On Standards

Dear Reader,

Trump is out of the White House, his Twitter voice silenced, his official power gone. Nonetheless, he retains enormous influence over his followers and the Republican Party. But he casts a long shadow over American politics in another way too, and his ongoing impact on how we perceive and evaluate politicians in the aftermath of his norm-breaking tenure raises interesting questions for Democrats.

Part of Trumpism was the elevation of tribalism to its apogee. Nothing Trump did could draw criticism from his base – not plausible allegations of sexual assault, not constant mendacity, not politicizing the Justice Department, not botching the pandemic response, not cozying up to Putin, not coddling racists, not provoking an insurrection, not anything. Trump well understood this, even before his 2016 election victory, when he said he could shoot someone on Fifth Avenue and not lose any support. That was a truer expression of reality than anyone could have understood at the time.

What was the rational reaction to this stunning political dynamic on the part of people outside of the Trump cult and outside of the class of politicians who may not have been cult members but also said nothing because of addiction to power or fear of reprisal? I think it’s fair to say that reasonable people were astonished, perplexed, and horrified. They were also angered. How could this person who did so much wrong, do no wrong?

But now, even as he’s gone from power, the memory of his base’s infinite and inexcusable forgiveness remains powerful.

And now is the season of the Democrats. In the White House. In the Senate. In the House of Representatives. Also in various governors’ mansions. With power comes scrutiny and judgment and, yes, criticism. And here’s the issue that arises: after the jaw-dropping abuses and failures of Donald Trump, universally excused by his party, what standard is fair to apply to Biden and other Democrats? To paraphrase Daniel Patrick Moynihan, how much did Trump define deviancy down? 

You see the debate dynamic on social media. When journalist Peter Baker recently noted that Biden hadn’t held a solo press conference in the first 50 days, unlike his immediate predecessors, there was an avalanche of criticism – of Peter Baker. It was a mild criticism from a journalist who could be expected to favor press conferences; journalists are biased that way. The avalanche was telling and portends future debates – for many Democrats, in the aftermath of Trump’s lying and press bashing, it felt a bit rich to chide Biden on this score. To me the particular issue is a trivial one, but the question it raises is not: in the post-Trump era, what is the right standard for members of the media to criticize Joe Biden, or more broadly, what is the standard for Democrats to criticize one of their own?

My preliminary thought is that we should keep a sense of proportion, to be sure. Mean tweets, inconsequential gaffes, occasional exaggeration, normal press pushback, traditional hardball politics – these things, after Trump’s unprecedented lying and abuse of power, cannot be good faith sources of outrage. No more tan suit controversies, please.

But if a Democratic president were, say, to hire his daughter and son-in-law in the White House, I think that should be criticized, not excused just because Trump got away with it. Republicans who suddenly wake up to the problem of nepotism should be called out on their hypocrisy, of course, but Democrats who would forgive conduct that they condemned because the shoe is now on the other foot shed a layer of integrity.

It is natural to cut your side some slack. That’s human nature. But if a Democratic politician were to pardon a crony, interfere in an election, incite violence, hide his taxes, or commit any number of the sins we excoriated Trump for, we should not let tribalism silence us just because Trump’s cult was silent. We should be better than that. And I expect we will be.

If a Democrat were to shoot someone on Fifth Avenue, they should most definitely lose support. And if a Democratic governor of a large state is found to have abused his power or intentionally misled the public about nursing home COVID deaths or sexually harassed or assaulted women who worked for him or lied about any of these, he should also lose support. I see some of the knee-jerk tribal defenses of Andrew Cuomo; also the bizarre conspiracy theories that Trump is somehow responsible for the Governor’s woes. My analysis of that situation, for what it’s worth, is informed not just by public reporting but also by my experience as a longtime New Yorker and as the U.S. Attorney who oversaw investigations of Cuomo and his top aides. Let the current investigations play out, and let the chips fall where they may.

It is of course infuriating to see people attacking politicians you support over conduct they condoned under Trump. But just because other people adhere to a double standard, I hope that doesn’t mean we should sink to having a double standard too.

My best,


In Body Image

A Bad Law, Used for Good?

By Sam Ozer-Staton

Is it okay to use a law rooted in racism to prosecute white supremacist violence? That’s a question facing federal prosecutors, who in recent weeks have employed a controversial statute once dubbed “The Civil Obedience Act” to charge dozens of suspects arrested in the Capitol insurrection in January. 

The statute, 18 U.S. Code § 231, specifically prohibits impeding any “fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which…adversely affects commerce.” 

The author of that law? Longtime Louisiana Senator Russell Long, a segregationist who insisted on its inclusion in the 1968 Civil Rights Act, the landmark legislation passed just days after the assassination of Dr. Martin Luther King Jr. That sweeping bill is perhaps best known for the Fair Housing Act, which made it illegal for landlords and real estate developers to “discriminate against any person…because of race, color, religion, sex, familial status, or national origin.” But it also included several provisions championed by the Senate’s conservative Southern Bloc that were designed to quell the protests breaking out in cities across the country. One was Sen. Long’s Civil Obedience Act, and another was the Federal Riot Act, now codified as 18 U.S. Code § 2101

In 2021, as the country reels from last summer’s police killings and resultant political demonstrations, both statutes have returned to the fore. According to Lawfare’s Eric Halliday, 18 U.S. Code § 231, The Civil Obedience Act, was rarely used by prosecutors until last summer, when it was frequently employed to “creatively pursue conduct that is not the subject of separate federal criminal laws, like vandalizing local police cars…or resisting arrest by local police officers.” 18 U.S. Code § 2101, The Federal Riot Act, had only been used four times between the years 1970 and 2018. But in recent years, prosecutors have used it to charge both white supremacist rioters and people protesting police violence. 

The resurrection of anti-riot statutes from the 1960’s is in keeping with the Trump DOJ’s “law and order” rhetoric, which was a hallmark of the era. But it is less expected from a Biden administration that has promised to take a different tack on civil rights. 

Earlier this year, defense lawyers for several suspects charged last year under U.S. Code § 231 filed motions seeking to have the law declared unconstitutional, specifically invoking its history as a political cudgel for segregationist Senators. 

In a response filed last Friday, prosecutors in the District of Oregon gave the government’s strongest defense yet of the half-century-old law. “Constitutional statutory analysis begins with the statute’s plain language, not its provenance,” the government wrote. “Each person charged with violating Section 231(a)(3) assaulted a police officer during the course of that officer’s efforts to quell the violence. The statute is constitutional, and it was employed in this district in a constitutional manner.” 

That rationale could have significant implications for similar cases around the country. More than 60 of those charged with involvement in the storming of the Capitol have been charged under U.S. Code § 231, which carries a possible sentence of up to five years in prison. 

How do the recently-appointed higher-ups in the Biden DOJ feel about the statute? It’s not yet clear. According to Politico’s Josh Gerstein, “The defense motions face long odds, but might be successful at prompting a Justice Department led by Biden appointees to take a closer look at the slew of criminal cases filed by federal prosecutors last year stemming from protest-related activity.”

What do you think? Should a law that was written by segregationists, with the explicit intent of silencing those protesting for civil rights, be used to prosecute white supremacists? How much does the historical context of the law matter? 

Write to us at [email protected] with your thoughts or reply to this email.

In Body Image

Listen to Doing Justice on Apple Podcasts, Spotify, or wherever you get your podcasts. You can now binge the entire six-part series, which chronicles the cases that most challenged and inspired Preet during his time as U.S. Attorney for the Southern District of New York. 

Listen to Stay Tuned, “The Authoritarian Impulse,” where Preet interviews Anne Applebaum, a Staff Writer at The Atlantic and the author of Twilight of Democracy: The Seductive Lure of Authoritarianism. And don’t miss the bonus for Insiders, where Applebaum discusses why so many friends from her past now believe in right-wing conspiracy theories.

Watch last week’s CAFE Live event featuring historians Heather Cox Richardson and Joanne Freeman. The conversation, which took place on the same day that President Biden signed the American Rescue Act into law, focused on “game-changing” presidential administrations.

Listen to Third Degree, the new podcast from Elie Honig. In the latest episode, “Can the Chauvin Jury Be Impartial?” Elie breaks down the latest in the trial of Derek Chauvin, including the impact of the historic $27 million settlement between the city of Minneapolis and George Floyd’s family.

Listen to Note from Asha, “Guns or Votes?” 

Listen to CAFE Insider, “Murder in the Third,” Preet and Anne break down the multiple investigations into sexual harassment allegations made against New York Governor Andrew Cuomo, and the jury selection process in the trial of former police officer Derek Chauvin. 


Following Tuesday’s shootings in Atlanta, in which a white gunman killed eight people, including six Asian women, there has been a national discussion around anti-Asian hate crimes, white supremacy, and misogyny. For updates and analysis, follow @StopAAPIHate.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

Edited by Tamara Sepper

The CAFE Team: 

Tamara Sepper, Adam Waller, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Jennifer Korn, David Tatasciore, Matthew Billy, and Nat Weiner.