Category Archives: chicanery

“Supreme Court Ruling Reflects Challenges of Jan. 6 Prosecutions”

chicanery

Alan Feuer NYT analysis:

The Supreme Court’s decision on Friday that prosecutors had misused an obstruction law in charging hundreds of rioters who attacked the Capitol is the latest example of the persistent challenges the Justice Department has faced in grappling with the consequences of Jan. 6, 2021.

By and large, the department has succeeded over the past three years in moving against members of the pro-Trump mob who sought to disrupt the certification of President Biden’s victory on Jan. 6, and in winning convictions on seditious conspiracy charges against members of two far-right groups that were instrumental in stoking the violence that day, the Proud Boys and the Oath Keepers.

But lacking any established legal blueprint for addressing an assault on the foundations of democracy, prosecutors sometimes got creative with the law. And that has left them vulnerable to second-guessing by the courts on how they have pursued criminal cases both against the rioters and against former President Donald J. Trump, and contributing to a long series of challenges and delays.

The court’s new ruling on the obstruction law will hardly cripple the Justice Department’s ability to go after the rioters, but it will constrain prosecutors by restricting the use of an important tool they have relied on to seek accountability against the most disruptive members of the mob….

Share this:

“Allegations of Democratic Voter fraud and Support for Political Violence Among Republicans”

chicanery

James A. Piazza in American Politics Research:

Are partisans more likely to endorse political violence when politicians accuse their rivals of election improprieties? I theorize that for Republican partisans in the United States, the answer to this question is yes. Republican partisans are primed to believe allegations of cheating by Democrats and view election improprieties through the lens of racial and xenophobic resentments. Allegations of Democratic election fraud prompt them to eschew nonviolent norms of political behavior and endorse political violence. I test these propositions using an original, online survey experiment involving 140 self-identified Republican subjects. I find that exposure to allegations by politicians that Democrats engage in election fraud prompts Republican partisans to increase their support for political violence. Furthermore, using mediation tests, I find that exposing Republicans to allegations of electoral fraud by Democrats reduces their trust of people of different races and religions which, in turn, increases their support for political violence.

Share this:

My New One at Slate: “That Big Jan. 6 Supreme Court Decision Is Not the Win for Trump People Think It Is”

chicanery, election subversion risk, statutory interpretation, Supreme Court

I have written this piece for Slate. It begins:

In Fischer v. United States, a divided Supreme Court, in an opinion by Chief Justice John Roberts, handed Donald Trump a political victory by saying the government overreached in prosecuting some of the Jan. 6 rioters. But it created a potentially big legal problem for him by confirming that the submission of “false evidence” in an official proceeding—as Trump allegedly help orchestrate with the fake electors scheme after he lost the 2020 election—indeed violates federal law. Should Donald Trump ever go to trial on 2020 election interference, and that’s a big if depending on what the Supreme Court does Monday in the pending Trump immunity case, he could well face some serious jail time….

So this is a political victory for the Trumpists, who can now claim judicial overreach as a number of Jan. 6 insurrectionists get part of their charges thrown out. Of course, no one is going to be getting into the weeds of statutory interpretation when they debate this in public. The point is that supporters of the rioters can say the Biden Department of Justice overreached in aggressively applying the statute. As I write this, the banner headline on the New York Times website says, “Supreme Court Says Prosecutors in Jan. 6 Case Overstepped.” That surely hands a victory to Trump and his supporters.

But Roberts did one thing that he did not have to do that surely would hurt Trump if he ever goes on trial for election interference. Trump too was charged with interfering with an official proceeding. He did not physically invade the Capitol or destroy property. He instead is alleged to have engaged in election subversion, including causing the submission of fake electors in an effort to swing the election that he lost from Biden to him. 

Could that conduct count as a violation of the statute? The majority opinion states that “it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence.” That’s exactly what Trump is alleged to have engaged in a conspiracy to do. If Trump acted corruptly and if the fake slates of electors count as “false evidence,” well then he and others could be in a lot of criminal trouble.

Roberts’ opinion was joined by other conservative justices, including Samuel Alito, Neil Gorsuch, and Clarence Thomas. Getting them on the record on this is no small thing. And surely the Barrett dissenters would agree too that the statute covers the creation of false evidence….

Share this:

“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.”

Share this:

Must-read WaPo: “Trump allies test a new strategy for blocking election results”

chicanery, Election Meltdown, election subversion risk

WaPo:

When a member of Georgia’s Fulton County Board of Registration and Elections refused to join her colleagues as they certified two primaries this year, she claimed she had been denied her right to examine a long list of election records for signs of fraud or other issues.

Now the board member, Julie Adams, an avowed believer in the false theory that the 2020 election was stolen from former president Donald Trump, is suing the board, hoping a judge will affirm that right and potentially empower others in similar positions elsewhere to hold up the outcome of elections.

To voting rights activists, election law specialists and Democrats, such actions represent an ominous sign that could presage a chaotic aftermath to the 2024 election. They are particularly worried about the threat of civil unrest or violence, especially if certification proceeds amid protests or efforts to block it.

Adams wrote in her lawsuit that she “swore an oath to ‘prevent fraud, deceit, and abuse’ in Fulton County elections” — duties that she says are not possible without examining the records she has demanded. Her detractors say she is seeking the power to block a victory for President Biden. The Democratic National Committee and state Democratic Party have asked to intervene in the suit, claiming Adams’s actions are part of a coordinated effort by Trump, his allies and the GOP to sow the same kind of doubt in this year’s presidential election that led to the violent attempt on Jan. 6, 2021, to overturn Biden’s first victory.

“They are playing poker with the cards up,” said Tolulope Kevin Olasanoye, executive director of the Democratic Party of Georgia. “They are telling us exactly what they are going to do. We would be foolish if we sat on our hands and did nothing and watched this happen.”

Trump has stated plainly that the only way he can lose this fall is if Democrats cheat. His campaign and the Republican National Committee are spending historic sums building “election integrity” operations in key battleground states, preparing to challenge results in court, and recruiting large armies of grass-roots supporters to monitor voting locations and counting facilities and to serve as poll workers….

But the chaos and confusion that could result from such an effort are themselves a deep concern among voting rights advocates, who believe that unsubstantiated claims of fraud by Trump and his allies are sowing even deeper mistrust in the fall election results than they did four years ago, raising the potential for unrest and even violence on a greater scale too.

“An awful lot of people are looking at a potential parade of horrible scenarios,” said Ben Ginsberg, a longtime GOP election lawyer who is now an anti-Trump democracy advocate. “The number of people who doubt the reliability of elections has only increased. It hasn’t decreased. And that worries me tremendously.”…

Share this:

“A Democratic Super PAC’s New Trump Ad Might Be Borderline Criminal”

cheap speech, chicanery

I have written this piece for Slate. It begins:


Here’s something to scramble your brain: A progressive super PAC in Pennsylvania put out an advertisement trying to suppress mail-in voting by MAGA Republicans, and the Trump campaign responded by saying that the super PAC was violating the same law that Trump has been charged with violating in his federal election interference case. To boot, Trump’s lawyers said in their letter that the super PAC’s actions were just like those of Douglass Mackey, a Trump supporter that the Department of Justice successfully prosecuted for falsely telling Black supporters of Hillary Clinton in 2016 that they could vote for her by text. In the end, the super PAC’s actions appear despicable, but it is much more questionable whether the advertisement crossed a legal line.

The 30-second advertisement in question opens with words onscreen: “MAGA PATRIOTS: LISTEN TO OUR PRESIDENT.” It then turns to a series of statements in which Donald Trump disparages the safety and security of voting by mail, claiming fraud and corruption. It ends with the words: “Stand strong with PRESIDENT TRUMP AGAINST MAIL-IN VOTING.” A disclaimer on the bottom explains that the ad was paid for by “Pennsylvania Values,” and was not authorized by any candidate or committee…

The advertisement sends a terrible message, and the super PAC’s tactics deserve condemnation. All eligible voters should be encouraged to vote in whatever way is most convenient for them, including mail-in voting. This advertisement is only going to fuel more distrust of voting by mail among Trump supporters by reminding them of his earlier statements, and ramp up further negative polarization between the parties by highlighting the voting wars and engaging in a dirty trick: The message is not coming from “MAGA Patriots,” but from partisans on the left….

Mackey was convicted under Section 241 and his case is currently on appeal to the 2nd Circuit, where he is arguing, among other things, that his conviction violates the First Amendment because it squelches too much free speech. I filed an amicus brief along with the Protect Democracy Project and the Yale Media Freedom and Information Access Clinic arguing that so long as Section 241 is read to apply in speech and voting cases only to lies about when, where, or how people vote, the law does not violate the First Amendment.

If that reading is right, the new super PAC ad may not violate Section 241. The ad never lies to voters about when, where, or how to vote. It instead uses Trump’s own words expressing Trump’s distrust of mail-in voting to imply that Trump still does not want his supporters to vote by mail (this implication may be false, but who knows with Trump, who recently called mail-in voting “treacherous”). It also implies that the speech is coming from MAGA supporters. The ad doesn’t quite say the ad is paid for by Trump forces, though it does refer to Trump as “OUR PRESIDENT.” It includes false statements made by Trump about ballots being found in creeks. Maybe that should count as a super PAC lie about how people vote? Perhaps this ad is artfully crafted to potentially just stay on the line of legality under the test we think works in the Mackey case. The super PAC will need some good lawyers.

Share this:

“Trump campaign accuses Democratic group of ‘election interference’ — for quoting Trump”

chicanery

Philadelphia Inquirer:

Donald Trump urged his supporters in 2020 not to vote by mail calling it “totally corrupt.” Now, his campaign is speaking out against an ad featuring Trump’s own comments about mail ballots.

The ad, running on some websites in the state, is paid for by a Pennsylvania Democratic super PAC, and listed as such, but is framed to viewers as coming from the GOP….

Trump’s campaign sent a cease and desist letter to the super PAC, PA Values, on Tuesday, threatening legal action and accusing it of airing a false television ad that “may interfere with the right of Trump supporters to cast their ballots in Pennsylvania.”

“Pennsylvania Values PAC is peddling lies to prevent voters exercising their right to vote,” Brian Hughes, a senior adviser to the Trump campaign said. “President Trump has been clear that his supporters should use all legal methods to cast a ballot this election. … To say otherwise in advertising, as this false TV commercial does, represents an intentional effort to mislead Pennsylvania voters, suppress Trump supporters, and disrupt a fair election this Fall.”

The Trump campaign demanded the PAC “immediately end the ad” and said it “expects law enforcement officials in Pennsylvania to immediately review this issue.”

The listed treasurer for PA Values did not immediately return a request…

I have a piece on this situation posting soon at Slate.

Share this:

“Tax documents detail how election deniers profit from group founded by conspiracy theorists Patrick Byrne and Michael Flynn”

chicanery

Issue One:

A new tax filing reviewed by Issue One shows that several prominent election deniers have been profiting from The America Project, a nonprofit founded in 2021 by former Overstock.com CEO Patrick Byrne and President Donald Trump’s former National Security Advisor Michael Flynn, who each have spent the past several years peddling falsehoods about the 2020 election.

In July 2022, Byrne told the bipartisan congressional select committee investigating the January 6 insurrection that he wasn’t receiving a salary from The America Project, but by the end of the year, he had, in fact, collected a salary of $95,000, and The America Project paid a real estate company linked to him — known as Black Manatee Investment LLC — another $192,000. That money came on top of the $65,000 salary Byrne collected from The America Project in 2021.

Byrne isn’t the only one who has been reaping financial benefits from The America Project….

Share this:

“Racist slurs and death threats: The dangerous life of a Georgia elections official

chicanery, election administration

Stateline:

When Milton Kidd leaves work at the end of the day, he slips out the back door of the domed Douglas County Courthouse, avoiding the public entrance where people might berate him or demand his home address.

He never takes the same route home two days in a row, and he makes random turns to avoid being followed.

Kidd, a Black man, has a very dangerous job: He is the elections and voter registration director for Douglas County.

“Milton Kidd is a nasty n***** living on tax money like the scum he is,” one voter wrote in an email Kidd shared with Stateline. “Living on tax money, like a piece of low IQ n***** shit.”

Another resident from Kidd’s county of 149,000 west of Atlanta left him a voicemail.

“I don’t know if you’re aware, Milton, but the American people have set a precedent for what they do to f***ing tyrants and oppressors who occupy government office,” the caller said. “Yep, back in the 1700s, they were called the British and the f***ing American people got so fed up with the f***ing British being dicks, kind of like you, and then they just f***ing killed all the f***ing British.”

Kidd smiled incredulously as he shared his security routine and the hate-filled messages that inspired it. He is dumbfounded that he’s the target of such vitriol for administering elections in 2024 — but he knows where it originated.

The lies told by former President Donald Trump, who faces state felony charges for trying to pressure Georgia officials to change the 2020 results, have resonated with many Douglas County voters, Kidd said. Now this nonpartisan official, like many others across the country, is forced to face their ire.

Share this:

“The Biden admin has no firm plan to call out domestic disinformation in the 2024 election”

cheap speech, chicanery

NBC News:

The Biden administration has no firm plans to alert the public about deepfakes or other false information during the 2024 election unless it is clearly coming from a foreign actor and poses a sufficiently grave threat, according to current and former officials.

Although cyber experts in and outside of government expect an onslaught of disinformation and deepfakes during this year’s election campaign, officials in the FBI and the Department of Homeland Security remain worried that if they weigh in, they will face accusations that they are attempting to tilt the election in favor of President Joe Biden’s re-election.

Lawmakers from both parties have urged the Biden administration to take a more assertive stance.

“I’m worried that you may be overly concerned with appearing partisan and that that will freeze you in terms of taking the actions that are necessary,” Sen. Angus King, a Maine independent who caucuses with the Democrats, told cybersecurity and intelligence officials at a hearing last month.

Sen. Marco Rubio, R-Fla., asked how the government would react to a deepfake video. “If this happens, who’s in charge of responding to it? Have we thought through the process of what do we do when one of these scenarios occurs?” he asked. “‘We just want you to know that video is not real.’ Who would be in charge of that?”

A senior U.S. official familiar with government deliberations said federal law enforcement agencies, particularly the FBI, are reluctant to call out disinformation with a domestic origin.

The FBI will investigate possible election law violations, the official said, but does not feel equipped to make public statements about disinformation or deepfakes generated by Americans.

“The FBI is not in the truth detection business,” the official said.

In interagency meetings about the issue, the official said, it’s clear that the Biden administration does not have a specific plan for how to deal with domestic election disinformation, whether it’s a deepfake impersonating a candidate or a false report about violence or voting locations being closed that could dissuade people from going to the polls…

Share this:

“The deceptive Biden G7 video was quickly debunked, but it kept going viral anyway”

cheap speech, chicanery

David Ingram for NBC News:

Misleading videos and false claims that President Joe Biden wandered off aimlessly from the G7 conference last week continued to go viral despite debunkings and fact-checks that tried to correct the record. 

Google recommended false versions of the story as “top stories.” Deceptive video clips continued to accumulate millions of views on X. Copies of the videos were replayed on TikTok and YouTube with little context. Meta, the parent company of Instagram and Facebook, applied fact-checking labels to some posts but not to all. 

The persistent nature of the misleading videos illustrates how major tech platforms and partisan media are playing off each other in the 2024 election cycle, keeping viral stories in people’s feeds after they’ve been proven to be misleading or even false. 

In a familiar playbook, hyperpartisan outlets will continually push a piece of misleading information on their platforms and on social media, causing motivated followers who are primed to believe the outlets to amplify it further. That inundates tech platforms, which are unwilling or unable to correct the record quickly enough. The bad information then continues to outpace efforts to fact-check it. …

Laura Edelson, an assistant professor of computer sciences at Northeastern University, said that the people behind the misleading claims are benefiting from tech companies’ cost-cutting. In the past two years, companies such as Google, Meta and X laid off large numbers of employees who worked on trust and safety teams, the core of the companies’ efforts to limit the spread of misinformation. “They eliminated the staffers who were enforcing those policies,” she said. 

That puts the platforms in a relatively defenseless position against a partisan media outlet that decides to push a misleading claim, Edelson said. In this case, the conservative outlets were savvy about the topic, continuing to hammer the narrative that Biden is too old to be president. 

“The reason this can be so successful is that it’s not trying to create a new narrative. It’s trying to reinforce a narrative that both people in the campaign and disinformation spreaders have been talking about for years,” she said. Biden is 81, and former President Donald Trump is 78. 

Share this:

“Trump adviser Boris Epshteyn, other allies plead not guilty in Arizona”

chicanery, election subversion risk

Yvonne Wingett Sanchez for WaPo:

 Boris Epshteyn, a key adviser to former president Donald Trump’s 2024 presidential campaign, pleaded not guilty Tuesday to nine felony charges for his alleged role after the 2020 election to try to deliver Arizona’s 11 electoral votes to Trump instead of the rightful winner, Joe Biden.

Epshteyn, who remains close to Trump, called in to his Maricopa County Superior Court proceeding by phone. It was the first time he has appeared in open court for his alleged role in helping to assemble the elector strategy in seven states that Biden had won.

Two other co-defendants in the case brought by Arizona Attorney General Kris Mayes (D) also appeared by video to plead not guilty to the same counts that Epshteyn faces, including conspiracy, fraud and forgery: Jim Lamon, a 2020 GOP elector from Arizona who signed paperwork purporting Trump had won the state, and Jenna Ellis, an attorney who presented baseless claims of widespread malfeasance in states lost by Trump and is accused of circulating the elector theory.

Share this: