Capture the Courts
19 min read
In authoritarian states, the public has no agency and no real access to justice. In the second episode of Autocracy in America, a new five-part series about authoritarian tactics already at work in the United States, hosts Anne Applebaum and Peter Pomerantsev examine the case of Renée DiResta, a scholar who researches online information campaigns, who struggled to counter false accusations leveled against her after a series of courts accepted them without investigation. And they discuss how recent Supreme Court decisions raise a broader issue of legitimacy: As courts become more political, people could begin to assume justice is impossible.
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The following is a transcript of the episode:
Applebaum: In a democracy, we have something called rule of law, and that means that the law exists independent of politics. There are lawyers. There are courts. There are prosecutors, who at least, in theory—they are trying to legitimately find out who’s broken the law, who’s guilty, who’s not guilty.
Pomerantsev: You can have movie scenes like I’ll see you in court! and that means something.
Applebaum: That’s right. Whereas in a dictatorship, that’s not what the law is for. The law is not to find out what happened. It’s not to establish the truth. It’s not to find out who’s guilty and who’s not guilty. The law is to pursue politics by a different means.
Pomerantsev: —to serve the interests of the rulers, to protect them from justice and torment their enemies.
[Music]
Mikhail Zygar: I’m on the trial. I’m accused of spreading fake news about Russian army. By the moment when this podcast is released, I might be sentenced in absentia to nine and a half or 10 years in jail. That’s the usual practice.
Pomerantsev: Anne, of course, you know Mikhail Zygar. He’s a storied, very famous Russian journalist. Since we spoke together, he was sentenced to eight and a half years in prison.
I remember meeting him when I lived in Moscow. He was the editor of the main opposition TV channel. These days, like many of the best Russian journalists, he’s in exile. I met up with him in New York. He casually mentioned that there’s a list of countries he can’t visit because he might get extradited and taken back to Russia.
Pomerantsev: Just to be very clear, what is it precisely you’ve been accused of?
Zygar: Spreading fake news about Russian army.
Pomerantsev: What alleged disinformation did you spread?
Zygar: It’s obvious that Russian soldiers have massacred several hundreds of civilians in the outskirts of Kiev, in little town of Bucha, in March 2022.
And it has been proven by so many independent journalists and so many—I’ve talked to so many witnesses. There is the official press release of Russia that claims that it was all staged, that it was orchestrated by Ukrainian army. According to that press release, everyone who claims there was a massacre in Bucha organized by Russian army—they are spreading fake news.
I’ve got a lawyer who is representing me back in Moscow, and that doesn’t mean that I have slight hope of being proven innocent. Everyone knows that Russian law is not the real law. If you are accused of something, you’re going to be proven guilty. There are no exceptions.
Applebaum: Peter, I have to say, I think most Americans are not accustomed to the kind of absurdity that Zygar is describing.
Americans who study their history know, of course, that our courts, our judges have not always dispensed justice in the past. Of course, in the U.S., the law has been abused. One of the most famous examples in recent history was the FBI bugging of Dr. Martin Luther King Jr. They then used the tapes they’d made of him to harass him and to leak and smear him. I mean, this is the kind of thing that’s happened repeatedly in our history.
But what we’re talking about here is something different. This is a fake case against somebody for something that didn’t happen and that everybody knows didn’t happen. Everyone understands that it’s a kind of piece of performance art.
Pomerantsev: Like, basically, there’s a lot of Eastern European novels about this.
Applebaum: That’s right.
Pomerantsev: Like, not even talking about Kafka. But Invitation to a Beheading by Nabokov is about somebody sort of waking up and being told that they’ve been charged with something absurd, and they don’t know what it is, and just being pushed into this sort of Alice Through the Looking Glass space, where truth doesn’t matter and evidence doesn’t matter, but there’s some judge basically saying, you know, Off with his head.
Applebaum: Right. We don’t think that level of absurdity is possible here except that, increasingly, it is.
Pomerantsev: When Jim Jordan gets involved.
Applebaum: No spoilers, please.
Pomerantsev: Ooh!
[Music]
Applebaum: I’m Anne Applebaum, and I’m a staff writer at The Atlantic.
Pomerantsev: I’m Peter Pomerantsev, a senior fellow at the SNF Agora Institute at Johns Hopkins University.
Applebaum: And this is Autocracy in America. This is not a show about the future of America. There are authoritarian tactics already at work here.
Pomerantsev: And we’re showing you where. There’s the rise of conspiracy theories, widening public apathy.
Applebaum: And in this episode: the politicization of the courts.
[Music]
Applebaum: What really interested me in the case I’m about to tell you about is that it’s fundamentally built around fake evidence. In other words, a fake story was created, and someone was investigated for the fake story, and the truth of the story kept continually not coming out.
Renée DiResta is a polymath who’s been successful in many different fields. She worked on Wall Street. She was an equity-derivatives trader. She worked in venture capital. She worked in startups. She’s also a very unusual person, very brilliant. And one of the things she’s always been interested in is very big analytical challenges.
And so maybe it’s natural that she, along with others, would light upon the idea in 2020 of creating a group of researchers from Stanford University, from the University of Washington, and elsewhere to study false information about the most fundamental element of American democracy: our elections. It was called the Election Integrity Partnership.
Renée DiResta: So in the run up to the election, a group of us decided that we were going to do a project to try to understand narratives related to voting.
Applebaum: This is the 2020 election?
DiResta: Yes. So that meant—very specifically—sometimes misinformation but allegations that voting procedures or practices were not as they seemed: tweets and things that might say, Vote on Wednesday, or, Your mail-in ballot deadline is November 1, when it’s really later than that. And we were also interested in narratives that tried to delegitimize the election.
There was a lot of concern that there would be more state actors that were going to participate, because between 2016 and 2020, we’d actually seen state actors from all over the world begin to use social media for propaganda campaigns. We’d seen Russia. We’d seen China, Iran, Saudi Arabia—you name it.
And so we figured this would be an interesting research project to understand claims specifically, narrowly focused on voting and the idea that the election was illegitimate.
Applebaum: And how much of it, in the end, was Russian and Chinese?
DiResta: Very little, actually. So they nip at the edges. What we saw was primarily domestic influencers, and that’s really because they enjoy the trust of their audience, and so they have the power to get amplified because people know who they are, and they have very, very large followings.
What happens with Russian and Chinese accounts is more often they’re serving as amplifiers. So they’re in there. They’re in the mix. But they are boosting the existing domestic narratives that serve their interests as well.
[Music]
Applebaum: So you finished your work. The election was over. You published a report after the election.
DiResta: Mm-hmm. We published a report. We called it “The Long Fuse.” We had a big public webinar. I mean, everything that we did in this project was put out directly to the public. And this final report was over 200 pages long, and we published it with a public webinar in March of 2021.
Applebaum: The report that you wrote became controversial. Who noticed it? Who objected to it? How did this happen?
DiResta: The guy’s name was Mike Benz, and he’d worked for the State Department at the very, very tail end of the Trump administration. So I think it was November 2020 to January 2021 or so. He was there for a couple months.
But he rebranded himself as this entity called the Foundation for Freedom Online, and it turned out it was basically one guy with a blog. And so under the brand of the Foundation for Freedom Online, he began to write these purported tell-alls in which he took numbers out of our report, and he just kind of recast them to be whatever he wanted them to be.
So we posted summary stats in our report, and we detailed how many tweets we had looked at in the course of our analysis over the entire duration leading up to voting in November of 2020. And the number was 22 million.
[Music]
Applebaum: Peter, it’s worth repeating: 22 million. 22 million tweets were reviewed by DiResta and her team. But that number was used incorrectly by Benz and others. And that mix-up went viral.
Mike Benz (Foundation for Freedom Online): 22 million tweets were categorized as misinformation for purposes of takedowns or throttling through EIP, the Election Integrity Partnership.
Jan Jekielek (The Epoch Times): Mike Benz has been tracking the rise of the West’s censorship industry for years as executive director of the Foundation for Freedom Online and former State Department official.
Applebaum: So these convoluted statistics make the rounds in the right-wing media ecosystem.
DiResta: From an after the fact analysis of the most viral claims during the election to, these were the tweets and topics we had censored.
Applebaum: And when the Republicans win back control of the House in the fall of 2022, the House Committee on the Judiciary creates a select subcommittee on the weaponization of government, with one of the most celebrated culture warriors, Jim Jordan, in charge of it.
And Jim Jordan says he’s going to get to the bottom of this story about tweets and this government suppression of speech, and so they start issuing requests for documents, which tie up the Stanford lawyers who need to figure out which documents are relevant to the request. And people begin to spend hours and hours and hours providing evidence and getting ready for this congressional investigation. At one point, the committee decides it’s all moving too slowly, and so they actually up the ante with a subpoena.
Pomerantsev: So listening to all this, Anne, it feels familiar and yet utterly surreal, the tangling up of data, the idea that they’ve opened a case against DiResta using fake statistics in order to make a case to the American people that it’s conservatives who are truly being persecuted—it’s all pretty twisted.
Applebaum: The process continued, and it quickly became more than Congress because DiResta, Stanford, and others were actually sued over these claims. And then DiResta’s work got cited in a related case filed by a couple of Republican state attorneys general who sued the Biden administration for [alleged] censorship.
Applebaum: I mean, were you surprised by this?
DiResta: By which aspect of it?
Applebaum: By the fact that lawyers were citing things, and judges were hearing things and not questioning anything?
DiResta: Oh yeah, I thought, This is my first time being either subpoenaed or sued. I just kept saying, like, When do we get to the part where the facts come out? (Laughs.)
[Music]
Court reporter: We’ll hear argument first this morning in Case 23-411, Murthy v. Missouri. Mr. Fletcher?
Applebaum: DiResta got her answer. The facts did appear, eventually, but the misappropriated statistics actually continued to figure in the legal case all the way up to the level of the Supreme Court.
Deputy Solicitor General Brian Fletcher: Thank you, Mr. Chief Justice, and may it please the Court.
DiResta: I went to oral arguments, actually. I just felt like, you know, how often is your work name-checked in a Supreme Court hearing, right? It’s a little bit surreal.
Fletcher: The government may not use coercive threats to suppress speech—
DiResta: Another colleague of mine was there. We were sitting in the absolute back row, next to the velvet curtains. But I felt like it was important to be there. I really wanted to see it in person, and I was very curious because I wanted to see how they would react. I’ve got to say, honestly, I did not have high hopes.
Court reporter: Justice Kagan?
Justice Elena Kagan: Can we go back to the standing question?
DiResta: I thought this was, you know, going to split along party lines or something or ideological lines.
Justice Kagan: And if I ask you for the single piece of evidence that most clearly shows that the government was responsible for one of your clients having material taken down, what is that evidence?
DiResta: And so I really did feel very much encouraged by the lines of questioning they went down.
Justice Kagan: So how do you decide that it’s government action, as opposed to platform action?
Louisiana Solicitor General J. Benjamin Aguiñaga: Your Honor, I think the clearest way, and if I understand—so let me answer your question directly, Your Honor.
DiResta: And you see the solicitor general of Louisiana, who was standing up there, you see him falter. He doesn’t have anything, because all of a sudden, the innuendo isn’t enough.
Aguiñaga: The way—the link that I was drawing there was a temporal one. If you look at JA 715-716, that’s a May 2021 email—
DiResta: For the first time, you saw the justices of the Supreme Court—including the conservatives—asking, What is the best piece of evidence that you have of some government effort to target and censor these plaintiffs?
Court reporter: Justice Barrett?
Justice Amy Coney Barrett: My question is about the findings of fact and clear error. If the lower courts, which I think they did, kind of conflated some of those threats with threats—
DiResta: As one of the justices notes, normally we don’t sit here disputing facts by the time it gets to us.
Justice Barrett: Wouldn’t that then be clear error? Or do you think that’s application of facts to law, or what?
Aguiñaga: So I apologize. I didn’t mean to say—
DiResta: I was relieved, I think, to see that finally happen at the Supreme Court, even though legal experts say that normally that’s the sort of thing that would have happened a whole lot earlier.
[Music]
Applebaum: So Peter, as you may well know, the Supreme Court justices don’t immediately come to a decision after a session like this. After about an hour and a half, they wrapped up their questioning, and DiResta left the chamber. I asked her how she was feeling at the time.
DiResta: I came away pretty elated, actually. Finally, the facts—or lack thereof—were out there in the world.
Applebaum: And what did you do afterwards?
DiResta: We went and got ramen. (Laughs.)
[Music]
Applebaum: So all the way through this ordeal that goes on for years, Renée DiResta keeps waiting for the truth to be told. And it’s really only at the final moment, before the highest court, when people begin to grapple with the underlying facts of the case. And when the ruling comes out a few months later, the justices find that the plaintiffs did not even have the standing to sue, because they hadn’t shown that they’d actually been harmed.
DiResta: The validating part of, I think, the Supreme Court decision, though, was the recognition that so many of the things that were cited as evidence, you know, were just smoke and mirrors and innuendo. There was no there there.
[Music]
Pomerantsev: So, Anne, DiResta seems to have got a little bit of closure. After months and months of meetings with lawyers—reviewing lower courts’ findings, years of controversy—finally, with the Supreme Court, the facts seem to matter for at least most of the justices.
But here’s the thing about the Supreme Court, which I’ve learned in reporting for this series: Although the Constitution grants the Court the authority to interpret the laws, people actually follow those interpretations simply because everyone agrees that they should.
More on that after the break.
[Break]
Former Supreme Court Justice Stephen Breyer: The chief justice of Ghana once asked me a question in my office. She wanted to improve human relations and human rights.
Pomerantsev: This is former Supreme Court Justice Stephen Breyer recounting a conversation that he had many years ago.
Justice Breyer: She said, Why do people do what you say? You’re only nine people. Why do they do it? I said, That’s a good question. They didn’t always.
Pomerantsev: Justice Breyer went on to tell the judge about an instance when the courts were defied: Worcester v. Georgia, in 1832. It was President Andrew Jackson who flat out ignored a ruling that called on the federal government to respect past treaties with the Cherokee Nation.
But Justice Breyer said, in essence, that nevertheless, most people listen to the Court and follow the Court’s decisions out of respect for the Court’s authority developed over many years.
Justice Breyer: I said, The people you have to convince that sometimes they should just follow a decision they don’t think is great—they’re not the lawyers. They’re not the judges. It’s the people who aren’t judges, who aren’t lawyers. In America, we have 330 million people, and 329 million people are not judges and not lawyers, and they’re the ones that have to believe in this rule of law.
You don’t have to agree, by the way, thinking about it. It’s like it’s in the air. It’s like it’s just part of what it is to be a citizen of the United States.
[Music]
Pomerantsev: Anne, this was something of a surreal moment for me. I’m trying to understand the history of the Court and its legitimacy, and Stephen Breyer is sitting in the studio, literally holding a copy of the Constitution in his hands. It’s a man who spent decades as a justice, a great believer in the strength of the federal courts system. But he also explained its legitimacy is, what he said, “in the air,” that it’s a part of our political culture.
Justice Breyer mentioned the Court has, in the past, held off on taking a contentious issue until it felt the country was sufficiently supportive. The Court’s decisions are part of a context. Interracial marriage—the right for black and white Americans to get married—was an example he cited.
Applebaum: Really, at almost any politically difficult or transitional period in American history, the Court’s rulings have been seen by some as divisive and controversial. And we are most definitely in one of those periods now.
Protestors:(Chanting.) Rise up! For abortion rights, for abortion rights—
Jenn White (NPR, 1A): The Supreme Court has overturned Roe v. Wade.
Denise Harle (Alliance Defending Freedom): It’s really exciting because there’s still a long way to go.
Applebaum: The current Supreme Court, in 2022, upended a federal right to abortion that had been part of American law for nearly half a century. And then, just this year, the Court ruled, with the Republican-appointed justices in the majority again—
Carrie Johnson (NPR): The Supreme Court granted presidents sweeping immunity from prosecution.
Protestor 1: The Court is corrupt. It is outrageous that they’ve even entertained this question.
Protestor 2: Yet another bad, bad decision.
Applebaum: And that was a decision that was seen as an enormous victory for former President Donald Trump, who’s facing several criminal investigations.
[Music]
Pomerantsev: If it’s merely out of habit that Americans obey what the Court says, what happens when the Court becomes increasingly politicized or out of step with what Americans want?
Applebaum: If you go back and read what John Adams said about the judiciary in the 18th century, it was all about how: We’re going to appoint judges, and they’re going to be people of coolness and calm. And they’re going to be people upstanding morally, who are going to defend the law and the truth. And they’re not going to be political.
But other than that, there aren’t laws that declare that the judges have to be apolitical.
Pomerantsev: What I find so worrying in America is that people actually feel, already, that the justice system is politicized. They already feel that there’s a red justice system in one place and a blue justice system in the other. And when people talk about the dangers of democracy being eroded in America, when I hear that from so many Americans, that’s when I get really worried because if you can’t get anything above politics, that’s a very, very dangerous place.
Applebaum: I think the piece of it that worries me is that the guardrails on the system—the thing that prevents the courts from becoming overly politicized or partisan—is essentially a set of customs.
Pomerantsev: And we’re already seeing some evidence that those guardrails are coming apart.
Ian Bassin: You know, I think the one that I would point to as, you know, maybe the canary in the coal mine—and there are probably a lot that I could point to as canaries in the coal mine, given that the ceiling of the coal mine is wobbly, and there’s dust falling down. But the one that I would point to is the classified-documents criminal matter.
Pomerantsev: This is Ian Bassin, the co-founder and executive director of Protect Democracy, a nonprofit that tries to safeguard democratic institutions. The example he was thinking of has to do with the U.S. district court judge in Florida who’s overseeing the classified-documents case against Donald Trump. You know, the one that says that Donald Trump held onto a bunch of classified material that wasn’t his, but then he refused to give it back.
Bassin: And the reason I point to that case is: The judge in that case, Judge Aileen Cannon, has now, in multiple matters, done everything within her power to help Donald Trump evade responsibility or even having to face a jury in that case.
Diane Macedo (ABC News): A federal judge has granted former President Trump’s request for a special master to review the materials seized from his Florida estate.
Pierre Thomas (ABC News): Judge Aileen Cannon has officially taken a May 20 trial date off the calendar, saying—
David Spunt (Fox News): The original trial was set for the end of May. She moved it back a couple of months, though not setting a date.
Ken Dilanian (MSNBC): In a remarkable development, Judge Alieen Cannon in Florida has dismissed—dismissed—the indictment against Donald Trump in this classified-documents case.
Terry Moran (ABC News): Every other court that has considered the issue of special counsel appointments have ruled that they are constitutional. Right now, Judge Cannon is the outlier.
Bassin: It appears as if Trump has fundamentally captured the referee there, that the referee is so in the pocket of one of the litigants that the system is not working in an independent way.
And so the reason it worries me is: If a reelected Donald Trump elevates Judge Cannon to the next level court of appeals, I think you’re going to start to see a lot of lower-level judges who were not Trump loyalists to start, when they were put on the bench, read the writing on the wall and realize that if they want to curry favor, and if they want to get that promotion, they need to be as obsequious towards Donald Trump as Judge Cannon has been. And I worry about what that means for the independence of the judiciary, going forward, if that’s the way things play out.
Applebaum: So, Peter, the idea of judges who make decisions based not on an interpretation of the law, not on an interpretation of the Constitution in the case of the Supreme Court, not even on the basis of a right-wing or left-wing legal theory but on the basis of feeling a need to suck up to people in power or feeling that their ambition requires them to come out with a certain verdict or to behave in a certain way or say certain things—this already begins to sound to me very much like a political system that’s not democratic, that doesn’t adhere to the rule of law.
Pomerantsev: Yeah, in these sort of nondemocratic systems, the law is about punishing political enemies with absurd cases. It’s about justices not thinking about themselves as justices but as bureaucrats trying to climb a greasy pole.
But it’s also about safety and getting away with things and breaking the law with impunity, as long as you’re part of the regime. That’s the other flip side of all this. It’s not just a stick. It’s a carrot as well. In these systems, If you’re one of us, you can do whatever you like, and you’ll get away with it. As long as you show your loyalty, you will get pardoned.
Applebaum: Right, and because the legal system has been undermined, you’ll be safe.
[Music]
Pomerantsev: So, Anne, there’s this phrase, which, you know, when I look it up online is often attributed to a Peruvian authoritarian leader, Óscar Benavides: “For my friends, everything. For my enemies, the law.”
Applebaum: And the funny thing is: That quote is also attributed to Mikhail Khodorkovsky, a Russian oligarch, and to a Spanish fascist. Maybe the reason why it’s constantly being reattributed to new people is that it reflects something that’s pretty profound: What’s the difference between a country where you have rule of law and rule by law?
And the difference is that in a country where you have rule by law “for my friends,” meaning, For people on the inside, you can do whatever you want, and “for my enemies,” meaning, For people who are my political opponents, I have the legal system.
[Music]
Pomerantsev:Autocracy in America is hosted by Anne Applebaum and me, Peter Pomerantsev. It’s produced by Natalie Brennan and Jocelyn Frank, edited by Dave Shaw, mixed by Rob Smierciak.
Applebaum: Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor.
Autocracy in America is a podcast from The Atlantic. It’s made possible with support from the SNF Agora Institute at Johns Hopkins University, an academic and public forum dedicated to strengthening global democracy through powerful civic engagement and informed, inclusive dialogue.
Pomerantsev: Next time: Autocracy is not new in America. In fact, in Louisiana in the 1930s, a populist leader basically wrote the playbook.
Richard D. White Jr.: Huey Long did more good for any American state than any politician in history. The paradox is that Huey Long did more harm for Louisiana than any politician in any state in American history.
Pomerantsev: We’ll be back with more on that next week.
