Capture the Courts

Summary

Autocracy in America: "Capture the Courts" – Detailed Summary

Release Date: September 13, 2024
Host/Author: The Atlantic
Episode Title: Capture the Courts

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Introduction

In the "Capture the Courts" episode of Autocracy in America, hosts Anne Applebaum and Peter Pomerantsev delve into the alarming trend of politicization within the United States judiciary. This episode explores how authoritarian tactics are infiltrating American courts, undermining the rule of law, and posing significant threats to democracy.

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The Rule of Law vs. Authoritarianism

The episode opens with Anne Applebaum defining the cornerstone of democracy: the rule of law. She emphasizes that in a democratic system, laws are applied impartially, independent of political influence.

Anne Applebaum [00:59]: "In a democracy we have something called rule of law. And that means that the law exists independent of politics."

Applebaum contrasts this with authoritarian regimes, where laws are manipulated to serve the interests of those in power rather than to administer justice.

Applebaum [01:21]: "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."

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Case Study: Renee Diresta and Election Integrity Partnership

A significant portion of the episode centers on Renee Diresta, a polymath involved in various industries, who co-founded the Election Integrity Partnership (EIP) in 2020. The EIP aimed to study misinformation surrounding American elections, particularly focusing on narratives that delegitimize electoral processes.

Renee Diresta [07:02]: "We were going to do a project to try to understand narratives related to voting."

Her team meticulously analyzed 22 million tweets to identify misinformation and delegitimizing narratives surrounding the 2020 U.S. elections.

Anne Applebaum [09:50]: "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."

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Misuse of Data and Political Manipulation

Post-election, Diresta and her team published a comprehensive report titled "The Long Fuse," aiming to shed light on the extent of misinformation. However, their findings were distorted by Mike Benz, a former State Department official who rebranded himself as the head of the Foundation for Freedom Online. Benz misrepresented their data, claiming that 22 million tweets were categorized as misinformation, a stark exaggeration.

Ante Applebaum [09:50]: "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."

This misrepresentation fueled a narrative that the government was suppressing free speech, leading to increased scrutiny and legal challenges against Diresta and associated institutions.

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Congressional Investigation and Legal Proceedings

With Republicans regaining control of the House in the fall of 2022, Jim Jordan, a prominent conservative figure, spearheaded a congressional investigation into the supposed government suppression of speech. The Judiciary Committee issued subpoenas, compelling Stanford and other institutions to produce documents related to the EIP's research.

Anne Applebaum [10:35]: "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."

The process was prolonged and fraught with legal maneuvering, ultimately leading to Diresta testifying before the Supreme Court.

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The Supreme Court's Role and Legitimacy

During oral arguments at the Supreme Court, Diresta experienced a moment of vindication as the justices began to question the validity of the misuse of data.

Renee Diresta [15:03]: "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... were just smoke and mirrors and innuendo. There was no there there."

Despite this, the Supreme Court ultimately ruled that the plaintiffs lacked standing, dismissing the case and highlighting the fragility of judicial independence.

Anne Applebaum [16:04]: "So, 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."

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Current Threats to Judicial Independence

The episode shifts focus to recent developments that further jeopardize the independence of the judiciary. Ian Bassin, co-founder of Protect Democracy, cites the handling of the classified documents case against former President Donald Trump by Judge Eileen Cannon as a "canary in the coal mine."

Ian Bassin [22:32]: "Judge Eileen Cannon has officially taken a May 20 trial date off the calendar... It appears as if Trump has fundamentally captured the referee there."

This case exemplifies how judges can become tools for political figures, undermining the impartiality expected in the judicial system.

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Reflections on the State of the Courts

Drawing parallels between democratic and authoritarian systems, the hosts discuss the potential consequences if the judiciary continues to lose its independence. Applebaum reflects on historical instances where the courts upheld democracy, juxtaposing them with current trends aimed at politicizing legal outcomes.

Anne Applebaum [21:29]: "I think the piece of it that worries me is that the guardrails on the system... is essentially a set of customs."

Peter Pomerantsev expresses concern over the perception of a divided justice system, fearing that overt politicization could erode public trust and the foundational principles of democracy.

Peter Pomerantsev [21:05]: "If you can't get anything above politics, that's a very dangerous place."

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Conclusion

"Capture the Courts" serves as a chilling examination of how authoritarian tactics are subtly undermining one of America's most revered institutions: the judiciary. Through detailed case studies and expert insights, Applebaum and Pomerantsev illuminate the urgent need to safeguard judicial independence to preserve the rule of law and democratic integrity.

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Notable Quotes

• Anne Applebaum [00:59]: "In a democracy we have something called rule of law. And that means that the law exists independent of politics."

• Renee Diresta [07:02]: "We were going to do a project to try to understand narratives related to voting."

• Anne Applebaum [09:50]: "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."

• Ian Bassin [22:32]: "Judge Eileen Cannon has officially taken a May 20 trial date off the calendar..."

• Peter Pomerantsev [21:05]: "If you can't get anything above politics, that's a very dangerous place."

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Production Credits

• Hosts: Anne Applebaum, Peter Pomerantsev
• Produced by: Natalie Brennan and Jocelyn Frank
• Edited by: Dave Shaw
• Mixed by: Rob Smirciak
• Executive Producer: Claudine Ebayd
• Managing Editor: Andrea Valdez
• Support: SNF Agora Institute at Johns Hopkins University

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This episode underscores the fragile balance between law and politics, urging listeners to remain vigilant in protecting the judicial system from creeping authoritarian influences.

Transcript

[Peter Pomerantsev]

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[Mikhail Zigar]

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[Peter Pomerantsev]

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[Renee Diresta]

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[Stephen Breyer]

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[Anne 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.

[Peter Pomerantsev]

You can have movie scenes like I'll see you in court. And that means something.

[Anne 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.

[Peter Pomerantsev]

Different means, to serve the interests of the rulers, to protect them from justice.

[Anne Applebaum]

That's right.

[Peter Pomerantsev]

To torment their enemies.

[Mikhail Zigar]

I'm under 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 ten years in jail. That's the usual practice.

[Peter Pomerantsev]

And of course you know Mikhail Zigar. 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. Just to be very clear, what is it precisely?

[Mikhail Zigar]

You've been accused of spreading fake news about Russian army.

[Peter Pomerantsev]

What alleged disinformation did you spread?

[Mikhail Zigar]

It's obvious that Russian soldiers have massacred, hurt 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, and there is the official press release of Russia that claims that it was all staged, it was orchestrated by Ukrainian army. So according to that press release, everyone who claims that there was the 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.

[Anne Applebaum]

Peter I have to say, I think most Americans are not accustomed to the kind of absurdity that Ziggar is describing. Americans who study their history know, of course, that our courts, our judges, have not always dispensed justice in the past. You know, of course, in the US 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.

[Peter Pomerantsev]

Like, basically, there's a lot of Eastern European novels like this. I'm not even talking about Kafka, but, like, Invitation to Beheading by Nepokov is about that, 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. 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 guy with a, you know, some judge basically saying, off with his head, right?

[Anne Applebaum]

We don't think that level of absurdity is possible here, except that increasingly it.

[Peter Pomerantsev]

Is when Jim Jordan gets involved.

[Anne Applebaum]

No spoilers, please. Anne. I'm Ann Applebaum and I'm a staff writer at the Atlantic.

[Peter Pomerantsev]

I'm Peter Pomerantsev, a senior fellow at the SNF Agora Institute at Johns Hopkins University.

[Anne Applebaum]

And this is autocracy in America. This is not a show about the future of America. There are authoritarian tactics already at work.

[Peter Pomerantsev]

Here, and we're showing you where. There's the rise of conspiracy theories, widening.

[Anne Applebaum]

Public apathy, and in this episode, the politicization of the courts. 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. Renee 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.

[Renee 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.

[Anne Applebaum]

This is the 2020 election.

[Renee 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 1st, 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.

[Anne Applebaum]

And how much of it, in the end was Russian and Chinese?

[Renee 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.

[Anne Applebaum]

So you finished your work, the election was over. You published a report.

[Renee Diresta]

After the election, 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. Then this final report was over 200 pages long, and we published it with a public webinar in March of 2021.

[Anne Applebaum]

The report that you wrote became controversial. Who noticed it? Who objected to it? How did this happen?

[Renee 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.

[Anne 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.

[Stephen Breyer]

22 million tweets were categorized as misinformation.

[Ian Bassin]

For purposes of takedowns or throttling through eip.

[Stephen Breyer]

At the Election Integrity Partnership, Mike Benz has been tracking the rise of the West's censorship industry for years as executive director of the foundation for Freedom Online.

[Anne Applebaum]

So these convoluted statistics make the rounds in the right wing media ecosystem from.

[Renee Diresta]

An after the fact analysis of the most viral claims during the election to these were the tweets and topics we had censored.

[Anne 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 subcommitt 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.

[Peter Pomerantsev]

So listening to all of this, Anne, this feels kind of familiar and yet utterly surreal. The tangling up of data, the idea that they've opened up a case against arrestor using fake statistics in order to make a case, the American people, that it's conservatives who are truly being persecuted. It's all pretty twisted.

[Anne 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 allegedly for censorship. I mean, were you surprised by this.

[Renee Diresta]

By which aspect of it, by the.

[Anne Applebaum]

Fact that lawyers were citing things and judges were hearing things and not questioning anything?

[Renee 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?

[Jim Jordan]

We'll hear argument first this morning in.

[Stephen Breyer]

Case 23411, Murthy v. Missouri, Mr. Fletcher.

[Anne 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.

[Stephen Breyer]

Thank you, Mr. Chief justice, and may.

[Peter Pomerantsev]

It please the court.

[Renee 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.

[Stephen Breyer]

The government may not use coercive threats to suppress speech.

[Renee Diresta]

Another colleague of mine was there. We were sitting in the absolute back row next to the velvet curtains. But it was. 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. How they would react. I've got to say, honestly, I did not have high hopes.

[Anne Applebaum]

Justice Kagan, can we go back to the standing question?

[Renee Diresta]

I thought this was, you know, going to split along party lines or something, or ideological lines.

[Anne Applebaum]

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?

[Renee Diresta]

And so I really did feel very much encouraged by the lines of questioning. They went down.

[Anne Applebaum]

So how do you decide that it's government action as opposed to platform action?

[Stephen Breyer]

Your Honor, I Think the clearest way. And if I understand. So let me answer your question directly, your honor.

[Renee 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.

[Stephen Breyer]

The link that I was drawing there was a temporal one. If you look at J 715 to 716, that's a May 2021 email.

[Renee 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?

[Anne Applebaum]

Justice 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.

[Renee Diresta]

Those threats with threats, and as one of the justices notes, normally we don't sit here disputing facts. By the time it gets to us.

[Anne Applebaum]

Wouldn'T that then be clear error? Or do you think that's application of facts to law or what?

[Stephen Breyer]

So I apologize.

[Renee Diresta]

I didn't mean to say that. They're 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.

[Anne 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.

[Renee Diresta]

I came away pretty elated, actually. Finally, the facts, or lack thereof, were out there in the world.

[Anne Applebaum]

And what did you do afterwards?

[Renee Diresta]

We went and got ramen.

[Anne Applebaum]

So all the way through this ordeal that goes on for years, Renee 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.

[Renee 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.

[Peter Pomerantsev]

So Anne Diresta seems to have got a little bit of closure. After months and months of meetings with lawyers reviewing lower court's 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, is that 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.

[Stephen Breyer]

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[Jim Jordan]

The Chief justice of Ghana once asked me a question in my office. She wanted to improve human relations and human rights.

[Peter Pomerantsev]

This is former Supreme Court Justice Stephen Breyer recounting a conversation that he had many years ago.

[Jim Jordan]

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.

[Peter Pomerantsev]

Justice Breyer went on to tell the judge about an instance when the courts were defied. Worcester versus 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.

[Jim Jordan]

I said, the people you have to convince that sometimes they should 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. They 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.

[Peter 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 court system. But he also explained its legitimacy. Is what he said in the air, that it's part of our political culture. Justice Bryan 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. Of a context. Interracial marriage, the right for black and white Americans to get married, was an example he cited.

[Anne 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.

[Peter Pomerantsev]

The Supreme Court has overturned Roe v. Wade.

[Renee Diresta]

It's really exciting because there's still a long way to go.

[Anne 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. Supreme Court granted presidents sweeping immunity from prosecution. The court is corrupt.

[Stephen Breyer]

It is outrageous that they've even entertained this question.

[Renee Diresta]

Another bad, bad decision.

[Anne Applebaum]

And that was a decision that was seen as an enormous victory for former President Donald Trump, who's facing several criminal investigations.

[Peter 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?

[Anne 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 gonna appoint judges. And there are gonna be people of color, coolness, and calm. And there are 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.

[Peter Pomerantsev]

And 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 dangerous place.

[Anne 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.

[Peter 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 we got 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.

[Peter Pomerantsev]

This is Ian Bassin, the co founder and executive director of Protect Democracy, a nonprofit that tries to safeguard democr 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.

[Ian Bassin]

And the reason I point to that case is the judge in that case, Judge Eileen Cannon, has now in multiple matters, done everything within her power to help Donald Trump evade responsibility or even having to face a jury.

[Anne Applebaum]

In that case, federal judge has granted former President Trump's request for a special.

[Renee Diresta]

Master to review the material seized from his Florida estate.

[Stephen Breyer]

Judge Eileen Cannon has officially taken a May 20 trial date off the calendar.

[Mikhail Zigar]

Saying the original trial was set for.

[Peter Pomerantsev]

The end of May.

[Mikhail Zigar]

She moved it back a couple of.

[Peter Pomerantsev]

Months, though not setting a date.

[Stephen Breyer]

In a remarkable development, Judge Aileen Cannon in Florida has decided to dismissed dismissed.

[Peter Pomerantsev]

The indictment against Donald Trump in this classified documents case.

[Stephen Breyer]

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.

[Ian 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 gonna 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 wanna curry favor and if they wanna 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.

[Anne 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 to 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.

[Peter Pomerantsev]

Yeah, in non democratic 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 flip side of all of 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.

[Anne Applebaum]

Right? And because the legal system has been undermined, you'll be safe.

[Peter Pomerantsev]

So, Anne, there's this phrase which, you know, when I look it up online, is often attributed to Peruvian authoritarian leader Oscar Benavidez, for my friends, everything. For my enemies, the law.

[Anne Applebaum]

And the funny thing is that quote is also attributed to Michal Khodorkovsky, a Russian oligarch and two of Spanish fascists. 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 people who are my political opponents, I have the legal system.

[Peter Pomerantsev]

Autocracy in America is hosted by Anne Applebaum and me, Peter Pomerantev. It's produced by Natalie Brennan and Jocelyn Frank, edited by Dave Shaw, mixed by Rob Smirciak.

[Anne Applebaum]

Claudine Ebayd 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.

[Peter Pomerantsev]

Next time, Autocracy is not new in America. In fact, in Louisiana in the 1930s, a populist leader basically wrote the playbook.

[Jim Jordan]

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.

[Mikhail Zigar]

In any state in American history.

[Peter Pomerantsev]

We'll be back with more on that next week.