Truth on trial: In a world of speed, will the courts go down?
Andy Kroll: Truth on Trial
Alice wouldn’t recognize America’s real-life tea party, which could hardly get madder (or so I say now). Instead of the Queen of Hearts — you know, the character in Alice in Wonderland who ordered the decapitation of the Mad Hatter — you’d have to start with…. hmmm, how would you even decide when the choices include Herschel Walker, Mehmet Oz, Sarah Huckabee Sanders, Doug Mastriano, Kari Lake, Blake Masters, and… well, why even go on? You get it, don’t you? In fact, you couldn’t live in this country and not “get it” anymore.
Just for a moment — yes, right now — imagine that Walker, Oz, and Masters have actually made it into the U.S. Senate, that Sanders (and believe me, I don’t mean the all-too-sane Bernie), Lake, and Mastriano are the governors of Arkansas, Arizona, and Pennsylvania — and I haven’t even begun to mention potentially crucial state positions like Matthew DePerno as the Michigan attorney general or Jim Marchant (Nevada) and Kristina Karamo (Michigan) becoming secretaries of state, leaving them in possible control of future election ballot counts; and, mind you, all of the above is just to start down a list of the crew of Mad Hatters (or do I mean Mad Haters?) running for key posts in the increasingly (dis)United States of America.
Honestly, if you had told me about all this back in the days before computers, the Internet, or social media, when only birds tweeted and having your face in a book meant reading one, I would have laughed you out of the room. And I haven’t even mentioned something that once would have been beyond laughable and has, of course, already happened: the election of Donald Trump as president of the United States. In fact, the only reason I can even imagine what it means to be a political reporter in this country today is because I know TomDispatch regular Andy Kroll, author of the new book on a country adrift in a universe of rumors, A Death on W Street: The Murder of Seth Rich and the Age of Conspiracy. Now, let him fill you in on what a total laggard the truth is in the world of American politics in 2022. Tom
Your Factoids Against Mine: In a World of Speed, Will the Courts Go Down?
For about a week in the summer of 2018, I caught an early-morning train from Washington, D.C., to the Albert V. Bryan federal courthouse in the suburb of Alexandria. Located a short drive from George Washington’s estate at Mount Vernon, that courthouse serves the Eastern District of Virginia. It has played host to a wide variety of closely watched cases, from terrorism trials and inscrutable cybersecurity matters to the government’s prosecution of whistleblowers Daniel Hale and Chelsea Manning.
The defendant whose trial I was covering was Paul Manafort, who had been the chairman of Donald Trump’s first presidential campaign. The special investigation led by former FBI director Robert Mueller probing Russian interference in the 2016 election had led to Manafort’s indictment on multiple charges of conspiracy, money laundering, and other financial crimes. He denied the allegations and decided to take his chances at trial, putting his future in the hands of 12 northern Virginia jurors.
The Eastern District — EDVA, as it’s better known — is notorious for its old-school rules. Unlike most legal venues, reporters and members of the public aren’t allowed to bring electronics of any kind into that courthouse. There are no lockers or storage units on-site. Each morning, I waited in line (along with half of the D.C. press corps) inside a small café across from the courthouse to pay $10 to store my phone and laptop underneath the cash register. Bereft of my devices, I was left to cover the Manafort case the way a reporter would have in the 1960s — with pen and paper, scrawling notes on a pad on my knee and later spending as much time deciphering those jottings as I did writing up the day’s events.
I’ll never forget the experience of covering that trial. Joining me in the courtroom gallery most days were a dozen or so self-described “trial tourists,” people who had taken a day off from work to sit in on the case. A few silver-haired retirees had traveled from other states to hear expert witnesses testify about Manafort’s money-laundering operation or his taste in lavish ostrich-skin coats and luxury real estate. But what stays with me most is the way that all the usual noise, chatter, tweets, and din of this bizarre American moment seemed to stop at the courthouse doors. Stepping into Room 900, I felt like some celestial being had pressed the “Mute” button on the outside world.
The jury would ultimately convict Manafort on eight counts of financial fraud. Afterward, one juror, a Donald Trump supporter, told Fox News that she had wanted to find Manafort innocent, “but he wasn’t. That’s the part of a juror,” she explained, “you have to have due diligence and deliberate and look at the evidence and come up with an informed and intelligent decision, which I did.”
I remember her comments because they seemed to confirm what I had observed covering the case — in that courtroom, it didn’t matter whose tweet got the most “likes” or whose video tallied the most views. It felt, strangely enough, like a refuge from the modern mania of social media and Trumpism, an old-fashioned bastion of facts, rationality, and truth.
My mind flashed back to Paul Manafort as I watched the two recent trials of Alex Jones, the prominent conspiracy theorist and founder of the website Infowars. He faced lawsuits in Texas and Connecticut filed by parents whose children had died in the 2012 Sandy Hook school shooting. Jones had spent years spreading cruel lies about that mass killing, calling it a “hoax” and a “false flag” operation, while also accusing those parents of being “crisis actors” whose children were never actually killed.
In both cases, a judge had already ruled against Jones; the question before the two juries was how much he should pay to those Sandy Hook families. In the end, they would together award the families more than $1 billion in damages — money that Jones promptly claimed he didn’t have and couldn’t pay. The Jones trials also marked one of the few times that he faced any sort of accountability for his years of conspiracy theories. Unlike on his show or on social media, in court he couldn’t say whatever he wanted regardless of whether it was true. “You believe everything you say is true, but it isn’t,” Judge Maya Guerra Gamble admonished him. “That is what we’re doing here…Things must actually be true when you say them.”
The Loudest Voice in the Room
We live in an era when the truth can feel like whatever the loudest voices claim it is, whether the most extreme version of events or the one that feels right (even if it isn’t). I’ve covered scores, if not hundreds, of campaign rallies and stump speeches in my 15 years as a journalist. I tend to find my conversations with people in those crowds far more revealing than anything uttered by the candidate onstage, including, of course, that ultimate on-stager Donald Trump.
Lately, I’ve noticed a familiar refrain in those interviews. Once upon a time, rival politicians or competing media pundits normally agreed on at least a modest set of shared basic facts — humans are warming the planet to dangerous levels, say, or democracy works best when everyone participates — and then competed for votes based on how they interpreted and acted upon those facts.
Nowadays, though, rallygoers tell me that it’s ever harder to know what’s true and what’s false, to sift out right from wrong. Today’s politicians and pundits — particularly, though not exclusively, on the Trumpian right — seem not only to have their own opinions but their own “facts” to go with them. In their eyes, it’s increasingly difficult to know who’s being honest anymore. And the response, all too often, is a rhetorical and sometimes literal throwing up of the hands, an acceptance that no one can be trusted, that the facts are simply unknowable.
Surveys measuring the American public’s trust in its institutions capture this phenomenon strikingly. Trust in Congress, the presidency, the news media, and — once inconceivable — even the military is steadily eroding, as fear, suspicion, and resentment become the currency of American politics in this century. But if there was one institution that, until recent years, seemed to withstand this trend, it was the third branch of government, the judicial system.
Of all the institutions vital to American democracy, the courts have held remarkably steady, even during the turbulent years of Donald Trump’s presidency. This was, after all, a man who believed himself above the law, viewed the justice system as a tool to pardon his friends and punish his enemies, and lashed out whenever a judge constrained his executive actions. From one of Trump’s earliest moves as president — a ban on citizens of seven mostly Muslim countries entering the U.S. — to the 62 lawsuits that he and his supporters filed attempting to overturn the 2020 election results, the courts proved resilient in the face of unrelenting attacks.
An independent judiciary is more essential than ever when facts are under assault. As they did in the Manafort case I covered and the more recent Alex Jones trials, the courts can act as a firewall for the truth, a last resort for sifting real from fake, nonsense from reality.
There is, of course, a long and sordid history of courts dealing setbacks to the cause of progress. Look no further than the Supreme Court’s infamous decisions in Dred Scott v. Sandford, Plessy v. Ferguson, or far more recently Shelby County v. Holder, which gutted a key provision of the landmark Voting Rights Act of 1965. But in a truth-challenged era, the courts long remained one of the last holdouts where people could trust that they would at least get a reasonably fair hearing based on the facts, whatever their views or politics.
Or at least that’s how it looked until recently.
According to Gallup, at any given moment over nearly the last five decades, somewhere between two-thirds and three-quarters of Americans claimed to have a “great deal” or at least a “fair amount” of trust in the judicial branch. As recently as 2019, 69% of those surveyed expressed confidence in the nation’s courts, including the Supreme Court. And yet in the three years since then — as Donald Trump (with a big helping hand from Mitch McConnell) stacked the Supreme Court — support has plummeted to a dismal 47% this year. At the same time, a record number of Americans (58%) said they disapproved of the Supreme Court’s performance, while just 40% approved.
That steep drop in trust has no doubt been shaped by recent controversies. At the top of that list is the decision by the Supreme Court’s conservative majority to overturn Roe v. Wade, a decades-old precedent to which many of the justices who struck it down had previously paid lip service as settled law.
But the dwindling faith in the courts isn’t purely a reflection of the decision to strike down Roe. It’s now all too common to see federal judges described in news stories and on TV as “Obama judges” or “Trump judges,” “Bush judges” or “Clinton judges,” as if that somehow will help the audience make sense of the decision in question. Not only does that moniker too often prove misleading, but it fuels the notion that judges are nothing more than “politicians in robes,” as the saying goes.
It’s one thing to critique the current crop of Supreme Court justices for decisions that fly in the face of longstanding precedents, especially when those same judges vowed to respect precedent during their confirmation hearings. But the trend toward describing all judges in political terms undoubtedly leaves the impression that the judicial system is little more than a dressed-up political body, just another place where the ever fiercer partisan battle lines and tribal loyalties come into play.
Admittedly, there have indeed been recent non-Supreme Court decisions, too, that seem to suggest former President Trump succeeded in creating a more political judicial system when he pushed through over 200 judicial confirmations — some of them deemed by the American Bar Association unqualified for the bench, nearly all of them deemed loyal to the conservative doctrine of originalism — in the hope that they would rule favorably for him. (“If it’s my judges, you know how they’re gonna decide,” was Trump’s classic comment during the 2016 presidential campaign.) In Florida, for instance, Trump-appointed Judge Aileen Cannon has handed down one mystifying ruling after another in the ongoing litigation over the ex-president’s refusal to hand over all the classified and non-classified documents he took with him to his Mar-a-Lago estate. But there are far more Trump-appointed judges who have reviewed and dismissed legal challenges to the 2020 election or presided fairly over the criminal prosecution of various January 6th rioters. “There was nothing patriotic about what happened that day — far from it,” Judge Timothy Kelly, a Trump appointee, said in August. “It was a national disgrace.”
The Speed of Truth
Thinking back to that courtroom in Alexandria in 2018, I learned a lesson: The truth moves slowly. Far more slowly than the velocity of a viral tweet or an infuriating Facebook post. The first story you encounter online about a major world event or a breaking-news story may not be the most accurate version of what happened, if it’s accurate at all. Truth takes time to reveal itself. That time can feel longer than ever in a world where we’ve become conditioned to believe that we can have all the facts at our fingerprints in an instant. Make us wait and we lose interest.
The five years I spent reporting for my just-published book, A Death on W Street: The Murder of Seth Rich and the Age of Conspiracy, put this lesson about truth into greater relief. The book chronicles one of the most searing truth crises of the last five years — the story of a young man, Seth Rich, whose death became a global conspiracy theory, a partisan talking point, and a Fox News rallying cry. The false and fantastical theories about Rich, a 27-year-old staffer for the Democratic Party who was gunned down on a Washington street in 2016, began spreading mere hours after his murder had been publicly announced. The amplification of those lies happened almost instantaneously, faster than anyone could keep track of them, let alone stop them.
When Rich’s family exhausted their options to correct the record through media interviews and other public statements, they decided their only remaining choice was to seek accountability in a court of law. The Riches sued Fox News and people in Fox’s orbit, and ultimately reached settlements that helped protect the truth and restore Seth’s reputation and memory.
But it took three years of litigation to achieve those outcomes in court. Put another way, it took three long years for the facts and realities of Rich’s life and death to catch up with the fantasies, memes, and conspiracy theories spread about him. Still, at least there remained a venue for Rich’s family to receive a fair hearing, a protected space for an honest accounting of what was true and what wasn’t.
And yet today, that space seems increasingly under threat.
At stake in this year’s midterm elections is control of the House of Representatives and the Senate. Much has been written about what a Republican majority might do with its newfound subpoena power should the GOP retake control of the House. But when it comes to the courts, the Senate is crucial, since it controls the judicial confirmation process, approving or blocking nominees to fill dozens of openings across the federal court system. If Mitch McConnell returns to his position as Senate majority leader, it’s a good bet that he’ll thwart President Biden’s attempts to fill those vacancies before the 2024 election.
And if that next presidential contest were to usher in a Republican president (especially you know who), McConnell and his fellow Republicans will again have the power to usher onto the federal bench the next generation of Samuel Alitos and Clarence Thomases. And then, watch out!
The Supreme Court excepted, the judicial system has largely stood firm in the face of a half-decade of Trumpian attacks and a surge in conspiratorial politics. Our judicial branch still remains a refuge for the facts. The question is: How much longer can they hold on?
- 'Unmitigated disaster': Why Trump's Truth Social has been a ... ›
- 'A victory for the truth': Judge refuses to throw out suspended ... ›
- Why right-wingers refuse to see the truth even in plain sight ... ›