Category: Politics

Former FBI Director James Comey pleaded not guilty to two criminal charges in a federal court in Alexandria, Virginia, on Oct. 8, 2025. The charges allege that Comey lied to Congress in September 2020 when he stood by earlier testimony that he did not authorize a leak of an FBI investigation involving Hillary Clinton.

Numerous legal commentators on both the left and right have argued that Comey’s indictment is little more than the Trump administration seeking vengeance on one of the president’s perceived enemies. They allege that the president has it out for Comey, who investigated Russian interference in the 2016 presidential election and was fired by Trump in 2017.

The president’s own words support the idea that the Trump administration is targeting Comey. In a social media post on Sept. 20, 2025, Trump directed Attorney General Pam Bondi to move forward with prosecutions against Comey, Democratic U.S. Sen. Adam Schiff and New York Attorney General Letitia James: “They’re all guilty as hell, but nothing is going to be done. …JUSTICE MUST BE SERVED, NOW!!!”

If the case against Comey is exceedingly weak – and little more than a political prosecution – then, in my view as a scholar of the U.S. legal system, it should result in the dismissal of charges by the judge or a not guilty verdict by the jury.

But even when an individual is not convicted, the process of defending against charges can itself be a form of punishment, as renowned legal scholar Malcolm Feeley pointed out almost 50 years ago.

Here’s how the criminal justice process punishes even innocent people.

The criminal justice process

The criminal justice process is complex.

After a grand jury returns an indictment at the request of a prosecutor, the accused appears in court for their arraignment. They are informed of the charges against them and typically enter a plea.

During what’s called “discovery,” the prosecution and defense investigate the evidence the other side plans to rely on. There are also pretrial motions in which the parties ask judges to dismiss charges and accept or exclude evidence.

The defense and prosecution may also meet to discuss a plea bargain, wherein the accused may plead guilty in exchange for a lesser sentence or reduced charges.

If there is no plea bargain, then the case moves to trial, which is itself a complicated process. If a defendant is found guilty, they can mount an appeal to higher courts in an attempt to have their conviction overturned.

To help navigate this process, criminal defendants typically hire a lawyer.

And good lawyers don’t come cheap.

Money and time

Indigent defendants, who do not have the financial resources to pay their own legal fees, can rely on public defenders paid for by the government.

But individuals who can afford to pay for their own lawyer face a substantial financial burden for attorney services and court fees. An experienced criminal defense lawyer can charge more than US$1,000 per hour, with fees quickly adding up. This means that mounting a legal defense can easily cost tens of thousands of dollars.

On top of this, it takes a great deal of time to prepare for a criminal case. While lawyers and their staff do much of the legwork for trial preparation, a client works with their attorneys to help formulate a defense.

As a result, criminal defendants lose one of the most precious commodities in the world: their time.

And this time can come at a tangible cost in the form of lost wages, which harms their day-to-day lives. Put simply, every hour spent preparing for trial is an hour defendants could spend working or enjoying their lives.

Stress and embarrassment

It’s not pleasant being charged with a crime.

The criminal process, which typically lasts months, takes a toll on one’s mental health. This is largely driven by the uncertainty surrounding the outcome of a criminal trial and the possibility of losing one’s freedom if convicted.

In addition, there is a social stigma that comes with being accused of a crime. This can result in reputational damage, anxiety and embarrassment.

The Trump administration appears to recognize this reality.

Several media outlets have reported that FBI leadership had planned a public perp walk for Comey.

According to a CBS News report, this was to have included “‘large, beefy’ agents … ‘in full kit,’ including Kevlar vests and exterior wear emblazoned with the FBI logo.” Apparently, the plan was aborted after several FBI supervisors refused to cooperate, viewing it as inappropriate. One agent was disciplined for insubordination after refusing to go along with the plan to embarrass Comey in this way.

Not all criminal defendants suffer the same

The extent to which criminal defendants experience the criminal justice process as a form of punishment varies from person to person.

For high-status people like Comey, lost wages and attorneys’ and court fees may not be that big of a deal.

But these costs may be incredibly significant for other people who have been, or are likely to be, targeted by the Trump administration.

The high costs of lawyers’ fees are well known to the president. For instance, his political action committee spent millions of dollars on attorneys’ fees in an unsuccessful effort to defend Trump from criminal charges in New York.

In addition, people no doubt experience the psychological stress and stigma of a possible criminal conviction differently. But regardless of one’s wealth, the lost time spent preparing a criminal defense is something that cannot be replaced.

The recognition that the criminal process is itself a form of punishment is one of the reasons that the Department of Justice has maintained independence from the president. By violating the tradition of staying out of politics, the Justice Department in the Trump administration has opened the door for the president to seek retribution on his perceived political enemies.

The mere act of putting them through the criminal process ensures that they suffer, regardless of their guilt or innocence.

Paul M. Collins Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

Former FBI Director James Comey was indicted by a federal grand jury on Sept. 25, 2025 – only the second time in history an FBI director has faced criminal charges.

The indictment came just five days after President Donald Trump took to social media to demand that Comey be prosecuted, and three days after Trump installed a former aide as the prosecutor to bring the case.

Legal experts across the political spectrum describe this as an unprecedented political prosecution that breaks fundamental democratic norms and mirrors tactics used by authoritarian leaders worldwide.

As a professor of law, I think Comey’s indictment is momentous because it tests a principle that has protected American democracy for 50 years: Presidents should not direct prosecutors to charge their political enemies.

When leaders can abuse the justice system to target critics and investigators, the rule of law collapses.

An unconstitutional indictment

The evidence of political interference in Comey’s indictment is unusually strong. Trump waged an eight-year vendetta against Comey after the FBI investigated Russian interference in the 2016 presidential election.

On Sept. 20, Trump posted on Truth Social demanding prosecution: “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell… We can’t delay any longer… JUSTICE MUST BE SERVED, NOW!!!”

After the indictment, Trump called Comey “one of the worst human beings this country has ever been exposed to.”

The Fifth Amendment protects against vindictive and selective prosecution. To prove vindictive prosecution, a defendant must show through objective evidence that the prosecutor acted with “genuine animus” and that the defendant would not have been prosecuted except for that hostility.

As the U.S. Court of Appeals for the 4th Circuit explained in United States v. Wilson in 2001, the government cannot prosecute someone to punish them “for doing what the law plainly allows him to do.” When circumstances create a realistic likelihood of vindictiveness, the burden shifts to the government to justify its conduct.

After Comey’s indictment, Jordan Rubin, a former prosecutor in the Manhattan D.A.’s office, stated: “If the Trump administration’s prosecution of James Comey isn’t ‘selective’ and ‘vindictive,’ then those words have lost all meaning.”

Additionally, three former White House ethics counsels – Norman Eisen, Richard Painter and Virginia Canter – wrote to Congress after Comey’s indictment, saying that in the U.S. “a president should never order prosecutions of his enemies. That happens in Putin’s Russia, and it has happened in other dictatorships, but not here. Until now.”

They concluded: “If the Trump administration can do this, then no American is safe from political prosecution.”

Broken judicial norms

For 50 years since the Watergate scandal that exposed President Richard Nixon’s abuses of power, American presidents have followed a core principle: They must not interfere in decisions about who gets investigated or charged, especially not for political reasons.

The Justice Department’s manual includes the post-Watergate requirement that legal judgments must be “impartial and insulated from political influence.”

The three former ethics counsels emphasized that during their service, they “never once saw” Presidents George W. Bush, Barack Obama or Bill Clinton “suggest that the Department of Justice should prosecute a specific person, much less a political adversary.”

Comey was indicted on two counts – one count of making a false statement to Congress and one count of obstruction of a congressional proceeding, both in connection with his testimony before a Senate committee in September 2020.

The allegations against Comey were reviewed multiple times. Special counsel John Durham examined them during Trump’s first term. Prosecutors with the U.S. attorney’s office in Washington, D.C., during the Biden administration called Comey to testify before a grand jury about allegedly using his friend Daniel Richman as a conduit to leak information to the press. And career prosecutors in 2025 under former U.S. Attorney Erik Siebert also reviewed the allegations. Everyone declined to charge Comey.

The procedural breakdown reveals how fundamentally this case violates norms.

Career prosecutors wrote a memo in September 2025 stating they could not establish probable cause to charge Comey. When Siebert refused to proceed, Trump removed him and installed Lindsey Halligan, Trump’s former personal defense attorney. She has no prosecutorial experience.

Three days later, Halligan brought the indictment. She signed it alone – no career prosecutors put their names on it, as is usually done. The grand jury rejected one of the three charges prosecutors tried to bring, a rare signal of weak evidence.

Comey’s son-in-law, Troy A. Edwards Jr., a federal prosecutor in the same office where Halligan now works, resigned immediately, stating he was leaving “to uphold my oath to the Constitution.”

Comey was arraigned on Oct. 8 and pleaded not guilty.

Echoes of authoritarians

Prosecuting former law enforcement officials who investigated the country’s leader is not typical of democracies. It is a hallmark tactic of authoritarian rulers seeking to consolidate power.

In Turkey, President Recep Tayyip Erdogan arrested his main political rival in March 2025 on corruption charges that critics call politically motivated. Between 2014 and 2020, Erdogan investigated 160,000 Turks for insulting the president and prosecuted 45,000 of them, including a 14-year-old boy. More than 1,400 people were arrested and detained in nationwide protests.

Russia under Vladimir Putin provides the starkest example. Opposition leader Alexei Navalny was poisoned by security services, imprisoned on politically motivated charges and ultimately died in prison in 2024. Even the lawyers who defended Navalny faced criminal prosecution.

In Venezuela, President Nicolás Maduro has systematically arrested opposition leaders and forced critics into exile. Maduro inherited a stacked Supreme Court from his predecessor, Hugo Chávez, that has systematically nullified opposition legislation. The court has also orchestrated takeovers of opposition parties and certified Maduro’s fraudulent 2024 election claim despite opposition evidence showing it won by a 2-to-1 margin.

And Hungary’s Viktor Orban created the Sovereignty Protection Office with powers to investigate any organization or person it suspects of receiving foreign support to influence public life or the democratic process. Orban also installed a loyalist chief prosecutor under whose office “numerous high-profile allegations of corruption have been either quietly shelved or investigated perfunctorily before being dropped,” according to EU Today.

The pattern is clear: When leaders can use the justice system to protect themselves, whether by prosecuting investigators, refusing to investigate corruption or intimidating the judiciary, democratic institutions erode and the rule of law becomes a tool of political control rather than a constraint on power.

What this means for America

Legal experts predict Comey will be acquitted – the evidence is weak and the political interference is blatant.

But as a scholar of legal ethics, I believe the damage is already done.

Trump has shown he can force prosecutors to charge his enemies. Future government officials now face an impossible choice: investigate powerful people, as Comey did, and risk prosecution, or decline to investigate and allow corruption to flourish.

Yet there may be a silver lining: When governments break norms this brazenly, they often create legal vulnerabilities.

Legal commentator Ed Whelan has pointed out that Halligan’s appointment may violate a 1986 Office of Legal Counsel memo authored by then-Deputy Assistant Attorney General Samuel Alito, which concluded that only one interim U.S. attorney appointment is permitted under the statute. Former interim U.S. Attorney Erik Siebert had already served that term. If Halligan wasn’t validly appointed, the indictment may be legally void.

The precedent this case sets affects every American. As the former ethics counsels wrote after Comey’s indictment: “No American should have to go through the experience of being prosecuted under these circumstances, and the rest of us should not have to live in fear that it may also happen to us.”

Cassandra Burke Robertson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

Late spending, exacerbated by a mid-battle candidate switch, and lack of attention to voters’ top concerns are among the reasons Democrats lost the White House last year, the Democratic National Committee determined in its assessment of the defeat.

The DNC started briefing top Democrats this week on parts of its post-election review, a highly anticipated post-mortem for a party still divided over what led to President Donald Trump’s second victory and how to forge a path back to electoral power.

DNC officials argued Democrats didn’t spend early or consistently enough to engage and persuade voters, one of several problems the party faced in 2024, the committee said. Swapping Joe Biden with Kamala Harris atop the ticket intensified those systemic, long-term problems for the party, the officials said, according to two people briefed by the DNC this week and granted anonymity to discuss those conversations. So far, Biden’s age has not come up, they said.

The DNC officials said the party’s failure to respond to voters’ top issues led to losses across once-core constituencies, including working class voters. One of the people briefed said they understood that assessment to mean Democrats “didn’t talk enough about bread-and-butter issues, and instead, we talked about social issues, social anxieties.” That could portend a DNC critique of the Harris campaign, which some Democrats said emphasized abortion and democracy over the economy and immigration.

The DNC is not expected to release its post-election report until after the New Jersey and Virginia elections in November, arguing privately they must focus on the off-year races in which Democrats appear poised to win the blue states.

The third person briefed on the report said it will examine Democrats’ role in the media ecosystem, advocacy, organizing and technology, and make recommendations for how the party can improve. It will also analyze paid content, messaging, candidate travel and spending decisions from last year.

One of the people described the takeaways as “one, we can’t invest late in building out infrastructure in the states, and two, long-term investment is more important than late investment.”

“The problem with our side — we saw it in 2016, 2020 and 2024 — the money comes late and we need the money to come earlier. The issue for our side is not the lack of money, it’s how late it comes,” the person added.

Even so, it’s not clear how some of these conclusions square with reality.

The Biden campaign did only maintain a skeletal on-the-ground staff in some battleground states, worrying in-state Democrats, as POLITICO reported in December 2023. But Biden’s campaign also started communicating with voters earlier than any other modern presidential reelection campaign.

Biden’s campaign dropped $25 million on ads in September 2023, earlier than both Barack Obama and Donald Trump’s reelection timelines. It spent another $30 million in March 2024 on ads. At the time, Biden’s team argued this early investment would activate key voters.

What questions the DNC tackles in its post-mortem, what conclusions it draws, and who it blames, if anyone, will inevitably inflame Democrats, reopening wounds over an election in which the party lost ground with voters across every demographic and ceded every swing state.

DNC Chair Ken Martin pledged to publicly release the results after he was elected in February, turning what would end up in the post-election review into a parlor game for frustrated Democrats. Some hope the party will take aim at the consultant class, a position Martin ran on during his in-house race. Some Democrats want the leadership of Harris’ campaign to receive more direct blame, while others point fingers at Future Forward, the flagship super PAC that backed her bid. And others believe the DNC needs to more aggressively reevaluate its own role in the defeat.

It’s also not clear if the report will tackle Biden’s advanced age — a top attack line from the GOP that his team downplayed, but one that was put on national display during his disastrous debate performance — and well as his decision to not exit the race until three months before the election.

So far, in these sessions, the DNC did not call out any person or entity by name, these two people said, but one acknowledged, “I don’t know what’s in the full document.”

When asked about the briefings, a DNC aide said the committee was in regular contact with Democrats to share early insights of its analysis, but added the report was not complete and interviews are still ongoing. The aide warned that topics not covered in the briefings may be addressed in the final assessment.

Two of those briefed said the DNC is also using the sessions to prepare for the New Jersey and Virginia elections, where it’s piloting new voter contact projects.

“The DNC has this core role as an infrastructure hub, and they’re looking critically at where that wasn’t strong enough and early enough,” the second person continued. “There were a lot of conversations about what kind of quality persuasion tactics should be deployed, how long that stuff takes, the perpetual problem of talking to voters at the very end of the cycle.”

They also said the DNC shared an analysis of the Republican ecosystem, particularly focused on their online communications, where Democrats “tend to go dark in the off-years in a way [Republicans] don’t do,” the person added.

​Politics

President Donald Trump’s mid-cycle redistricting push is on the verge of stalling in Indiana, top state Republican officials have warned the White House, and Vice President JD Vance is on his way to the Hoosier state to turn things around.

The cautionary note, shared by three Republicans close to the deliberations, prompted Vance’s second trip in three months to the state to mount a “hard push,” one of the people said. The people cited in this story were granted anonymity to discuss the sensitive talks.

During the visit, the White House political shop is threatening to conduct its own whip operation.

Indiana Gov. Mike Braun, a Republican, conveyed his concerns about the redistricting effort’s chances in the state Senate to the White House last week, two people familiar with those discussions told POLITICO. 

One of those people said Indiana GOP Senate President Pro Tempore Rodric Bray “has been doing nothing to help the effort along or encourage his members, but has been really sort of hiding behind them, and maybe even subtly or not so subtly pouring cold water on the idea so that he can say he doesn’t have the votes.”

The White House’s renewed pressure campaign comes as Republicans look to keep up their momentum in their national redistricting fight — building on new maps they passed in Texas and Missouri that could net them up to six House seats in next year’s pivotal midterms. Remapping Indiana’s congressional lines could help the GOP secure two more.

Some of those seats could be offset by the Democratic push to respond in California, where voters will decide on Gov. Gavin Newsom’s push in an Election Day ballot question. And given the GOP’s narrow advantage in the House, any stalling from a red state takes on added importance.

“I think the main thing is that the governor has consistently said that he wants to get the legislature on board with this approach,” the second person said. “He has indicated to the White House that he doesn’t think that they’re all there yet. And their main reaction to that is that, you know, the vice president wants to come out and continue to put the hard sell on Indiana legislative Republicans to get from point A to point B on this.”

Bray, according to the two Republicans, delivered the White House the same message. The state’s Speaker of the House, Todd Huston, told the president’s team he is willing to “get this done,” one of the Republicans said, but is concerned about securing votes in the Senate, as well as the optics of remapping the state mid-decade.

“I don’t think Houston has been particularly helpful, but he’s not really been harmful,” the person said. “I think he’ll go along. And we can pull the house along if we have to.”

White House Deputy Chief of Staff James Blair and Political Director Matt Brasseaux are expected to arrive in the state Thursday in their personal capacities to help with the pitch. They’ll be joined by Republican National Committee Chief of Staff Michael Ambrosini.

“I think the White House is going to take stock of the votes,” one of the Republicans told POLITICO. “And if people are going to say we’re not going to help Republicans, then I think the White House is going to make them tell them that to their face.”

The White House and a spokesperson for Vance did not respond to requests for comment. A spokesperson for Bray declined to comment. And a spokesperson for Huston said, “the Speaker is still having conversations and getting feedback from his caucus members and constituents on this topic.”

Vance learned of the talks in recent days, one of the Republicans allied with Trump’s efforts said, and offered to go to Indiana for a second time, following his August visit to meet with local Senate Republicans.

Since the Vance meeting, Club for Growth Action, a top conservative super PAC, has also run digital ads pressuring Indiana lawmakers to take up redistricting.

Vance’s visit comes just weeks after former Transportation Secretary and South Bend Mayor Pete Buttigeig visited the Indiana Statehouse to rail against redistricting efforts, saying that Hoosier Republican leaders were “ashamed of what they’re doing.”

White House allies in Indiana have argued that the death of MAGA influencer Charlie Kirk, who backed primaries for holdout state lawmakers, should lead to renewed efforts to redistrict.

“They killed Charlie Kirk — the least that we can do is go through a legal process and redistrict Indiana into a nine to zero map,” Sen. Jim Banks, the Republican of Indiana, told POLITICO last month.

The Indiana Capital Chronicle earlier Wednesday first reported of Vance’s visit.

“It’s probably fair to say that the House, all things being equal, would rather not do it, but they’re also not going to go walk the plank before they know they’ve got cover across the hallway,” the person added of the state Senate.

Andrew Howard contributed to this report. 

​Politics

President Donald Trump set the tone for his second term by issuing 26 executive orders, four proclamations and 12 memorandums on his first day back in office. The barrage of unilateral presidential actions has not yet let up.

These have included Trump’s efforts to remove thousands of government workers and fire several prominent officials, such as members of the Corporation for Public Broadcasting and the chair of the Commission on Civil Rights. He has also attempted to shut down entire agencies, such as the Department of Education and the U.S. Agency for International Development.

For some scholars, these actions appear rooted in the psychology of an unrestrained politician with an overdeveloped ego.

But it’s more than that.

As a political science scholar who studies presidential power, I believe Trump’s recent actions mark the culmination of the unitary executive theory, which is perhaps the most contentious and consequential constitutional theory of the past several decades.

A prescription for a potent presidency

In 2017, Trump complained that the scope of his power as president was limited: “You know, the saddest thing is that because I’m the president of the United States, I am not supposed to be involved with the Justice Department. I am not supposed to be involved with the FBI, I’m not supposed to be doing the kind of things that I would love to be doing. And I’m very frustrated by it.”

The unitary executive theory suggests that such limits wrongly curtail the powers of the chief executive.

Formed by conservative legal theorists in the 1980s to help President Ronald Reagan roll back liberal policies, the unitary executive theory promises to radically expand presidential power.

There is no widely agreed upon definition of the theory. And even its proponents disagree about what it says and what it might justify. But in its most basic version, the unitary executive theory claims that whatever the federal government does that is executive in nature – from implementing and enforcing laws to managing most of what the federal government does – the president alone should personally control it.

This means the president should have total control over the entire executive branch, with its dozens of major governmental institutions and millions of employees. Put simply, the theory says the president should be able to issue orders to subordinates and to fire them at will.

The president could boss around the FBI or order the U.S. attorney general to investigate his political opponents, as Trump has done. The president could issue signing statements – a written pronouncement – that reinterpret or ignore parts of the laws, like George W. Bush did in 2006 to circumvent a ban on torture. The president could control independent agencies such as the Securities and Exchange Commission and the Consumer Product Safety Commission. The president might be able to force the Federal Reserve to change interest rates, as Trump has suggested. And the president might possess inherent power to wage war as he sees fit without a formal authorization from Congress, as officials argued during Bush’s presidency.

A constitutionally questionable doctrine

A theory is one thing. But if it gains the official endorsement of the Supreme Court, it can become governing orthodoxy. It appears to many observers and scholars that Trump’s actions have intentionally invited court cases by which he hopes the judiciary will embrace the theory and thus permit him to do even more. And the current Supreme Court appears ready to grant that wish.

Until recently, the judiciary tended to indirectly address the claims that now appear more formally as the unitary executive theory.

During the country’s first two centuries, courts touched on aspects of the theory in cases such as Kendall v. U.S. in 1838, which limited presidential control of the postmaster general, and Myers v. U.S. in 1926, which held that the president could remove a postmaster in Oregon.

In 1935, in Humphrey’s Executor v. U.S., the high court unanimously held that Congress could limit the president’s ability to fire a commissioner of the Federal Trade Commission. And in Morrison v. Olson the court in 1988 upheld the ability of Congress to limit the president’s ability to fire an independent counsel.

Some of those decisions aligned with some unitary executive claims, but others directly repudiated them.

Warming up to a unitary executive

In a series of cases over the past 15 years, the Supreme Court has moved in an unambiguously unitarian, pro-presidential direction. In these cases, the court has struck down statutory limits on the president’s ability to remove federal officials, enabling much greater presidential control.

These decisions clearly suggest that long-standing, anti-unitarian landmark decisions such as Humphrey’s are on increasingly thin ice. In fact, in Justice Clarence Thomas’ 2019 concurring opinion in Seila Law LLC v. CFPB, where the court ruled the Consumer Financial Protection Bureau’s leadership structure was unconstitutional, he articulated his desire to “repudiate” the “erroneous precedent” of Humphrey’s.

Several cases from the court’s emergency docket, or shadow docket, in recent months indicate that other justices share that desire. Such cases do not require full arguments but can indicate where the court is headed.

In Trump v. Wilcox, Trump v. Boyle and Trump v. Slaughter, all from 2025, the court upheld Trump’s firing of officials from the National Labor Relations Board, the Merit Systems Protection Board, the Consumer Product Safety Commission and the Federal Trade Commission.

Previously, these officials had appeared to be protected from political interference.

Total control

Remarks by conservative justices in those cases indicated that the court will soon reassess anti-unitary precedents.

In Trump v. Boyle, Justice Brett Kavanaugh wrote, “whether this Court will narrow or overrule a precedent … there is at least a fair prospect (not certainty, but at least a reasonable prospect) that we will do so.” And in her dissent in Trump v. Slaughter, Justice Elena Kagan said the conservative majority was “raring” to overturn Humphrey’s and finally officially embrace the unitary executive.

In short, the writing is on the wall, and Humphrey’s may soon go the way of Roe v. Wade and other landmark decisions that had guided American life for decades.

As for what judicial endorsement of the unitary executive theory could mean in practice, Trump seems to hope it will mean total control and hence the ability to eradicate the so-called “deep state.” Other conservatives hope it will diminish the government’s regulatory role.

Kagan recently warned it could mean the end of administrative governance – the ways that the federal government provides services, oversees businesses and enforces the law – as we know it:

“Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control. Congress created them … out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties – none of whom a President could remove without cause – would make decisions likely to advance the long-term public good.”

If the Supreme Court officially makes the chief executive a unitary executive, the advancement of the public good may depend on little more than the whims of the president, a state of affairs normally more characteristic of dictatorship than democracy.

Graham G. Dodds does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

Bipartisan agreement is rare in these politically polarized days.

But that’s just what happened in response to ABC’s suspension of “Jimmy Kimmel Live!” The suspension followed the Federal Communications Commission chairman’s threat to punish the network for Kimmel’s comments about Charlie Kirk’s alleged killer.

It lit up the media. Democrats and civil libertarians denounced the FCC chairman Brendan Carr for violating the First Amendment’s guarantee of freedom of speech. Voices on the right, including Senator Ted Cruz, joined them.

Within a week, Kimmel’s show was back on the air.

While bipartisan agreement may be rare, it’s not surprising that it came in defense of the First Amendment – and a popular TV show. A recent poll found that a whopping 90% of respondents called the First Amendment “vital,” while 64% believed it’s so close to perfection that they wouldn’t change a word.

In just 45 words, it bars Congress from establishing or preventing the free exercise of religion, interfering with the peoples’ right to assemble and petition, or abridging freedom of speech or the press.

I’m a historian and scholar of modern U.S. law and politics. Here’s the story of why this amendment – now considered fundamental to American freedom and identity – wasn’t part of the original Constitution and how it was included later on.

Added three years after the Constitution was ratified, it resulted from political compromise and a change of heart by framer James Madison.

Soured on bills of rights

Building a strong national government was the focus of Madison and the other delegates who met in Philadelphia in May 1787 to draft the Constitution.

They believed the government created by the Articles of Confederation after the colonists declared independence was dysfunctional, and the nation was disintegrating.

The government could not pay its debts, defend the frontier or protect commerce from interference by states and foreign governments.

Although Madison and the other framers aimed to create a stronger national government, they cared about protecting liberty. Many had helped create state constitutions that included pioneering bills of rights.

Madison himself played a critical role in securing passage in 1776 of the Virginia Declaration of Rights, a monument to civil liberties.

By the time the Constitutional Convention met, however, Madison had soured on such measures. During the 1780s, he had watched with alarm as state legislatures trampled on rights explicitly guaranteed by their constitutions. Bills of rights, he concluded, weren’t sufficient to protect rights.

So Madison and his colleagues put their faith in reinventing government.

No appetite to haggle

The Constitution they wrote created a government powerful enough to promote the national interests while maintaining a check on state legislatures. It also established a system of checks and balances that ensured federal power wasn’t abused.

In the convention’s waning days, delegates briefly discussed adding a bill of rights but unanimously decided against it. They had sweated through almost four months of a sweltering Philadelphia summer and were ready to go home. When Virginia’s John Rutledge noted “the extreme anxiety of many members of the Convention to bring the business to an end,” he was stating the obvious. With the Constitution in final form, few had the appetite to haggle over the provisions of a bill of rights.

That decision nearly proved fatal when the Constitution went to the states for ratification.

The new Constitution’s supporters, known as Federalists, faced fierce opposition from Anti-Federalists who charged that a powerful national government, unrestrained by a bill of rights, would inevitably lead to tyranny.

Ratification conventions in three of the most critical states – Massachusetts, New York and Virginia – were narrowly divided; ratification hung in the balance. Federalists resisted demands to make ratification contingent on amendments suggested by state conventions. But they agreed to add a bill of rights – after the Constitution was ratified and took effect.

That concession did the trick.

Harmless, possibly helpful

The three critical states ratified without condition, and by midsummer 1788, the Constitution had been approved.

However, when the First Congress met in March 1789, the Federalist majority didn’t prioritize a bill of rights. They had won and were ready to move on.

Madison, now a Federalist leader in the House of Representatives, insisted that his party keep its word. He warned that failure to do so would undermine trust in the new government and give Anti-Federalists ammunition to demand a new convention to do what Congress had left undone.

But Madison wasn’t just arguing for his party keeping its word. He had also changed his mind.

The ratification debates and Madison’s correspondence with Thomas Jefferson led him to think differently about a bill of rights. He now thought it harmless and possibly helpful. Its provisions, Madison conceded, might become “fundamental maxims of a free government” and part of “the national sentiment.” Broad popular support for a bill of rights might provide a check on government officials and how they wielded power.

Madison pushed his colleagues relentlessly. Wary of provisions that would weaken the national government, he developed a slate of amendments focused on individual rights. Ultimately, Congress approved 12 amendments – ensuring rights from freedom of speech to protection from cruel and unusual punishment – and sent them to the states for ratification.

First Amendment no cure-all

By the end of 1791, 10 of them – including the First Amendment ≠ had been ratified.

As Madison anticipated, the First Amendment wasn’t a cure for a government bent on suppressing dissent. From the Sedition Act in the 1790s to McCarthyism in the 1950s and the Trump administration’s assault on the First Amendment, government has used its awesome powers to pursue and punish critics.

On occasion, courts have intervened to protect First Amendment rights, a weapon Madison didn’t anticipate. But not always.

Perhaps the ultimate protection for First Amendment rights is “national sentiment,” as Madison suggested. Norm-breaking presidents can disregard the law, and judges may cave. But public sentiment is a powerful force, as Jimmy Kimmel can attest.

Donald Nieman receives funding from the National Endowment for the Humanities and the American Council of Learned Societies. He is affiliated with Braver Angels.

​Politics + Society – The Conversation