Practically Unimpeachable

Trump 2.0 skates by with the same conduct that got Trump 1.0 impeached

It reflects the brutality of the constitutional attack that Trump has unleashed during his first two weeks in office that conduct resembling the actions that led to two impeachments four years ago has barely registered among the dizzying blitzkrieg of assaults.

The episode that I have in mind took place last week, but originates from a (meritless) lawsuit that he filed against CBS as a private citizen last October.

The outlandish $10 billion lawsuit alleged that CBS edited an interview with Kamala Harris in a biased fashion. The interview was part of the traditional campaign sit downs with both candidates. Trump declined to participate, but he wound up complaining bitterly about an answer Harris gave concerning Israeli Prime Minister Benjamin Netanyahu. Trump’s beef was that the network aired one version of the answer on “Face the Nation” and a different (he alleged better) version that evening on “60 Minutes.”

In a screed dressed up as a legal complaint, Trump launched scattershot charges such as “CBS and other legal legacy media organizations have gone into overdrive to get Kamala elected… [n]otwithstanding her well documented deep unpopularity even with her own Party.” He asserted that CBS engaged in malicious distortion to “tip the scales” in favor of the Democratic ticket.

Trump brought the case under Texas state law against deceptive business practice. Why Texas state law? Well for starters, there’s no viable lawsuit based on federal law. More importantly, the state law theory permitted Trump to bring the case in the Amarillo division of the federal court in the Northern District of Texas, because the constitution allows parties to bring state law cases in federal courts where the parties are from different states (aka diversity jurisdiction).

What’s so special about Amarillo? It meant that he was virtually guaranteed to get the federal judge who sits there. That would be Judge Matthew Kacsmaryk. The name will likely ring a bell. Known for his ardent devotion to conservative social causes, Kacsmaryk is the judge who suspended the FSA’s approval of mifepristone, among many other highly controversial rulings. Trump was engaging in naked forum shopping, exploiting a gaping design defect in the system that needs to be corrected.

At the time Trump brought the lawsuit, CBS described it as “completely without merit” and pledged to defend itself vigorously. It said that the Harris interview was edited solely for time constraints on “60 Minutes”—routine editorial stuff—and they denied Trump’s charge that the tape had been doctored.

Other critics were more scathing. Theodore Boutrous, Jr, one of the country’s most prominent first amendment attorneys, said, “[t]here is absolutely no reason, from a legal perspective, for CBS to settle—this is a ridiculous case.” Another first amendment attorney Charles Tobin called it a “frivolous and dangerous attempt by a politician to control the news media.” Rebecca Tushnet, the Frank Stanton professor of First Amendment law at Harvard Law School, was more pithy: “It’s ridiculous junk and should be mocked.”

Meanwhile, the Center for American Rights, a conservative law firm allied with Trump, filed a complaint with the FCC against CBS (one of many the group has filed against major media outlets) objecting to the edit of the interview. And Republican politicians took up the cause, with House Speaker Mike Johnson accusing CBS of “selectively editing” the Harris interview.

Shortly before January 20, the FCC dismissed the complaint, along with others against ABC (for its moderation of the presidential debate) and NBC (for permitting Harris to appear on SNL). As one commissioner explained, the dismissals were “due to lack of evidence and because it fell far short of the high standard needed for agency action.” In a statement accompanying the dismissals, outgoing FCC chair Jessica Rosenworcel elaborated that the complaints “seek to weaponize the licensing authority of the FCC in a way that is fundamentally at odds with the First Amendment.”

“The FCC should not be the president’s speech police,” Rosenworcel said.

At that point, in October 2024, the lawsuit and FCC complaint were just standard issue Trump saber-rattling, bullyish and an abuse of the judicial system but with no implication to a President’s Article II power. But then came Trump’s election and inauguration, and with them a blatant move to corruptly use his new executive powers and force CBS to settle his meritless lawsuit.

As soon as he took office, Trump appointed Mike Carr, a Republican ally whom he appointed to the Commission during his first term, as FCC Chair. In a way that is highly unusual for a regulatory appointee, Carr has been an outspoken advocate for Trump and conservative causes. He has accused Adam Schiff of overseeing a "secret and partisan surveillance machine." He has continuously leveled accusations against the media for supposed bias against Trump. In an interview with Lou Dobbs, he alleged that "[s]ince the 2016 election, the far left has hopped from hoax to hoax to hoax to explain how it lost to President Trump at the ballot box."

Most notably, Carr authored the FCC section of Project 2025, which proposed lower legal shields to lawsuits and other policies to bolster conservative speech.

Trump in turn has called Carr a “warrior for Free Speech.” Translated, that means a willing henchman in Trump’s shakedown efforts to force media into more favorable coverage and muddle over of his endless stream of lies.

Immediately after assuming the Chair, Carr revived the investigations that the FCC had dismissed against CBS, ABC, and NBC (but not Fox). Then last Thursday he launched new investigations into PBS and NPR, both of which Project 2025 calls to defund.

Those moves were already high-handed and likely unlawful: The Communications Act of 1934 affirms (and the First Amendment already provides) that the FCC cannot impose content-based restrictions on broadcasters. The FCC has no right to order what the Washington Post and LA Times have of late done voluntarily: gentler (and less honest) coverage of Trump.

As the Supreme Court unanimously explained in the 1974 landmark case , the FCC has no business trying to regulate a newspaper’s editorial decisions: the “treatment of public issues and public officials–whether fair or unfair–constitute the exercise of editorial control, and judgment” and thus cannot be regulated by government.

But it was the middle of last week when the episode devolved into a brass-knuckles corrupt shakedown of the sort that led to Trump’s previous two impeachments.

On Wednesday, the FCC sent CBS a “Letter of Inquiry” seeking the full unedited transcript and camera feeds from the Harris interview. Like other networks, “60 Minutes” normally doesn’t release interview transcripts to avoid public second-guessing of its editing process. Moreover, the move was nonsensical and highly intrusive: it suggested that the FCC wants to pass judgment not only on what CBS broadcasted but what it didn’t broadcast and how it edited the material it collected for the story. There is no plausible, much less tenable, theory of FCC power that would countenance any scrutiny of that internal process.

It was, in fact, a kneecap move. And the kneecap in question is the application of CBS’s parent company, Paramount Global, for a merger with Skydance Media, the film studio run by the son of Oracle co-founder Larry Ellison. The merger is an $8 billion deal in its closing stages that will create a new company worth about $28 billion.

The Wall Street Journal has reported that Carr let Paramount execs know that in the agency’s review of the proposed merger, “bias accusations against Paramount’s CBS News are fair game.” Carr did not supply a legal basis for that assertion, nor is one apparent.

Nevertheless, Paramount immediately took the hint and CBS now has agreed to hand over the transcripts. And Paramount’s chair, Shari Redstone, is widely reported to be advocating for a settlement of the Trump lawsuit—the one the company previously said was without merit—in order to gain FCC approval for the merger. If the settlements goes through, Redstone herself stands to realize at least $350 million (including other payouts, it’s more than twice that).

According to multiple news reports, Redstone’s position has left CBS News staffers “furious.” Top executives at CBS said settling the frivolous lawsuit would set a dangerous precedent undermining press freedom.

More to the point of Trump’s constitutional carpetbombing, CBS’s buckling would never have been conceivable but for Trump’s election and the leverage over the merger that it provides him.

FCC Commissioner Anna Gomez was forthright: “Let’s be clear,” she wrote in an issued statement. “This is a retaliatory move by the government against broadcasters whose content or coverage is perceived to be unfavorable. It is designed to instill fear in broadcast stations and influence a network’s editorial decisions.”

Gomez added a general protest against Carr’s politicization of the Commission. “During these last two weeks, the FCC has shown a concerning pattern of implementing the will of the Administration on issues that go far beyond our core responsibilities. These actions disregard long-standing norms and ignore the mandate granted by Congress to the FCC to act as an independent agency. They also set a dangerous precedent that threatens to undermine trust in the agency’s role as an impartial regulator.”

The move to placate Trump's private grievance about media coverage during the campaign is one in a series of recent forced groveling by traditional media outlets in order to protect broader holdings and financial interests. It’s the same dynamic Trump exploited to secure more “fair and balanced”—i.e. pro Trump—coverage by the Washington Post, the LA Times, and ABC. I broke it down in detail in my previous Substack explaining my decision to resign from the LA Times as well as my take on the ABC news settlement.

But it’s a lot more than that. In its essential structure, Trump’s tactics are no different from his attempted shakedowns of Ukrainian president Volodymyr Zelenskyy, as well as his effort to enlist the Department of Justice to help him steal the 2020 election.

With Zelenskyy, Trump, in what he has never varied in describing as a “perfect conversation,” tried to hold aid hostage to the Ukrainian president’s agreement to falsely certify corruption by Joe and Hunter Biden. The first articles of impeachment alleged that Trump had abused his power and obstructed Congress for personal political benefit, as was essentially undeniable. (Importantly, Congress had already appropriated the aid that Trump was using to bribe Zelensky; his actions are echoed in his recent effort to freeze nearly all aid and grants, which critics contend violates the anti-impoundment principle of the constitution.) Lead House manager Adam Schiff presciently told the country in closing argument that if Trump were not removed, he would violate the Constitution again.

Trump tried to pull the same swindle in the aftermath of his 2020 election loss to Joe Biden. Conspiring with a hand-picked mid-level DOJ official Jeff Clark, whom he proposed to make the Acting Attorney General, Trump tried to manipulate the Department of Justice into sending a letter to Georgia officials suggesting falsely that the Department had found fraud in the election results. As Trump said to the actual Acting Attorney General, Jeff Rosen, "just say that the election was corrupt and leave the rest to me and the Republican congressmen.” But in a dramatic standoff in the Oval Office, Rosen and other Department officials threatened a mass resignation that forced Trump to back down.

Trump and Carr’s shakedown of CBS is structurally identical to these two first term outrages. Trump is seeking to force CBS to pay off his lawsuit that he brought as a private citizen based on a claims that have no possible connection to his official responsibilities.

As alarming as the other two episodes were, this one in some ways is more so. Not only has Trump not been foiled, he has acted completely unimpeded. He is leveraging an unlawful expansion of executive power to settle a purely personal score. But now with Carr playing the willing sycophant, the landscape is completely altered, tilting away from the constitution and directly toward Trump’s personal interests.

It is as if Jeff Clark already was installed as the Attorney General back in 2020. Or Ed Martin, his hand-picked acting US Attorney in Washington and a prominent election-denier and champion of the January 6 insurrectionists, who is now moving to punish any prosecutors who worked on the January 6 investigations.

With lackeys like this already pulling the levers of executive power, Trump doesn’t have to worry about officials’ fidelity to their oaths of office. There is no adult in the room this time to counteract Trump’s constitutional outrages. The executive branch is made up entirely of team crazy.

In fact, Trump tried a similar caper in his first administration, trying to strong arm Time Warner, parent company of CNN, based on its proposed merger with AT&T. But since it was clear at the time (as it is now, despite the FCC’s will assertions otherwise) that the FCC merger review doesn’t take account of CNN’s editorial practices, AT&T and Time Warner were able to successfully push back on Trump’s attempts to intervene.

This almost certainly is not the end of Trump’s war on the media, whom he has assailed with the same furor he reserves for DEI and illegal immigrants. Trump has called for ABC to lose its license. He has said NBC should be investigated for treason. He crowed in a campaign rally about forcing journalists to reveal their sources by throwing them in jail, saying “When this person realizes that he’s going to be the bride of another person shortly, he will say ‘I’d very much like to tell you exactly who that was.’”

And, along with other recent moves like pardoning the January 6 rioters and withdrawing security detail from his political enemies, Trump’s demonization of the media threatens violence. Numerous studies have found increased threats of physical violence, as well as actual violence, against journalists, and anecdotal evidence confirms harassment is rampant at Trump rallies. After the election, a former Marine was arrested for attempting to strangle a Pacific Islander TV news reporter while taunting, “Are you even a US citizen? This is Trump’s America now.”

The bottom line is that the kind of behavior every bit as corrupt as what led to the two impeachments, and that poses a grave threat to freedom of the press, now passes by as a page 3 story easily overlooked in the avalanche of outrages with immediate tangible impact, such as the OMB’s recent effort to halt nearly all federal assistance, or unelected mischief maker Elon Musk’s infiltration of the US Treasury’s payment system.

The difference in Trump 2.0 is not in the gravity of the conduct, or the degree of abuse of executive power to promote vengeful personal ends. It rather traces directly to the narrow Republican majority in both the House of Representatives, which votes out articles of impeachment, and the Senate, which hears them.

As Trump’s likely successful record of confirming unqualified candidates to cabinet positions demonstrates, he holds an iron grip over members of his party. These are the same members who reportedly hold him in contempt even as they are terrified of him because of his ruthless willingness to turn on them by supporting primary challengers.

Trump likes to characterize it differently. “The first term,” he said, “everybody was fighting me. In this term, everybody wants to be my friend.”

Indeed, Trump has just enough friends to work his will in the Senate. And now he is scooping up a few more friends in the media organizations to whom we used to look to hold presidents accountable.

Where are the friends of the constitution, and the people?

Talk to you later.