Politics

Supreme Court justices across the ideological divide seemed skeptical Wednesday that a California lawyer has a free-speech right to trademark the double-entendre phrase “Trump Too Small” for use on T-shirts criticizing former president Donald Trump.

In fact, Chief Justice John G. Roberts Jr. opined, ruling for Trump critic Steve Elster could make it harder for others to create their own takes about the man running to reclaim his old job.

“Presumably, there will be a race for people to trademark, you know, ‘Trump Too This,’ ‘Trump Too That,’ whatever,” the conservative Roberts told Elster’s lawyer, Jonathan E. Taylor. That could put off-limits political expression “other people might regard as important infringement on their First Amendment rights.”

The debate among the justices mostly concerned how the court could rule for the U.S. Patent and Trade Office — which said Elster’s request violated a law disallowing trademarks that use a person’s name without their consent — but not impose unwanted consequences for other areas of the law, such as copyrights for book titles that use a person’s name.

The bottom line, Justice Sonia Sotomayor said, was that Elster did not suffer an injury when his trademark request was denied.

“The question is, is this an infringement on speech? And the answer is no,” the liberal Sotomayor said, adding that the government is not telling him he can’t use the phrase, just that he can’t trademark it. “There’s no limitation on him selling it. So there’s no traditional infringement.”

Indeed, the shirt is widely available to order on the internet.

The phrase draws from a locker-room taunt during the 2016 presidential campaign. Tired of Trump’s use of “Little Marco,” Sen. Marco Rubio (R-Fla.) mentioned the size of Trump’s hands during a campaign stop.

“You know what they say about men with small hands,” Rubio told a crowd in Salem, Va., in February 2016, pausing to let the audience laugh. “You can’t trust them.”

Trump responded during a televised presidential debate days later with a remarkable claim that drew headlines unseen in any previous presidential campaign.

“Look at those hands, are they small hands?” Trump said, raising them for viewers to see. “And, he referred to my hands — ‘If they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”

Elster wanted to trademark the “Trump Too Small” phrase to criticize the size of Trump’s package of policy proposals. A unanimous panel of the U.S. Court of Appeals for the Federal Circuit ruled in his favor last year, saying the prohibition on violating a person’s privacy was outweighed by Elster’s First Amendment right to criticize public officials.

“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” wrote Judge Timothy B. Dyk. “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”

The case is the latest to come before the Supreme Court involving challenges to trademark denials. In each of the previous cases those seeking registration successfully argued that the government was wrong to reject their requests as offensive.

In Matal v. Tam, government officials refused an Asian American band’s request to trademark their name “The Slants,” saying it would violate a ban on disparaging marks. In Iancu v. Brunetti, the trademark office denied registration to clothing company FUCT because of a prohibition on immoral or scandalous marks.

Trump is not a party to the current suit, and his privacy was defended by the Biden administration. Career Justice Department lawyer Malcolm L. Stewart, arguing his 100th case before the court, made the case that a trademark is a benefit awarded by the government, and consent by an individual to use of his or her name is not an undue burden on speech.

“The living-individual clause simply restricts Mr. Elster’s ability to assert exclusive rights in another person’s name,” he said, and is viewpoint-neutral.

Even if the justices seemed generally to think the government should prevail, some looked for an easier way to rule than deciding whether a trademark was a benefit the government was free to restrict.

“The extent of the government’s authority to attach conditions to government benefits is a very difficult area of constitutional law and potentially quite a dangerous one,” said Justice Samuel A. Alito Jr., who had made a similar argument in the court’s previous considerations of trademark law. Perhaps “our precedent should be extended to cover this situation, but this is quite unlike any of the other cases that we have had concerning that.”

Justices Clarence Thomas and Amy Coney Barrett pressed Stewart about how his argument might effect copyright law, which doesn’t require a person’s consent.

“Let’s imagine that there’s a similar restriction for copyright and somebody wants to write a book called ‘Trump Too Small’ that details Trump’s pettiness over the years and just argues that he’s not a fit public official,” said Barrett, who coincidentally was Trump’s third and final appointment to the Supreme Court. “Are you saying,” she asked Stewart, that the government could restrict the author from using Trump’s name?

Stewart said he thought it possible to make distinctions. Copyright law has “historically been viewed as the engine of free expression,” Stewart said, while trademarks have been seen as necessary to “foster the free flow of commerce and to allow consumers to recognize which goods are manufactured by which merchants.”

Barrett did not seem persuaded, but Elster’s lawyer Taylor had the harder outing.

He told the court that the government’s “sole interest” in denying the trademark is “protecting the feelings of famous people. But that is not a legitimate reason to burden protected speech.”

But Thomas pressed Taylor to detail “what speech precisely is being burdened.”

When Taylor said Elster was being denied government protection that is routinely given to others, Sotomayor said he seemed to be making the government’s case that the decision was about a restriction on benefits, not on speech.

After additional questions, Justice Elena Kagan told Taylor she did not want to “badger you or anything.” But she said he had failed to find a case supporting his proposition that when the law does not favor one viewpoint over another, “government cannot make distinctions when government is only giving out a benefit and not restricting any speech.”

The case is Vidal v. Elster.

Two things can be true in the Republican presidential primary: one, that Nikki Haley is the first candidate to supplant Ron DeSantis as the race’s Donald Trump alternative; two, that it’s probably for naught — that Trump has things sewn up.

But what if the second isn’t actually the case? Given Haley’s momentum in the race, it’s worth asking a question we had long asked about DeSantis: Can she beat Trump? And if so, how?

New polling confirms Haley’s upward trajectory.

She had previously overtaken DeSantis in New Hampshire and her home state of South Carolina, and a new CNN poll in South Carolina out Tuesday showed her doubling up the Florida governor, 22 percent to his 11 percent.

That’s on the heels of the venerable Iowa Poll showing her drawing even with DeSantis for the first time in what will be the contest’s earliest state.

Despite these developments in Haley’s favor, the doubters have come out strong. Trump is still flirting with half of the vote in the early states, they note, with little signs of decline. He’s still taking more of the vote than Haley and DeSantis combined in all early states. Trump’s supporters are more devoted to and enthusiastic about their candidate. What’s more, Haley is drawing primarily from a relatively small pot of non-MAGA voters; if either Trump or DeSantis suddenly faded, the data suggest it would accrue to the other man’s benefit, rather than to hers.

All of that is true. But none of it means, as one recent headline stated flatly, that “Haley has no path to nomination.”

So let’s, for argument’s sake, look at what that path — however unlikely — could be.

One reason we can’t rule this out right now is that the undercard is fluid. We’re confronting a dynamic different from what we’ve seen before in this race, with Haley laying claim to the challenger mantle. This will result in increased scrutiny of her, and voters who perhaps didn’t consider her before may give her a fresh look.

If the choice now looks more like Trump vs. Haley than Trump vs. DeSantis, that’s a new one for voters. It’s more Trump vs. a different path, rather than Trump vs. a supposedly more electable Trump Lite.

Haley’s base of support, at the very least, appears to span more parts of the party. Unlike DeSantis, she hasn’t alienated moderate voters. Unlike other candidates who have sought to appeal to the party’s mainstream, she hasn’t alienated the hardcore MAGA base (at least yet). The Iowa Poll shows she’s nearly as popular as both Trump and DeSantis there, and she actually holds a slight lead in the suburbs.

“It’s not just one particular group where she’s really dug in,” J. Ann Selzer, who conducts the Iowa Poll, told the Des Moines Register. “She’s digging in across demographics.”

Who knows whether that new dynamic could pan out differently. Continuing to appeal to both MAGA and the rest of the party has proved difficult for other candidates for a reason. DeSantis never really tried it, though he has certainly proved to be a flawed candidate.

But there have been signs that Trump’s base isn’t quite as committed as it once was. If you’re making a highly optimistic case for Haley, you could say that voters haven’t really been given a clear choice between different types of candidates and a break from Trumpism, but suddenly they will be.

The best path for everyone involved is for Trump to have an underwhelming night in Iowa on Jan. 15. That would seemingly open the door for a legitimate contest.

As for whether that could happen: Iowa appears to be Trump’s weakest of the early states, at least right now. He’s at 43 percent in the Iowa Poll, compared with 16 percent apiece for Haley and DeSantis. And two-thirds of those Trump supporters say they are committed to backing him — a little more than one-quarter of the electorate.

One way to look at that is that Trump’s supporters are more committed than other candidates’ supporters are, and that puts him on the verge of victory. Three of the past five winners of competitive Iowa caucuses have taken less than 30 percent of the vote.

But another is that more commitment is probably to be expected for supporters of a former president, and his level of support isn’t prohibitive yet. With nearly three-quarters ostensibly up for grabs and Haley having demonstrated broad appeal, she could keep the race close enough.

The problem, as noted above, is that any bleeding of Trump’s support would appear more likely to go to DeSantis. But there’s a question of whether that will definitely be the case, now that Haley looks like the alternative and DeSantis continues to look wounded.

At that point, these two states would loom large.

The latest quality nonpartisan polling in New Hampshire, from Suffolk University, is a month old. It showed Trump at 49 percent and Haley at 19 percent. (DeSantis was at 10 percent). That’s an Iowa-esque gap.

But perhaps more than any other state, New Hampshire poses unusual dynamics that could help Haley. Its GOP electorate skews more educated, independent and suburban. There’s also the fact that it was just confirmed that President Biden won’t be on the Democratic primary ballot (over a calendar dispute). And some already are trying to persuade would-be Democratic primary voters to cross over to vote against Trump. Oh, and New Hampshire has a bit of a contrarian streak; it often votes for a different candidate than the one Iowa picked.

South Carolina comes fourth, on Feb. 24, after Nevada. Haley would need to stay relevant weeks after the earlier contests, which would be no small task.

Her deficit in South Carolina is similar to what it is in Iowa and New Hampshire, if not greater — 53 percent for Trump to her 22 percent in the CNN poll this week. But this might be, for obvious reasons, the former South Carolina governor’s best shot at an early victory.

The CNN poll showed 72 percent of voters there said they would at least consider Haley, compared with Trump’s 80 percent (and 68 percent for DeSantis).

Her problem is similar to what it is in Iowa, in that DeSantis would seem more likely to peel off Trump supporters. While 19 percent of those who list her as a second choice are backing Trump, 36 percent of DeSantis’s second-choice voters are. At the same time, 60 percent of Trump backers say they would at least consider Haley, meaning their votes are in play for her — especially if DeSantis can’t make it to South Carolina and Trump fades somewhat.

A Haley victory or even a strong showing would probably come with significant caveats, given her home-state connection. But it would still be a former president struggling in a primary, which right now doesn’t seem foreseeable.

Haley’s best hope would seem to be having the outcome at least in doubt heading into Super Tuesday on March 5 (and ideally notching a win). Perhaps at that point, with Trump’s first federal criminal trial set to begin the day before Super Tuesday, voters might begin to more earnestly consider something they’ve shrugged off: electability. The most recent polling shows Haley, once broadly popular as a Trump administration official, running better than other Republicans, including Trump, in the general election.

As you can tell, we’re straining pretty hard to find a path. It’s hardly likely and seemingly pretty implausible.

But when it comes to gaming out an actual contest for the GOP nomination, it’s what we’ve got right now.

Rep. Marjorie Taylor Greene’s (R-Ga.) motion calling for the censure of Rep. Rashida Tlaib (D-Mich.) is, like so many things Greene does, an unsubtle effort to amplify fringe-right rhetoric.

Like Greene, Tlaib has been a target of criticism from the opposing party since even before she took office. On multiple occasions, motions of censure have been introduced against her, none successful. But Greene’s stands out, accusing Tlaib not only of antisemitism (a recurring claim) but of “leading an insurrection at the United States Capitol Complex.”

This is an unserious allegation, meant not to actually suggest that Tlaib attempted to overthrow the government with her participation in a protest on Capitol Hill last month but, instead, to minimize the attack at the Capitol on Jan. 6, 2021 by equating that riot with the more-recent protest calling for a cease-fire in the Israel-Gaza war.

As CNN’s Jake Tapper put it in calling out Greene’s motion as opportunistic, “antisemitism is not a cudgel to be used against people for political points, nor is Islamophobia or racism or anti-gay behavior or misogyny or any other kind of bigotry.” (He also noted Greene’s own track record of antisemitic rhetoric.)

But this is the moment we’re in. It’s not just that politicians on Capitol Hill — and in particular the House — disagree. It’s that they frame that disagreement as their opponents being unfit to serve or as disrespecting the institution itself. It’s why censure motions are booming, often centered on newer members of the chamber.

Greene is very familiar with such motions. She’s been the target of more than one herself. In fact, she’s one of a number of sitting legislators, from both parties, who have seen censure motions introduced against them. Two such motions have passed: one against Rep. Paul A. Gosar (R-Ariz.) in 2021 and another against Rep. Adam B. Schiff (D-Calif.) this year. Gosar’s followed his sharing an altered anime video on social media showing him attacking prominent Democrats. Schiff’s was centered on claims he had made about President Donald Trump.

Censure motions used to be rare. There were two in 1979 and 1980, one targeting Rep. Charles Diggs (D-Mich.) following his conviction on charges of graft and the other targeting Rep. Charles Wilson (D-Calif.).

In the early 1980s, two legislators were censured following their involvement in the congressional page scandal. In all four cases, the censures followed the work of House investigatory committees. The motions to censure came from the Democratic heads of the committees.

Then there was a lull until about 15 years ago. Former New York congressman Charles B. Rangel (D) was censured in 2010 following ethics violations. That, too, came from the Democratic chair of the Standards of Official Conduct committee.

In recent years, though, there’s been a flood. Generally, these are motions introduced by one member targeting another. At times, they come from congressional leaders; then-House Minority Leader Kevin McCarthy (R-Calif.) targeted Rep. Maxine Waters (D-Calif.) in 2021. Generally, though, they’re attacks between members of Congress that progress no further than the introduction of the motion.

From 1980 to 2019, there were nine motions focused on censure or supporting censure motions. From 2020 to now, there have been 35. That is slightly inflated, including two centered on Gosar and each of Rep. Anna Paulina Luna’s (R-Fla.) four, evolving motions to censure Schiff, but the difference is still stark.

It’s important that a lot of the recent motions have come from legislators such as Greene and Luna. Rep. Matt Gaetz (R-Fla.) has introduced such motions, as have Rep. Andrew Ogles (R-Tenn.) and Rep. Michael Waltz (R-Fla.). Each of these legislators joined the House in 2016 or later — the Trump era.

You can see the difference in tenure in the House between the two parties. A lot of the new members of the Republican caucus represent districts won by President Biden in 2020, a reflection of the shift in the 2022 midterms. But a lot sit at the top of the diagram below, representing some of the more extreme ideological positions in the caucus. That includes Ogles, Greene, Gaetz and Luna.

These are Trump-allied legislators who have not been on Capitol Hill for long, not people steeped in the sorts of tradition that in the past have fostered collegiality.

The Democrats who introduced censure motions in recent years have generally had longer careers in Washington. The legislators targeted by those censure motions include Greene (for past comments about Democratic legislators), Rep. George Santos (R-N.Y.) (for misrepresenting his background on the campaign trail) and Ogles (same).

Censure motions have become another partisan cudgel, particularly in the hands of relatively new, right-wing members of the Republican caucus. Like threats to impeach, censure motions are a way to escalate the sense of anger that drives the fundraising and attention that fuel the political economy. So they keep coming.

Rep. Ken Buck (R-Colo.) said Wednesday that he would not seek reelection next year, expressing disappointment that many fellow Republicans continue to push the “big lie” that the 2020 presidential election was stolen.

“I have decided that it is time for me to do some other things,” Buck said in an interview with MSNBC’s Andrea Mitchell. “I always have been disappointed with our inability in Congress to deal with major issues, and I’m also disappointed that the Republican Party continues to rely on this lie that the 2020 election was stolen.”

Buck’s announcement came hours after Rep. Kay Granger (R-Tex.) also said she would not seek reelection next year.

Like Buck, Granger was one of the roughly two dozen Republicans who opposed Rep. Jim Jordan (R-Ohio) for the speakership last month — and who drew criticism from hard-right parts of the Republican base for doing so. The holdouts ultimately forced Jordan to withdraw from the race, and both Buck and Granger later backed House Speaker Mike Johnson (R-La.) for the leadership position.

On Wednesday, Buck hinted that other Republican lawmakers could soon announce “in the near future” that they would also be leaving Congress.

Buck has clashed with the majority of the Republican conference in recent months, notably for opposing his party’s launch of an impeachment inquiry into President Biden. In a September op-ed for The Washington Post, Buck criticized the inquiry as one that relied “on an imagined history.”

“[I]mpeachment is a serious matter and should have a foundation of rock-solid facts,” Buck wrote then.

Buck was also one of eight Republican lawmakers who voted with Democrats to oust Rep. Kevin McCarthy (R-Calif.) from the speakership last month. During the Republicans’ struggle to elect a new speaker, Buck steadfastly opposed Jordan over his election denialism.

Last month, Buck told NBC News that he had received death threats and a notice of eviction from his office in Colorado because his landlord was upset over Buck’s vote against Jordan for speaker. Buck said then that he did not blame Jordan but pundits and groups putting out “misinformation and hateful information.”

“If we’re going to solve difficult problems, we’ve got to deal with some very unpleasant truths, or lies, and make sure we project to the public what the truth is,” Buck told Mitchell on Wednesday.

Buck expressed some optimism that Republicans would unite behind “very important issues,” including funding for Israel and Ukraine, as well as a stopgap funding bill to avoid a government shutdown on Nov. 17.

“I think there are a lot of major issues that we will unite behind,” Buck said.

Rep. Kay Granger (R-Tex.) said Wednesday that she will not seek reelection next year to the seat she has held for nearly three decades.

Granger, 80, was first elected to Congress in 1996, and she serves as the chairwoman of the powerful House Appropriations Committee. In a statement announcing her retirement, Granger noted several firsts in her career: She was the first female mayor of Fort Worth, the first Republican woman elected to the House from Texas and the first Republican woman to head the Appropriations Committee.

“I have been able to accomplish more in this life than I could have imagined, and I owe it all to my incredible family, staff, friends, and supporters,” Granger said.

She added that she plans to serve out the remainder of her term and work with newly elected House Speaker Mike Johnson (R-La.) “to advance our conservative agenda and finish the job I was elected to do.”

Granger represents Texas’s 12th Congressional District, which covers many of the cities in the western part of the greater Fort Worth area. The seat is likely to remain in Republican hands. The district is reliably conservative, and Granger has handily won reelection there, most recently in 2022 with 64 percent of the vote.

“As I announce my decision to not seek re-election, I am encouraged by the next generation of leaders in my district,” Granger said. “It’s time for the next generation to step up and take the mantle and be a strong and fierce representative for the people.”

During House Republicans’ struggle to elect a new speaker last month, Granger at one point received a single surprise vote for the speakership, from Rep. Mariannette Miller-Meeks (R-Iowa). Granger laughed off the suggestion after Miller-Meeks called out her name.

Granger also drew criticism from parts of the Republican base for opposing the speakership bid by Rep. Jim Jordan (R-Ohio). Granger and other holdouts ultimately forced Jordan to withdraw from the race, and the Texas Republican later threw her support behind Johnson, calling him a “tried-and-true conservative.”

Granger was praised by lawmakers on both sides of the aisle after her announcement. Rep. Mario Diaz-Balart (R-Fla.) — a fellow Appropriations Committee member and another Republican who steadfastly opposed Jordan for speaker — called Granger an “esteemed colleague and dear friend.”

“She stands as one of the most formidable, principled, and influential members of Congress,” Diaz-Balart wrote in a post on X. “Beyond her professional accolades, Kay has served as a guiding mentor and the truest confidante one could hope for. While her absence will leave a profound void, her legacy and contributions will forever endure.”

Rep. August Pfluger (R-Tex.) called Granger an “inspiration” and Rep. Jasmine Crockett (D-Tex.) — who represents a district adjacent to Granger’s district — described her as “a barrier-breaker” who had given “a lifetime of service” to the people of North Texas.

FBI Director Christopher A. Wray, who has been increasingly under attack from congressional Republicans, pushed back against his critics in a new interview, saying the people accusing the law enforcement agency of bias are themselves trying to gain a political advantage at the FBI’s expense.

“I have found almost invariably, the people screaming the loudest about the politicization of the FBI are themselves the most political, and more often than not, making claims of politicization to advance their own views or goals, and they often don’t know the facts or are choosing to ignore them,” Wray said in a Wednesday episode of the podcast “FBI Retired Case File Review.”

Wray pointed out, as he has before, that when President Donald Trump nominated him in 2017 to be the FBI director, not a single Republican senator voted against him. “It’s utterly bewildering to me that I or the FBI would be accused of bias against conservatives or any political party,” he said.

A number of Republican congressmen — particularly lawmakers loyal to Trump — have been on the warpath against the FBI, threatening to cut the agency’s funding and reduce its legal authority over what they claim is a pattern of politically motivated decision-making in cases involving elected officials and President Biden’s son Hunter.

That bad blood was evident Tuesday when Wray appeared before the Senate Homeland Security and Governmental Affairs Committee and was attacked by Sen. Ron Johnson (R-Wis.) over the Hunter Biden investigation.

Johnson accused the FBI of trying years ago to smear him and hurt his reelection bid, and he went on to complain that he wasn’t being given enough information about criminal investigations from the FBI and that he could not trust the information that the agency has shared with him.

“I’m an elected U.S. senator,” Johnson said. “Why is it that unelected members of the FBI can see the documents unredacted but I can’t?” Johnson went on to claim the FBI’s credibility “has been destroyed.”

Exasperated, Wray defended the bureau and his own conduct. “The idea that I, as a Republican appointee and a lifelong Republican, is biased in the way that you are describing makes absolutely no sense,” he said.

The FBI is unusual among federal agencies in that it has only one position — the director — which is nominated by the president and confirmed by the Senate. FBI directors serve at the pleasure of the president, but they are appointed to 10-year terms, and it is common for them to serve both Republican and Democratic presidents, as Wray has.

In the podcast interview, which was recorded well before Tuesday’s hearing, Wray said that defunding the FBI — an idea that has been discussed by some conservatives and embraced by Trump — would be destructive and dangerous. The FBI investigated two cases that have led to federal indictments of Trump. He is set to go on trial next year in both cases, one involving alleged mishandling of classified documents and the other related to his alleged conspiracy to obstruct the results of the 2020 presidential election.

“These calls for defunding or even dramatically limiting our funding would at best be shortsighted and reckless, and at worst be catastrophic,” Wray said. “Defunding, who does it help? … Violent gangs, child predators, Chinese spies and hackers.”

He also bemoaned a growing trend in U.S. politics of attacking institutions.

“I think all too often in today’s world, people’s standard for whether something was fair or objective or independent — whether you’re talking about an FBI investigation, a Supreme Court decision or even an election — is whether they liked the result,” the director said. “That’s not how independence and objectivity work. … This tendency to attack the motives and legitimacy and integrity of institutions when you don’t like the result is not healthy or productive.”

Wray’s interview marked the 300th episode of the “FBI Retired Case File Review,” which features interviews with former agents about how they worked investigations ranging from the Sept. 11, 2001, terrorist attacks to check-kiting con men.

The podcast host, Jerri Williams, is a retired agent who said she is alarmed by some of the more heated political rhetoric aimed at the FBI, but she also noted that the bureau’s history is full of that type of criticism, at least at the local level.

“There were definitely moments during my career when the FBI was accused of being political,” she said, citing accusations years ago that agents were trying to affect the race for Philadelphia mayor. “I think nothing has changed, other than the strategy is being played on a national scale.”

Williams said she sees a lot of criticism of the FBI in social media and news reports, but she seldom encounters it anywhere else. “Perhaps we’re paying too much attention to those making the noise? If podcasts, books, TV shows and movies are any indication about how the public really feels about the bureau, we’re doing just fine.”

Florida Gov. Ron DeSantis (R) probably doesn’t enjoy being reminded of it, but his current position and prominence are due in large part to Donald Trump, the man he is failing to supplant as the front-runner for the 2024 Republican presidential nomination.

DeSantis’s regular Trump-boosting appearances on Fox News are generally credited with the then-president’s endorsing then-Rep. DeSantis’s bid for the Republican gubernatorial nomination in 2018. DeSantis ran a campaign ad so sycophantic to Trump that year that it made national headlines. That November, he narrowly edged out his Democratic rival and won the governorship.

His narrow margin wasn’t exceptional; the Republican challenger to incumbent Sen. Bill Nelson, Gov. Rick Scott, also only barely won. Four years later, running a reelection campaign focused heavily on his laissez-infecter attitude to the coronavirus pandemic — stoking a sentiment that Trump himself had fostered in the run-up to the 2020 election — DeSantis won reelection by a wide margin. But then, so did Sen. Marco Rubio (R-Fla.). Rubio got 58 percent of the vote to DeSantis’s 59. Whatever political magic DeSantis believed he had captured was good for about 139,000 more votes than the 4.5 million Rubio got.

But DeSantis, unlike Rubio, was a darling of the right-wing conversation. Trump’s efforts to retain his office had forced him to withdraw from the spotlight, at first rather sheepishly and then as a function of losing his social media accounts. DeSantis commanded the attention of Fox News and other media outlets by weaving various trendy issues — the fight against “woke,” mentions of LGBTQ+ relationships, voting restrictions — into policy or executive orders. He became the Guy Who Might Defeat Trump, including in his own estimation.

It’s hard to overstate the importance of that period in 2021 and 2022 when DeSantis was the torchbearer of the Trumpian approach to politics. He himself generally declined to go full-bore against his critics and opponents in the Trump manner, but he had a team of folks very eager to do so. And they had a vast pool of angry online commentators willing to direct their fire at suggested enemies, a pool once largely directed by Trump and his operation. Here, too, DeSantis had been handed an advantage by Trump that he put to his own use.

You see the problem. Soon after the 2022 election, as DeSantis was basking in his (and Rubio’s) success, Trump formalized his bid for the 2024 nomination. Suddenly, he regained relevance and media attention. The creation of Truth Social gave him a way to opine on things — and for others to elevate and share what he was saying. And by the beginning of this year, he was using his platform to attack DeSantis.

Those on DeSantis’s team thought they owned the online conversation. They soon learned that, to a large extent, they were renting it. And that brings us to the boots.

In March, before DeSantis announced his campaign but after he was already losing ground to Trump in national polling, online observers began to notice the governor’s predilection for heeled boots. Boots that often had substantial heels. There is plenty of research suggesting that voters prefer taller candidates, and DeSantis’s tacking on an inch seemed that it might be a conscious effort to narrow the height gap with the taller Trump.

Trump’s social media team made boot jokes sporadically over the past few months, hinting that DeSantis was insecure or a phony or, really, once again struggling to measure up to Trump.

Then, last month, DeSantis went on Bill Maher’s HBO show. He sat in a chair opposite Maher, again sporting boots. A TikTok user clipped part of the appearance and sketched in an approximation of where DeSantis’s feet would be — suggesting not only that he was using heels to appear taller but also lifts inside the shoes themselves. That video has 14.3 million views as of writing.

In part, that’s because DeSantis was asked about it during a podcast interview last week. Host Patrick Bet-David asked DeSantis how tall he was (“5-11,” the governor replied) and suggested that he put on normal shoes to answer questions about his height. DeSantis demurred.

The video’s popularity probably is due in part also to Trump’s posting stills from it on Truth Social, where thousands reshared the images.

Now it has all blown up into what Trump fans (and others) have dubbed “Bootgate.” Politico ran a story — written by social media menswear celebrity Derek Guy — in which various boot- and shoemakers indicated their belief that DeSantis was, in fact, heightening. Late-night TV did its jokes. The Trump team sent out the latest news release in its “Kiss of Death” series about DeSantis’s campaign, suggesting that the governor’s shoes “are more appropriate for America’s Next Top Model than the campaign trail.”

The unsubtle subtext of femininity here plays into it, too. DeSantis has tried to run as the defender of individual freedom and bulwark against the nanny state. It helped him carve out his own niche in the online conversation among hard-right young men who framed his candidacy as a less-malleable iteration of Trump’s fringe politics. That’s hard to reconcile with a guy who also might be worried that he looks short.

But Bootgate is a symptom, not the disease. As the New York Times wrote last month, DeSantis figured that his campaign could outmaneuver Trump online, using his team’s experience in social media battles to keep Trump on his heels (so to speak). But that experience was earned on terrain that Trump helped shape and — particularly once DeSantis’s bid for the nomination began more obviously to falter — the online conversation turned against him.

By this time next year, DeSantis is unlikely to be the Republican nominee for president. He may, instead, be the Florida governor who is eventually remembered for his shoes.

Donald Trump in a 2016 debate infamously warned Hillary Clinton that, if he were president, “you’d be in jail.” A little more than seven years later, he appears bent on challenging judges who actually have the power to land him there himself.

But could it really get to that point? There is little question judges will seek to exhaust other options, but there is also increasingly little question Trump will continue to test their resolve with his attacks on judges, prosecutors, witnesses and others.

And his current and former allies appear to be girding for the likelihood of this tug-of-war with the judges escalating. One is even predicting Trump will go to jail. The former president has in recent weeks responded to a pair of limited gag orders with his typical defiance and provocation.

A judge in his New York civil case has fined Trump twice, for a total of $15,000, over his attacks on a law clerk. The Trump team initially left a post on his campaign website that violated the gag order. Then Trump made veiled comments the judge ruled had referred to the clerk.

In his federal election interference case, Trump responded to a judge pausing another limited gag order by issuing comments that would transparently have violated it had the pause not been in effect. When the judge reinstituted the gag order this week, Trump seemed to quickly violate it by attacking a potential witness, his former attorney general William P. Barr.

The Trump campaign told The Washington Post that Trump had not been aware the gag order had been reimposed when he called Barr “dumb,” “weak” and “gutless” on Truth Social on Sunday night. But the post remained live as of Wednesday morning, two and half days later.

What unites all of these instances is, to be charitable, a distinct lack of care on the part of Trump when it comes to abiding by the limits placed on his speech. You could certainly be forgiven for thinking Trump is being intentionally provocative and defiant. He has throughout his political career sought to exploit plausible deniability, sending coded messages to his base to say things without explicitly saying them.

New York Supreme Court Justice Arthur Engoron has wagered that is precisely what happened in the case over which he is presiding. He barred Trump from attacking his staff, and Trump proceeded to attack the judge and “a person who is very partisan sitting alongside him.” The clerk sits right next to Engoron.

Trump was called to the stand and claimed he was talking about his former lawyer, Michael Cohen, who had been serving as a witness near the judge. The judge rejected this claim, calling the explanation from Trump “not credible” and noting that Trump otherwise had no problem invoking Cohen by name. Engoron, in initially fining Trump for violating the gag order, warned that penalties could include “holding Donald Trump in contempt of court, and possibly imprisoning him.”

Current and former Trump allies seem to acknowledge where this could be headed. While appearing on Newsmax on Tuesday, Trump lawyer Alina Habba was asked about his potentially being jailed for violating gag orders. She insisted it is not something his legal team had given much thought to, while offering the kind of answer that suggests they had indeed. (She suggested the Secret Service might prevent his jailing.)

Fox News host Jesse Watters on Tuesday devoted a whole segment on the prospect of Trump being jailed, while saying, “Do you think Donald Trump is going to respect a gag order? He does not see a gag order as a threat. He sees it as a challenge.”

Former Trump White House lawyer Ty Cobb on Monday outright predicted Trump would land in jail. Cobb said on CNN, “Ultimately, I think he’ll spend a night or a weekend in jail.” He added, “I think it’ll take that to stop him.” Cobb certainly has experience in dealing with Trump. Other lawyers who have served Trump have also hinted broadly their client could be unwieldy at best.

Earlier this year, Trump lawyer Joe Tacopina had acknowledged an “ill-advised” Trump social media post featuring a picture of Trump holding a baseball bat next to a picture of a prosecutor. “I’m not his social media consultant,” Tacopina said.

Another Trump lawyer, John Lauro, has alluded to the fact that Trump does not always follow advice with his public comments. “To the extent that I can make any appropriate suggestions to a client, I do. But as we know,” Lauro said, “sometimes clients follow our suggestions, sometimes they don’t.”

Should that continue to be the case, with Trump challenging or outright flouting gag orders, judges have a number of options. The simplest option is one we have already seen: escalating fines. Trump is wealthy, but this would seem to be the most readily available tool, and Trump previously complied after Engoran fined him $110,000 for defying a subpoena. Whether such fines would be as compelling with Trump facing criminal conviction and a potential prison sentence is very much an open question.

Catherine Ross, an expert on gag orders at George Washington University, suggested a judge could also confine Trump to an apartment or house without social media. “That would be gentler than prison, but with many of the same restrictions,” she said.

Again, this would be dicey given that it would prevent Trump from traveling for his campaign. Another drastic but potentially compelling option would be threatening to expedite a trial. The federal election interference case in which Trump faces a limited gag order is set for March.

The Trump team has sought to move it to a much later date, and holding it earlier could place it in the heart of the early presidential contests. But this would not only feed into his allegations that these trials are timed to hurt him politically, it could also feed the claim that his legal team was not given sufficient time to mount a robust defense.

Obama administration attorney general Eric Holder suggested recently the judges could move to restrict access to social media. But the idea that Trump would literally be barred from a preferred method of speech could be problematic practically and also potentially lead to public backlash.

Holder, in the same interview this week, played up the other options and, unlike Cobb, downplayed the idea that the former president would ever go to jail, even as he agreed that an ordinary person would indeed be facing such a sanction.

“I would be extremely reluctant to take a person who is a former president, the leading candidate of one of our major parties, and put him in jail,” Holder said. Judges likely will be too. But Trump has a talent for forcing people into unavoidably horrible decisions they would rather not have to make.

St. Louis County prosecutor Wesley Bell announced this week he was dropping his months-long bid to unseat one of the country’s most outspoken Republican senators, Josh Hawley, to launch a primary campaign to oust fellow Democrat Rep. Cori Bush.

When asked to explain his switch, Bell pointed to Bush’s criticism of Israel.

“Our world is in a dangerous place, and we need steady and effective leadership,” Bell told reporters Monday. “And we’re not getting it” in the district.

“I think we have to stand with our allies, and Israel has always been an ally,” Bell added.

Since entering Congress in 2021, Bush has publicly spoken about what she has described as the “outright massacre in Palestine” and argued that “the Black and Palestinian struggles for liberation are interconnected.” On Oct. 7, the night Hamas attacked Israel and Israel responded with airstrikes, Bush wrote on social media to condemn the killing of civilians and called for “ending U.S. government support for Israeli military occupation and apartheid.”

Before setting his sights on Bush, Bell had unseated an incumbent to become a county prosecutor in 2018. Now, five years later, he is joining a growing cadre of people looking to issue primary challenges to liberal Democrats — several of whom are members of the House Democrats’ left flank, known as “the Squad” — who criticized the Israeli government over its policies toward Palestinians.

Reps. Ilhan Omar (D-Minn.) and Summer L. Lee (D-Pa.) also drew primary challengers who cite their criticism of Israel as an issue. George Latimer, the executive of Westchester County, N.Y., said he is weighing a challenge to Rep. Jamaal Bowman (D-N.Y.), another member of the Squad, with Israel as a potentially defining issue in the race. “It might be that this becomes a proxy argument” between “the left and the far left,” Latimer told The Washington Post.

Support for Israel by the United States is a source of growing tension within the Democratic Party. While party leaders and establishment figures have largely been united in support of the 75-year-old democratic nation, the liberal wing of the party has grown louder in challenging the Israeli government over its treatment of Palestinian people in the Gaza Strip and the West Bank.

The American Israel Public Affairs Committee — which has helped fund challenges to incumbents it considers insufficiently supportive of Israel — declined, for now, to comment on the brewing congressional races. “There will be a time for political action,” Marshall Wittmann, a spokesman for group, said in a statement Tuesday, “but right now our priority is building and sustaining congressional support for Israel’s fight to permanently dismantle Hamas, which perpetrated this barbaric, terrorist attack on the Jewish state.”

Liberal political action committee Justice Democrats said AIPAC is targeting Democrats who criticize Israel and who also challenge economic policies that hurt poor and middle-class people. “What they really are is a vehicle for Republican dollars to be spent in Democratic primaries to elect Republican-adjacent Democrats,” Usamah Andrabi, spokesperson for the PAC, said in an interview Tuesday.

Wittmann disputed the characterization from Justice Democrats, saying in a statement, “Our sole criteria for supporting candidates — both Democrats and Republicans — is their position on supporting the U.S.-Israel relationship. In fact, our PAC has supported almost half of the Congressional Progressive Caucus. It is entirely consistent with progressive values to stand with the Jewish state.”

During Omar’s first term, she wrote in a 2019 social media post that Israel’s allies in American politics were motivated by money rather than principle, playing into historical stereotypes about wealthy Jews. House Democratic leaders publicly rebuked Omar’s comments, to which Omar responded with a statement that said, “I unequivocally apologize.” Then, in June 2021, Omar wrote on social media: “We have seen unthinkable atrocities committed by the U.S., Hamas, Israel, Afghanistan and the Taliban.” After Democrats and others criticized her remarks, Omar said she was “in no way equating terrorist organizations with democratic countries with well-established judicial systems.”

Shortly after Republicans took the House majority in 2023, they voted to remove Omar from the Foreign Affairs Committee — with Rep. Kevin McCarthy (R-Calif.), who was House speaker at the time, saying Omar made “repeated antisemitic and anti-American remarks.”

Last week Omar said the United States should “fully oppose” the expected Israeli ground invasion into Gaza, citing concerns about civilian deaths and broadening the conflict globally. Omar is now facing two challengers in the Democratic primary. One of those challengers, Air Force veteran Tim Peterson, criticized Omar’s comments on Israel and said in an interview with The Post, “This isn’t the first, or last time, Ilhan will parrot Iran’s talking points.” A spokeswoman for the other Democratic challenger in the race, attorney Sarah Gad, pointed to Gad’s previous comments accusing Omar of using “divisive rhetoric” that “serves no useful purpose other than to inflame the situation.”

Omar’s campaign did not respond to requests seeking comment on her challengers.

A local lawmaker in Western Pennsylvania, Bhavini Patel, announced early last month that she would challenge Lee in the Democratic primary. Days after that announcement, Hamas attacked Israel. Lee, whose congressional district includes Pittsburgh, explained her opposition to the “Standing with Israel” resolution in the House, writing in a statement that the measure “does not acknowledge the overwhelming loss of life and humanity of Palestinians which moves us further from — not closer to — a just and lasting piece.”

Patel said in a Monday interview that she would have voted for the resolution. “Our current representative has been voting on the fringe,” Patel said. “You have an obligation to be there for your community, when they’re suffering, to understand their pain and reflect that when you vote,” she said, noting that the district includes the Tree of Life synagogue, where a gunman killed 11 people in 2018. (Lee noted the fifth anniversary of that attack last week, writing on social media, “I introduced a resolution honoring their memories and pledging to fight all forms of antisemitism and bigotry.”) A spokesman for Lee’s campaign declined to comment on Patel’s candidacy.

In 2022, Lee was elected to Congress despite an ad blitz in the primary by a pro-Israel super PAC. She won the primary by fewer than 1,000 votes, beating a candidate who had, among other things, called for strengthening the relationship between the United States and Israel.

Bowman was an educator who ran in a Democratic primary in 2020 to challenge the chairman of the House Foreign Affairs Committee, Rep. Eliot L. Engel (D-N.Y.), a staunch defender of Israel. Bowman won, despite millions of dollars in ads from pro-Israel groups that supported Engel. According to a June 2020 letter by Bowman published in the Riverdale Press, the future congressman said he opposed the “Boycott, Divestment and Sanctions movement” aimed at seeking changes to Israeli policy and supported U.S. aid to the country so people there can “live in safety and peace, free from the fear of violence and terrorism from Hamas and other extremists.” He added, “I also believe that Palestinians are entitled to the same human rights, safety from violence and self-determination in a state of their own.”

In July, amid growing tensions in the region, Bowman boycotted a joint session of Congress where a top Israeli official was scheduled to speak. “From Israel to India, we must hold our allies accountable when it comes to human rights violations and the abuses of far-right governments,” Bowman wrote on social media, “which is why I will not be attending Israeli President Isaac Herzog’s address to Congress tomorrow.” Last week Bowman voted against the “Standing with Israel” resolution in the House.

The Rev. Michael Gerald, a pastor in Westchester who had previously launched a primary challenge against Bowman, said he supported the Israeli government’s action in response to the attack by Hamas. “We can’t bring peace in after somebody kills my family,” Gerald told The Post in an interview. Gerald said he has paused his campaign to give Latimer time to make a decision. The attack by Hamas on Oct. 7 “changed a lot, for a lot of people,” Gerald said. He added that he considers Latimer a friend and would support him if he entered the race.

Latimer said Monday that Israel was one issue on which he could distinguish himself from the incumbent Bowman in his potential primary campaign. He said he would make a liberal case for supporting Israel but wouldn’t yet commit to running. “It might become a hot race,” he said. “If it happens.”

When Republicans elected Rep. Mike Johnson (R-La.) as House Speaker last week, the party celebrated the end of a turbulent stretch of infighting and dysfunction, hailing their new leader as someone who could bridge the divides in the party.

But in the days since, as Johnson’s ultraconservative positions have come into view, Democrats have moved aggressively to tie Republicans to his record, which they argue is unpopular with swing voters. They have worked to publicize Johnson’s views on the 2020 election (he worked to overturn the results), abortion (he has talked of banning it nationally) and social programs (he has advocated cutting Social Security and Medicare).

“MAGA Mike Johnson’s ascension to the speakership cements the extreme MAGA takeover of the House Republican Conference,” a Biden campaign spokesman said in a statement when Johnson was elected. “Now, Donald Trump has his loyal foot soldier to ban abortion nationwide, lead efforts to deny free and fair election results, gut Social Security and Medicare, and advance the extreme MAGA agenda at the expense of middle-class families.”

The campaign also released a video showing figures like former president Donald Trump and Rep. Marjorie Taylor Greene (R-Ga.) praising Johnson. It also includes clips of Johnson talking about abortion and the 2020 election, concluding with the tagline: “Stop MAGA extremism.”

Still, many of the attacks on Johnson are likely to come from the Democratic National Committee and the party’s House campaigns. They have spent the week since Johnson’s selection targeting vulnerable Republicans in Biden-friendly districts, feeding quotes to newspapers in states like California, New York and Pennsylvania that highlight the discordance of moderate Republicans supporting a MAGA conservative for speaker.

DNC officials also said Johnson’s ascent has been a financial boon so far: A fundraising email the party sent out after he was chosen was their best-performing email in October.

Still, members of both parties said it could be a challenge for Democrats to turn Johnson into a figure who prompts enough impassioned dislike among voters to make him an effective boogeyman. He rose to the speakership with the lowest profile in recent memory, having been elected to Congress only in 2016.

But some vulnerable Republicans privately expressed concerns that Johnson, who was little-known even to some of his colleagues before last week, has taken far-reaching positions that could hurt the party’s prospects in Democratic-leaning areas as the new speaker’s record becomes more familiar to voters.

“I’m pretty sure nobody was out looking that all up,” one vulnerable Republican lawmaker said on the condition of anonymity to speak candidly about Johnson’s record. “This was moving fairly fast.”

In particular, some Republicans have raised concerns about Johnson’s record on LGBTQ+ issues. In his early career as a lawyer, he wrote strongly worded amicus briefs against same-sex marriage and supported sodomy laws that would have criminalized homosexuality. He recently introduced legislation in Congress similar to a Florida measure that restricts the discussion of sexual orientation and gender identity in school, which critics call the “don’t say gay” law.

But many Republican strategists say Democrats are misguided if they think they can turn Johnson into a mascot for the entire GOP. Republicans used that strategy against former speaker Nancy Pelosi (D-Calif.), but she was a far more recognizable figure and it took Republicans years to make her into an identifiable target. And Republicans say privately it will take just as long for them to frame House Minority Leader Hakeem Jeffries (D-N.Y.), who is also relatively new to his position, as a target for their voters.

Johnson, for all his hard-line positions, is a newcomer with an affable personality. Equally important, Republicans say, the 2024 election will revolve around the parties’ presidential nominees, not a figure like the House speaker.

“We’re not in a midterm election,” said Doug Heye, a Republican strategist who helped lead the “Fire Pelosi” campaign that ended with Republicans capturing the House during President Barack Obama’s first term. “’Fire Pelosi’ was 2010, where it was very easy to make her the focus of congressional elections. If we tried it two years later, the conversation is all about Obama and Romney, not Pelosi.”

He added: “You can see Democrats saying, ‘Trump and Johnson’ — but the Trump part is the much louder part.”

One Republican strategist, speaking on the condition of anonymity to be frank about sensitive political dynamics, was more blunt: “Do you really believe that Mike Johnson will be the person they will run ads against, when Donald Trump is running from jail as the presidential nominee?”

Heye conceded that Democrats had briefly gained a fundraising advantage during the turbulent three-week stretch when House Republicans could not settle on a speaker, but he said Johnson has moved quickly to build out his team and try to make up for lost time.

Republicans also say Democrats will have a hard time demonizing Johnson because his mild manner makes him a much less controversial figure than someone like Rep. Jim Jordan (R-Ohio), who was nominated for speaker before Johnson but could not win a House majority. Jordan is a known entity among voters as a Trump ally and spokesman for MAGA conservatism who has aggressively pursued President Biden and his administration.

Johnson, while a staunch conservative, is also a consensus builder who will not insist that everyone vote his way, some moderate Republicans said.

“Democrats would be saying we have a right-wing speaker no matter who it was. Really, whoever we picked would have been the antichrist to them. They already had the ads — we just had to submit the name,” Rep. Marcus J. Molinaro (R-N.Y.) said. “We don’t agree on all things, but he has the capacity to build up his reputation and he’s suited to hold us together, not force us into things we don’t want to do.”

If Democrats focus too sharply on Johnson, they will not be talking about issues that voters truly care about like the economy, crime and the border, added one Republican operative, adding that the strategy would be “trying to put lipstick on a pig.”

Democrats concede that it could be hard to turn Johnson into a household name by next November, especially if Trump is on the ballot taking up the political oxygen. But they argue that his ascent to the speakership nonetheless gives them an opportunity to drive home the central message of their campaign — that Republicans have become a radical party divorced from the needs of voters.

“There is a very good chance he is going to end up being a boogeyman and/or he will end up being the embodiment of the MAGA extremism of the Republican conference,” said Viet Shelton, a spokesperson for the Democratic Congressional Campaign Committee, which coordinates the party’s House races.

The fact that Johnson starts with such a blank slate, with almost no name recognition, has prompted Democrats to move quickly to define him for voters. House Majority PAC, the main group that supports House leadership financially in elections, bought an ad in the D.C. region this week that highlighted Johnson’s backing of abortion restrictions, efforts to overturn the 2020 election result and support for cutting Social Security benefits.

Mike Smith, Majority PAC’s president, said the group believes Johnson will have a hard time protecting vulnerable Republicans, many of whom represent districts that Biden won in 2020. Former speaker Kevin McCarthy (R-Calif.), who was a pragmatist in many ways, prided himself on protecting those Republicans from electoral backlash.

Unlike Johnson, McCarthy did not come out of the religious conservative Trump loyalist factions of the party, which allowed him to actively campaign for Republicans in pro-Biden districts without hurting their prospects.

“In the back of his head, he was trying to figure out a way that they held the majority,” Smith said of McCarthy. “I think MAGA Mike Johnson, his primary motivation is not holding the majority. It is advocating for these really extreme views.”

Since becoming speaker, Johnson has moved quickly to try to alleviate such concerns, announcing that he would keep McCarthy’s team at the Congressional Leadership Fund, the largest funder of advertising to support House GOP campaigns. Johnson flew to Las Vegas last weekend to introduce himself to major GOP donors, according to a person familiar with the meeting who spoke on the condition of anonymity to discuss a private event.

McCarthy was also an accomplished fundraiser who had developed personal relationships with many of the party’s top contributors, including wealthy business leaders and megadonors who tend to be relatively moderate on social issues like abortion and LGBTQ+ rights. Because of his pragmatism, McCarthy’s positions on key issues could sometimes shift — for example, saying Trump bore responsibility for the Jan. 6 attack, 2021, on the U.S. Capitol, then meeting with Trump weeks later at Mar-a-Lago.

Johnson’s challenge, after a month of lost fundraising time during the speaker fight, is to maintain relationships with the discordant factions of his party without backing down from his positions that have earned him loyalty from the right. Republicans working on House races say Johnson’s measured tone, which contrasts with the rhetoric of his party’s right flank, has already helped with donors.

And there is little evidence so far that the Republicans’ speakership battle — which saw McCarthy ousted and three of his would-be successors fail in sequence before Johnson was finally chosen — has significantly damaged GOP efforts to recruit House candidates.

Since McCarthy was deposed, Alison Esposito, a 25-year New York Police Department veteran and former candidate for lieutenant governor, announced that she would run for a vulnerable Hudson Valley seat now held by a Democrat. Republicans also recruited Joe Teirab, the son of a Sudanese immigrant and a Marine Corps veteran, former federal prosecutor and Harvard Law School graduate, to run in a Democratic-held district in the Twin Cities suburbs.