Essays & Observations

Question: When a plaintiff tells a court that a privilege has never been properly invoked, what does the government do next? Answer: It invokes it. On October 14, Joshua T. Hoyt, a Deputy Assistant to the President and Deputy Counsel to the President, filed a declaration in the Kennedy Center case stating that “at the direction of the President” he was “formally invoking the presidential communications privilege” over what Representative Joyce Beatty has sought in discovery. The same afternoon, Judge Christopher Cooper issued the scheduling order the parties had spent a week arguing about: Beatty’s opposition to the motion to lift the injunction is due October 30, the government’s reply November 6, and briefing on summary judgment is stayed until the court rules on the motion to lift. Discovery closes October 23. In the Epstein files case, the government spent the week arguing that no administrative record is needed, and on Friday morning it hand-delivered a binder of redacted interview notes that the court had asked for twice. In the third docket, the D.C. Circuit let the stay motion sit, now eighteen days past the last brief. ...

Whether the second Trump administration has damaged American self-government is no longer a matter of opinion. It is a matter of measurement, and the people who measure it have reported. The open questions are narrower and harder: how much of the damage is structural, how much is reversible, and what a citizen who wants to oppose it can do on an ordinary Tuesday. This essay takes up the record first, because the argument rests on it, and then the work, because a record is not a plan. ...

I owe you a plain statement of what I mean by failure, because the word does a great deal of work and I do not want it to do more than I intend. A state is a human instrument. It is not a nation, not a culture, not a church, and not the sum of a people. It is a machine that is built, in the words of the American preamble that I have spent years defending, to secure the blessings of liberty for those who live inside it. Judged by that purpose, a state succeeds when the people subject to it can imagine a better life for their children than the one they inherited, and it fails when they cannot. This essay is an argument that the Russian state, as it is presently constituted, has failed at that task by almost every measure that matters. It is also an argument, and I want to be unambiguous about this, that the failure belongs to the state and the system, not to the Russian people, who are its victims and not its authors. ...

There is a temptation, when a country under invasion keeps doing impossible things, to call it a national character. The Ukrainians are resourceful, we say, as if resourcefulness were a temperament that some peoples are born with and others lack. It is a flattering explanation, and it is the wrong one, because it removes from the story the one part that can be learned. Ukraine is not resourceful because Ukrainians are a certain kind of people. Ukraine is resourceful because it was given no alternative, and the resourcefulness is the shape that this particular necessity took. When the penalty for failing is national extinction, a society reorganizes itself around not failing, and the inventiveness that follows is not a miracle. It is a method, improvised under load, and it is worth describing plainly because the mechanism is transferable and the sentiment is not. ...

The midterms come Tuesday, November 3, and the single most consequential fact about them is not a candidate, a poll, or a map. It is that most eligible Americans will not vote. In 2022, the closest thing the country has seen to a high-turnout midterm in generations, 52.2 percent of the citizen voting-age population cast a ballot.1 By the stricter measure that counts only the voting-eligible population, turnout was 46 percent.2 Either way, the majority stayed home. In 2014 the number was worse: 41.9 percent by the census count, and just 36.4 percent of eligible voters by the elections-project measure, the lowest since 1942, a year when a large share of the country’s eligible voters were overseas fighting a world war.13 The largest bloc in American politics is not a party and not a movement. It is the empty seat. ...

The Republican Party has been called many things this year, and almost none of them by its own members. A cult of personality. A revenge machine. A rubber stamp. A party that lost its way. The metaphors are all attempts to describe the same spectacle: a governing majority that has become, in practice, a single man’s instrument, and that defends the arrangement with the vocabulary of loyalty rather than the vocabulary of policy. ...