Welcome to Margin of Error, a politics column from Tom Scocca, editor of the Indignity newsletter, examining the apocalyptic politics, coverage, and consequences of Campaign 2024.
Everyone knows what Donald Trump is and what his administration is doing. Before he got up in front of the cameras and blamed the deadly midair collision between an Army helicopter and a passenger jet on diversity hiring, and before his vice president got up in front of those cameras and specifically argued that if a white person had contributed to the crash, it was because they were under the strain of working with unqualified minorities, there was his opening salvo of Jan. 6 pardons paired with the executive order denying the 14th Amendment's guarantee of birthright citizenship. And then the executive order calling trans identity a "falsehood" and saying it "is not consistent with the humility and selflessness" required for military service. And the executive order mandating "patriotic education" for primary and secondary schools built around the "celebration of America’s greatness and history." And the memo ordering the Department of Transportation to "give preference to communities with marriage and birth rates higher than the national average." And the unlawful and unconstitutional cutoff of federal grant spending, and the mass firing of the inspectors general, and the mass firing of the prosecutors who'd investigated Trump's previous apparent crimes, and—there was much more than that, and they've tacked on still more of it since the press conference, and anyone who claims to see anything in it other than intentional, comprehensive misrule by sadists and criminals and bigots is someone who is helping to bring it about.
Yet there those people are. No sooner had a judge halted the birthright citizenship order as "blatantly unconstitutional" than the University of Minnesota law professor Ilan Wurman went on Twitter to be huffy about the ruling. It was, Wurman wrote, "highly embarrassing," for the judge to make such a declaration "without the slightest acknowledgement that there is an entire literature that disagrees."
The legal community and the general public quickly pointed out to Wurman that there is not, in fact, any such entire literature—only the work of John Eastman of the Claremont Institute, a pro-Trump crank and fraud who was disbarred for his efforts to steal the 2020 election. Birthright citizenship has been settled law since 1898, and the Trump administration's attempt to claim otherwise was simply a declaration that this presidency has decided to operate outside the law.
But then more Minnesota law professors showed up. "As long as they're acting with integrity (which we should presume unless proven otherwise), academics need to be given the space to pursue their ideas in good faith, wherever they lead," associate professor Alan Rozenshtein posted, in response to someone pointing out that Wurman was bullshitting about a question that would directly harm people. Professor Daniel Schwarcz followed that by telling people who disagreed with Wurman "to substantively engage w/ the claim" and "assume Ilan's good faith." (In a followup post, he acknowledged he was "not familiar enough w/ the issues to claim expertise.") "I'm dismayed by the many ad hominem attacks on a respected colleague," Schwarcz wrote.
The constitutional republic might have been under assault, but what truly needed defending was the reputation of the faculty of U.S. News' No. 16 law school. The president had pushed a line of nonsense; nevertheless, now it was their respected colleague who was picking it up and trying to push it further, and didn't that deserve a bit of consideration and respect? Someone will still, most likely, need to show up in court and go through the motions of whatever is left of the law after Trump. Why shouldn't the University of Minnesota stake out its place in the new situation?
All around, in these first hectic weeks of the second Trump era, people and institutions are angling to accommodate themselves to the changing times. On Ezra Klein's New York Times podcast, he and his guests took up the topic of birthright citizenship, and the question of foreigners who travel to the United States specifically to give birth. "Doesn’t the existence of birth tourism suggest there is something indefensibly broad in the way that citizenship has been interpreted?" Klein asked. "I am as pro-immigrant as you can possibly be, and I think that’s abusive of the rules."
Klein could have called for travel restrictions to cut down on drop-in births. But instead the liberal pundit was choosing to speak the language of Trump, or of Stephen Miller: Birthright citizenship was now, suddenly, not a plain provision of the 14th Amendment but something that "has been interpreted," and interpreted in an "indefensibly broad" way. Not only was someone calling himself "pro-immigrant" refusing to defend constitutional citizenship, he was assuring the audience of the New York Times that it could not be defended.
Hear the new administration out. Maybe Trump can be worked with. Maybe the choice between Trump and the law doesn't have to go the way one might have thought it would go a month ago. After a judge lifted the freeze on grant spending, the National Institutes of Health and National Science Foundation kept their funding frozen anyway. The White House press secretary, Karoline Leavitt, posted on Twitter that though the memo about the freeze was rescinded, the executive order declaring the freeze was still in effect.
"There's only uncertainty in this room amongst the media," Leavitt had told the press the day after the news of the memo leaked, as contradictory accounts of the reach of the freeze were flying around. "There's no uncertainty in this building." Later in the press conference, when repeatedly asked about access to Medicaid—with state portals suddenly inaccessible even before the freeze was supposed to take effect—Leavitt replied, "I'll check back on that and get back to you."
Shawn McCreesh of the New York Times, having moved from the Trump campaign trail to the White House briefing room, described that as the "one moment of hesitation" from Leavitt in what he called her "first performance." Otherwise, he wrote, the press secretary was "steely" and "confident"—also "unapologetic and unflinching." Researchers across the country were suddenly in doubt that they would see their next paychecks, but the White House could still give ambitious reporters what they wanted, and vice versa.
Give some and maybe get some. Mark Zuckerberg agreed to pay Trump $25 million to settle his legally insupportable lawsuit against Facebook, in which he'd accused the private company of violating his First Amendment rights for suspending his account after he'd used it to organize the Jan. 6 attack on the Capitol. Trump signed the payoff paperwork in the Oval Office, like one more executive order. Paramount was reportedly in settlement talks with Trump, too, over his likewise legally shaky $10 billion lawsuit accusing CBS of treating Kamala Harris too nicely on 60 Minutes. Paramount executives, the Times wrote, "believe that settling the lawsuit would increase the odds that the Trump administration does not block or delay their planned multibillion-dollar merger with another company, according to several people with knowledge of the matter."
Why look for trouble? Michigan State University's College of Communication Arts and Sciences canceled its Lunar New Year celebration, announcing it was doing it "in response to concerns shared by members of our community regarding the current issuance of Executive Orders related to immigration and diversity, equity, and inclusion." The Defense Intelligence Agency suspended future celebrations of Martin Luther King Jr. Day, Black History Month, and nine other events.
The day before the Defense Intelligence Agency news came out, Bret Stephens—an explicit diversity hire, brought to the Times, in its own words, to "bring a new perspective to bear"—had used his column to hail the Trump administration's attack on DEI in the military as a model for how the country should push back against "adulterated standards" that "lead to mediocrity." It was time to take a stand, he wrote, against "the rot that sets into any institution that abandons merit for diversity, equality for equity, expectations for inclusion." Before the week was over, Trump and Vance showed everyone exactly what that meant.
