Opinion: Constitutional watchdogs shrink from checking presidential abuse of power

By William H. Freivogel >>

While President Donald Trump unleashes a torrent of legally questionable exertions of power, Congress sits by compliantly, the U.S. Supreme Court remains unengaged and the Fourth Estate shrinks from its role as a watchdog of presidential abuse. Media executives even curry favor with the man they’re supposed to be watching.

In short, the check and balances of the Constitution are hauntingly silent.

Trump scapegoats DEI initiatives for plane crashes and fires even as he nominates the least qualified Cabinet in history, mostly white men who never could get past a rigorous advise and consent function. Confirmed or on the glide path to confirmation are:

• Health and Human Services chief Robert F. Kennedy Jr., who questions vaccines and fluoride in toothpaste.
• Defense Secretary Pete Hegseth, who takes over the sprawling Pentagon without organizational skills, accused of sexual misconduct and drunkenness, and who insults female soldiers.
• Attorney General Pam Bondi, who denied the truth of the 2020 presidential election and stands by while top Justice Department lawyers are fired and the department tries to identify lawyers and agents who investigated the events of Jan. 6, 2021.
• FBI Director Kash Patel, who rails about a “deep state” of “Government Gangsters.”  
• Director of National Intelligence Tulsi Gabbard, who has supported Putin at almost every turn. 

This is a meritocracy?

Meanwhile, Trump is surrounded by a Cabinet of billionaires, having assembled an a modern-day oligarchy. And the oligarch-in-chief has unleashed the richest man in the world, Elon Musk, to take a wrecking ball to agencies they don’t like, such as the U.S. Agency for International Development, the Education Department and especially its Office of Civil Rights.

Ed Martin, the Interim U.S. Attorney and longtime Phyllis Schlafly confidant from St. Louis, warned Monday that anyone who might impede Musk’s status as the “special government employee” in charge of DOGE would be stopped. “Let me assure you of this: we will pursue any and all legal action against anyone who impedes on your work or threatens your people. We will protect DOGE and other (federal) workers no matter what,” said Martin. Last Friday, Martin had fired dozens of Justice Department  prosecutors who had worked on Jan. 6 prosecutions.

Meanwhile the billionaire tech geniuses who run America’s social media and AI enterprises sat  prominently on the inaugural stand after giving million dollar donations to his inaugural fund, including CEOs Jeff Bezos of Amazon, Mark Zuckerberg of Meta and St. Louis’ own Sam Altman of OpenAI.

Zuckerberg now thinks his company went too far in taking down false posts about the 2020 election having been stolen and about covid vaccines. He’s announced he’s pulling away from moderating false posts and will “get back to roots around free expression.”  

Bezos was ahead of the game in kissing the ring. Shortly before the election, he stopped the Washington Post from endorsing Kamala Harris. And when Post cartoonist Ann Telnaes made fun of the billionaires currying favor with trips to Mar-a-Lago, including Bezos, her cartoon was killed by her editor. She quit.

Then came the corporate capitulations in weak but high-dollar lawsuits that Trump had filed against top media companies.

Disney’s ABC agreed to give  $15 million to Trump’s library and apologize that George Stephanopoulos’ use of the word “rape” to refer to what Trump did to E. Jean Carroll in a New York department store in the mid 1990s. During a 2024 interview with Rep. Nancy Mace (R-SC), the “This Week” host said that Trump was “liable for rape” 

A jury had found in 2023 that Trump had ”sexually abused” her but she had failed to prove he raped her. Testimony established he had penetrated her with his finger but did not establish he had penetrated her with his penis.

Carroll reiterated after the verdict that Trump had “raped” her, and Trump countersued for defamation. Federal Judge Lewis Kaplan threw out Trump’s countersuit saying that Carroll’s rape allegation was “substantially true.”

By responding no to the question of whether Trump raped her, the jury indicated they weren’t convinced Trump had penetrated her with his penis, as is required under New York criminal law, the judge said.

But Kaplan concluded that the jury was convinced that Trump penetrated her with his finger.  “It accordingly is the ‘truth,’ as relevant here, that Mr. Trump digitally raped Ms. Carroll,” Kaplan said. Trump denied any sexual assault.

Walt Disney CEO Bob Iger was reported in a leaked comment to be concerned that ABC could lose the case and weaken press protections by allowing an opening for the Supreme Court to overturn the landmark 1964 decision of New York Times v Sullivan. But it is Iger’s refusal to stand behind the decision that weakens press protections. The New York Times v. Sullivan standard is that a public official has to prove “actual malice,” meaning reckless disregard for the truth,  in order to win a libel case.  Kaplan’s dismissal of Trump’s countersuit against Carroll and the judge’s use of the word “rape” shows the weakness of the Trump case.

Paramount’s move towards settling Trump’s $10 billion lawsuit against “60 Minutes” also seems based on craven monetary motives.

60 Minutes Executive Producer Bill Owens is correct to say he won’t apologize for the editing of the Harris answer in a question about the Middle East from Bill Whitaker. Harris gave a long answer, part of which 60 Minutes used during its show and a different part of which was aired the day before as a preview of the show. 

In one clip of the interview released by CBS, Harris responded: “Well, Bill, the work that we have done has resulted in a number of movements in that region by Israel that were very much prompted by, or a result of, many things, including our advocacy for what needs to happen in the region.”

In the fuller version of the interview, Harris said: “We are not gonna stop pursuing what is necessary for the United States to be clear about where we stand on the need for this war to end.”

“Face the Nation,” broadcast an excerpt from Harris’s interview “that used a longer section of her answer than that on 60 Minutes,” said the network. “Same question. Same answer. But a different portion of the response,” it said, adding that it aired Harris’s shorter answer because it “was more succinct.”  

The Center for American Rights filed a complaint with the FCC last fall saying this was a “deliberate news distortion.” The FCC dismissed the complaint in early January, but Trump’s new FCC chair, Brendan Carr, reopened the case and demanded CBS turn over the full transcript. CBS published the transcript of the interview on Wednesday. 

Trump – who refused to be interviewed by 60 Minutes at the time it interviewed Harris – sued Paramount for  $10 billion for the “news distortion.” 

The New York Times reported that Shari Redstone, Paramount’s controlling shareholder, wants to settle because she could clear billions of dollars on the sale of Paramount in a deal with Skydance, backed by the billionaire Larry Ellison.

As the Times story said: “A settlement would be an extraordinary concession by a major U.S. media company to a sitting president, especially in a case in which there is no evidence that the network got facts wrong or damaged the plaintiff’s reputation.”

When billionaires fight with billionaires over billions in a country run by billionaires seeking more billions for an imagined harm with no basis in reality, someone  has to apply a few checks and balances. 

Mark Sableman, a top media lawyer and partner at Thompson Coburn in St. Louis, explained how the media’s refusal to settle meritless defamation cases – even at great cost – had shown journalists that worthy reporting would be supported. He wrote in an email:

“For many years, most major news organizations vigorously defended meritless cases, even when the costs of defense were greater than settlement costs.  They did so believing that this was the best strategy in the long run. I believe this strategy worked well,”

“It rebuffed attempts at intimidation by asserting and explaining the time-honored legal doctrines and defenses that protect journalism.  It discouraged the bringing of further meritless and marginal cases. It encouraged worthy reporting, by showing reporters and editors that their professional work would be supported.  And it educated courts in publication law and defenses, and the policies behind them. Some of that has changed in recent years because of the financial pressures faced by traditional media outlets, and more cases are settled now than in the past.  But the serious concern remains that failing to defend professional and responsible journalism will only open the door to further attempts at intimidation.”

William H. Freivogel is the publisher of GJR. He was deputy Washington bureau chief of the Post-Dispatch in the 1980s and 90s.

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