Saturday, November 28, 2020

As Lame Duck, Trump Flexes His Pardon Power

          Lame-duck presidents naturally issue a flurry of presidential pardons as they are about to leave office, but President Trump put a distinctively dishonorable touch on the practice last week [Nov. 27] by pardoning his former national security adviser, Lt. Gen. Michael Flynn, for lying to the FBI during the special counsel’s investigation of Russian interference in the 2016 election.

Flynn became the second of Trump’s former associates to benefit from an act of supposed clemency that Trump used instead to portray the Russia investigation as a witch-hunt and a hoax. Trump went so far in announcing the pardon on the Wednesday before Thanksgiving as to say that it was his “Great Honor” to announce that Flynn “has been granted a full pardon.”

Four months earlier, Trump had commuted the 40-month prison sentence that his longtime political associate Roger Stone had been given for lying to Congress during the Russia investigation. Trump announced that decision on Friday, July 10, in a statement that denounced “overzealous prosecutors” for convicting Stone of charges stemming from what he called “the witch hunts” and the “Russia hoax” investigation.

Democrats in Congress criticized both of Trump’s actions as a misuse of the presidential pardon power aimed mostly at insulating the president himself from further investigations. “No other president has exercised the clemency power for such a patently personal and self-serving purpose,” House committee chairs Jerrold Nadler and Carolyn Maloney declared in a joint statement after the Stone commutation.

The House Intelligence Committee chairman, Adam Schiff, took a similar view of the Flynn pardon last week, calling it a “corruption” of the presidential pardon power. “It’s no surprise that Trump would go out just as he came in—crooked to the end,” Schiff said in a lengthy statement. Schiff had led the House investigation that resulted in impeaching Trump for abuse of office and eventually acquittal by the Republican-majority Senate.

The Constitution gives the president “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” (Art. II., sec. 2). The exception for cases of impeachment suggests at least that the Framers did not regard presidential pardons as appropriate in politically charged cases.

With that exception, the Framers gave the president virtually complete discretion in exercising what Alexander Hamilton, in Federalist No. 74, described as “a benign prerogative” needed as “a mitigation of the rigor of the law.” Hamilton argued against any need for legislative assent to a pardon on the ground that the power was “better fitted” to “a single man of prudence and good sense.”

Even before Trump’s actions, Attorney General William Barr had taken controversial steps to blunt the prosecutions against Stone and Flynn. In Stone’s case, Barr overrode recommendations from career prosecutors that Stone be sentenced to seven to nine years in prison and instead directed prosecutors to argue for the lesser 40-month sentence. In Flynn’s case, Barr initiated a virtually unprecedented move to dismiss the case even though Flynn had pleaded guilty to the offense.

The department’s motion in Flynn’s case was still pending before U.S. District Court Judge Emmet Sullivan when Trump announced the pardon. A Justice Department spokesman disclosed that the White House had advised the department of the pardon in advance, but added that the department would have preferred for the matter to have been resolved in court.

Flynn had been designated as Trump’s national security adviser after the 2016 election. He lied to investigators about a telephone conversation with the Russian ambassador, Sergey Kislyak, in which he urged Moscow to avoid any aggressive response to new sanctions announced by President Obama due to take effect on December 29, 2016. Questioned about the call three weeks later, Flynn told FBI agents that he did not remember discussing sanctions in the conversation.

Flynn resigned from the position in February 2017 after news reports of the apparent discrepancy in his accounts of the conversation with the Russian ambassador. Trump urged the then director of the FBI, James Comey, to go easy on Flynn, but the investigation resulted in an eventual guilty plea before Judge Sullivan in December 2017.

In all, six Trump associates were convicted of or charged with crimes as a result of the Russia investigation headed by special counsel Robert Mueller. With the Flynn pardon, speculation has been widespread that Trump is considering pardons for some of the others, including Paul Manafort, his former campaign chairman, who was convicted of bank and tax fraud in connection with his work on behalf of the pro-Russian Ukrainian government.

            Manafort was sentenced in March 2019 to 47 months in prison, but he was released in May 2020 because of the coronavirus pandemic. Rick Gates, Manafort’s associate and another Trump campaign aide, was convicted of similar charges and sentenced in December 2019 to 45 days in jail.

            The speculation about other possible pardons has prompted vigorous legal debate in legal circles on the question of whether Trump could pardon himself for any federal offenses committed while or before serving as president. In his post-presidential life, Trump also faces the possibility of financial fraud charges stemming from an investigation by the New York City district attorney’s office. The presidential pardon power extends only to federal offenses and thus Trump would remain in legal jeopardy to state charges after leaving the White House.

Sunday, November 22, 2020

Trump Strikes Out in Efforts to Overturn Election

            President Trump and his vice president, Mike Pence, were hard at work on Friday afternoon [Nov. 20] pursuing different strategies for overturning Joe Biden’s decisive victory over Trump in the 2020 presidential election.

            Pence declared at an open press conference that the Trump-Pence campaign would “keep on fighting to make sure that every legal vote is counted.” Pence made the assurance even though the campaign’s legal team had yet to bring forth any substantial evidence of voter fraud or ballot-counting irregularities in the three battleground states where they had filed suits: Arizona, Michigan, and Pennsylvania.

            The scatter-shot litigation served primarily to show that Trump’s legal team was in total disarray and had found no legal basis for contesting Biden’s victory. Frustrated by the results, Trump himself turned to a political strategy that amounted to an attempted anti-democratic coup instead of pursuing all legal options available under state election laws.

            Trump summoned Michigan legislators to the White House for what his press secretary, Kayleigh McEnany, disingenuously described as a “routine meeting.” Trump used the meeting to try to persuade the lawmakers to take the extraordinary step of awarding him the state’s sixteen electoral votes despite Biden’s 150,000-plus popular vote margin.

            Encouragingly, the four Michigan lawmakers who attended the meeting, including the leaders of the GOP majorities in the state’s two legislative chambers, all spurned Trump’s pleas to nullify the will of the state’s voters. In a joint statement, Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield said they had seen no evidence to refute Biden’s victory in their state. “We will follow the law and follow the normal process regarding Michigan’s electors,” the two leaders said, “just as we have said throughout this election.”

            The Trump lawyers had already struck out in Michigan a week earlier [Nov. 13] when a state court judge, Timothy Kenny, rejected a request by two Republican poll watchers to delay the certification of the vote in Detroit because of claimed interference with their monitoring of the vote tabulations. Kenny rejected the poll watchers’ allegations of misconduct as “not credible.”

            A state court judge in Pennsylvania had similarly rejected five Trump challenges to counting about 9,000 mail ballots cast in Philadelphia and adjoining Montgomery County aimed at preventing Biden from claiming the state’s 20 electoral votes. The lawsuits cited voters’ failures to supply all the information requested for the ballots. In rejecting the challenges, Judge James C. Crumlish III emphasized that the Trump campaign “was not contending that there has been fraud or that there is evidence of fraud.”

Meanwhile, Pennsylvania’s Democratic secretary of state Kathy Boockvar rejected any suggestion of a recount in the Keystone State on the ground that Biden’s 59,500-vote margin exceeds the threshold set in state law to require a recount. A federal court judge dealt Trump another setback on Friday [Nov. 20] by rejecting the campaign's suit to block certification of the state’s results on the ground that counties were using different procedures for vote-counting. In a strongly worded 37-page opinion, Judge Matthew Brann said the campaign was effectively trying to disenfranchise all of the state's 7 million voters and to impose an impossible requirement on all counties to use identical procedures in tabulating votes.

In Arizona, the Trump campaign says it is continuing to explore options to try to delay or prevent the certification of Biden’s victory in the Grand Canyon state after a state court judge had rejected a suit seeking to block certification of the vote in populous Maricopa County. The judge found that the alleged irregularities would not affect Biden’s 11,000-vote margin in the overall state popular vote.

The Trump campaign needed to prevail in all three states – with a total of 47 electoral votes – to reduce what appears to be Biden’s 306 electoral votes below the magic number (270) needed to claim the presidency.

Trump’s pull-out-all-the-stops strategy attracted free-lance assistance from an unlikely source over the past week: specifically, South Carolina’s re-elected Republican senator, Lindsey Graham, chairman of the Senate Judiciary Committee. Graham acknowledged having called officials in three battleground states – Georgia, Nevada, and Arizona – for information on ballot-certification procedures in the three states.

One veteran political observer, MSNBC’s Lawrence O’Donnell, said he could recall no previous instance of a U.S. senator’s intervening in election results in another state. The watchdog ethics group, Citizens for Re and and Ethics in Washington (CREW), went so far as to suggest that Graham’s calls amounted to illegal interference with the elections and to call on him to step down from his Judiciary Committee post.

Georgia’s Republican secretary of state, Brad Raffensperger, claimed in his account of the phone conversation with Graham that the senator had urged him to discard all absentee ballots from counties with high rates of disqualified ballots. In a Senate corridor interview with CNN’s Manu Raju, Graham disputed Raffensperger’s account as “ridiculous” and batted away any concern about an investigation of his calls.

Biden carried the Peach State by more than 14,000 votes. Raffensperger pronounced the election to have been fair and transparent and shut the door on any Trump challenges by formally certifying the results last week [Nov. 20]. Biden’s upset victory to gain Georgia’s 16 electoral votes a week after the Nov. 3 election provided a cushion after major networks had called the election for Biden on Saturday, Nov. 7, with 279 electoral votes in all to 214 for Trump.

All told, Trump’s “all-out assault on the election” adds up to much ado about nothing, but just enough to give the Republican head of the General Services Administration (GSA), Emily  Murphy, grounds for delaying the ministerial step needed to ascertain Biden’s apparent election to allow the formal transition process to begin.


Saturday, November 14, 2020

Barr's Partisan Move on Vote Fraud Hunt

         With a little over two months left in office, Attorney General Bill Barr decided to strengthen his legacy as perhaps the most partisan attorney general in U.S. history – worse even than John Mitchell, who went to jail for his role in the Watergate coverup. With Trump obviously defeated in the Nov. 3 election, Barr ordered U.S. attorneys around the country less than a week later to look for evidence of voting irregularities to support President Trump’s bogus accusations of voter fraud in the 2020 election.

            Barr’s overt intervention in the 2020 election contradicted testimony that he gave to the Senate Judiciary Committee in January 2019 before his confirmation that the Justice Department was obliged to stay out of pending election-related investigations. Barr gave that answer to Texas’s Republican senator John Cornyn as Cornyn was pressing him to criticize the FBI’s investigation of the Trump campaign’s links to Russian agents before the 2016 election.

Taking the cue, Barr agreed that the Justice Department has policies against any intervention in pending campaigns and, in a follow-up answer to Cornyn, explained the rationale. It would be improper, Barr explained, for the incumbent administration to use “the levers of power” for its own benefit to the disadvantage of the opposing party.

.Producers for MSNBC’s All in with Chris Hayes found that clip in the video archive and aired it last week as evidence of Barr’s blatant hypocrisy in reversing prior DOJ policy. Barr disclosed the reversal in a memo acknowledging that he had already directed federal prosecutors in some “specific instances” to investigate “substantial allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions in certain cases.”

Barr’s memo apparently hit Justice Department email boxes on Monday [Nov. 9] and produced what the Washington Post characterized in a headline as “shock and frustration” among DOJ careerists. Barr had proposed the new stance weeks earlier, the Post reported, but DOJ lawyers “pushed back vigorously” and “thought they had dissuaded him . . . .”

In fact, Barr’s memo resulted the very next day in the resignation of the Justice Department’s veteran election-crimes chief. Richard Pilger, head of the department’s election-crimes branch, announced the resignation in a letter to colleagues explaining that he was leaving after “having familiarized myself with the new policy and its ramifications.” Justice Department policy dating from 40 years earlier restricted any investigations of election issues until after officials had certified election results.

Barr, it must be remembered, was appointed for a second term as attorney general after President Trump fired his first attorney general, Jeff Sessions, for refusing to recuse himself from overseeing the special counsel’s investigation of Russia’s role in the 2016 election. Barr, a Republican partisan in his previous tenure at Main Justice, has exhibited no signs of discomfort in his Faustian bargain to do whatever Trump wanted in order to keep the job and stay in the president’s good graces.

Before this most recent homage to his boss, Barr’s two major sops to Trump included his attempt to scuttle the federal prosecution of his former national security adviser, Michael Flynn, for lying to Congress and his intervention to reduce the prison sentence for Trump’s longtime political confidant, Roger Stone.

In the current election, Barr had been amplifying Trump’s warnings about likely voter fraud by warning, with scant evidence, that widespread mail balloting is inevitably “open to fraud and coercion.” He aired that view in an appearance on CNN in early September that included an exaggerated account of suspected fraud in a city council election in Texas three years ago. Barr was so far off base in the telling that the local prosecutor felt obliged to describe Barr’s summary of the case as consisting of “half-truths and alternative facts.”

Barr’s new policy on investigating possible irregularities disturbed lawyers at Main Justice and, eventually, prompted more than a dozen local U.S. attorneys to push back in a letter sent to Barr on Friday [Nov. 13]. The local prosecutors, sixteen in all, complained that Barr’s memo had been “developed and announced without consulting nonpartisan career professionals” and that it “thrust[ ]  career prosecutors into partisan politics.”

 Responding to the second round of bad PR for the department, a DOJ spokeswoman emphasized that Barr included a number of caveats in the memo. The memo, the spokeswoman noted, specified that prosecutors should “exercise appropriate caution and restraint and maintain the department’s absolute commitment to fairness, neutrality, and nonpartisanship.” Barr also cautioned against opening investigations based on “[s]pecious, speculative, fanciful, or far-fetched claims.”

That characterization well describes the Trump campaign’s claims of voting irregularities  in state and federal courts to date. One newspaper headline noted that Trump’s claims had “fizzled” in court. More tellingly, the interagency election monitoring council within the administration’s Department of Homeland Security (DHS) issued a report last week [Nov. 12] that characterized the 2020 election as “the most secure in American history” and found “no evidence” that any voting systems had been compromised.

The report was issued by the Elections Infrastructure Government Coordinating Council, which includes officials from the DHS agency, the U.S. Election Assistance Commission, and state election directors from around the country. Benjamin Hovland, chair of the Election Assistance Commission, buttressed the report’s findings by warning that “baseless accusations” of voting irregularities, including those from Trump, are “playing into the hands of our foreign adversaries who want to see us lose faith in our democracy.”

Saturday, November 7, 2020

Trump's 'Litigation Barrage' Unlikely to Change Result

             The Supreme Court could yet try to have the last word on the 2020 presidential election even in the face of decisive vote margins favorable to Joe Biden in two critical states unlikely to be tipped in Trump’s favor in any eventual recounts.

            The Court’s necessarily slow-motion intervention in the one post-election case to reach the justices so far would do the country no good, but would serve President Trump’s purposes of sowing doubts about Biden’s victory and preserving Trump’s influence over a political base likely to adopt a “Lost Cause” resistance to the Biden presidency.

            Biden was “declared” to be the next president of the United States on Saturday [Nov. 7] after the unofficial election desks at CNN, MSNBC, and even Fox News awarded Pennsylvania to Biden to push him up to 273 ostensibly confirmed electoral votes. Fox added Arizona and Nevada to raise the total to 290. The apparent results must be treated as tentative for now, pending potential shenanigans in Congress if Republican legislatures in Democratic-voting states try to present competing slates of electors.

            Trump’s legal team was busy all week after Election Night (Nov. 3) looking for evidence of vote fraud with nothing much to show for their efforts . Trump and his lawyers could do the country a great service by calling the litigation barrage off now rather than dragging it out further with disorder in the streets and the inevitable risk of violence between at-war political tribes.

            At week’s end, Justice Samuel A. Alito Jr. signaled that the Court may want to issue the final word on the results in the Keystone State from One First Street instead of allowing Pennsylvania’s elected officials to make the decision in Harrisburg. Alito appeared to be reflecting the same mindset that Justice Antonin Scalia adopted two decades ago in opining that the Supreme Court had to have the final say on the disputed Bush v. Gore election.

The Court’s potential jurisdiction in the Trump-Biden race stems from suits by the state’s Republican legislators among others challenging the Pennsylvania Supreme Court’s decision to extend by three days the deadline for receiving ballots mailed by Election Day. The state court viewed the extension as a needed accommodation in the midst of a pandemic that made in-person voting hazardous to health.

            Alito issued an order directing county election boards to comply with guidance already issued by the state’s secretary of state to segregate the late-arrived ballots and to “take no action” in regard to those ballots pending further developments. The justices are still considering the Pennsylvania Republicans’ petition for certiorari to review the Pennsylvania court’s decision on the basis of full briefing and oral arguments. That process would inevitably entail at least another week’s delay or perhaps much longer.

            The networks called Pennsylvania for Biden after his lead over Trump reached 34,000. That margin is too large to be overturned in any recount, according to Richard Hasen, the nationally prominent election law expert at the University of California-Irvine. The suit “would only matter if the election were close enough that late counting ballots would make a difference,” Hasen wrote in a blog entry posted on Saturday. “They won’t, based on everything we know.”

            Hasen was one of three election law experts who were scoffing at the Trump legal team’s lawsuits as the week ended. In comments on NPR’s All Things Considered [Nov. 6], Northwestern law professor Michael Kang dismissed the litigation as “political theater.” Two days earlier, New York University law professor Richard Pildes wrote in an op-ed in the New York Times that the suits filed thus far “are highly unlikely to affect the overall outcome of the election.” In his blog entry, Hasen dismissed the Trump suits as “tinkering around the edges.”

            In the meantime, Georgia’s Republican secretary of state, Brad Raffensperger, confirmed that the state would follow the law in directing a recount in the Trump-Biden balloting because Biden's 7,000-vote lead was within the margin to trigger a mandatory recount. With 16 electoral votes, Georgia is not essential to Biden’s apparent supermajority of 306 electoral votes.

            With the decisions from the networks, Biden spoke to the nation from Wilmington late Friday night to make a very tentative claim of victory. Based on the results so far, Biden declared, “We’re going to win this race with a clear majority.” In his first tweet as president-elect the next day, Biden struck a much different note than the outgoing president in his tweets. Biden declared himself “ready to build back better for all Americans.”

           Trump, fuming inside 1600 Pennsylvania Avenue, was nowhere ready to concede the election, but seemingly determined to wage a fight to the bitter end in state and federal courts around the country up to and including the Supreme Court. Harmeet Dhillon, one of the lawyers, went so far on Fox News as to put the monkey right on the Supreme Court’s back. "We're waiting for the United States Supreme Courtof which the President has nominated three justicesto step in and do something,” Dhillon, a former vice chair of the California Republican Party, said. “And hopefully Amy Coney Barrett will come through."

            Early in the week, Republicans with reputations to protect were voicing doubts about Trump’s baseless claims of voter fraud, delivered from the White House press room on Tuesday [Nov. 3]. Appearing on CNN, the GOP’s most experienced election lawyer Benjamin Ginsberg said on Thursday [Nov. 5] that he had yet to see any evidence of fraud. By week’s end, however, GOP politicians with electoral prospects to protect—including Texas’s GOP senator Ted Cruz and South Carolina’s re-elected Republican Lindsey Graham—were starting to second Trump’s doubts, rather than face scornful tweets from Trump’s adult sons: Don Jr. and Eric.

Saturday, October 31, 2020

Court Poised to Decide Presidential Election?

           The Supreme Court has put itself in position to determine the winner of Tuesday’s presidential election, just as the Court did twenty years ago in Bush v. Gore, to its lasting discredit. At worst, the Republican-majority Roberts Court could be remembered, just as the previous Court is remembered, for making it impossible to ascertain the true winner of a hotly contested presidential election.

            The best hope for the Roberts Court to avoid being caught in a partisan cat-fight is a decisive popular vote mandate for the Democratic nominee, Biden. An overwhelming national vote count, along with decisive margins in battleground states, might render moot the various legal challenges to late vote-counting that President Trump and his supporters seem certain to file in blue-voting states.

            In dealing with a succession of election procedure cases over the past six weeks or so, the Supreme Court has lost sight of what should have been the overarching ratio decidendi—the importance of ensuring that “every vote counts,” just as the pre-Election Day public service announcements tell us. Instead, the justices have allowed accommodations for voters in some cases and disallowed them in others, based on formalistic distinctions rather than the need to strengthen and protect the constitutionally protected right to vote at a time when in-person voting turns crowded public gatherings such as voting lines into a serious risk to personal health.

            The likelihood of deciding Tuesday’s election in the courts instead of at the ballot box increased with a lawsuit filed late last week [Oct. 28] by Texas Republicans seeking to throw out up to 100,000 ballots cast in curbside voting in predominantly Democratic Harris County, which includes the nation’s fourth largest city, Houston. The Republican plaintiffs in Hotze v. Hollins—a GOP state legislator, a Republican candidate for Congress, and two voterscontend in their complaint that the Harris County clerk Chris Hollins violated state and federal law by allowing indiscriminate drive-through curbside voting, which they say is not a legal “polling place” under state law nor permitted by any of Texas’s other 253 counties.

            With contact-less meal delivery now the norm in the midst of the novel coronavirus pandemic, Hollins explained his decision as a way for voters to cast ballots from the safety of their own car.  and thus avoid the risk of contacts with Covid-exposed voters in long lines of the sort seen in many jurisdictions across the county as early voting has spiked to record levels. Hollins contends he got authority for the procedure from the Republican secretary of state, but the Hotze plaintiffs note accurately that the Texas Supreme Court rejected the procedure unless the would-be drive-thru voter met specific conditions listed in state law.

            The GOP plaintiffs got a generous serving of home-cooking when the case was assigned to a federal judge, Andrew Hanen, who has an established reputation as one of the most partisan Republican jurists not just in the Lone Star State but in the entire country. The plaintiffs cite Bush v. Gore itself to show that Hollins’ decision to permit a voting procedure adopted nowhere else in the state violates the Equal Protection Clause’s supposed guarantee for uniform election procedures throughout an individual state.

            Democrats and their voting rights allies were cheered by two Supreme Court decisions last week [Oct. 28] allowing extended deadlines for mailed ballots in two battleground states, North Carolina and Pennsylvania. The 5-3 decisions in the two cases—Moore v. Circosta and Republican Party of Pennsylvania v. Boockvar—turned apparently on a jurisdictional line: state officials themselves had allowed the extended deadlines, the chair of the state board of elections in the North Carolina case and the secretary of state in Pennsylvania. Roberts and Kavanaugh cast pivotal votes to allow the extended deadlines, with their harder-line conservative colleagues in dissent: Thomas, Alito, and Gorsuch.

            The Court on the same day blocked extended deadlines for mail ballots in Wisconsin by staying a federal district court judge’s order to give more time for ballots to reach vote-counting election offices. The 5-3 vote in Democratic National Committee v. Wisconsin State Legislature pitted the five conservatives against the three liberal justices in dissent: Breyer, Sotomayor, and Kagan. Roberts explained the at-variance results in the day’s cases by contending in a one-paragraph opinion that the federal court’s intervention in the Wisconsin case was “improper” while the other two cases “implicated the authority of state courts to apply their own constitutions to election regulations.”

            In an 18-page opinion explaining his own vote in the Wisconsin case, Kavanaugh warned that the public may lose confidence in an election result if late-counted ballots “flip” the apparent Election Night result. Rick Hasen, the prominent election law expert at the University of California-Irvine, aptly accused Kavanaugh of adopting a “Trumpian mindset” in his opinion by casting doubt on any ballots counted after Election Night.

In a 12-page dissenting opinion, Kagan refuted Kavanaugh’s premise by noting that “there are no results to ‘flip’ until all votes are counted.” She argued that public confidence in the election was at greater risk from the likely discarding of thousands of ballots cast by voters in a timely fashion but delivered only belatedly because of delays in mail service.

            Together, the Supreme Court’s decisions in effect give Trump a roadmap to contesting state by state results in Tuesday’s voting and subsequent ballot-counting: file the suits in federal courts instead of in state courts. A federal judge’s ruling to count challenged ballots will get little deference at One First Street, especially after Trump’s third appointed justice, Amy Coney Barrett, settles in and gives the Republicans a hard-to-block 6-3 majority.

Saturday, October 24, 2020

Barrett Could Be Decisive in Election Cases

            Make no mistake: the fast-paced nomination and confirmation of Judge Amy Coney Barrett to the Supreme Court is a critical step in President Trump’s long-shot strategy to win re-election even if he loses the nationwide popular vote for a second time.

            Trump designated the Supreme Court as an essential decisionmaker in the 2020 presidential election on Sept. 21, five days before the Rose Garden ceremony to announce Barrett’s nomination to fill the vacancy left by the death of Justice Ruth Bader Ginsburg.

Answering questions from reporters on the White House grounds, Trump explained why he was rushing to fill the ninth seat as soon as possible. “We need nine justices,” Trump said, according to news accounts of the exchange. “You need that. With the unsolicited millions of ballots that they're sending . . .  you're gonna need nine justices."

            The importance of Barrett’s potential vote in election-related cases became apparent last week after the eight-justice Court divided 4-4 on Monday [Oct. 19] in decisions in two companion Pennsylvania case, Pennsylvania Republican Party v. Boockvar and Scarnatti v. Boockvar, to allow extended deadlines for receiving mail ballots within six days after Election Day. The Pennsylvania Republican Party in one case, and GOP legislative leaders in the other, were challenging a decision by the Pennsylvania Supreme Court, based on a broadly phrased right-to-vote provision in the state’s constitution, to extend the legislated deadlines for receiving this year’s anticipated surge in mail ballots.

            Four conservative justices – Thomas, Alito, Gorsuch, and Kavanaugh – said they would have stayed the Pennsylvania Supreme Court decision as the Republicans were asking. Chief Justice Roberts created the inconclusive 4-4 split by siding with the three remaining justices in the Court’s liberal wing: Breyer, Sotomayor, and Kagan. None of the justices wrote to explain their reasons for either granting or denying the stay.

            The four votes to override the state’s supreme court came from conservative justices who ordinarily steer clear, in the interest of federalism, of intruding on states’ prerogatives. The Washington Post’s coverage of the decision carried the prescient headline: “High court split in Pa. case portends Barrett’s pivotal role.”

            In his analysis of the decision, election law expert Rick Hasen at the University of California-Irvine Law School noted that Democrats had urged the justices to rule on the case only after full briefing and argument and only with full opinions. By withholding any explanation of the decision, Hasen wrote, the Court was laying the foundation for “a huge problem in two battleground states”– North Carolina and Pennsylvania – where Democratic-majority state supreme courts and Republican-controlled legislatures could end up clashing over ballot-counting rules.

            Trump carried both of these battleground states, North Carolina and Pennsylvania, in 2016 with less than a majority of the popular vote. He carried Pennsylvania with its 20 electoral votes by 44,000 votes over Democrat Hillary Clinton; he carried North Carolina with its 15 electoral votes by a wider margin, around 173,000 votes. Public opinions polls indicate likely close votes in both states in this year’s election.

            Two companion North Carolina cases are, in fact, pending before the justices as this column is being written on Saturday [Oct. 24]: Wise v Circosta and Moore v. Circosta. Republican members of Congress and Republican legislative leaders in the Tar Heel State are seeking to enjoin a decision by the chair of the state’s board of elections, Damon Circosta, to extend the deadline for receiving mail ballots by six days because of anticipated mail delays in delivering ballots.

Circosta and voting rights groups filed their responses on Saturday afternoon. The justices took an unusually long time – two weeks -- to rule in the Pennsylvania case, so a decision in this similar case from North Carolina may take several days or longer.

            The Court has already decided, with mixed results, a handful of similar cases from states where Republicans or the Trump campaign challenged pandemic-related accommodations for voting and counting ballots. In another case decided last week [Oct. 21], the justices divided 5-3 in overriding a federal district court judge’s order to allow counties in Alabama to permit curbside voting in this year’s election. The three liberal justices – Breyer, Sotomayor, and Kagan – said they would have denied the stay requested in Merrill  v. People First of Alabama by the state’s Republican secretary of state, John Merrill, who had banned curbside voting statewide.

            In ruby-red Alabama, the dispute seemed likely to be inconsequential in determining the outcome of the presidential contest between Trump and his Democratic opponent, former vice president Joe Biden. Four years ago, Trump carried the state, with its nine electoral votes, with 62 percent of the popular vote. But oddsmakers foresee a close race this year for the U.S. Senate seat won in 2018 by Democrat Doug Jones, who is seen as trailing his Republican opponent, the former college football coach Tommy Tuberville.

            The Court’s divided votes and seemingly inconsistent decisions underscore Barrett’s pivotal role once the Senate completes her confirmation, as expected, on Monday [Oct. 26]. Trump’s broadly phrased, unsubstantiated claims of mail ballot irregularities portend a likely post-Nov. 3 strategy of challenging results in any states with relatively narrow margins. Barrett steadfastly refused during her confirmation hearing to pledge to recuse herself in any such cases and instead promised only to consult with her future colleagues on the question.

Saturday, October 17, 2020

Barrett Won't Pull Away From Trump's Coattails

           President Trump’s Supreme Court appointee, Judge Amy Coney Barrett, asked the Senate Judiciary Committee last week [Oct. 14] to trust in her independence and integrity if confirmed to the Court. Barrett’s evasions on any questions touching on Trump’s views, however, provide good reason for doubting her independence from Trump if seated to join the five other Republican-appointed justices.

            Barrett made her plea as Democratic senators, including Delaware’s Chris Coons, pressed for a promise to recuse herself from the election-related litigation that Trump promised to bring to the Supreme Court almost in the same breath as he was nominating Barrett. “I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people,” she said on Tuesday [Oct. 13], in the first of her three days of questions from the Republican-majority committee.

            The recusal issue was one of at least five lines of questions from Democrats that gave Barrett easy options to pull herself away from Trump’s coattails. But she begged off on each one, by hiding behind the need to avoid opining on what she described as “contentious” public policy issues or on legal questions that might come before her as a  justice.

            Her non-answer on the recusal issue was especially inane. She promised not to make the decision for herself but to decide only after consulting with her colleagues—supposedly the standard practice for justices pressed for recusal because of some possible conflict of interest. It must be noted that the Roberts Court has divided along partisan lines in several election-related cases over the past year.

When Trump v. The American People reaches the Court, the five Republican-appointed justices, including Trump’s previous two appointees, may well want or need Barrett’s vote to solidify a majority for the petitioner president. Indeed, think back to Bush v. Gore when Justice Sandra Day O’Connor, a Bush supporter, gave the Republican-appointed conservatives the needed vote to end the Florida recount that might have cost Bush the election.

Republican senators offered Barrett a rationale for non-recusal in the eventual Trump case by noting that President Clinton’s two appointees, Ginsburg and Breyer, were not pressed to recuse themselves several years after their appointments when Clinton v. Jones reached the Court. In fact, Ginsburg and Breyer both voted in the eventually unanimous decision against Clinton’s plea for immunity from civil lawsuits while serving as president.

The other issues that Barrett ducked included voter intimidation, climate change, systemic racism, and the president’s pardon power. Barrett must have seen that the easy answer to each of those questions would have generated mini-headlines separating herself from Trump’s positions. In that regard, it is worth recalling that as Supreme Court nominee, then-Judge Neil Gorsuch showed at least enough integrity to distance himself from Trump’s criticism of the “Mexican judge” who was presiding over the civil lawsuit against Trump University.

Minnesota’s Amy Klobuchar noted to Barrett that the Trump campaign is recruiting individuals with “special forces” experience to act as poll watchers on or before Nov. 3. Klobuchar asked, in effect, whether the presence of armed poll watchers would amount to voter intimidation under federal law. Barrett hid her non-answer behind a legalism. “I can’t characterize the facts in a hypothetical situation,” she said.

Barrett was similarly agnostic when asked whether she believes that climate change is occurring, as all reputable scientists believe. Barrett surely knows that her presidential benefactor has described climate change as “a hoax.” Had she indicated agreement with scientists instead of with the non-scientist Trump, the headline writes itself: “Barrett Clashes With Trump on Climate Change.”

Barrett similarly avoided directly acknowledging to New Jersey’s Cory Booker the presence of systemic racism in the criminal justice system today. Again, Trump and his attorney general, William Barr, have resisted any generalized acknowledgment of racism in criminal justice. With her non-answer, Barrett aligned herself with the Trump administration non-position.

With Trump under investigation for possible criminal prosecution by the New York City district attorney’s office, Trump might be considering trying to pardon himself as he leaves the White House after failing re-election. Under questioning by Vermont’s Patrick Leahy, Barrett declined to opine on what she called “an open question” about the president’s self-pardoning power. Still, she might at least have quoted the centuries-old Latin maxim “Nemo judex in causa sua” (no one can be a judge in his own case) as casting doubt on the supposed self-pardon power.

Barrett was given another opportunity to demonstrate her integrity in an open letter signed by more than 80 Notre Dame faculty members urging her to withdraw from the nomination altogether because of what the academics called “the anti-democratic machinations driving your nomination.” Barrett was not asked about the letter during the hearings and has said nothing on the record even to indicate that she has read it. Suffice it to say that one way to prove her integrity would be to renounce the reward that Trump has offered her in a Faustian bargain.

Sunday, October 11, 2020

Barrett Poses Risk to Rights, Public Health

           Judge Amy Coney Barrett appears to be on her way to becoming the next associate justice of the Supreme Court on the United States. If Republicans have their way, she may take her seat early enough to cast a decisive vote to throw out the Affordable Care Act and leave millions of Americans without health insurance in the midst of the coronavirus pandemic.

            The Court is currently scheduled to hear arguments in that case on Nov. 10, one week after the election. The Trump administration is supporting the argument by red states led by Texas that Congress effectively eliminated the act’s individual mandate in 2017 and for that reason the entire law must be thrown out.

            With 47 seats, Senate Democrats s may not have the votes to block or delay Barrett’s confirmation in either the Judiciary Committee or on the Senate floor, but they can use the confirmation hearings that begin on Monday [Oct. 12] to underline the risk that Barrett’s confirmation would pose to individual rights and to public health. Barrett has previously criticized Chief Justice Roberts for his pivotal vote in 2015 to uphold the act.

            In advance of the hearing, Republicans are playing down the issue that President Trump put at the top of his Supreme Court agenda: overruling the landmark abortion rights decision, Roe v. Wade. As one example, the Washington Post noted in a story [Oct. 9]  that Iowa’s Republican senator Joni Ernst described the chances of overturning Roe v. Wade as “very minimal” in a Sept. 28 debate with her Democratic opponent.

            The reproductive rights organization NARAL is emphasizing that in fact the anti-Roe v. Wade position is politically unpopular. Despite the anti-abortion lobby’s unceasing attacks on the 47-year-old decision by a 7-2 Supreme Court, most Americans do not want to see it overruled. In the most recent poll, NBC News found that 66 percent of Americans surveyed do not want to see the decision overruled and, in fact, that Republicans are “virtually split” with a bare 50 percent majority in favor of reversing the decision.

            Barrett, a member of Faculty for Life when she was a law professor at Notre Dame, has taken the minority position on this issue for years—for example, in a political advertisement in Indiana in 2006 that denounced “the barbaric legacy” of the decision and called for it to be overturned. Whether inadvertently or intentionally, Barrett omitted mention of having signed the advertisement.

Years later, however, Barrett soft-pedaled her stance somewhat in a speech at Notre Dame in 2013. "The fundamental element, that the woman has a right to choose abortion, will probably stand," she said. Three years later, she acknowledged the possibility of further restrictions on abortion rights. "I don't think abortion or the right to abortion would change,” she remarked in 2016. “I think some of the restrictions would change."

            As a federal appellate judge, Barrett dissented from a Seventh Circuit decision that struck down an Indiana law prohibiting abortions for the purpose of sex selection. Reproductive-rights groups always emphasize that provisions such as that one inevitably mean that the government gets to cross-examine a woman about her reasons for wanting to terminate a pregnancy. So much for the right to choose!

            Barrett, it must be remembered, has written that her notion of originalism overrides the legal principle of stare decisis—respect for precedent. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in a law review article in 2013.

            Senate Democrats can usefully remind Barrett of Chief Justice Roberts’ description of Roe v. Wade in his confirmation hearing as settled law and ask whether she agrees. Barrett is likely to evade the question, but Democratic senators may want to note that Louisiana and Texas both enacted laws that could have reduced the number of abortion clinics in each state to only one. Fortunately for access to abortion services, the Court struck down both laws by 5-4 votes; as Ginsburg’s successor, Barrett would provide a critical vote for upholding similar restrictions.

            In an alternate universe, the Republican senators who four years ago blocked Merrick Garland’s nomination to the Supreme Court eight months before the 2016 presidential election would be too embarrassed by the rank hypocrisy of pushing Barrett’s nomination barely one month before this year’s election. In this real world, however, Republicans have no principles and no capacity for shame.

            The Democratic vice presidential nominee, Senator Kamala Harris, raised this issue one last time in the vice presidential debate [October 7] by noting as historical precedent President Lincoln’s decision shortly before the 1864 presidential election to delay filling a Supreme Court vacancy until after the election. “American people are voting right now,” Harris said. “It should be their decision as to who should have a lifetime appointment to the Supreme Court.”

 In fact, a dozen polls indicate that most Americans want the vacancy to be filled by the winner of the 2020 presidential election. In that regard, Democratic senators should press Barrett very hard on whether she will recuse herself – as she ought to – from any litigation brought by her benefactor Trump to contest Nov. 3 election results.

Sunday, October 4, 2020

In Texas, New Move on Voter Suppression

          In Texas, the state’s Republican governor Greg Abbott came up with a new technique of voter suppression last week [Oct. 1] by directing two of the state’s predominantly Democratic counties to reduce the number of drop-off boxes for voters to deposit absentee ballots in advance of Election Day.

            Abbott issued his proclamation two days after President Trump used the first presidential debate [Sept. 29] to repeat his call for supporters to assemble at polling places on Election Day, ostensibly to guard against voter fraud. The Texas governor similarly described his proclamation as an effort to “strengthen ballot security protocols throughout the state.”

            Two Democratic counties were immediately affected by Abbott’s order that all of Texas’s 250 counties limit the number of ballot drop-off boxes within their expansive borders. Travis County, which includes the state capital of Austin, had to eliminate three of the four drop-off boxes already in place; Harris County, which includes the nation’s third largest city, Houston, had to get rid of eleven of its twelve drop-off boxes.

Democratic officials in both counties immediately criticized Abbott’s move as amounting to voter suppression. Voting rights groups filed federal court suits the next day challenging Abbott’s proclamation as a violation of the federal Voting Rights Act.

            Texas now joins several other battleground states with litigation over actions being taken to ease mail voting in the midst of a pandemic that makes in-person voting hazardous to voters’ health. Two of those cases – one from Pennsylvania and another from Arizona -- are now at the Supreme Court, which divided along partisan lines in a Wisconsin case in April in blocking a federal court order opposed by GOP legislators to extend absentee ballot deadlines.

Republican officials waging those legal battles echo Trump’s unsubstantiated warnings about likely fraud with expanded mail voting. Federal judges, however, have generally dismissed the allegations and allowed election officials, for example, to extend deadlines for receiving ballots given the likelihood of delays in the mails.

             In the most recent ruling, a federal judge in Montana rejected an effort by the Trump campaign and GOP officials in the state to block the state’s 56 counties from conducting the Nov. 3 election by mail. In rejecting the suit, U.S. District Court Judge Dana Christensen, an Obama appointee who served as chief judge for seven years, noted that the GOP officials “were compelled to concede that they cannot point to a single instance of voter fraud in Montana in any election during the last 20 years.”

            In Texas, a spokesperson for Abbott was described by The Texas Tribune as failing to explain how multiple drop-off ballot boxes could lead to voter fraud. In Travis County, the county clerk Dana DeBeauvoir described Abbott’s proclamation as “a deliberate effort to manipulate the election.” In Harris County, the county’s chief executive Lina Hidalgo echoed that view. “This isn’t security, it’s suppression,” Hidalgo said.

            Trump carried Texas, with its 38 electoral votes, by a 9 percentage point margin in 2016. His Democratic opponent, Hillary Clinton, carried Harris and Travis counties by substantial margins. In the most recent polls, Trump leads the Democratic nominee, former vice president Joe Biden, by an average of 2.5 percentage points.

            With only one month before the Nov. 3 election, the federal court suits challenging Abbott’s order may not move fast enough to allow the two counties to re-establish some of the drop-off boxes that have been removed. The groups that filed the suits include the Texas and National Leagues of United Latin American Citizens, the League of Women Voters of Texas, and the Texas Alliance for Retired Americans.

            Also last week, Republican legislators in the key battleground state of Pennsylvania asked the Supreme Court to intervene to stop a decision by the state’s high court to count mail-in ballots received up to three days after Election Day. The GOP lawmakers who filed the application in Scarnati v. Boockvar on Monday [Sept. 28] contended that the state court’s decision, aimed at accommodating likely mail delays, intruded on the legislature’s authority to set election rules.

            Trump carried Pennsylvania with its 20 electoral votes by a 44,000-vote margin in 2016. Current polls show Biden with a 5.8 percentage point lead over Trump in the state. Pennsylvania is listed along with Michigan and Wisconsin as among the states crucial to Trump’s Electoral College victory in 2016 despite losing the nationwide popular vote by nearly 3 million votes.

            The Supreme Court took up another election-related case at the end of the week [Oct. 2] by agreeing to hear a plea by Arizona’s Republican attorney general to uphold two election laws struck down by a federal appeals court on the ground that they discriminated against minority voters. One of the laws requires election officials to discard ballots cast at the wrong precinct; the other makes it a crime for campaign workers, community activists, or others to collect ballots for delivery to polling places.

            In striking down the “ballot collection” law, the en banc majority of the Ninth U.S. Circuit Court of Appeals stated that there was “no evidence of any fraud in the long history of third-party ballot collection in Arizona.” The appeals court stayed its ruling; so the laws remain in effect for the Nov. 3 election. The justices’ decision to review the case, Brnovich v. Democratic National Committee, tees it up for oral arguments early next year and a decision by the end of June.


Sunday, September 27, 2020

Donald Trump versus Democracy on November 3

            President Trump’s repeated refusal to abide by the results of the presidential election puts American democracy at risk to an extent unseen since the time of the Great Depression in the 1930s.

Republican senators who have enabled the worst of Trump’s excesses in the White House have tried to dispel doubts about a peaceful transition of power after Trump’s looming defeat. Those reassurances are empty of content, however, in the face of Trump’s ability to marshal federal resources and his political base to try to thwart the will of the American voters.

            Trump’s bag of tricks to neutralize a second popular-vote loss, possibly much larger than his 2.8 million vote deficit to Hillary Clinton in 2016, includes vote suppression, voter intimidation, and vote-counting litigation and confusion after Election Day. He set the stage for challenging election results at the Republican National Convention in August by declaring that the only way he could lose was to “a rigged election.”

            His Democratic opponent, former vice president Joe Biden, had already warned as early as the spring that Trump would try to steal the election. Biden’s Democratic primary opponent, Vermont’s blunt-spoken independent senator Bernie Sanders, stepped up the rhetorical heat on the issue in a speech last week [Sept. 24] at George Washington University.

            “This election is not about Joe Biden versus Donald Trump,” Sanders declared. “This is about Donald Trump versus democracy.”

            Level-headed election experts and historians are warning of a constitutional crisis that can spread through courtrooms in several states and even into the streets. “We could well see a protracted postelection struggle in the courts and the streets if the results are close,” says Richard L. Hasen, the nation’s pre-eminent election law expert and a professor at the University of California-Irvine Irvine School of Law.

Trump’s campaign organization is actively recruiting “an army” of supporters to help police potential voter fraud at polling place. Virginians in suburban Washington, D.C., got a taste of what is to come when early voters waiting in line for hours in Fairfax County were met by a throng of Trump supporters carrying Trump-Pence placards in seeming defiance of rules against electioneering at polling places.

Hasen has been warning of the dangers to electoral democracy all year, ever since he published his book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press) in February. Hasen identified four factors threatening the integrity of the 2020 election: voter suppression; incompetence in election administration; misinformation campaigns; and inflammatory rhetoric undermining faith in the integrity of elections.

A new threat to the election has now been reported in a disturbingly well-documented article by Barton Gellman, a staff writer with The Atlantic, published online last week [Sept. 23] under the headline “The Election That Could Break America.” Gellman envisions a scenario that leaves the results of the election in doubt not only for the days of late ballot-counting in November but even into an extended interregnum that ends in Congress or at the Supreme Court, with two or perhaps three Trump-appointed justices.

Republican-controlled legislatures in battleground states might designate Trump-pledged electors whatever the results of the popular vote in the state. States have until December 8, thirty-five days after the election to make those designations. In his story, Gellman reported that Republican legislators in Pennsylvania are already discussing this scenario. As of late September, Biden leads Trump by 5 percent or more in pre-election polls in the Keystone State.

Gellman went on to note that Republicans control both legislative chambers in six of the most closely contested battleground states: Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin. Four of those states have Democratic governors — all but Arizona and Florida — who might be in a position to thwart the GOP legislators’ effort by certifying electors in line with the popular vote.

Trump would remain as president throughout, up to January 20, with the power to direct his lapdog attorney general William Barr to send Justice Department attorneys into courtrooms to buttress challenges to vote counts. Vice President Mike Pence would be the presiding officer in a Republican-majority Senate with the power to rule on electoral vote challenges.

Gellman warns that whatever happens, Trump will not concede defeat, just as losing presidential candidates have done gracefully and respectfully ever since William Jennings Bryan acknowledged his loss in 1896 to William McKinley. Gellman, who worked in Al Gore’s 1988 presidential campaign, also recalls that Gore bowed to the Supreme Court’s decision in Bush v. Gore even with some avenues for legal challenges still open to him.

“Donald Trump may win or lose, but he will never concede,” Gellman writes. “Not under any circumstance. Not during the Interregnum and not afterward. If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.”

Trump’s MAGA-wearing supporters will believe him, just as they now believe his contrafactual warnings that mail ballots inevitably entail widespread voter fraud. Trump continues to call mail ballots a “scam” even as military service members use the time-honored procedure to exercise their rights. Republican campaign aides have been out in force already criticizing “activist judges” who extend deadlines for mail balloting in deference to what is expected to be an unprecedented crush of by-mail voting.

Polls indicate that Democrats are more likely to vote by mail than Republicans; thus, any  challenges to late-arriving mail ballots are likely to disqualify more Democratic votes than Republican votes. In battleground states, those challenges could spell the difference between a Biden victory or a Trump victory: imagine a Florida-like recount that turns not on hanging chads but on voting-by-mail postmarks.