Supreme Court Hands January 6 Rioters a Win in Fischer Case, But It Likely Won’t Help Trump Beat Similar Charges Against Him (Should He Ever to To Trial on Election Interference)

election subversion risk, Supreme Court

The key holding in Fischer v. United States is to read the obstruction statute so that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other
things used in the proceeding, or attempted to do so.” Rioters were not interfering with evidence, so even though they were trying to stop the counting of electoral college votes, they could not be charged with obstruction under this particular statute.

But Trump allegedly did try to obstruct the proceeding with evidence: the fake electors scheme. So those charges could potentially go forward. (We are still waiting on the immunity ruling which impacts those charges, and Trump likely has run out the clock on the trial before the election.)

Make no mistake: this is a huge political victory for Trump and the January 6 supporters, who will now claim government overreach. And it’s horrendous that, unlike what Justice Jackson did in her concurrence n condemning the attempt to interfere with the peaceful transition of power, there’s not a word from Chief Justice Roberts on how despicable the conduct was. (He does, however, acknowledge that it was Trump supporters (not antifa!) that stormed the Capitol.)

But it doesn’t stop these charges from going forward against Trump.

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What Replaces Chevron Deference in Administrative Law Statutory Interpretation Cases? Greater Judicial Power

legislation and legislatures, Supreme Court

Here, from the end of the Chief Justice’s opinion in Loper-Bright, is a brief paragraph on what replaces Chevron deference to administrative agency interpretation of ambiguous statutes:

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

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More on the legal (and practical) issues around a presidential candidate’s withdrawal

primaries

Rick H. gets the heart of the issues right in his early post. I want to highlight some more wrinkles (but I put the odds of Biden stepping down much lower than 50%).

First, Rick is right that the DNC rules for “pledged” candidates really just a pledge and not binding. Per IX.E.3.d, “All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” Likewise, IX.C.7.e, “Eligible delegates may vote for the candidate of their choice whether or not the name of such candidate was placed in nomination.” (Rick rightly notes, “That would be true even if Biden stayed in the race,” but this is not a politically likely option.)

Second, in the event of a vacancy in the ticket after the convention, the rules are a little different: “Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the
National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.”

Third, the DNC announced it would hold a “virtual roll call” before the convention. That was when there was some doubt about Ohio’s ability to amend its ballot access rules. But perhaps more interestingly, even though Ohio has amended its law, it appears the DNC might worry that other deadlines in other states might be a problem, or in states where a “provisional certification” previously was sufficient for a presumptive nominee that might be legally challenged in this election. Regardless, it’s not clear how this would work in the event of a contested convention, and the DNC might have to backtrack if that’s the case.

Fourth, “superdelegates” (or “automatic delegates”) are eligible only on the second ballot in the event no candidate has a pledged majority the first time around (IX.C.7.b). So the ground could shift from the first to the second ballot separate and apart from any jockeying after the first ballot and candidacies.

Fifth, and finally, recall that New Hampshire violated the DNC’s rules by going early with its primary. In eras of consensus (think to the 2008 Michigan and Florida fiasco, resolved only once Barack Obama secured a majority of the delegates and those states’ rule-breaking delegations could be seated), there is little dispute when some states violate party rules. But in a contested convention, the decision whether to seat a batch of rule-breaking delegates will be much more fraught.

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Don’t Let the Dismal Biden Debate Performance Overshadow Donald Trump’s Whitewashing of January 6 and His Refusal to Commit to Accepting the Results of the 2024 Election

election subversion risk

All eyes of course are on Biden’s dismal performance in last night’s debate. (I wrote about the election law implications here.) But that should not overshadow the continued serious risk of election subversion coming from Donald Trump. Plans are already underway for 2024.

I’ll have more to say about this in coming days, but Trump refused to take responsibility for January 6 during the debate, lied about the actions he took to quell the violence, and committed to accepting the results of the election only if it is “fair” in his view. We know he has never seen a fair election in which he has lost (and even some that he has won). The risks to free and fair elections remain quite high in this country, and we are in quite dangerous times. The most likely thing that avoids a protracted fight and potential violence surrounding the 2024 election is a Trump cakewalk to victory.

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The Election Law Issues Surrounding a Potential Biden Withdrawal from the Presidential Race

Candidate replacement, political parties

I think after last night’s dismal debate performance, the odds that Joe Biden will drop out of the presidential race are now greater than 50 percent. Just look at where the columnists in the New York Times are.

How would this happen and what are the election law implications?

First, how would this happen? The most likely scenario is that the people around Biden whom he trusts would have to convince him to drop out. It’s going to be his choice. The alternative is a fight at the convention over delegates, which would be very ugly. I think that’s really an unlikely scenario given the leadership of the Democratic Party. But people who saw that performance last night in Democratic leadership appear united in thinking it was not the performance of someone who could go on for four more years, so the pressure on Biden’s inner circle would be intense.

Assuming Biden voluntarily withdraws, there are two main election law questions: the rules of the convention, and the rules of ballot access. The rules of the convention are pretty simple in that delegates would be free to vote their consciences. See Rule C7e on page 19. (That would be true even if Biden stayed in the race.) Presumably, if Biden announced a withdrawal soon, a number of candidates would put their names in the ring. There might even be debates before the convention so that each of these people could be seen in prime time.

We are also early in terms of ballot access. Most state rules for major party candidates point to the convention winner as the presidential candidate. There could be some timing glitches in some places which could lead to litigation. There could be questions if Biden is on the ticket about presidential electors who under state law would have to vote for the candidate they were listed for. But I think we are early enough that most of the kinks would be worked out early.

So the bottom line is that there is unlikely to be an election law impediment to replacing Biden, should Biden choose to withdraw.

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“Arizona RNC delegation chair: ‘I would lynch’ county election official”

chicanery

WaPo:

Earlier this month, Shelby Busch — chair of Arizona’s delegation to the Republican convention — was in court trying to learn the identities of local elections workers. Under oath, she said she was unaware of any threats that had been made against the people who helped run the last presidential election and the midterm election that followed.

This week, video emerged that showed Busch saying she would “lynch” the official who helps oversee elections in Maricopa County: Stephen Richer, a fellow Republican.

“Let’s pretend that this gentleman over here was running for county recorder,” Busch said, seeming to refer to someone off-camera in the video, which was recorded at a public meeting in March. “And he’s a good Christian man that believes what we believe. We can work with that, right? That, that’s unity.”

“But,” she said moments later, “if Stephen Richer walked in this room, I would lynch him. I don’t unify with people who don’t believe the principles we believe in and the American cause that founded this country. And so, I want to make that clear when we talk about what it means to unify.”

Richer, who posted the video on social media this week, is Jewish.

Busch said Thursday that “the statement was a joke and was said in jest.” She did not address additional questions.

“I do not condone and would never condone violence against anyone,” Busch said in a statement. “It was political hyperbole and no way meant as a threat of violence.”

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