Toward the end of our conversation at Mar-a-Lago, I ask Trump to explain another troubling comment he made: that he wants to be dictator for a day. It came during a Fox News town hall with Sean Hannity, who gave Trump an opportunity to allay concerns that he would abuse power in office or seek retribution against political opponents. Trump said he would not be a dictator—“except for day one,” he added. “I want to close the border, and I want to drill, drill, drill.”
Trump says that the remark “was said in fun, in jest, sarcastically.” He compares it to an infamous moment from the 2016 campaign, when he encouraged the Russians to hack and leak Hillary Clinton’s emails. In Trump’s mind, the media sensationalized those remarks too. But the Russians weren’t joking: among many other efforts to influence the core exercise of American democracy that year, they hacked the Democratic National Committee’s servers and disseminated its emails through WikiLeaks.
Whether or not he was kidding about bringing a tyrannical end to our 248-year experiment in democracy, I ask him, Don’t you see why many Americans see such talk of dictatorship as contrary to our most cherished principles? Trump says no. Quite the opposite, he insists. “I think a lot of people like it.”
All posts by Rick Hasen
“Why an Immunity Ruling in Trump’s Favor Might Not Alter the Shape of His Trial”
Charlie Savage in the NYT:
If the Supreme Court rules that Donald J. Trump is immune from being charged with crimes over official actions he took as president, it would be a momentous decision for the future of executive power and American-style democracy.
But it is far from certain that such a ruling would derail the election subversion case against him. In fact, there is a scenario in which the court could render such a ruling without altering the charges or the array of evidence that the special counsel, Jack Smith, wants to present to a jury.
Mr. Trump faces four criminal counts over his efforts to overturn his loss of the 2020 election, but none are exclusively centered on conduct Mr. Trump undertook in his capacity as president. Rather, the indictment tells a story that mixes both official acts with private ones, meaning actions Mr. Trump took in his role as a candidate for office. It then declares that each charge arises from the entire picture.
Among the accusations: Mr. Trump spread false claims of voter fraud, plotted to recruit false slates of electors from swing states, pressured Vice President Mike Pence to use their existence to block Congress’s certification of Joseph R. Biden Jr.’s Electoral College victory, and urged lawmakers to use the attack on the Capitol by his supporters to delay any vote.
As of yet, no court has decided which of Mr. Trump’s actions are considered official presidential conduct, versus private, unofficial campaign activity. But during oral arguments before the Supreme Court on Thursday, Justice Amy Coney Barrett floated the possibility that Mr. Smith could “just proceed based on the private conduct and drop the official conduct.”
Crucially, however, a lawyer for Mr. Smith, Michael R. Dreeben, said that even if the court ruled out basing charges on Mr. Trump’s official actions, prosecutors believed that they could still lawfully present evidence about the official conduct as relevant context that would help jurors understand Mr. Trump’s private acts.
“There’s really an integrated conspiracy here that had different components,” Mr. Dreeben said. Mr. Trump, he added, used his official powers to try to ensure his private efforts to overturn the election were more likely to succeed, and the jury will need to see the entire picture to understand the sequence, why each step occurred and the gravity of the conduct.
Mr. Dreeben added that the facts of Mr. Trump’s official acts are relevant for interpreting his “knowledge and intent” about his private conduct.
A lawyer for Mr. Trump, D. John Sauer, urged the court to adopt a very different remedy. Not only should it find that Mr. Trump had immunity for his official actions, he said, but it should omit them from the case. Still, he acknowledged that Mr. Trump could be charged over private actions while he was president.
“The official stuff has to be expunged completely from the indictment before the case can go forward,” Mr. Sauer maintained.
Louisiana Wants Entire 5th Circuit to Hear Its Appeal (Bypassing a 5th Circuit Panel) Arguing that Private Plaintiffs Don’t Have the Right to Sue Under Section 2 of the Voting Rights Act
“Michigan AG executes search warrants on Google and X in ongoing 2020 fake electors probe”
Marshall Cohen for CNN:
Google and X, formerly Twitter, recently provided hundreds of files to Michigan prosecutors for their 2020 election subversion probe, complying with search warrants that investigators obtained after CNN revealed secret social media accounts belonging to pro-Trump lawyer Kenneth Chesebro, who played a major role in the fake electors plot.
The previously unreported warrants gave prosecutors access to new Chesebro emails and his private direct messages on Twitter. The warrants make clear that Michigan Attorney General Dana Nessel is still gathering new information in her probe, nine months after she charged the state’s fake electors with forgery and other crimes for signing certificates falsely claiming Donald Trump won the state in 2020.
A top member of her team testified last week that the investigation is ongoing and that Trump is an unindicted co-conspirator in the case, which is not expected to go to trial before the November election.
Michigan is among a number of states to investigate fake electors schemes. Just last week, Arizona prosecutors filed criminal charges against the pro-Trump electors there and allies of the former president who were involved in the efforts to overturn the 2020 election.
According to the new documents provided to Michigan prosecutors, which were obtained by CNN, Chesebro fruitlessly tried to bring several controversial pro-Trump figures to Washington, DC, to watch his “fake electors” strategy unfold on January 6, 2021.
He offered to pay for airfare and lodging at Trump’s upscale DC hotel for former Milwaukee County Sheriff David Clarke, as well as for the founder of the Gateway Pundit conspiracy website, among others. It doesn’t appear that anyone accepted his offers.
These messages also show how Chesebro aggressively reached out to conservative pundits and right-wing figures after Trump lost the 2020 election, prodding them to publicly promote his long-shot theories for how to subvert the Electoral College process….
“Surprise Tactics and Legal Threats: Inside R.F.K. Jr.’s Ballot Access Fight”
As Robert F. Kennedy Jr.’s independent presidential campaign mounts a bruising state-by-state battle for ballot access, he has often credited enthusiastic volunteers and grass-roots backers with driving the effort.
In fact, the operation has become increasingly reliant on consultants and paid petitioners whose signature-gathering work has yielded mixed results and raised questions of impropriety, even among Mr. Kennedy’s fans. In order to get Mr. Kennedy on the ballot in all 50 states, as is his goal, his campaign has deployed a multipart strategy: aggressive legal action, shrewd political alliances and surprise filing tactics meant to slow or prevent challenges.
In most states, Mr. Kennedy, 70, an environmental lawyer and heir to an American political dynasty, must produce thousands of signatures, under rules that are varied, intricate and confusing at times even to the local officials administering elections. The effort has already cost his campaign hundreds of thousands of dollars, and a supporting super PAC at least $2.4 million more, federal campaign finance records show. It has involved a number of professionals who specialize in getting people on the ground with clipboards and petitions, and helping candidates navigate the complicated process. Their success is what will make or break Mr. Kennedy’s campaign.
“Wisconsin Republicans recruiting legion of monitors to observe polls, set stage for lawsuits”
The Republican National Committee and Trump campaign plan to deploy tens of thousands of volunteers and attorneys to monitor and challenge voting processes in battleground states, including Wisconsin — an effort rooted in the former president’s false election claims, characterized as safeguarding from “Democrat tricks from 2020.”
GOP officials say they plan to recruit 100,000 people nationwide to observe election processes and voting, an expansion of typical activities for political parties in election years. The party’s rhetoric surrounding the plans, however, describes the program as a solution to former President Donald Trump’s 2020 election loss that has been confirmed in Wisconsin by judges, recounts, studies and audits.
“The Democrat tricks from 2020 won’t work this time. In 2024 we’re going to beat the Democrats at their own game and the RNC legal team will be working tirelessly to ensure that elections officials follow the rules in administering elections. We will aggressively take them to court if they don’t follow rules or try to change them at the last minute,” Charlie Spies, RNC chief counsel, said in a statement….
In a recent training session conducted by state GOP officials, the party’s election integrity director Mike Hoffman said a focus would be placed on Democratic population centers like Eau Claire, Madison and Milwaukee, and recounted telling one clerk the party would be “keeping a close eye on you,” according to the New York Times.
A spokesman for the Republican Party of Wisconsin did not answer questions about whether the party’s monitoring efforts would extend to non-Democratic-leaning areas.
Clerks in Madison and Dane County, where Trump sought to throw out tens of thousands of ballots in 2020, said they have not been contacted about the party’s effort to monitor election processes.
Claire Woodall, executive director of the Milwaukee Election Commission, said she hosted Hoffman and GOP attorneys for a 90-minute tour of the city’s absentee ballot tabulation center, known as Central Count, on the night before the April presidential primary election….
“We are always happy to answer questions about process, procedure, and ensure open lines of communication between our office and both major political parties,” Woodall said. “As you know, we strictly follow state statute and there were no sudden changes or deviations from the rules in 2020. We were taken to court in 2020 multiple times, including by President Trump, and have always prevailed. I am confident our administration will continue to withstand scrutiny.
Important New Student Note: “Voting Wrongs and Remedial Gaps”
There’s a great new student note at the intersection of election law and remedies, authored by Delaney Herndon, in the Harvard Law Review. Here is the abstract:
Today, voting rights plaintiffs largely seek injunctive relief.1 This wasn’t always the case. For most of the nation’s history, the standard remedy for a voting wrong2 was damages.3 In the usual case, an election official would (mistakenly or intentionally) deny a voter’s ballot or registration, and the voter would bring a damages action after the fact.4 This remedial structure persisted well into the twentieth century. But beginning in the 1950s and 1960s, injunctive relief became far more common.
This Note asks why that change happened and argues that the secondary effect of this injunction-heavy system, coupled with the slow dismantling of the Voting Rights Act of 19655 (VRA), has been to underdeter voting wrongs. First, it traces the adoption of the action for damages, first in the states and then in federal courts. Next, it follows the rise of injunctive relief in the second half of the twentieth century. It argues that injunctive relief displaced damages because injunctions offered a more efficient remedy that allowed voting rights groups to prevent voting wrongs. The move to injunctions also followed broader trends in public law, as injunctions became the preferred form of relief in suits against officers. But today’s injunction-heavy system tends to underdeter voting wrongs because of limits on the scope of injunctive relief and mismatched compliance incentives for parties subject to injunctions. Finally, this Note considers what can be done to reduce the existing remedial gap.
I’ve been spending some time on the common law tort for denial of the right to vote and found this note so helpful.
California: “Many O.C. residents skeptical of election results, potentially swaying key races, poll finds”
Alex Lopez doesn’t contest that Joe Biden was elected president in 2020.
His concern lies with how those results came to be.
“By the numbers? He absolutely won it. Ethically? Probably not,” said the 38-year-old Anaheim resident, who works as a logistics coordinator.
Questions about the integrity of the election process have been stoked nationally for years, in large part because of former President Trump’s claims that victory was stolen from him.
The same goes for Orange County, where 26% of adults surveyed in a UC Irvine poll released this month said they did not believe Biden legitimately won the presidency in 2020, with another 17% unsure about the question.
In a purple county with several key races that could help determine the balance of power in Congress, these doubts could cause voters to stay home in November — particularly conservative voters.
A majority of the O.C. Republicans surveyed for the poll — 55% — thought Biden had not won fairly, while most Democrats — 88% — believed the election results.
A majority of people surveyed who aren’t members of either party said Biden won legitimately. However, 23% said he didn’t, and the same percentage didn’t know.
“Distrust in the election system may very well convince some people not to participate, and what we’re seeing is that people who distrust it more tend to skew to the right, and so that would hurt Republicans,” said Jon Gould, dean of the UCI School of Social Ecology, who spearheaded the poll….
Orange County Registrar of Voters Bob Page started conducting open tours of the ballot counting operation in Santa Ana during the 2022 midterms in an effort to show people the process and alleviate concerns.
But election skepticism and allegations of a “rigged” voting system have persisted.
Supreme Court Won’t Let Peter Navarro Out of Jail While He Pursues Further Appeal
Will Anti-Abortion Presidential Candidate Randall Terry, on the Constitution Party’s Ballot Line in at Least 12 States, Be a Factor in 2024?
With so much attention focused on RFK Jr., Cornell West, etc., don’t sleep on this news, via Ballot Access news.
If ever there was an election year to move to ranked choice voting for President so that third party candidates don’t affect the outcome between the top two contenders, this would be it.
“Georgia’s election integrity laws could create ‘hovering threat’ for poll workers in 2024”
In Georgia, in particular, a series of election rules passed over the last three years threaten to overburden election officials and, in some cases, issue criminal penalties against them. New election measures passed by the Republican-led state legislature in late-March that are awaiting a signature from Gov. Brian Kemp could further hamper the way elections offices operate if enacted, experts say.
Liz Avore, lead author of the Voting Rights Lab report, argued that these laws take “steps toward almost treating election officials like they are suspects in a crime” and “treating election offices like they’re crime scenes.”
For the election workers that USA TODAY spoke with, however, the main concern is that the heightened regulations may hinder the recruitment of poll workers for the 2024 election who play a vital role in elections administration.
Republican leaders in the state, including Kemp and current Secretary of State Brad Raffensperger have defended the new laws, arguing that they bring enhanced security and provide clarity around laws for election officials.
Raffensperger said he didn’t see an issue with poll worker recruitment in 2022 after some of the initial election laws were passed, and doesn’t expect to see any in 2024. He also lauded Republican officials’ work in recent elections.
Thanks to Ned Foley
Top New York Election Lawyers Cannot Recall Anyone Ever Prosecuted for the NY Election Law Being Used to Try to Turn Trump’s Hush Money Payments into a Felony
Business Insider confirms what I suspected:
Now, Manhattan prosecutors now say an old, rarely used section of the state election law is their favorite on the menu of potential underlying crimes.
“As the court is aware, falsifying business records in the first degree requires an intent to commit or conceal another crime,” prosecutor Joshua Steinglass told New York State Supreme Court Justice Juan Merchan on Tuesday.
“The primary crime that we have alleged is New York state election law section 17-152,” Steinglass told the judge, lifting into prominence an arcane measure that had previously played only a supporting role in the case.
“There is conspiracy language in the statute,” the prosecutor said, “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016.”
Business Insider asked two veteran New York election-law attorneys — one a Republican, the other a Democrat — about the law, also known as “Conspiracy to promote or prevent election.”
Neither one could recall a single time when it had been prosecuted.
“I’ve never heard of it actually being used, and I’ve practiced election law for 53 years,” Brooklyn attorney and former Democratic NY state Sen. Martin Connor said of section 17-152.
“I would be shocked — really shocked — if you could find anybody who can give you an example where this section was prosecuted,” agreed Joseph T. Burns, attorney for the Erie County Republican Committee in Buffalo, New York…
Falsifying business records requires proof of at least an attempt to commit an underlying crime to be a felony.
But what if that underlying crime is section 17-152 — conspiring to mess with an election through “unlawful means?”
Things will get “twisty,” Connor said, when prosecutors try to show that Trump’s falsified business records are felonies because of an underlying crime — 17-152 — that itself needs proof of a conspiracy to do something “unlawful.”
“You’re having an underlying crime within an underlying crime to get to that felony,” Connor told BI….
Proof of an intent to violate any of these three laws would be sufficient to satisfy Section 17-152. And once you prove 17-152, you have the underlying crime you need to raise misdemeanor falsifying business records to a felony.
It’s important to remember that Trump is only charged with 34 counts of this one crime: felony falsification of business records, said election-law scholar Jerry H. Goldfeder.
Trump is not charged with actually committing any of the underlying state and federal laws required to prove felony falsification.
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So prosecutors have no legal obligation to prove he’s guilty of any of these underlying laws, 17-152 included, said Goldfeder, senior counsel at Cozen O’Connor and author of Goldfeder’s Modern Election Law.
“They only have to prove he intended to commit these underlying crimes,” which is a far lower bar, said Goldfeder, who also directs the Fordham Law School Voting Rights and Democracy Project.
“I think it’s a very viable case,” he told BI.
“And the testimony so far demonstrates that Trump intended to pursue this catch-and-kill scheme and to falsify business records to cover it up — and did so to influence the election,” he said.