The convergence on 28 February of Mitch McConnell’s retirement announcement as the Republican Senate leader with the supreme court’s order to accept Donald Trump’s appeal to consider his immunity from prosecution was a bitter irony for McConnell and triumph for Trump. It is a telltale subplot in Trump’s theater of humiliation in which the supreme court is playing a starring role as his best supporting actor.
On 4 March came another supreme court-delivered victory for Trump. “A big win for America,” tweeted Trump. In a spray of divided opinion the court’s overturning of the state of Colorado’s ruling that Trump was disqualified from the ballot for being an insurrectionist under the 14th amendment section 3 enhanced his impunity and encouraged his grasp for absolute power.
McConnell, the partisan architect of the partisan supreme court majority, could, if he wished to boast, rightly claim credit for those justices staging the timely rescue of his nemesis. Putting in place justice after justice, breaking precedent after precedent, he is the father of this court’s majority. He considers it his greatest accomplishment.
McConnell’s cold arrangement with Trump was strictly business: McConnell protected Trump in exchange for Trump packing the court. While few truly deeply loathe Trump more than McConnell, nobody has been a more consequential enabler or fatally miscalculated the spread of his stain. But their unholy alliance cannot be mistaken for a Faustian bargain; neither was selling his soul.
McConnell made plain the purely transactional basis of the relationship when he endorsed Trump after Super Tuesday, citing how “we worked together to accomplish great things for the American people … a generational change of our federal judiciary – most importantly, the supreme court”.
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In the Trump disqualification case, a conservative majority of five on the supreme court effectively engaged in a nullification of the 14th amendment. The court ignored or warped the history of the 14th amendment, which was conceived and enacted to prevent insurrectionists from holding federal offices. To defend Trump, the conservative majority threw overboard originalism and textualism, the alpha and omega of its contrived legal ideology, as an obstacle to the desired result. Through a bizarre concatenation of historical falsehoods and legal contrivances, they refused to define whether Trump is an insurrectionist, or mention the word, which is the essence of the relevant section 3.
Instead they went to an extreme edge to justify maintaining Trump’s place on the ballot, inventing a remedy that will never be applied, that only congressional legislation can determine disqualification of a person for federal office. In short, they granted Trump immunity from disqualification for attempting to overthrow the government of the United States.
Unanimity was a thin illusion of consensus. Justice Amy Coney Barrett uncomfortably filed her own opinion to dissent from the other conservatives’ overreaching. The three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, in their separate concurrence, systematically knocked down every specious claim in the majority opinion – the false precedents cited, the false notion that disqualification is not self-executing, the bowdlerized quotes to achieve a false conclusion – yet signed on to avoid “a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles”, though that supposition is both narrow and vague.
Then they flayed the majority for straying from the “fundamental principle of judicial restraint [that] is practically as old as our Republic”.
They stated that by resolving “many unsettled questions about Section 3 the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President”. But their opinion did not stop there. They charged that “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office”. The category of “all alleged insurrectionists” encompasses the Republican members of the Congress who were involved in Trump’s coup attempt. The reference to “future challenges” applies first and foremost to Donald Trump. The liberal concurrence is a fierce dissent from the majority’s manufacture of an insurrectionist protection act. The decision has exposed a splintered court and left to the immunity case the outstanding issue of “an oathbreaking insurrectionist … becoming President”.
In the immunity case the court has declined to let it go forward after a three federal judge panel ruled on all the questions at its heart and special counsel Jack Smith urged deliberate speed. Instead, the court scheduled to hold a hearing during the week of 22 April, in the full knowledge that every delay makes Trump’s escape from justice more possible and that postponement serves Trump’s strategy.
The January 6 case will not reach trial, if there is one, until months after the court’s eventual ruling on whether a president is an absolute dictator. Given the calendar, it appears highly unlikely the trial will be concluded by election day. The court’s charade of taking on the decision as a matter of prudence is a transparent stalling tactic to deny the voters the test of the evidence in a court of law so they could make a fully informed decision of their own. Slow-walking the January 6 prosecution of Trump, the court has granted him de facto immunity for the course of the campaign. Tick, tock.
With its aid and comfort to Trump in both the disqualification and immunity cases, the Roberts court (or, if one prefers, the Thomas court) has shown itself to be the most politically driven since the Taney court that decided the Dred Scott case (or, if one prefers, the Rehnquist/Scalia court that brutally decided Bush v Gore).
On the disqualification case, Trump skates scot-free. On the immunity case, the court kicks the can as far into the future as it benefits him. For these gifts from this court, Trump owes a debt of ultimate gratitude to Mitch McConnell.
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McConnell had many reasons for declaring he has reached the twilight of his career, even though the Republicans may gain control of the Senate after the election and he would be leader again. His health, after all, is fragile. He froze speechless twice in press conferences. He has suffered a terrible personal tragedy, the accidental drowning of his wife’s sister. But approaching the promised land once more, which might be his culmination, he restrained himself from entering. He announced he would relinquish the enormous power he has accumulated over a lifetime because he could see it ebbing away to his worst enemy. That very worst enemy is not Joe Biden, who he likes and would destroy out of cold partisanship, but Trump, who he hates with a white-hot passion, but whom he has safeguarded and would help become “dictator for a day”.
“Believe me, I know the politics within my party at this particular time,” said McConnell in his Senate speech announcing his retirement. “I have many faults. Misunderstanding politics is not one of them.” Believe him, he can count.
On 13 February, two weeks earlier, he helped engineer Senate passage of a compromise bill wrapping a package of policies on the border and immigration with funding for Ukraine, Israel and Taiwan. He was particularly intent on providing aid to beleaguered Ukraine, where he has traveled to express his support directly to President Volodymyr Zelenskiy. The bill passed with 71 votes, clearing the hurdle of an obstructionist filibuster, McConnell’s blunt instrument of choice. Yet he could muster only 22 Republican votes. It was his pyrrhic victory. He lost a majority of his conference, nearly all those elected since 2018 and under 55 years old. His iron grip faltered from Trump’s pressure.
McConnell’s bleak persona had no popular appeal. His influence has always been achieved through cash. As party boss, like party bosses of the past, he rewarded regularity from his members. He was shocked to discover the cult of personality that altered the base of the party. “Things are changing just not fast enough,” tweeted Senator Eric Schmitt, a Trump zealot explaining his and others’ vote against the omnibus bill as a vote of no confidence in McConnell’s leadership. He had always assumed that dark money talks and senators walk. But he now encountered a greater motivating fear.
McConnell’s enforcement of the party line made him appear like Senate leaders before him. His acolytes praise him as an “institutionalist”. He basks in presenting himself as a “constitutionalist”. But to build his power McConnell has subverted constitutional norms and standards, corroded and corrupted checks and balances, and drastically weakened the Senate through his explosive abuse of filibusters to transfer power to the federal courts, which he stuffed with Federalist Society cadres. He has been more than a great anti-institutionalist; he has been an anti-constitutionalist.
McConnell’s great crusade was to tear down the Bipartisan Campaign Reform Act of 2002 (the so-called McCain-Feingold bill) and open the sluice gates for dark money. The year after its passage he filed his opposition in a case that made its way to the supreme court, McConnell v Federal Election Commission, which he lost in a 5-4 ruling upholding the bill. Still, he persisted.
In 2006, far-right Samuel Alito was nominated to replace Sandra Day O’Connor on the court. She was a moderate Republican of the old school, who upheld abortion rights and campaign finance reform. When 25 Democrats attempted a symbolic filibuster against Alito, McConnell took the floor to denounce the effort as unconstitutional: “Mr President, we stand today on the brink of a new and reckless effort by a few to deny the rights of many to exercise our constitutional duty to advise and consent, to give this man the simple up-or-down vote he deserves. The Senate should repudiate this tactic.”
In 2010, with Alito on the court, it ruled 5-4 in Citizens United v FEC that restrictions on independent campaign funds – dark money – violated free speech. “So, all Citizens United did was to level the playing field for corporate speech,” said McConnell. It was his emancipation proclamation; he freed the dark money.
In 2014, McConnell filed an amicus brief in McCutcheon, et al v FEC, a case he inspired that was backed by the Republican National Committee, challenging aggregate limits on campaign contributions as “a severe infringement on the rights of speech.” The supreme court ruled for McCutcheon in a 5-4 decision.
With the election of Barack Obama to the presidency, McConnell laid down the Republican line. “The single most important thing we want to achieve is for President Obama to be a one-term president,” he ordered. His tactic was the filibuster that he had decried. During the Obama presidency, McConnell held up 517 Senate debates through filibusters. The Senate Republicans successfully filibustered 79 Obama federal judicial nominees during his first five years, compared with 68 in the entirety of previous history. After the Republicans gained control of the Senate in 2015, they blocked 50 of 70 nominations to federal judgeships.
Through dark money and filibusters, servicing corporate interests, McConnell built a new political machine at the expense of paralyzing and diminishing the Senate. He capped his obstructions after the death of conservative justice Antonin Scalia in February 2016. If Obama were to succeed in seating his appointment on the supreme court the majority would tilt 5-4 against the conservatives.
McConnell refused to allow even a single committee hearing for Obama’s nominee, Merrick Garland, a highly regarded judge of the most moderate temperament on the DC district court. McConnell asserted a novel doctrine that a nomination to the supreme court could not be considered in a president’s last year and that the vacancy must be filled by the next president. He dubbed his gambit “a constitutional right”. “One of my proudest moments,” he said after killing the Garland nomination, “was when I looked Barack Obama in the eye and I said, ‘Mr President, you will not fill the supreme court vacancy.’” When Sean Hannity later asked McConnell why Obama left so many vacancies on the federal courts, McConnell replied: “I’ll tell you why. I was in charge of what we did the last two years of the Obama administration.”
In the 2016 campaign, McConnell backed Senator Marco Rubio, of Florida, an acolyte, in the primaries. After Trump bulldozed his way to the nomination, McConnell expected him to be a dead weight on Republican Senate candidates. He suggested that they could separate themselves by running negatives ads against him. “We’ll drop him like a hot rock,” he said.
McConnell remained complacent that he was the enduring Republican standard and Trump the blip. “My view is that Trump will not change the Republican party,” he said. “If he brings in new followers, that’s great, and well worth the effort, but he will not change the Republican party … I think he’d be fine.” He added as an additional note of reassurance that the constitution “constrains all of us, members of Congress and the president as well”.
Watching Trump’s win on election night, McConnell said: “The first thing that came to my mind was the supreme court.” He was soon in touch with Leonard Leo, chairman of the Federalist Society, who described McConnell as his “vigilant and irrepressible” partner in gaining control of the federal courts. Leo was an octopus of dark money operations, his tentacles reaching far and wide. After Citizens United, he sat atop hundreds of millions and then billions of dollars to promote his causes and McConnell’s candidates.
A week after the election, Leo carried a list of court nominees into a meeting with Trump at Trump Tower. Trump’s first supreme court nominee, Neil Gorsuch, was on the list. His second and third nominees, Brett Kavanaugh and Amy Coney Barrett, were on Leo’s next list. Leo sent more lists to the White House, rubber-stamped by the White House counsel Don McGahn, a Federalist Society stalwart, and McConnell would process them through the Senate. Eighty-five per cent of Trump’s court appointees were Federalist Society members. He was entrenching conservative power in the courts for a generation to come. Trump remarked privately, “Mitch McConnell. Judges. Judges. Judges. The only thing he wants is judges.” McConnell told Trump: “MrPresident, when are you going to thank me for that?”
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Six weeks before election day, on 18 September 2020, Justice Ruth Bader Ginsburg died. As soon as McConnell heard the news he called Trump: “First, I’m going to put out a statement that says we’re going to fill the vacancy. Second, you’ve got to nominate Amy Coney Barrett.” McConnell’s doctrine that a president could not fill a supreme court vacancy in an election year suddenly evaporated. “President Trump’s nominee will receive a vote on the floor of the United States Senate.” Barrett was sworn in on 26 October. McConnell’s relationship with Trump got him what he wanted. The conservative majority on the court was now six to three.
Then, on January 6, McConnell hid in a corner of the Capitol, fearing for his life and quaking with rage. He recovered his equanimity within hours when he thought the event would destroy Trump. “I feel exhilarated by the fact that this fellow finally, totally discredited himself,” McConnell told Jonathan Martin, then a reporter at the New York Times. “He put a gun to his head and pulled the trigger. Couldn’t have happened at a better time.” Trump was a “despicable person” whose influence he would finally end by defeating his candidates in the 2022 midterms. “We crushed the sons of bitches,” he told Martin, “and that’s what we’re going to do in the primary in 22.”
McConnell had shielded Trump from removal in the Senate during his first impeachment for seeking to blackmail the Ukrainian president, Volodymyr Zelenskiy, in exchange for fabricated political dirt on Joe Biden. In Trump’s second impeachment for the insurrection, McConnell protected him again. In his floor speech explaining why he voted against Trump’s removal, he made the case that Trump’s actions properly belonged to the criminal justice system: “President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn’t get away with anything yet – yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”
After Trump left office, he blamed McConnell from not protecting him enough. “The old crow is a piece of shit,” he told Maggie Haberman of the New York Times. He was especially angry that McConnell’s wife, Elaine Chao, who had been Trump’s secretary of transportation, quit in protest after January 6. In 2022, Trump tweeted a thinly disguised death threat against McConnell and a racist slur against Chao. “He has a DEATH WISH. Must immediately seek help and advise [sic] from his China loving wife, Coco Chow!”
The conservative Wall Street Journal editorialized: “Mr. Trump’s apologists claim he merely meant Mr McConnell has a political death wish, but that isn’t what he wrote. It’s all too easy to imagine some fanatic taking Mr Trump seriously and literally, and attempting to kill Mr McConnell. Many supporters took Mr Trump’s rhetoric about former Vice-President Mike Pence all too seriously on Jan 6.”
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McConnell has a decades-long history in the Senate from intern to dinosaur, from minion to overlord, but his overweening pride in his shrewdness, his inner hackery, has prevented him from learning any larger lessons of history that explain his fall. He cannot dispense with his ingrained belief that he remains the true Republican and that there is an invisible Republican party that belongs to him, not Trump.
Like so many presumptive adults in the room, he has operated on the logic of Franz von Papen, the former German chancellor, who convinced President Paul von Hindenburg in January 1933 to appoint Hitler chancellor, with himself as vice-chancellor, on the assumption that he would control him. “We’ve hired him,” said Von Papen. After the Night of the Long Knives, the Junker aristocrat was shipped off to Vienna as ambassador. Not that Trump is Hitler, of course, just that the book of Hitler’s table conversation is the only book Trump is known to have kept on his nightstand.
Even as McConnell announced his retirement, his aides were negotiating his endorsement of Trump. McConnell could justify the hypocrisy of supporting a figure he considers an enemy of constitutional government as a last act of selfless sacrifice to help elect a Republican majority in the Senate. It would be his final performance as Trump’s enabler for which, like everyone else who enables Trump, he would inevitably receive ashes. In their mutual contempt, the psychopath has the advantage over the cynic.
Sidney Blumenthal, former senior adviser to President Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth
