Court Gives Trump a Pass in Census Lawsuit

             The Constitution seems clear enough on how to use the population figures from the once-every-decade Census to apportion seats in the House of Representatives among what are now 50 states. The Constitution requires “an actual enumeration” (Amendment XIV, sec. 2), not an “incomplete” or “partial” enumeration.

            Congress made the constitutional implication explicit in 1929 by specifying in the Census Act that in reporting Census figures to the president, the secretary of Commerce is required to include “the tabulation of total population by States.” Through two centuries of historical practice, the Census has included all persons residing in the United States, without regard to their immigration status.

            President Trump defied these provisions and this practice by issuing a directive to Commerce Secretary Wilbur Ross on July 21 under the title “excluding illegal aliens from the apportionment base after the 2020 Census.” Trump claimed executive authority to adopt this policy and directed Ross to comply “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

            A three-judge federal district court ruled in September, however, that Trump’s directive violated applicable statutory provisions. The court’s ruling, in a lawsuit led by the state of New York on behalf of 22 states and the District of Columbia, found that the presidential memorandum “violates the statutes governing the census and apportionment in two clear respects.”

            Federal district courts had reached the same conclusion in two separate lawsuits, but the Supreme Court concluded last week [Dec. 18] that New York lacked legal standing to bring the lawsuit and that the suit was “premature” because the eventual injury to the Empire State – reduced representation in Congress and reduced federal funding -- from excluding illegal aliens from the state’s population count was “speculative.”

            The Court’s unsigned opinion in Trump v. New York, issued apparently on behalf of the six Republican-appointed justices, leaves Trump free in his final month in office to submit an apportionment formula to Congress likely to disadvantage among others two states, California and New York, that voted against Trump in 2016 and against him again in 2020.

            The Court’s seven-page opinion described the case, contrary to the district court’s 85-page opinion, as “riddled with contingencies and speculation that impede judicial review.” The Court noted the administrative difficulties in determining the number of illegal aliens among the immigrant population in respective states. “We simply do not know,” the Court wrote, “whether and to what extent the President might direct the Secretary to ‘reform the census’ to implement his general policy with respect to apportionment.”

            Three liberal justices dissented from the decision in a forceful, 21-page dissenting opinion written by Breyer and joined by Sotomayor and Kagan. Breyer mocked the majority’s seeming insouciance toward what he called the administration’s  “illegal” policy. “Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal,” Breyer wrote, “this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed.”

            Breyer acknowledged that the few cases challenging congressional apportionment in the past came after presidents had presented their tabulations to the House of Representatives for approval. But he argued that leaving the present case unresolved and waiting to adjudicate claims later “risks needless and costly delays in apportionment.”

            The Court’s unsigned opinion expressly left the constitutional and statutory issues unresolved, but Breyer declared unambiguously that on the merits he agreed with the three district courts that had ruled the president’s memorandum unlawful. “Our tools of statutory construction all point to ‘usual residence’ as the primary touchstone for enumeration in the decennial census,” Breyer wrote. “The concept of residency does not turn, and has never turned, solely on a person’s immigration status. The memorandum therefore violates Congress’ clear command to count every person residing in the country, and should be set aside.”

            In contrast to the Court’s silence in regard to the congressional action in 1929, Breyer noted that some members of Congress considered offering proposals to exclude aliens from the population count but none was ever adopted. “Time and again throughout the debate over what became the 1929 Act,” Breyer recounted, “members considered (and rejected) proposals that would have excluded aliens from the apportionment base.”

            Breyer acknowledged that the government had cited some historical evidence to suggest “some ambiguity” about the Framers’ intentions in regard to counting aliens as part of the census required under the Constitution. “[T]he Framers’ intent is not our focus,” he responded. “Instead, the question is the meaning of the statute enacted in 1929.” Apart from that evidence, Breyer contended, “the Government offers little more than its assertion that excluding aliens without lawful status makes good policy sense. . . . Whatever the merits of that policy, it is not the approach to representative democracy that is set forth in the statute.”

            Congress passed the 1929 law, Breyer recalled, in part to reduce political gamesmanship in regard to the population count used in apportioning seats in the House of Representatives. The conservative justices’ decision to let Trump’s policy stand based on manufactured doubts about deciding the case serves Trump’s goal, knowingly even if not intentionally, of disadvantaging Democratic-majority states. The Court ought not to have been so blind the political purpose behind Trump’s policy, given the obvious conflict with the Census Act’s specification on the issue.

For Trump, a Final Loss at Supreme Court

          The Supreme Court cut to the chase on Friday [Dec. 11] by rejecting the week-old legal effort by Texas and 17 other red states to reverse Joe Biden’s victory over President Trump by judicial fiat after his decisive popular vote loss at the polls. With two justices dissenting, the Court threw out Texas’s unprecedented legal maneuver with a two-sentence order that, predictably, prompted a snivelingly defiant tweet from the about-to-be former president.

            With three Trump appointees on the Court, the justices deserve a measure of credit perhaps for spurning Texas’s anti-democratic legal maneuver. But the Court could have done more by warning, just as Pennsylvania’s attorney general did in his legal filing in the case, that Texas’s lawsuit amounted to “seditious abuse of the judicial process.”

            The Court’s order set the stage for Joe Biden, twice elected as vice president on the Obama-Biden ticket with a majority of the popular vote, to be designated as president-elect when presidential electors cast their electoral votes in state capitals on Monday [Dec. 14]. Barring any “faithless” electors, Biden will gain 306 electoral votes from 24 states, including four that he flipped from Trump’s column in 2016: Georgia, Michigan, Pennsylvania, and Wisconsin.

            Texas sued those four states on Dec. 4 for supposedly changing election procedures in violation of the U.S. Constitution by invoking the Supreme Court’s “original” jurisdiction over suits between states. Suits between states typically involve boundary disputes, water rights, or cross-border pollution but never before in a dispute over election procedures.

            The Court denied Texas’s “motion for leave to file a bill of complaint” for “lack of standing” by concluding, in legalistic phrasing, that the Lone Star State “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In lay terms, the justices said that Texas has no business whatsoever in how other states conduct federal elections.

            In advance of the Court’s action, announced in mid-afternoon on Friday, one high-profile Court watcher called for the Court to issue something more than a brief, unelaborated order. Most notably, Tom Goldstein, Supreme Court advocate par excellence and founder of the invaluable SCOTUSblog, urged the justices in the blog's first-ever editorial to “decimate” Texas’s legal filing. The justices’ action, Goldstein argued, “needs to account for this extraordinary, dangerous moment for our democracy.”

            Texas’s 92-page filing, signed by the ultrapartisan Republican attorney general Ken Paxton, was widely mocked by nonpartisan legal experts but gained support from 17 red-state attorneys general, who sought to intervene in the case, and 126 Republican members of Congress who joined an amicus brief supporting Texas’s plea. For the historical record, the Washington Post’s editorial page columnist Ruth Marcus listed all those names in a column so that they can live forever in infamous memory. “These Republicans may not be capable of shame,” Marcus wrote at the end, “but you should know who they are.”

This proud Tennessean noted sadly that the list include my home state’s attorney general and six members of the state’s congressional delegation. Among House members, the list included three members of the House Republican leadership: minority leader Kevin McCarthy, whip Steve Scalise, and Republican policy committee chair Gary Palmer. Others on the list included the ranking members of two of the chamber’s most powerful committees: Jim Jordan from Judiciary and Kevin Brady from Ways and Means.

Trump himself filed a motion to intervene as plaintiff in the case on the ground that he “clearly has a stake in the outcome of this litigation.” The five-page motion was signed by John Eastman, the archconservative law professor at Chapman University in California who most recently made news with a new “birtherism” issue challenging Kamala Harris’s qualifications for the vice presidency on the false ground that she is not a “natural born citizen.”

In advance of the Court’s order dismissing Texas’s case, some legal ethics watchers argued that Paxton himself might warrant professional discipline for bringing a case that, if not frivolous, was at the least dangerous. Garrett Epps, a longtime friend and colleague as former columnist for The Atlantic, aptly called Paxton “a legal menace” in an article published in Washington Monthly. “Let’s not futz around here,” Epps wrote, with the case not yet dismissed. “Texas has no legal interest in which presidential candidate the people of other states select.”

For their parts, Goldstein and Marcus both speculated that a strong statement from the Court might counteract the widely shared myth among Trump’s political base that Biden’s victory was tainted by widespread fraud – fraud that Trump’s slapstick legal team has yet to prove in 50 post-election court cases. In the event, however, Trump’s supporters took to the streets in Washington on Saturday [Dec. 12] by massing at the Supreme Court, perhaps one thousand strong, with placards pleading “Stop the Steal.”

The cry-baby Trump responded to the Court’s action with a whining tweet that with 74 million votes he was entitled to intervene in the case even if it was dismissed. Earlier in the week, the Court had dealt Trump’s team a decisive defeat by refusing to grant an effort by Pennsylvania Republicans to prevent certification of the Biden electors in the Keystone state.

None of the justices voted to proceed with the Pennsylvania, but in the Texas case Thomas and Alito argued, as they have argued in the past, that the Court has no discretion to refuse to hear a lawsuit brought by one state against another. Even so, Thomas and Alito stated that they would not have granted Texas the relief that the state was asking for. With yet another setback in the courts, the question for Trump must be this: “Are you tired of losing yet?”

 

Religious Liberty Ruling Risks Public Health

             Supreme Court justices have taken appropriate steps to safeguard their health and the health of the Court’s employees during the coronavirus pandemic by suspending in-person oral arguments and conferences and conducting business instead remotely, by telephone, at a safe distance from the risk of COVID-19 spread.

            The Court cast caution aside last month, however, when a 5-4 majority overturned orders issued by New York’s governor Andrew Cuomo aimed at stemming the spread of the deadly coronavirus that, to date, has claimed the lives of more than 34,000 of Cuomo’s New York constituents, including more than 24,000 in New York City alone.

            The Court’s unsigned, seven-page opinion in Roman Catholic Archdiocese of Brooklyn v. Cuomo found that Cuomo had violated free exercise rights of the archdiocese and the Orthodox Jewish organization Agudath Israel by limiting in-person attendance at worship services to as few as 10 persons in some Brooklyn neighborhoods or up to 25 persons in other neighborhoods with fewer numbers of COVID-19 cases.

            The archdiocese and Agudath Israel rushed to federal courts with separate lawsuits challenging Cuomo’s orders within a week after the Democratic governor signed the first of the orders on October 6. Two federal district court judges declined to block the orders. On appeal, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit similarly declined to enjoin enforcement of Cuomo’s order; a Trump-appointed judge, Michael Park, dissented.

            Cuomo has distinguished himself in news conferences broadcast live on cable news channels as an official, nonpartisan voice of reason in dealing with the coronavirus pandemic in contrast to the rambling, science-free presentations by President Trump and the nonscientist he selected the administration’s coronavirus task force, Vice President Mike Pence. Even so, Cuomo’s orders invited legal challenges by capping attendance at worship services while imposing no crowd limits at all on some commercial facilities deemed under the orders to be “essential businesses.”

            The limits on worship services reflected the accepted view among medical and scientific experts that the risk of spreading the virus is especially high when significant numbers of people gather together in close proximity to each other for an extended period of time – spewing virus-carrying droplets by singing, for example, and talking. The Court’s five-justice majority took no note of this underlying science, but the three liberal dissenters emphasized the point in separate opinions written by Breyer and Sotomayor.

            In her opinion, Sotomayor stressed New York’s conclusion that worship services pose a greater risk of spreading the virus than the typical coming and going of customers in big-box stores, for example. She noted that Gorsuch, who explained his views of the issue in a lengthy and sometimes rhetorical concurring opinion, “does not even try to square his examples with the conditions that medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.”

            At the Supreme Court, Cuomo faced a likely setback from the get-go given the Roberts Court’s extraordinary solicitude for religious liberty claims in a series of decisions in the 2019 term even before the appointment of the charismatic Catholic justice, Amy Coney Barrett. Cuomo had also created a legal pitfall in advance of issuing the orders by criticizing New York’s orthodox Jewish communities for openly defying public health guidance to avoid crowded gatherings.

            The unsigned opinion joined by the conservative-justice majority held Cuomo’s orders subject to strict scrutiny because they singled out religious services for unfavorable treatment. The orders, the Court found, were not “narrowly tailored” as required under strict scrutiny because Cuomo could have tied the attendance limits to some percentage of the sanctuaries’ capacity.

            One Jewish commentator correctly faulted the ultra Orthodox for continuing to engage in “large-scale gatherings for study, prayer, weddings, and funerals that can and apparently did serve as super-spreader events.” J. J. Goldberg, editor emeritus of the Jewish Daily Forward, noted in a blog post that the neighborhoods designated under Cuomo’s orders as “red zones” subject to the most stringent limits on worship services included neighborhoods with above-normal rates of positive tests for the virus.

            It is a universally accepted principle that the First Amendment’s protection for freedom of speech does not permit someone to shout fire in a crowded theater because of the inevitable risk of death and injury. This corollary ought to be universally accepted as well: “Religious Freedom Is Not a Right to Risk People’s Lives,” as Americans United for Separation of Church and State has posted on its home page. In an accompanying blog post, senior adviser Rob Boston warned that the Court’s decision in the New York case “will likely cause people to get sick and die.”

            The Court decided the New York case summarily, without oral argument or full briefing, but has now designated the decision as precedent for lower courts to follow in dealing with the flurry of similar cases around the country. In two previous cases, the Court had declined to override similar statewide orders with limits on attendance at worship services. In a new California case, however, the Court set aside a lower court decision upholding Gov. Gavin Newsom’s executive order and directed the lower court to reconsider the case in the light of the ruling in the New York case.

        Clearly, the justices were signaling that Chief Justice Roberts’ concurring opinion in an earlier decision that counseled deference to states’ efforts to limit the spread of the virus is now inoperative. The political branches have made a mess of dealing with the pandemic ever since Trump’s deliberate downplaying of the virus in the early months, and now the Supreme Court appears intent on making things even worse. Hippocrates comes to mind: “First, do no harm.”

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.

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.

 

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.”

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 Court—of which the President has nominated three justices—to 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.