friction in law and politics — abortion. Since Dobbs, the 2022 Supreme Court ruling that ended the constitutional right to abortion, the number of abortions has risen across the country, including in most states with bans. Women determined to decide when and whether to have children have traveled out of state and increasingly, taken abortion pills at home. The pills arrive discreetly through the mail.
A body of evidence shows this method of abortion is safe and effective. It is also very hard to stop. The pills can be prescribed by providers in certain states, with the approval of the Food and Drug Administration, and mailed to women in states with bans under cover of state shield laws. They can come from Aid Access, a telehealth service in Europe. They can be ordered online from countries like India, shipped through middlemen in the U.S. They can cross the border from Mexico through underground networks.
Abortion opponents are intent on stanching the flow of pills. Banning abortion was supposed to decrease access and increase stigma. Instead, as you’ve said — with regret, as an opponent of abortion — the anti-abortion movement is losing the culture war.
David: I dislike the words “safe and effective” as applied to the abortion pill. It is deadly for the unborn child. Also, you’re right that I deeply regret the increase in abortions since Dobbs.
At the same time, there are good reasons a majority of the court (including, of course, some of the conservative justices) just blocked a Fifth Circuit decision that had the potential to limit legal access to mifepristone by mail. The court of appeals had ruled in favor of the state of Louisiana’s challenge to Biden-era rules that permitted abortion providers to prescribe mifepristone online and ship it through the mail, without an in-person visit to a doctor.
There are questions about the plaintiffs’ standing in the underlying lawsuit, and a number of legal doctrines give the federal government (including the executive branch) a great deal of power to regulate pharmaceuticals. The Supreme Court’s decision was temporary, and I don’t know how it will rule if and when it issues a final decision in the case, but it would not surprise me at all if the court ultimately upholds the Biden rules. As a matter of law and precedent, regulation of pharmaceuticals is much more of a matter for the president or Congress than the courts.
Emily: OK, I will go with “abortion pills are safe and effective for people who take them.” The F.D.A. regulates the drugs on their behalf.
Abortion opponents understandably expect help from President Trump. He appointed three of the justices who voted to overturn Roe. Pro-life groups worked hard to re-elect him. He is supposed to be their guy. But lately, he has stiff-armed them. Early this month, a key leader of the anti-abortion movement, Marjorie Dannenfelser, turned on the president publicly. “Trump is the problem. The president is the problem,” she said in an interview with The Wall Street Journal.
The focal point of her movement’s frustration is the Food and Drug Administration. Trump’s F.D.A. has done effectively nothing to make it harder to get mifepristone, one of the two abortion drugs, which the agency used to highly regulate. Last fall, it approved another company to make and sell a generic version of mifepristone. The administration said it was “simply following the law,” but since when is that a reason for a Trump agency to do something the president cares about stopping?
More galling, from Dannenfelser’s point of view, the F.D.A. has left in place the Biden-era rule that allowed abortion providers to prescribe and mail mifepristone without seeing a patient in person. To be clear, changing this rule won’t stop abortion-by-mail, which currently accounts for one in four abortions in the U.S. If we have learned one thing from Dobbs, it’s that women are determined. The gray markets I talked about earlier would keep operating. U.S. providers could still offer telemedicine abortions with only the second drug, misoprostol.
Nonetheless, changing the F.D.A.’s rule would be a very big deal. It would aim to prevent U.S. providers from legally mailing mifepristone to patients in blue as well as red states. Misoprostol-only abortions are often considerably more uncomfortable (more cramping and bleeding etc). Plus it’s harder for women to know quickly whether the drug worked. Revoking the mail-order rule would also require the F.D.A. to accept non-peer-reviewed and flawed claims, debunked by experts, that the method isn’t safe. (But again, since when is rejecting scientific evidence an impediment in this administration?)
From the anti-abortion movement’s perspective, ending F.D.A. approval of mail-order abortion is frankly the least the Trump administration could do. Project 2025, the Heritage Foundation’s blueprint for a Republican presidency, called for revoking the agency’s approval of mifepristone entirely. The agency has announced it is re-reviewing the drug’s safety, but it is slow-walking that process. Access to abortion pills has strong majority support. The Trump administration is ready to take a political hit to pay off Jan. 6 rioters but not to save the lives of the unborn, to use language you might use, I think — is that what it seems like to you?
David: You nailed it, Emily, in my view, ending F.D.A. approval of mail-order abortion is the least the Trump administration can do. Given the Trump administration’s record, it’s absurd that pro-life Republicans continue to browbeat pro-life dissenters for leaving the Republican Party.
To pick up on my observation that this matter is more for Congress than the courts, I’d like to explore a bit of a larger theme. Again and again the political branches fail to do their job, and the matter gets punted to the courts. And then, perversely, the court gets the lion’s share of the blame when it fails to provide the desired outcome.
Pro-life Americans should be far more disappointed in Trump than in the Supreme Court. Not only has he presided over a historic increase in the abortion rate (There were more than 330,000 fewer abortions in America by the end of Barack Obama’s two terms, while abortion actually increased during Trump’s first term.) He’s made the G.O.P. more pro-choice than it’s been in decades.
Can we move for a moment to gerrymandering? I’m really worried about this. At the Supreme Court level, the combination of the decision to remove itself from adjudicating so-called partisan gerrymanders, along with its recent decision in Louisiana v. Callais, means that the way is clear for state legislators to engage in truly radical gerrymanders, so long as they don’t slip up and confess to any racial animus.
Millions of Americans know this is bad, but they may not grasp how bad. The House of Representatives was designed from the ground up to be the most representative part of the American government (it’s in the name, after all), but radical gerrymanders can thwart the will of the majority. We have many countermajoritarian elements of American government; the House of Representatives was not supposed to be one of them.
If we continue to frustrate the will of the people — especially so blatantly — how long can the system hold?
Emily: I second your point about holding the elected branches accountable. Redistricting, however, has been largely in the hands of the states and gerrymandering is a mess that the conservative majority of the Supreme Court just made worse. Callais turned gerrymandering for partisan advantage from an embarrassment into a legal asset. Justice Alito’s opinion for the majority effectively said that the Republican-controlled Legislature in Louisiana can get around the safeguards against racial gerrymandering in the Voting Rights Act by arguing that they are diluting the power of Black voters in order to stop Democrats from being elected. Confessing to partisan bias actually helps your case.
It’s amazing. Seven years ago, in a majority opinion by Chief Justice John Roberts, the Supreme Court said partisan gerrymandering was “incompatible with democratic principles,” even as it held that federal courts were not the solution. Before that, Justice Anthony Kennedy left open the possibility of supplying a fifth vote to limit it, though he never settled on a standard for doing so. In fact, there are several ways to fix the problem. Now competitive House districts are vanishing and the justices are expressing no regrets.
David: In states that have extremely racially polarized voting, it becomes virtually impossible to distinguish between a partisan gerrymander and a racial gerrymander, unless someone actually opens their mouth and confesses to a racial motive. In Louisiana, voting is in fact extremely racially polarized, and when there is extreme racial polarization, then a racial gerrymander will be a partisan gerrymander, and vice versa.
In those circumstances the smart racist can simply say, “I’m trying to eliminate Democratic members of Congress,” and the gerrymander will pass legal muster as being merely partisan. The dumb racist would say, “I’m trying to eliminate Black representatives.” Or, “I’m trying to strip power from Black voters.” In that case, the gerrymander would likely fail as impermissibly racial.
And while I take a backseat to no one in recognizing the stupidity of many racists, it’s foolish to hinge legal equality and voting rights on the cleverness of bigots.
But here’s my question back to you, Emily. Article I, Section 4 of the Constitution says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
The Supreme Court might be stepping back from adjudicating gerrymanders, but Congress can fix partisan gerrymandering with the stroke of a pen, and it has the explicit constitutional power to do so. Should this be a priority for a future Democratic Congress?
Emily: Yes, it should be, for the reason you raised earlier — the strain on our democracy. Extreme gerrymandering in the House and also state legislatures means that the majority can only overcome an entrenched minority in a wave election. Congress should worry about this!
A president should also worry about it. But this president threatens democracy. He tried to overturn one election. He instigated this destructive round of mid-decade redistricting. My biggest fear is that he will interfere with the elections in November or in 2028. I think, I hope, he hasn’t consolidated enough power and I also think his sinking approval ratings have to matter on this front. Public opinion matters for would-be authoritarians, too. But as I write this, I’m not sure. What do you think?
Also, what are you doing to lighten your mood and distract yourself? I’m watching “Margo’s Got Money Troubles.” Great cast. I would claim to be gardening but really that just means I repotted some plants and my husband is watering them. Love summer, no matter what, for its long days and barbecues!
David: It’s actually quite difficult to effectively interfere in the midterms. To make a big difference, Trump would have to get very heavy-handed (ICE at polling places, for example), but I would not put it past him to try. He’s been heavy-handed before — after Jan. 6 it’s fair to ask if there are any lines he won’t cross.
On the bright side, however, the more his polling numbers sink, the more the election may move beyond the margin of interference. One reason, for example, that Viktor Orban’s corrupt political machine was ultimately ineffective was that his defeat was so decisive. He was swamped.
As for something to watch, Emily, I just have two words for you: “Widow’s Bay.” It stars Matthew Rhys from “The Americans,” one of the greatest shows in the history of the universe, and it’s a horror-comedy set on a fictional New England island. Rhys is excellent (as always), and the entire cast is quirky and fun. The horror is genuinely creepy, and the humor makes me laugh out loud. There’s nothing else quite like it on television. Enjoy!
Emily: I will go watch “Widow’s Bay.” Thanks for that.
Not to drag us from summer sun back to gloom, but at the Conservative Political Action Conference in March, Blanche asked, “Why is there an objection to sending ICE to polling stations?”
Somehow, I did not find this reassuring.
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