Don McGahn, Trump’s Lawyer, Opines on Trump’s Likely SCOTUS Choices

Via Right Wing Watch:

The Supreme Court was a major topic at the event, as it was throughout the convention, where the court was cited frequently as the ultimate reason for conservative voters to back Trump despite whatever qualms they might have.

Making that point most extensively was Trump counsel McGahn, who called the list of 11 potential Supreme Court nominees released by the Trump campaign the most important insight into how Trump will govern. “For those conservatives who are on the fence…I would counsel them to take a very hard look at this list and I would also counsel them to take a very hard look at what’s at stake in this election.”

McGahn said the list presents “a defining moment” and “a very, very, very clear choice for Americans.” It contains no moderate or “squishy” judges, he said, “no stealth candidates” and “no David Souters.” A number of them, he noted, clerked for Justice Clarence Thomas or the late Justice Antonin Scalia.

“Everyone on the list is already wearing a black robe,” McGhan said. He explained that there were a number of state Supreme Court justices on the list because many conservative “rising stars” whose age puts them in the “sweet spot” for a Supreme Court nomination are not on the federal bench:

Frankly, anyone in what I consider to be the sweet spot barely had an opportunity to be considered for chance to be considered for a federal court appointment in the last Republican administration so I think the rising stars who are conservative, conservative-libertarian, movement conservative, whatever one wants to label themselves, constitutionalist, textualist, etc., etc., are really going to be found on the state courts, simply because that’s where we are generationally.

McGahn did praise by name a few of the federal judges on the list, including William Pryor and Diane Sykes. And he mentioned state Supreme Court justices Allison Eid of Colorado and Don Willett of Texas, an anti-regulatory judge whose opinion in a Texas licensing case McGahn called “a manifesto on economic liberty we have not seen in our lifetime.”


“DNC Seeks Dismissal of Lawsuit Alleging Donor Deception”

Jacob Gershman for the WSJ Law Blog:

Claims that Democratic Party leaders conspired to squash the presidential primary campaign of Sen. Bernie Sanders have not only led to a party shake-up but have sparked class-action litigation.

A trove of hacked party emails posted by WikiLeaks show that Democratic National Committee officials had worked to undermine the underdog campaign of Mr. Sanders.

Weeks before the firestorm erupted, culminating in the resignation of party chief Debbie Wasserman Schultz, a group of plaintiffs brought a lawsuit in federal court alleging that DNC “actively concealed its bias” from its donors and Democrats backing Mr. Sanders.

The plaintiffs, about 150 of whom are identified in the lawsuit, are mostly Sanders supporters and include a number of DNC donors.


“Voter ID lawsuits sowing confusion”

Reid Wilson for The Hill:

In recent weeks, several courts have issued rulings blocking or upholding the laws, but those rulings have at times been contradictory, sowing even more confusion.

The suits, which have spent years in a maze of federal courts, focus mainly on laws passed by Republican-led legislatures after the 2010 midterm elections. Those laws, voting rights advocates say, are part of a determined strategy to restrict access to the ballot box.


“U.S. attorney opens probe of Malloy’s 2014 campaign fundraising”

CT Mirror:

The federal investigation is a major political complication for Malloy at time when he is in the spotlight as chairman of the Democratic Governors Association and a campaign surrogate for Hillary Clinton. She will become the first woman to win a major-party nomination for president next week at the Democratic National Convention, where Malloy is expected to speak.

It comes after a thinly veiled public appeal by Charles Urso, a retired elections investigator and FBI agent, for a deeper look at how Malloy accepted $6.5 million in public financing, which required him to sign an affidavit promising to abide by spending restrictions and contribution of no more than $100, and also benefitted from state contractor contributions of up to $10,000 to the state party.


“Convention Delegates Win Settlement in Free Speech Lawsuit Against Federal Election Commission”


Two delegates to the Republican National Convention settled a lawsuit on Friday against the Federal Election Commission (FEC), Two Unnamed Plaintiffs v. FEC. These delegates were represented by attorneys from the Pillar of Law Institute, which was also a plaintiff in the case. The delegates and Pillar brought suit in Wyoming federal court due to a ban against giving any assistance to delegates by corporations, even non-profits.



“As Democrats Gather, a Russian Subplot Raises Intrigue”

David Sanger for the NYT:

Proving the source of a cyberattack is notoriously difficult. But researchers have concluded that the national committee was breached by two Russian intelligence agencies, which were the same attackers behind previous Russian cyberoperations at the White House, the State Department and the Joint Chiefs of Staff last year. And metadata from the released emails suggests that the documents passed through Russian computers. Though a hacker claimed responsibility for giving the emails to WikiLeaks, the same agencies are the prime suspects. Whether the thefts were ordered by Mr. Putin, or just carried out by apparatchiks who thought they might please him, is anyone’s guess….

It may take months, or years, to figure out the motives of those who stole the emails, and more important, whether they were being commanded by Russian authorities, and specifically by Mr. Putin. But the theft from the national committee would be among the most important state-sponsored hacks yet of an American organization, rivaled only by the attacks on the Office of Personnel Management by state-sponsored Chinese hackers, and the attack on Sony Pictures Entertainment, which Mr. Obama blamed on North Korea. There, too, embarrassing emails were released, but they had no political significance. The WikiLeaks release, however, has more of a tinge of Russian-style information war, in which the intent of the revelations is to alter political events. Exactly how, though, is a bit of a mystery, apart from embarrassing Democrats and further alienating Mr. Sanders’s supporters from Mrs. Clinton.

Evidence so far suggests that the cyberattack was the work of at least two separate agencies, each apparently working without the knowledge that the other was inside the Democrats’ computers. It is unclear how WikiLeaks obtained the email trove. But the presumption is that the intelligence agencies turned it over, either directly or through an intermediary. Moreover, the timing of the release, between the end of the Republican convention and the beginning of the Democratic one, seems too well-planned to be coincidental.


“Leaked DNC emails reveal the inner workings of the party’s finance operation”


The DNC emails show how the party has tried to leverage its greatest weapon — the president — as it entices wealthy backers to bankroll the convention and other needs. At times, DNC staffers used language in their pitches to donors that went beyond what lawyers said was permissible under a White House policy designed to prevent any perception that special interests have access to the president.

Top aides also get involved in wooing contributors, according to the emails. White House political director David Simas, for instance, met in May with a half-dozen top party financiers in Chicago, including Fred Eychaner, one of the top Democratic donors in the country, the documents show….

Last year, the DNC, in consultation with Clinton’s campaign, also decided to reverse a ban on donations from the PACs of corporations, unions and other groups.

After those limits were lifted, DNC Chairwoman Debbie Wasserman Schultz and other top party officials showered corporate lobbyists with calls, emails and personal meetings seeking convention support and PAC contributions to the party, according to a spreadsheet logging the contacts.

In one May email, a DNC finance staffer asked whether the conglomerate Honeywell could get a hotel room in Philadelphia for a $60,000 donation to the host committee.

“This is $60k we definitely wouldn’t get otherwise and Honeywell is the biggest PAC contributor in the country,” she wrote, adding: “They’re definitely a bit pissy about our PAC policy flip flop and that offering this gesture would definitely help our relationships with them for later in the election cycle and for years to come.”


“Presidential Election Will Shape Supreme Court, and National Policies, for Years to Come”

Jess Bravin for the WSJ:

A single Democratic appointment to the Supreme Court could doom the 2010 Citizens United decision, which struck down restrictions on corporate and union political spending. That ruling and other opinions invalidating campaign finance laws came on 5-4 conservative majority votes that said restrictions on finance amounted to a restraint of free speech. A Clinton appointee almost certainly would join liberal justices who dispute that analogy and have signaled an intent to significantly narrow or overrule the Citizens United ruling.


Does Gary Johnson Not Understand How the 12th Amendment Works?

From the Ryan Lizza New Yorker story:

“If it gets thrown to the House of Representatives and it goes beyond one ballot, I could be President,” Johnson said, smiling at the absurdity of the idea. “Because, if it goes beyond one ballot, Democrats are not going to cross over the line to change to Trump, and Republicans are not going to go over the line to support Clinton. They’re going to have to compromise, and I’d be the compromise.”

The 12th amendment provides that if no one gets a majority for President the House votes by state, and it is hard to imagine the Republican not chosen by the House.


For a Virginia Governor, Writer’s Cramp and Advil

Richmond Times-Disptach:

In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.

“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”

McAuliffe’s statement did not give a timeline for when the policy will be repaired by individual orders. Data errors in McAuliffe’s list of felons believed to meet the order’s criteria will likely complicate the process by requiring more review to prevent irreversible mistakes.


“Kaine’s acceptance of gifts in Virginia could create opening for Republicans”


There are stark differences between Kaine’s gifts and McDonnell’s. For one, Kaine’s gifts were properly disclosed; McDonnell failed to disclose some of what he received.

For another, Kaine has never faced accusations of promising state action in exchange for any of his gifts….

During his eight years as Virginia’s lieutenant governor and then governor, Kaine disclosed that he accepted $201,600 in personal gifts, according to data compiled from the Virginia Public Access Project, a nonpartisan tracker of money in state politics.

The majority of those gifts came in the form of air travel, including from the 2008 campaign of President Obama, which paid to fly Kaine across the country as a campaign surrogate. Under murky Virginia law, the proper way to disclose such political travel has been unclear; other politicians have disclosed it as a campaign contribution to their political action committee, rather than a personal gift, as did Kaine.

I also missed this earlier Politico piece:

Shortly after winning the governorship in 2005, Kaine and his family vacationed on the exclusive West Indies island of Mustique in a house belonging to Charlottesville-area investor James B. Murray Jr. Murray made a fortune investing in cellphones together with Kaine’s Senate predecessor, Mark Warner. Murray invited Kaine to spend a week at his house to relax after the campaign.

“I didn’t consider it a gift: There was no cash, I just let him use a house,” Murray said in an interview with Politico. “There was no quid pro quo. I don’t have any business with him.”

For the purpose of the disclosure, Kaine’s staff determined that $18,000 was the fair market value of a week’s stay. Kaine paid all his own expenses besides lodging.

“It’s just the kind of thing you do for a friend, but who’s to draw the line?” Murray said. “It’s probably better to declare everything.”



“Trump Would Fund Super-PACs Aimed at Taking Down Cruz, Kasich”

Republican unity plan leaked to Bloomberg:

Donald Trump plans to create and fund super-PACs specifically aimed at ending the political careers of Ted Cruz and John Kasich should either run for office again, after both snubbed the Republican nominee during his party’s convention this week, a source familiar with Trump’s thinking told Bloomberg Politics on Friday.

The plan would involve Trump investing millions of his own money –perhaps $20 million or more — in one or two outside groups about six months before their respective election days if Texas Senator Cruz or Ohio Governor Kasich stand for office again. The source said Trump is willing to set up two separate super-PACs – one for Cruz and one for Kasich – and put millions into each.


Breaking: Wisconsin Will Go to 7th Circuit to Block Softening of Voter ID Law: What’s Next?

Wisconsin will seek to reverse the order of the federal district court from earlier this week requiring election officials to allow those who lack the right form of ID to vote in WI elections to be able to vote upon signing an affidavit that they face a reasonable impediment in getting the right form of ID.

The suit will go to the 7th Circuit, presumably to the Easterbook-led panel again—the same court that sent the case back to Judge Adelman in the district court and told him to entertain a remedy for those voters who face special burdens in obtaining the right form of ID.

The motion for a stay filed in the district court previews the kinds of arguments that Wisconsin will make when, as is inevitable, the trial court denies this motion and an emergency motion is filed in the 7th circuit. The main arguments are that the affidavit is unnecessary, as the DMV procedures are good enough, and that in any case the affidavit is overbroad (because it would allow filling in “other” and any excuse for filing the id.

What will the 7th Circuit do?  I’m not sure. It would not surprise me if the court trimmed the id requirement back a bit. But it is possible that the court does nothing and sees how it goes this election, or that it rejects the affidavit entirely.

Whatever the 7th Circuit does could be taken en banc, and the last time that court divided 5-5 on what to do. That could happen again if the 7th Circuit gets rid of the affidavit entirely for the next election. [Update: Bill Groth reminds me: Since the 7th Circuit deadlocked 5-5 in Frank v. Walker, Judge Tinder, who voted with the Easterbrook faction to uphold the law, retired. There are now just 9 active judges with no confirmations imminent. Thus, there can’t be another 5-5 split if the case were to go en banc.” That could potentially be good news for supporters of the affidavit requirement.]

And the Supreme Court? I don’t expect there would be 5 votes to do anything, unless it is about an issue of making a change too close to the election.


Breaking: VA Supreme Court on 4-3 Vote, Reverses Gov. McAuliffe’s Blanket Felon Reenfranchisement Order

You can find the 63 pages of opinions here.

This is a big blow both politically to Democrats (who would have gotten a boost from the restoration of voting rights to felons who had secured their sentences) as well as to the cause of felon reenfranchisement generally.

This decision is based upon interpretation of the Va Constitution, and there does not seem to be a path to the U.S. Supreme Court (not that there would be a majority to overturn this is any case). Much of the opinions are a debate about standing. Here is the money quote from the majority on the merits;

The assertion that a Virginia Governor has the power to grant blanket, group pardons is irreconcilable with the specific requirement in Article V, Section 12 that the Governor communicate to the General Assembly the “particulars of every case” and state his “reasons” for each pardon. This requirement implies a specificity and particularity wholly lacking in a blanket, group pardon of a host of unnamed and, to some extent, still unknown number of convicted felons. No such requirement exists in the United States Constitution, and thus, the text of Article V, Section 12 of the Constitution of Virginia undermines the Governor’s argument by analogy.

From one of the two dissents:

The merits of this case do not concern the issue of whether the Governor has done 18 something he has no right to do, but rather whether he has done what he has a right to do in an 19 unconstitutional manner. Indeed, it is particularly telling that the majority does not dispute the 20 fact that the Governor may remove an individual felon’s political disabilities for any reason he  chooses, including that he has served his sentence.  Moreover, the majority acknowledges that the Governor could use many individual orders to achieve the mass restoration of rights he sought to accomplish under the Executive Order. Thus, the majority, in essence, takes the position that the Suspension Clause requires the Governor to exercise his executive powers in a different, less efficient manner.

[This post has been updated]


“Adelman provides a necessary safety net for voters”

Milwaukee Journal-Sentinel editorial:

Wisconsin’s voter ID law was a mistake from the start; a political talking point dressed up as policy, aiming to fix a problem that doesn’t exist. And although the law isn’t particularly onerous for most people, there are some for whom obtaining the necessary ID is substantially difficult. So difficult that some won’t — or won’t be able to — go through the hassle of getting one.

On Tuesday, U.S. District Judge Lynn Adelman threw those people a lifeline, or “safety net,” as he called it. Adelman issued a preliminary ruling allowing Wisconsin voters without photo identification to cast ballots by swearing to their identity. Good for Adelman; allowing people to use affidavits to vote opens the ballot door to those who otherwise might not cast a ballot.

Attorney General Brad Schimel said the ruling was disappointing but did not say whether the state would appeal it. It shouldn’t. Government should be encouraging more people to vote, not placing limits on those who legitimately can.


“In Texas, Fixing Voter ID Law Ruled to Be Discriminatory Will Be Tricky Task”


Ever since Texas’ strict voter identification law was passed in 2011, Democratic lawmakers and minority groups had focused on how to get it struck down. This week, after a federal appeals court ruled that the law discriminated against minorities, there is a new, equally vexing question: how to fix it.

The appellate court’s decision kept the law in place but instructed a lower court judge to come up with procedures to minimize the law’s effect on those who do not have an approved form of government-issued photo ID or who face hurdles in easily obtaining one, many of whom are black or Hispanic. North Carolina, South Carolina and other states that have passed voter ID requirements have had similar court battles over how, and whether, to loosen their rules to accommodate poor and minority voters.

One option is allowing voter-registration cards to be used as ID. Those cards are mailed to voters and do not have a photograph, and might be more readily available to an impoverished voter than a government-issued photo ID. Another option is expanding the list of acceptable IDs to include student IDs or government-employee IDs. And yet another possible solution involves having the state exempt the poor from having to show a photo ID to vote, an exception modeled on Indiana’s voter ID law.

Election law experts and opponents of voter ID restrictions cautioned, however, that softening the effect of voter restrictions is more easily ordered by a court than accomplished in reality.


Why a Loss on NC Voter ID Would Look Like a Win in Texas

Just a short note to point out how the goalposts have moved.

Plaintiffs in the Texas voter id case yesterday were claiming victory after the Fifth Circuit en banc held that Texas’s strict voter id law violated Section 2 of the Voting Rights Act. But the remedy the court approved was not striking the law as a whole; instead the trial court is to come up with some means of softening the law, such as allowing those who face a reasonable impediment to voting to be able to cast a ballot by signing an affidavit so attesting.

Now flip to NC, where the state in the face of litigation against its omnibus make-voting-harder law followed South Carolina’s model in creating a “reasonable impediment” softening to the strictness of its voter id law. SC adopted that to get Section 5 preclearance from a court when that still existed. NC is trying to avoid section 2 liability, and the trial court believed that the voter id law with the reasonable impediment workaround eliminated any discriminatory effects of the law. That’s now up on appeal before the 4th Circuit.

So if plaintiffs lose on the voter ID issue in NC it will look just like the win in Texas: a strict law in place, with a workaround that may or may not work well on the ground.

Now I’ve been very skeptical of these workarounds, believing they work better in theory than in practice, and provide a means to make judges feel better about the potential disenfranchisement caused by these laws. I’d like to see the NC and TX laws thrown out entirely.

But it looks more like the courts are converging on the harsh law with softening as the compromise.


“Plotting the End of Super PACs”

Justin Miller for TAP:

More than six years after the Supreme Court’s Citizens United decision, the free-spending super PACs that many progressives consider a blight on American democracy are the target of a multi-pronged campaign to put them out of business.

Step one was a Federal Election Commission complaint earlier this month by pro-reform advocacy groups, lawmakers, and congressional candidates. The complaint takes legal aim at v. FEC, a lower court ruling that ushered in super PACs in the wake of Citizens United. Spearheaded by the campaign-finance reform group Free Speech For People, that complaint holds out the promise of a legal challenge that could wend its way to the Supreme Court. But it has met with skepticism from campaign-finance experts who contend that the strategy is destined to fail.

That explains step two, a local ordinance scheduled to be introduced July 21 by a council member in the beachfront city of St. Petersburg, Florida.

The ordinance would establish contribution limits for independent-expenditure committees, essentially abolishing super PACs in the city. The law would also require that corporations that contribute money to local elections certify that they are not wholly or significantly influenced by foreign entities. Supporters of this ordinance see it as model legislation that could be emulated across the country and as a potential vehicle for a legal challenge that could invite the Supreme Court to reconsider the constitutionality of super PACs. These PACs may collect unlimited sums from billionaire corporate donors, so long as they operate independently from candidates. In 2014, super PACs raised nearly $700 million, according to the Center for Responsive Politics, and oftentimes outspent the campaigns of the candidates they supported.


Breaking: Trial Court in Texas Voter ID Case Sets Forth Softening Parameters, Timing

Wasting no time, this scheduling order from the trial court also includes the contours of what a softening rule must look like:

It is further ORDERED that any plan for interim relief must include terms regarding the following:

 All persons who have SB 14 ID or who have the means to get it in time for the November 8, 2016 election must display that ID in order to vote;

 No ID that is easily counterfeited may be used in any ameliorative provision;

 There must be an impediment or indigency exception, which may include reinstatement of the ability to use the voter registration card for such voters;

 The State must educate the public in a meaningful way about the SB 14 ID requirements and all exceptions to those requirements that are set out in the original law and in the interim plan adopted by this Court;

 The State must educate and train workers at polling places to fully implement the resulting plan; and

 The plan shall address only the discriminatory effect holding of the Fifth Circuit’s opinion and shall not include relief that would be available only in the event that this Court finds, upon reweighing the evidence, that SB 14 was enacted with a discriminatory purpose.


“Judge blocks Michigan ban on straight-party voting”

Detroit News:

A federal judge in Detroit has issued four preliminary injunctions against state election officials, prohibiting Michigan from enforcing a new law that bans straight-ticket voting.

U.S. District Court Judge Gershwin A. Drain issued a 37-page opinion Thursday that said the new law puts a disproportionate burden on African Americans’ right to vote.


“The Voting Rights Act Might Get Some Teeth Back; Thanks to an appeals ruling, Texas’ discriminatory voting laws could end up under federal oversight.”

I have written this piece for Slate. it begins:

This week’s decision by the U.S. Court of Appeals for the 5th Circuit—holding that Texas’ strict voter identification law violates the Voting Rights Act—is good news for those who believe such laws are discriminatory and do nothing to prevent voter fraud. But there is potentially much better news buried within the eight separate opinions of the 203-page ruling, which comes from one of the most conservative courts in the nation. There you’ll find a road map for returning Texas’ voting rules to the supervision of the federal government. That’s something that states like Texas—which has passed laws that handicap a portion of its voting-age population—have proved they still need.’

Another snippet:

The appeals court divided badly in reviewing the trial court’s finding of racially discriminatory intent. Imagine that the trial court found bad intent from two baskets of evidence, Basket A and Basket B. Counting noses, a majority of 5th Circuit judges believed that the trial court’s analysis went too far in inferring discriminatory intent in considering what was in Basket A, such as statements by the law’s opponents in the state Legislature as to the intent of the legislators who passed the bills. But, again counting noses, a different majority of 5th Circuit judges believes that there is enough evidence in Basket B from which the trial court could indeed infer that Texas passed its law to discriminate against Texans who are Latino or black. It sent the case back for the trial court to reconsider the question looking just at Basket B, and a finding of racially discriminatory intent from the trial judge again seems likely.

The dissenters suggested that at worst the evidence showed an intention by the Republican-dominated state Legislature to discriminate against Democrats, not against blacks or Latinos. A majority of judges, noting an overlap among racial and partisan groups in Texas, didn’t buy it. In a place like Texas, it makes no sense to separate race and party. As the majority explained, “Intentions to achieve partisan gain and to racially discriminate are not mutually exclusive.” And as one of the judges who believed that evidence from both Baskets A and B proved Texas engaged in racial discrimination put it, if Republicans in the Texas Legislature, out of partisan motives, selected a course of action “at least in part because of, and not merely in spite of, its adverse effects on an identifiable group, that is enough” to show racial discrimination.

The upshot is that the trial court on remand could well find that Texas passed its law with racially discriminatory intent. And if that finding gets upheld on appeal, then the trial court is free to require future changes in Texas voting rules to get Justice Department or judicial approval first. Under these preclearance rules, Texas would again have the burden of demonstrating that each proposed voting change would not make protected minority voters worse off.


“G.O.P.’s Moneyed Class Finds Its Place in New Trump World”

Nick Confessore for the NYT:

In his unlikely rise to the Republican nomination Donald J. Trump attacked lobbyists, disparaged big donors and railed against the party’s establishment. But on the shores of Lake Erie this week, beyond the glare of television cameras, the power of the permanent political class seemed virtually undisturbed.

Though Mr. Trump promises to topple Washington’s “rigged system,” the opening rounds of his party’s quadrennial meeting accentuated a more enduring maxim: Money always adapts to power.

At a downtown barbecue joint, lobbyists cheerfully passed out stickers reading “Make Lobbying Great Again” as they schmoozed on Monday with Republican ambassadors, lawmakers and executives. At a windowless bar tucked behind the Ritz-Carlton hotel, whose rooms were set aside for the party’s most generous benefactors, allies of Mr. Trump pitched a clutch of receptive party donors on contributing to a pro-Trump “super PAC.”

And on Tuesday night, as Republican delegates formally made Mr. Trump their presidential nominee, a few dozen lobbyists and their clients instead sipped gin and munched on Brie puffs in an oak-paneled room at the Union Club. They had come to witness a more urgent presentation: Newt Gingrich, a top Trump adviser and Beltway fixture, painting an upbeat picture of the deals they could help sculpt on infrastructure projects and military spending in the first hundred days of a Trump administration.