All posts by Rick Hasen

Eric Holder: “The Courts Must Stop This Judge From Stealing an Election”

Eric Holder NYT oped:

But there is no suggestion that any of these 60,000-plus voters acted improperly, deliberately cast illegal ballots or failed to produce required identification when voting. And when the State Board of Elections reviewed his claim, it concluded, in a meticulous written decision, that Judge Griffin’s allegations lacked substance. The issue that is now before the courts is whether a court can simply cast aside tens of thousands of appropriately cast ballots after an election is over. This shouldn’t be a question: The United States Constitution and other federal laws protect against such ballots from being retroactively discarded.

Ordinarily, a request like this one would be a nonstarter. That a sitting judge filed this lawsuit in the first place is, frankly, disturbing. As an officer of the court who has sworn an oath, Judge Griffin has an obligation to protect the electoral process, not undermine it with a shameless attempt to disenfranchise voters. What’s even more distressing, though, is that the North Carolina Supreme Court’s Republican majority has allowed such a lawsuit to proceed and, in doing so, has stopped the certification of the election results.

This action is a departure from the way courts on the whole acted in 2020. That year, federal and state judges across the country — including those affiliated with the Republican Party, all the way up to the conservative-dominated U.S. Supreme Court — refused Mr. Trump’s demands to throw out legal ballots. They refuted baseless claims that the presidential race was stolen. None of the courts ultimately stopped any states from certifying election results by their required deadlines — not one.

What’s happening in North Carolina, by contrast, should concern all Americans. Any judge operating in an independent and fair manner would maximize the chance that all of North Carolinians’ ballots are counted and ensure that the electoral result reflects the decision of the state’s citizens. But so far, the North Carolina Supreme Court has done the opposite, opening the door to mass disqualifications of legitimate voters — after the fact — to try to install a losing candidate from the court majority’s political party.

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“Broken elevators threaten St. Louis primary as election equipment trapped on 3rd floor”

KSDK:

A brewing crisis at a downtown St. Louis building has placed millions of dollars of voting equipment in limbo and raised serious questions about elevator maintenance oversight, just days before the March primary election begins.

Approximately 80 steel cages containing critical voting machines and heavy election equipment are stranded on the third floor of 300 N. Tucker Boulevard, where both elevators are now inoperable. While officials race to devise a solution before early voting begins in 12 days, records indicate potential lapses in required safety inspections….

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“U.S. intelligence, law enforcement candidates face Trump loyalty test”

WaPo:

Candidates for top national security positions in the Trump administration have faced questions that appear designed to determine whether they have embraced the president’s false claims about the outcome of the 2020 election and its aftermath, according to people familiar with cases of such screening.

The questions asked of several current and former officials up for top intelligence agency and law enforcement posts revolved around two events that have become President Donald Trump’s litmus test to distinguish friend from foe: the result of the 2020 election and the Jan. 6, 2021, assault on the U.S. Capitol, according to the people, who, like others interviewed for this report, spoke on the condition of anonymity because of the matter’s sensitivity.

These people said that two individuals, both former officials who were being considered for positions within the intelligence community, were asked to give “yes” or “no” responses to the questions: Was Jan. 6 “an inside job?” And was the 2020 presidential election “stolen?”

These individuals, who did not give the desired straight “yes” answers, were not selected. It is not clear whether other factors contributed to the decision.

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“Why Federal Courts May Be the Last Bulwark Against Trump”

NYT:

More than 40 lawsuits filed in recent days by state attorneys general, unions and nonprofits seek to erect a bulwark in the federal courts against President Trump’s blitzkrieg of executive actions that have upended much of the federal government and challenged the Constitution’s system of checks and balances.

Unlike the opening of Mr. Trump’s first term in 2017, little significant resistance to his second term has arisen in the streets, the halls of Congress or within his own Republican Party. For now at least, lawyers say, the judicial branch may be it.

“The courts really are the front line,” said Skye Perryman, the chief executive of Democracy Forward, which has filed nine lawsuits and won four court orders against the Trump administration.

The multipronged legal pushback has already yielded quick — if potentially fleeting — results. Judicial orders in nine federal court cases will, for a time, partially bind the administration’s hands on its goals. Those include ending automatic citizenship for babies born to undocumented immigrants on U.S. soil; transferring transgender female inmates to male-only prisons; potentially exposing the identities of F.B.I. personnel who investigated the Jan. 6, 2021, attack on the Capitol; coaxing federal workers to accept “deferred resignation” under a tight deadline; and freezing as much as $3 trillion in domestic spending.

The judiciary’s response to the legal challenges is continuing through the weekend. On Friday afternoon, Judge Carl Nichols, a district judge nominated by Mr. Trump. said he would issue a temporary restraining order halting the administrative leave of 2,200 employees at the U.S. Agency for International Development and the looming withdrawal of nearly all of the agency’s workers from overseas.

Also, late on Friday night, Judge John D. Bates, a nominee of President George W. Bush, rejected a request by a coalition of unions for an emergency order blocking Elon Musk’s team from accessing Labor Department data. While that case is ongoing, Judge Bates’s ruling was the first victory for Mr. Trump’s new administration in federal court. In the early hours of Saturday, U.S. District Judge Paul A. Engelmayer, one of President Obama’s nominees, restricted access by Mr. Musk’s government efficiency program to the Treasury Department’s payment and data systems, saying access would risk “irreparable harm.”….

But while the executive branch is entrusted with the capacity for swift, decisive action, the judiciary is slow by design, and the legal opposition to Mr. Trump’s opening moves may struggle to keep up with his fire hose of disruption….

Some legal experts see the executive branch’s deliberate effort to push the boundaries of legality as a bare-knuckle strategy to overwhelm the president’s opposition and eventually win at least some precedent-shattering decisions from the conservative Supreme Court.

“The administration seems to have wanted challenges that consume a ton of resources — of opponents, courts and public attention — even as members of the administration know the provisions do not square with the law that exists,” said Judith Resnik, a professor at Yale Law School.

To Mr. Trump’s backers, the president’s orders are well within the powers outlined in the Constitution’s second section on the executive branch. It is the judicial pushback, they say, that is overstepping the constitutional boundaries laid out in the third section on the judiciary.

“President Trump is not stealing other branches’ powers,” said Mike Davis, who heads the Article III Project, a conservative advocacy group. “He is exercising his Article II powers under the Constitution. And judges who say he can’t? They’re legally wrong. The Supreme Court is going to side with Trump.”…

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“Trump’s defamation and media litigation spikes”

Axios:

Since President Trump began his political career in 2015, the number of media and defamation lawsuits involving him or his businesses as either the plaintiff or defendant quadrupled compared to the prior three decades, according to an Axios analysis of public databases.

Why it matters: The growing volume shows how, since turning into a political figure, Trump has become bolder about using the courts in media and free speech cases.

How it works: One observer notes a theme in Trump’s increasing legal attacks.

  • Each case is unique yet connected, Kevin Goldberg, vice president at Freedom Forum, a nonpartisan nonprofit fostering First Amendment freedoms, tells Axios.
  • “The consistent theme is his willingness to use the court system, even as a public figure and a public official, to silence people, to force them to correct statements, to just generally make them uncomfortable,” Goldberg says.

By the numbers: Ahead of the 2016 election, USA Today reported that Trump and his businesses had been involved in more than 4,000 legal actions since 1976. Media and defamation cases accounted for a small percentage.

  • According to Axios’ analysis, Trump was involved in seven lawsuits related to media or defamation in the three decades prior to announcing his presidential bid on June 16, 2015. Since that date, that count jumped to 29.
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“Trump and Musk Attack Journalists by Name in Social Media Posts”

NYT:

President Trump has made clear his animus toward mainstream media organizations. Now he’s getting more personal.

Mr. Trump and his key lieutenant, Elon Musk, who has been empowered to run what they call the Department of Government Efficiency as a “special government employee,” have attacked journalists by name in recent days on the social media platforms they own: Truth Social and X….

Mr. Musk took aim at a Wall Street Journal investigative reporter, Katherine Long. Ms. Long was the first to reveal, in a report in The Journal on Thursday, that Marko Elez, one of Mr. Musk’s lieutenants in the Department of Government Efficiency, was linked to a since-deleted racist social media account that had posted statements like, “You could not pay me to marry outside of my ethnicity.”

Mr. Elez resigned after The Journal approached the White House for comment, according to the article. It was Ms. Long’s first article in her new job at The Journal.

Mr. Musk said in separate replies on X on Friday that Ms. Long was “a disgusting and cruel person” and should be “fired immediately.”…

Vice President JD Vance also weighed in on X on Friday, saying that he disagreed with some of Mr. Elez’s posts but that they shouldn’t “ruin a kid’s life.” (Mr. Elez is 25 years old.)

“We shouldn’t reward journalists who try to destroy people. Ever,” Mr. Vance wrote.

The Wall Street Journal did not immediately respond to a request for comment.

“Journalists have a job to do and should never be attacked by high-ranking government officials for doing it,” Timothy Richardson, the journalism and disinformation program director at PEN America, a free-expression nonprofit, said in a statement.

He added, “Musk’s call for this journalist’s firing contradicts his self-proclaimed free speech advocacy and reveals his hypocrisy.”…

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“Trump Targets Independent Campaign Finance Watchdog in Latest Ouster”

Dan Weiner:

This latest move by the president smashes through longstanding safeguards. It’s too early to tell the full scale of the impact of Trump’s actions. Weintraub was set to help decide dozens of complaints related to the 2024 elections, including not only complaints against Trump and Musk, who spent nearly $300 million to help the president get elected, but also complaints Trump himself filed against Kamala Harris and various media outlets such as The Washington Post and CBS News. How those matters are resolved could depend on who fills her seat and the seat of a GOP commissioner who recently resigned.

In her post on X announcing the president’s attempt to fire her, Weintraub noted that it was illegal. She has a strong argument given the FEC’s structure and Congress’s clear intent that the commission be independent and insulated from partisan weaponization. At least one other Democratic commissioner at an independent agency who Trump purported to fire has already sued.

Legality aside, firing Weintraub without going through the process of choosing a successor with input from Congress looks like an attempt to subvert the FEC at a critical moment. It could potentially lay the foundation to weaponize the agency against the president’s enemies while stifling any effort to pursue his friends and allies. This is only the latest action to strip away longstanding guardrails — others include firing other heads of independent agencies, the apparently illegal firing of at least 17 agency inspectors general (independent officials who monitor for waste, fraud, and abuse), and the appointment of extreme partisans to critical law enforcement roles at the Department of Justice and other agencies.

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“Trump administration cuts teams that fight foreign election interference”

WaPo:

The Trump administration this week eliminated much of the federal government’s front line of defense against foreign interference in U.S. elections.

The move, which follows years of Trump and his allies disputing the role that Russian influence campaigns played in his first successful bid for president, alarmed state election officials and election security experts, who warned that safeguarding Americans from foreign disinformation campaigns will be difficult if no one at the federal level is doing that work.

On Wednesday, Attorney General Pam Bondi dissolved an FBI task force formed in response to Russian meddling in the 2016 presidential elections that worked to uncover covert efforts by Russia, China, Iran and other foreign adversaries to manipulate U.S. voters.

Separately, the Department of Homeland Security sent a letterWednesdayplacing at least seven federal employees who work on teams combating foreign disinformation within the election security arm of the Cybersecurity and Infrastructure Security Agency, or CISA, on administrative leave, according to a recipient who shared a copy of the letter with The Washington Post….

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“Judge Halts Access to Treasury Payment Systems by Elon Musk’s Team”

NYT:

A federal judge early Saturday temporarily restricted access by Elon Musk’s government efficiency program to the Treasury Department’s payment and data systems, saying there was a risk of “irreparable harm.”

The Trump administration’s new policy of allowing political appointees and “special government employees” access to these systems, which contain highly sensitive information such as bank details, heightens the risk of leaks and of the systems becoming more vulnerable than before to hacking, U.S. District Judge Paul A. Engelmayer said in an emergency order.

Judge Engelmayer ordered any such official who had been granted access to the systems since Jan. 20 to “destroy any and all copies of material downloaded from the Treasury Department’s records and systems.” He also restricted the Trump administration from granting access to those categories of officials.

The defendants — President Trump, Treasury Secretary Scott Bessent and the Treasury Department — should show cause on Feb. 14 before Judge Jeannette A. Vargas, who is handling the case on a permanent basis, Judge Engelmayer said.

The judge’s order is here.

A short post on binding these SGEs:

The order is not directed to special government employees. It's directed to treasury officials. If these employees do not comply, I think they could still be bound as agents of the defendant under Rule 65

Rick Hasen (@rickhasen.bsky.social) 2025-02-08T16:06:13.717Z
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“Trump continues federal purge, gutting cyber workers who combat disinformation”

Politico:

The Trump administration has moved to push out a swathe of federal workers previously involved in combating election-related disinformation, according to three people familiar with the matter, amid allegations from congressional Republicans that their work unfairly targeted conservative speech online.

Roughly half a dozen employees from the Cybersecurity and Infrastructure Security Agency who once worked in its Election Security and Resilience division were notified Thursday night they were being put on administrative leave, said the three people, who were granted anonymity to discuss sensitive personnel matters.

The move comes shortly after the installment of new DHS Secretary Kristi Noem, a close Trump ally. The former South Dakota governor told congressional Republicans in her confirmation hearing last month she shared their view that CISA should no longer be involved in efforts to combat the scores of online hoaxes peddled by the likes of Russia, China and Iran.

“As Secretary Noem stated during her confirmation hearing, CISA needs to refocus on its mission, and we are starting with election security,” Tricia McLaughlin, assistant secretary for Public Affairs at CISA, said in a statement.

McLaughlin added that the agency is “undertaking an evaluation” of how it handles election security, and “personnel who worked on mis-, dis-, and malinformation, as well as foreign influence operations and disinformation, have been placed on administrative leave.”

The ousters are the latest example of how the administration is targeting career government officials with prior connections, however tenuous, to efforts it disagrees with or that interfere with Trump’s agenda….

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“Justice Dept.’s Weaponization Group Underscores Trump’s Quest for Retribution”

NYT:

The Justice Department’s newly formed “Weaponization Working Group,” announced in a memo this week by Attorney General Pam Bondi, was purportedly intended to root out “abuses of the criminal justice process” by local and federal law enforcement officers.

But a literal reading of its name suggests that the investigative body was also an example of the department itself, now under new leadership, weaponizing its expansive powers to scrutinize and perhaps take action against several officials who, for various reasons, have run afoul of President Trump.

“They are trying to politicize all this,” said Donald Voiret, a former F.B.I. senior executive who was the top agent in Seattle and also ran the bureau’s London office before retiring in 2022. “They are doing exactly what they accused the F.B.I. and D.O.J. of doing.”

The memo, issued on Wednesday, signaled the most significant first step in deploying the levers of government to carry out Mr. Trump’s repeated suggestions to exact retribution against those he perceives to be his enemies.

While the memo contained some conciliatory language, promising that no one who had “acted with a righteous spirit and just intentions” had any cause for alarm, it also included a laundry list of Republican boogeymen and grievances that the working group was intended to address.

At the top of that list were three prosecutors who all brought separate cases against Mr. Trump, even though there is no indication that any of them violated the law. They are the former special counsel Jack Smith; Alvin L. Bragg, the Manhattan district attorney; and Letitia James, the New York attorney general.

Mr. Smith’s two cases — accusing Mr. Trump of seeking to subvert the 2020 election and of illegally holding on to classified documents after he left office in 2021 — were dismissed after Mr. Trump won re-election in November. The victory triggered a longstanding Justice Department policy that forbids pursuing prosecutions of a sitting president.

Mr. Bragg’s case was more successful and resulted in Mr. Trump’s conviction on 34 felony counts of falsifying business records to cover up a sex scandal on the eve of the 2016 election. In Ms. James’s case, Mr. Trump was found civilly liable of doctoring the value of his real estate portfolio and was ordered to pay a penalty of more than $450 million.

The directive is just as noteworthy for what it does not say. Former department officials and lawyers representing some of those who might be targeted said the memo was too ambiguous to provide a clear indication of how the department planned to proceed….

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“Suit Over Firing by Trump Could Pave Way for Broader Presidential Power”

Adam Liptak for the NYT:

When Gwynne A. Wilcox sued President Trump on Wednesday over her firing from the National Labor Relations Board, her lawsuit included an unusually candid statement. Ms. Wilcox knew, she said, that Mr. Trump was hoping she would take him to court.

“The president’s action against Ms. Wilcox is part of a string of openly illegal firings in the early days of the second Trump administration that are apparently designed to test Congress’s power to create independent agencies like the board,” her lawyers wrote, adding that she “has no desire to aid the president in establishing a test case.”

The alternative, the suit said, was even less attractive: surrender.

Ms. Wilcox is right to be wary. If the case reaches the Supreme Court, as is likely, the court’s conservative majority will be receptive to Mr. Trump’s argument that presidents have unlimited power to remove members of independent agencies. Such a ruling would accomplish a major goal of the Trump administration and the conservative legal movement: to place what they call the administrative state under the complete control of the president.

A foundational precedent from 1935, which ruled that Congress can shield independent agencies from politics, stands in the way of that project. But some conservative justices have been itching to overrule the precedent, Humphrey’s Executor v. United States….

In 2020, the Supreme Court seemed to lay the groundwork for overruling that precedent in a case involving the Consumer Financial Protection Bureau.

The law that created the bureau, using language identical to that at issue in Humphrey’s Executor, said the president could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”

Chief Justice John G. Roberts Jr.’s majority opinion in the 5-to-4 decision struck down that provision, saying it violated the separation of powers.

Chief Justice Roberts drew a distinction between agencies led by a single director, like the consumer bureau, and bodies with multiple members, like the trade commission and the labor board, but several justices said they did not think the differences were meaningful.

In language that anticipated the court’s decision in July granting Mr. Trump, then a private citizen, substantial immunity from prosecution for conduct during his first term, Chief Justice Roberts said the presidency requires an “energetic executive.”

“In our constitutional system,” he wrote in 2020, “the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”

The reasoning in the chief justice’s opinion left Humphrey’s Executor on life support. Two members of the court — Justices Clarence Thomas and Neil M. Gorsuch — would have pulled the plug right away….

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“Meagan Wolfe can stay on as Wisconsin’s top election official, state Supreme Court rules”

Votebeat:

What happened? The Wisconsin Supreme Court unanimously ruled Friday that the state’s chief election official, Meagan Wolfe, can stay in her job even though her term has expired, heading off a yearslong effort by some Republicans to oust her.

What’s the dispute? Wolfe became the Wisconsin Elections Commission’s administrator in 2018 after working for the agency and its predecessor in other roles, and has been a holdover appointee since the summer of 2023. She is considered one of the most respected — and scrutinized — election officials nationwide, but she became a Republican target after President Donald Trump lost Wisconsin in the 2020 election and took heat for the commission’s decisions in administering that election.

The case focuses not on Wolfe’s performance as administrator, but rather on the legality of appointees staying on after their terms expire.

Wolfe’s four-year term expired in July 2023, and the Republican-led state Senate appeared poised to reject her confirmation if the Wisconsin Elections Commission had voted to reappoint her. All three Republicans on the commission voted to reappoint Wolfe, but the Democratic commissioners abstained from the vote. They cited a 2022 Wisconsin Supreme Court ruling stating that appointees can stay in their roles past the end of their terms. That meant Wolfe wasn’t formally reappointed, and therefore not subject to another Senate confirmation proceeding. Still, Senate leaders took a vote to fire her….

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Trump Purports to Fire FEC Commissioner Ellen Weintraub

Commissioner Weintraub:

Received a letter from POTUS today purporting to remove me as Commissioner and Chair of the FEC. There's a legal way to replace FEC commissioners-this isn't it. I've been so fortunate to serve the American people and stir up some good trouble along the way. That's not changing anytime soon.

Ellen L. Weintraub (@ellenlweintraub.bsky.social) 2025-02-06T23:41:05.134Z

Tom Moore:

(@ellenlweintraub.bsky.social) must be kept on the payroll and on the computer systems, her access to FEC HQ unimpeded. The FEC general counsel needs to do her job and enforce the Federal Election Campaign Act. She does NOT need a vote of the Commission to do so.

Tom Moore (@thmoore.bsky.social) 2025-02-06T23:44:36.558Z
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