The notion that Donald Trump’s supporters believe that he should be able to overthrow the government and get away with it sounds like hyperbole, an absurd and uncharitable caricature of conservative thought. Except that is exactly what Trump’s attorney D. John Sauer argued before the Supreme Court yesterday, taking the position that former presidents have “absolute immunity” for so-called official acts they take in office.

“How about if a president orders the military to stage a coup?” Justice Elena Kagan asked Sauer. “I think it would depend on the circumstances whether it was an official act,” Sauer said after a brief exchange. “If it were an official act … he would have to be impeached and convicted.”

“That sure sounds bad, doesn’t it?” Kagan replied later.

The Democratic appointees on the bench sought to illustrate the inherent absurdity of this argument with other scenarios as well—Kagan got Sauer to admit that the president could share nuclear secrets, while Justice Sonia Sotomayor presented a scenario in which a president orders the military to assassinate a political rival. Sauer said that might qualify as an official act too. It was the only way to maintain the logic of his argument, which is that Trump is above the law.

[David A. Graham: The cases against Trump: A guide]

“Trying to overthrow the Constitution and subvert the peaceful transfer of power is not an official act, even if you conspire with other government employees to do it and you make phone calls from the Oval Office,” Michael Waldman, a legal expert at the Brennan Center for Justice, a liberal public-policy organization, told me.   

Trump’s legal argument is a path to dictatorship. That is not an exaggeration: His legal theory is that presidents are entitled to absolute immunity for official acts. Under this theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president. Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it.

The conservative justices have, over the years, seen harbingers of tyranny in union organizing, environmental regulations, civil-rights laws, and universal-health-care plans. When confronted with a legal theory that establishes actual tyranny, they were simply intrigued. As long as Donald Trump is the standard-bearer for the Republicans, every institution they control will contort itself in his image in an effort to protect him.

The Supreme Court, however, does not need to accept Trump’s absurdly broad claim of immunity for him to prevail in his broader legal battle. Such a ruling might damage the image of the Court, which has already been battered by a parade of hard-right ideological rulings. But if Trump can prevail in November, delay is as good as immunity. The former president’s best chance at defeating the federal criminal charges against him is to win the election and then order the Justice Department to dump the cases. The Court could superficially rule against Trump’s immunity claim, but stall things enough to give him that more fundamental victory.

If they wanted, the justices could rule expeditiously as well as narrowly, focusing on the central claim in the case and rejecting the argument that former presidents have absolute immunity for acts committed as president, without getting into which acts might qualify as official or not. Sauer also acknowledged under questioning by Justice Amy Coney Barrett that some of the allegations against Trump do not involve official acts but private ones, and so theoretically the prosecution could move ahead with those charges and not others. But that wouldn’t necessarily delay the trial sufficiently for Trump’s purposes.

“On big cases, it’s entirely appropriate for the Supreme Court to really limit what they are doing to the facts of the case in front of it, rather than needing to take the time to write an epic poem on the limits of presidential immunity,” Waldman said. “If they write a grant opinion, saying no president is above the law, but it comes out too late in the year, they will have effectively immunized Trump from prosecution before the election while pretending not to.”

Trump’s own attorneys argued in 2021, during his second impeachment trial, that the fact that he could be criminally prosecuted later was a reason not to impeach him. As The New York Times reported, Trump’s attorney Bruce Castor told Congress that “after he is out of office,” then “you go and arrest him.” Trump was acquitted in the Senate for his attempted coup after only a few Republicans voted for conviction; some of those who voted to acquit did so reasoning that Trump was subject to criminal prosecution as a private citizen. The catch-22 here reveals that the actual position being taken is that the president is a king, or that he is entitled to make himself one. At least if his name is Donald Trump.

[David A. Graham: The Supreme Courts goes through the looking glass of presidential immunity]

Democracy relies on the rule of law and the consent of the governed—neither of which is possible in a system where the president can commit crimes or order them committed if he feels like it. “We can’t possibly have an executive branch that is cloaked in immunity and still expect them to act in the best interests of the people in a functioning democracy,” Praveen Fernandes, the vice president of the Constitutional Accountability Center, a liberal legal organization, told me.

The only part of Trump’s case that contains anything resembling a reasonable argument is the idea that without some kind of immunity for official acts, presidents could be prosecuted on a flimsy basis by political rivals. But this argument is stretched beyond credibility when it comes to what Trump did, which was to try repeatedly and in multiple ways to unlawfully seize power after losing an election. Even if the prospect of presidents being prosecuted for official acts could undermine the peaceful transfer of power, actually trying to prevent the peaceful transfer of power is a much more direct threat—especially because it has already happened. But the Republican-appointed justices seemed much more concerned about the hypothetical than the reality.

“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent,” Justice Samuel Alito asked, “will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

Trump has the conservative justices arguing that you cannot prosecute a former president for trying to overthrow the country, because then they might try to overthrow the country, something Trump already attempted and is demanding immunity for doing. The incentive for an incumbent to execute a coup is simply much greater if the Supreme Court decides that the incumbent cannot be held accountable if he fails. And not just a coup, but any kind of brazen criminal behavior. “The Framers did not put an immunity clause into the Constitution. They knew how to,” Kagan pointed out during oral arguments. “And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

At least a few of the right-wing justices seemed inclined to if not accept Trump’s immunity claim, then delay the trial, which would likely improve his reelection prospects. As with the Colorado ballot-access case earlier this year, in which the justices prevented Trump from being thrown off the ballot in accordance with the Constitution’s ban on insurrectionists holding office, the justices’ positions rest on a denial of the singularity of Trump’s actions.

No previous president has sought to overthrow the Constitution by staying in power after losing an election. Trump is the only one, which is why these questions are being raised now. Pretending that these matters concern the powers of the presidency more broadly is merely the path the justices sympathetic to Trump have chosen to take in order to rationalize protecting the man they would prefer to be the next president. What the justices—and other Republican loyalists—are loath to acknowledge is that Trump is not being uniquely persecuted; he is uniquely criminal.

This case—even more than the Colorado ballot-eligibility case—unites the right-wing justices’ political and ideological interests with Trump’s own. One way or another, they will have to choose between Trumpism and democracy. They’ve given the public little reason to believe that they will choose any differently than the majority of their colleagues in the Republican Party.

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Over the past decade, sleep has become better understood as a core part of wellness. But the stressors of modern life mean that Americans are getting less of it.

First, here are three new stories from The Atlantic:

The Supreme Court goes through the looking glass on presidential immunity. The inflation plateau The campus-left occupation that broke higher education

Sleep No More

In the 1980s, when Rafael Pelayo was a young medical student setting out in the field of sleep research, people thought he was wasting his time. At that point, our culture was not so obsessed with the subject of rest. Now, he told me, people acknowledge that he was onto something—and insomniacs circle him “like sharks to blood” when they hear what he does for a living. Pelayo, a clinical professor at the Stanford Sleep Medicine Center, says that the “tide is changing” in how society values sleep. Over the past decade, how, and how much, we sleep has become a major health and wellness concern.

It’s a subject on Americans’ minds: Late last year, for the first time since Gallup began asking the question in 2001, a majority of surveyed American adults said they would feel better if they slept more; 57 percent of people surveyed said that they need to get more sleep, up from 43 percent in 2013, when the data were last gathered.

People’s self-reported quantities of sleep are also on the decline. Compared with a decade ago, fewer people report getting eight hours or more of sleep, and more people say they get five hours or less. Just 36 percent of women report getting the sleep they need—down from more than half in 2013.

As anyone who has lain awake at night knows, anxiety can affect sleep. That Americans say they are not sleeping as well as they reported in 2013 likely can be blamed in part on the stresses of the pandemic, Brynn K. Dredla, a neurologist and sleep-medicine specialist at the Mayo Clinic in Jacksonville, Florida, told me. “From a survival standpoint, if we’re under stress, our body thinks, Well, I have to be awake to deal with that stress,” she explained. Our brains have trouble distinguishing between acute danger, such as a bear attack, and chronic stress. “For us to sleep, we need to have a physically and psychologically safe environment,” she said. (A cold, dark, quiet room—with Instagram and news apps far away from the bed and the mind—doesn’t hurt either.)

Teenagers aren’t sleeping enough, and they’re experiencing high levels of stress—particularly teen girls. Blaming the ubiquity of the smartphone for bad sleep would be easy, but Pelayo finds that too simplistic—after all, we “had sleep issues way before the phones came out,” he noted. Teens aren’t getting enough sleep, Pelayo argued, in part because school tends to start at such an ungodly hour (he has advocated for later start times, a legislative effort that has gained momentum in states including California and Florida). It doesn’t help that adolescents are generally not great at recognizing when they are sleepy. Teens need a lot of sleep, Dredla explained, and sleep deprivation often makes them frustrated, which in turn “will lead to behaviors that actually can start promoting wakefulness,” such as napping or drinking caffeine. It’s not just teens—anyone can build up “sleep debt” and get into a cycle of sleeping poorly, stimulating themselves to stay awake, having trouble sleeping at night, and doing it all over again.

As sleep has become more central to Americans’ conception of wellness, companies have swooped in to try to package sleep as a luxury good. A cottage industry of products, including specialized pillows, apps, and pills, has sprung up in recent years promising to help people sleep better. Some simple pieces of technology—better mattresses, better cooling systems—have indeed enhanced sleep over the decades. But you don’t necessarily need to buy more stuff in order to sleep better. Savvy marketing makes people think the solution is complex, but at its core, the human body wants to sleep. “You were sleeping in utero,” Pelayo reminded me.

Of course, knowing this is not always enough to help a person struggling to get solid sleep. Pelayo advises that a good step for people having trouble sleeping is to wake up at the same time every morning. Forcing yourself to fall asleep is nearly impossible; if someone offered you $1,000 to fall asleep immediately, it might get even harder. But, he said, you can make yourself wake up consistently.

A good night of sleep consists of four factors, Pelayo explained: amount of sleep, quality of sleep, timing of sleep, and state of mind. That last one is key, he said—if you don’t look forward to going to bed, or if you dread waking up in the morning, you may have a very hard time sleeping. People tend to blame themselves when they don’t sleep well. He suggests that a better route for such people is to try to move past “that self-blame, because it’s not helpful. We want to figure out what’s happening.” It could be that you have a sleep disorder; many women, for example, develop sleep apnea after menopause.

Over the decades, Pelayo has watched sleep wellness become more valued, in parallel to many Americans beginning to internalize the benefits of eating healthy foods. “Waking up tired is like leaving a restaurant hungry,” Pelayo said. Though many Americans seem to feel that way these days, he retains hope. The good news about sleep? Everyone can do it. “It’s a fun gig as a sleep doctor, because most patients get better.”

Related:

The Protestant sleep ethic Can medieval sleeping habits fix America’s insomnia?

Today’s News

An appeals court overturned Harvey Weinstein’s sex-crimes conviction in New York, where he has been serving his prison sentence. Since he was also convicted of sex offenses in Los Angeles, in 2022, his release is unlikely. The Supreme Court heard arguments in Donald Trump’s presidential-immunity case, addressing the question of whether a former president can enjoy immunity from criminal prosecution for conduct related to official acts that took place during their time in office. The Biden administration finalized a new regulation that would significantly reduce emissions and pollution from coal-fueled power plants by 2032.

Dispatches

Time-Travel Thursdays: For centuries, Jews were accused of preparing their Passover food with Christian blood. Yair Rosenberg investigates the dark legacy and ongoing body count of this ancient anti-Semitic myth.

Explore all of our newsletters here.

Evening Read

Illustration by Ben Kothe / The Atlantic. Source: Getty.

Why Your Vet Bill Is So High

By Helaine Olen

In the pandemic winter of 2020, Katie, my family’s 14-year-old miniature poodle, began coughing uncontrollably. After multiple vet visits, and more than $1,000 in bills, a veterinary cardiologist diagnosed her with heart failure. Our girl, a dog I loved so much that I wrote an essay about how I called her my “daughter,” would likely die within nine months.

Katie survived for almost two years … [Her] extended life didn’t come cheap. There were repeated scans, echocardiograms, and blood work, and several trips to veterinary emergency rooms. One drug alone cost $300 a month, and that was after I shopped aggressively for discounts online.

People like me have fueled the growth of what you might call Big Vet. As household pets have risen in status—from mere animals to bona fide family members—so, too, has owners’ willingness to spend money to ensure their well-being. Big-money investors have noticed.

Read the full article.

More From The Atlantic

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Culture Break

Illustration by The Atlantic. Source: Gary Shteyngart.

Listen. In the latest episode of Radio Atlantic, Gary Shteyngart details his “seven agonizing nights” aboard the Icon of the Seas, the largest cruise ship ever.

Analyze. In Taylor Swift’s “The Albatross”—a bonus track on her new album, The Tortured Poets Department—she identifies with the notorious bird from Samuel Taylor Coleridge’s poem. Why does she see herself that way?

Play our daily crossword.

Stephanie Bai contributed to this newsletter.

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