Category Archives: election subversion risk

Some Idle Speculation About What the Supreme Court Will Do About Trump’s Request to Put His Election Subversion Case on Hold on Immunity Grounds;It’s Potentially Good News for a Trial This Spring/Summer

As ELB readers know, Donald Trump’s federal district court trial in DC on election subversion charges, that was scheduled for March, has been put on hold as Trump has pursued an “interlocutory” appeal (that is, an appeal in the middle of trial court proceedings) arguing he’s just about absolutely immune from criminal liability for an official acts as President. (Never mind that subverting the election is not an official act; the DC Circuit, which ruled against Trump, assumed for the sake of argument that at least some of it was.) After the DC Circuit ruled against him, which would send the case back for trial, Trump sought an emergency stay in the U.S. Supreme Court.

The Court has a few options, including granting the stay and setting the case for (potentially expedited) Supreme Court consideration, which could essentially allow Trump to run out the clock. Is a court really going to make him be on trial in September, in the middle of the general election campaign? That’s why I expected that if the Court was going to grant a stay, it was going to put the case on an extremely expedited schedule (as it did for the still pending Trump disqualification case out of Colorado) and potentially get us a decision by early April, allowing a trial by summer if the Court decides (as it certainly should) that he’s not absolutely immune for crimes of attempting to steal the last election.

If that stay/expedition was going to happen, I expected an order pretty quickly. Trump filed his reply brief, ending the briefing on the stay request, one week ago, on Feb. 15. If the Court was going to grant a stay, it should have quickly said so—there would be no reason for the justices in dissent, if any, to write a dissent to that order. They could include their complaints in the ultimate set of opinions on the merits of Trump’s immunity question.

So what to make of a full week passing without such an order? Maybe the Justices are still bickering behind the scenes or one or more justices are dragging their feet. But each day that passes it gets more and more likely that the Court is going to deny the stay. And that order would mean a likely big, nasty dissent (I’m thinking Alito at least, and probably Thomas, who should be recused in the case—but that’s another story). That takes a bit of time.

At some point the Justices will run out of patience, and if the dissenters don’t get their act together, an order will be forthcoming, and the case can go back to the trial court for trial prep.

Or not. Just what I’ve been thinking as we wait and wait.

Share this:

“Election Deniers Seek to Rewrite the Law”

NYT:

In the conspiracy-soaked aftermath of the 2020 election, far-right activists clamored to inspect ballots based on elaborate — and false — theories.

In Georgia, election deniers pushed for a review that might detect counterfeit ballots because they were not folded, appeared to be marked by a machine or were printed on different card stock. In Arizona, auditors were on the hunt for bamboo fibers in ballots to prove that they had fraudulently came from Asia.

Those theories were roundly rebuked, without a shred — or fiber — of evidence to support them. National attention from voters and the mainstream news media eventually shifted to the 2024 election.

But one bill introduced in the Georgia House of Representatives seeks to address those very concerns.

The bill, which was passed in committee, would require the secretary of state’s office to post high-resolution digital images of scanned paper ballots online and keep them there for 24 months, a demand of conspiracy theorists in 2021. (Similar bills regarding ballot scans have come out of committee in the New Hampshire and Arizona Legislatures.)

More than three years after the 2020 election, the lies and falsehoods about President Biden’s victory persist, and they continue to influence efforts to pass election laws across the country. In addition to the bill working its way through the Georgia Legislature, more than 70 bills in at least 25 states draw some connection to conspiracy theories about the 2020 election, according to a review of data from the Voting Rights Lab, a group that tracks voting legislation….

Share this:

Free UCLA Law Webinar: February 20, 12:15pm – 1:15pm: “Lessons and Warning Signs: A Conversation with a January 6th Investigator”

At UCLA Law:

Register here for in-person or virtual attendance.

Organized by the Promise Institute for Human Rights; co-sponsored by the Safeguarding Democracy Project

With introductions by Director of the International & Comparative Law Program, Jess Peake, the conversation will feature Sandeep Prasanna, a UCLA Law alumnus and former January 6th investigative counsel, in discussion with Rick Hasen, Director of the Safeguarding Democracy Project.

Share this:

“Trump VP contender Tim Scott doesn’t want to talk about vice president’s role in certifying election”

AP:

Sen. Tim Scott, a potential running mate if Donald Trump becomes the Republican presidential nominee, is treading carefully on questions about whether he would have certified the 2020 election had he been vice president at that time.

On Jan. 6, 2021, about two months after Trump lost the White House, then-Vice President Mike Pence defied his boss and refused to use his largely ceremonial role in overseeing the election certification process to block Democrat Joe Biden’s victory. Pence went forward with ratification of the Electoral College even after a violent mob of Trump supporters, some of whom chanted “Hang Mike Pence,” swarmed the U.S. Capitol, interrupting the congressional proceedings and forcing Pence, his family and staff into hiding in the complex.

Scott, a Trump rival in the 2024 race who dropped out and later endorsed the former president, declined to say in two Sunday news show interviews whether he would have acted differently as vice president.

“I’m not going to answer hypothetical questions, No. 1,” said Scott, R-S.C. He added: “You’re asking a hypothetical question that you know can never happen again.”

Scott voted in favor of certifying the 2020 results when the Senate got back to work after the siege. He also said during a presidential debate last year that Pence did the right thing when he certified the election…

Scott sidestepped questions Sunday about how he saw the vice president’s role in the certification process.

“The one thing we know about the future is that the former president, fortunately, he’ll be successful in 2024, he won’t be facing that situation again,” Scott said. “So what we should focus on is what will cause the former president, President Trump, to be the next president of the United States.”

Share this:

Protect Democracy SCOTUS Brief: It is Against the Public Interest to Stay Trump’s Election Subversion Trial; It Denies Voters Relevant Information About His Actions in 2020

From the brief:

While defendant Trump no doubt hopes that this Court will grant him the absolute immunity from legal accountability he has long sought, his primary strategy is to delay the trial until after the 2024 election for the purpose of denying the voters relevant information and perhaps avoiding a jury of his peers altogether.2 The questions before the Court thus implicate the public interest in the timely administration of justice in a way that no other case has in the nation’s history, and the Court should not intervene to enable defendant Trump’s strategy of thwarting that interest.3 While it was appropriate for the court of appeals to allow defendant Trump’s interlocutory appeal and consider his immunity claim, Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, (1982), there is no basis for continuing to freeze progress toward trial while defendant Trump makes one last effort to salvage a defense this Court is unlikely to uphold….

The information that will emerge from defendant Trump’s trial on charges of conspiring to overturn the 2020 election—whether that information suggests guilt or innocence—is indisputably important to the public interest, and that is especially so in the midst of another presidential election. Not only may the evidence, outcome, and conduct of the trial be relevant to voters’ choice of presidential candidates, it may also shed light on the culpability (or lack thereof) of other public figures or organizations seeking voters’ support. As this Court recognized, “In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential.” Buckley v. Valeo, 424 U.S. 1, 14–15 (1976). Of course, that interest in the ability to make informed choices, along with the general public interest in speedy resolution of criminal trials, must be balanced against the former president’s rights as a criminal defendant. But defendant Trump’s rights do not include the ability to run for office unencumbered by the continued administration of justice. And the damage to the public interest that would result from further delay far outweighs any legitimate interest defendant Trump might have here.

Share this:

Special Counsel Urges Supreme Court to Reject Trump Stay Request to Delay “Election Subversion” Trial on Immunity Grounds, Especially Because It Involves Election Subversion

This footnote in Jack Smith’s filing is particularly interesting and important:

A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al., at 7. The court of appeals’ analysis was “specific” to the allegations that applicant conspired to “overturn federal election results and unlawfully overstay his Presidential term,” Appl. App. 31A, and a stay can be denied on that basis alone, leaving for another day whether any immunity from criminal prosecution should
be recognized in any circumstances. See Gov’t C.A. Br. 45-49 (explaining that foreign affairs are not implicated in this case); cf. Nixon, 418 U.S. at 707, 710, 712 n.19 (reserving whether an absolute presidential-communications privilege might exist for military, diplomatic, or national security secrets).

See my earlier coverage of the Danforth, Luttig et al brief.

The Supreme Court may find it too hard to resist taking a case involving an issue of presidential immunity for criminal actions. If so, the Government’s brief suggests a rocket docket:

The government suggests that if the Court grants review, it order that applicant’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, be filed on or before ten days after the grant of certiorari; that the government’s brief on the merits and any amicus briefs in support, be filed seven days thereafter; and that the reply brief, if any, be filed five days thereafter. The Court’s recent expedition in Trump v. Anderson, No. 23-719 (Jan. 5, 2024), reflects that this timeline is fair and feasible. Expedited briefing and argument would be appropriate given the parties’ just-completed briefing of the same issues in the court of appeals on an equally expedited schedule.

Share this:

“The Supreme Pressure Campaign: Trump Attorneys Gamed Out Which Supreme Court Justices Might Help Them Steal the Election”

TPM:

Donnald Trump’s attorneys in 2020 thought that they had one advantage which nobody — not the Democrats, not lower-court judges, not Congress — could outmatch: the Supreme Court.

At their most feverish, attorneys for Trump believed that the Supreme Court could eventually be bullied into declaring Joe Biden the loser of the 2020 election and Trump the winner. They deployed a series of strategies, detailed in a trove of documents given to Michigan prosecutors by attorney Ken Chesebro, aimed at stoking a chaotic stalemate in Congress, thereby forcing the Court to act. 

The same set of real-time emails and texts between Trump campaign officials and attorneys also shows how the group sought to influence individual justices as they filed lawsuits seeking to overturn Biden’s victory in several swing states. In the trove, attorneys game out which justices would view their claims most favorably, and speculate over how certain claims or lawsuits could create pressure to build a majority on the court.

At times, the Trump attorneys recognized that their play for the Supreme Court was a Hail Mary. It’s from that desperation, the documents suggest, that the push for chaos and delay emerged — a nearly hopeless quest to leave the Supreme Court as the only actor left standing, with Congress buckling under procedural radicalism. 

But at other points, the lawyers seemed deadly serious in their speculation. John Eastman, the law professor, wrote in one email that he believed the Supreme Court would probably agree to invalidate Pennsylvania Supreme Court decisions about the election, but that the justices were “likely grappling with” the question of what “remedy” to provide. Chief Justice John Roberts would want “to account for the riots angle if they go our way,” Eastman imagined. 

This story largely plays out in the final weeks before Jan. 6, after the Trump campaign had finished convening slates of its own, fake presidential electors who were willing to cast ballots saying Trump, not Biden, had won their state. To the Trump campaign, that scheme, too, was a means to theorize the high court into wrenching states that it lost away from Biden. As Chesebro wrote in late November to several attorneys working on the campaign’s effort to invalidate the Wisconsin result, the point of convening fake electors would be “to benefit from an eventual U.S. Supreme Court ruling” voiding the election result, allowing the Trump electors to swoop in and replace the Biden electors from their state in the Electoral College. 

But it wasn’t until mid December, after the fake electors were sworn in — and after the Supreme Court signaled that it would not help the Trump campaign, rejecting on Dec. 11 a lawsuit filed by the state of Texas — that conversations about how to exert pressure on the justices began to accelerate. 

Share this:

“Election Denial Can’t Overcome Election Certification Protections”

Lauren Miller:

Election certification has long been an unfamiliar term to most Americans, and for good reason. Certification, the statutory process by which officials sign off on the accuracy and completion of election results, usually serves as an important but drama-free formality carried out after the excitement of an election winds down.

Then came the 2020 election and its false claims of widespread voter fraud. On January 6, insurrectionists supporting President Trump stormed the Capitol in an attempt to stop Congress from certifying the election results. Despite the attack, certification ultimately proceeded as planned. And nearly two years later, Congress succeeded in passing reforms that will make it more difficult for partisan actors to manipulate the process of counting the Electoral College votes for president. But as my co-author Will Wilder and I explain in a new article in the Stanford Law & Policy Review, attacks on certification did not end after January 6 — they merely shifted to the local and state level.

Cochise County, Arizona, provides a prime recent example. In November 2022, the county’s board of supervisors voted against certifying the county’s general election returns, citing vague concerns that the county’s voting machines could not be trusted. But later, one of the supervisors admitted that their refusal to certify was really a protest against the election in nearby Maricopa County, where a ballot printing error ignited a firestorm of conspiracy theories that the glitch resulted in mass election fraud….

Share this:

Danforth, Luttig et. al SCOTUS Amicus Brief Stresses the Risk of Presidential Immunity for President Accused of Election Subversion

From the excellent just-filed brief:

Here, one dispositive basis that fully sustains the judgment of the D.C. Circuit is that a President does not have immunity to engage in federal statutory crimes to subvert presidential election results and prevent the vesting of executive power in the newly-elected President. App’x at 31A, 37A-41A. A core allegation of the Indictment is that Mr. Trump knew that it was false to say there had been “outcome-determinative voting fraud in the [2020] election,” but nonetheless engaged in criminal lies and conspiracies “to overturn the legitimate results of the 2020 presidential election and retain power.”2 Under these allegations, former President Trump’s violations of federal criminal statutes were directed to usurping the authority and functions of the Presidency for the current term to which President Biden was legitimately elected. That constitutes an alleged effort to violate Article II, Section 1, Clause 1, also called the Executive Vesting Clause, and the Twentieth Amendment.

Former President Trump’s alleged effort to usurp the Presidency presents an especially weak case for extending the court-created doctrine of presidential immunity to a criminal prosecution. Nixon v. Fitzgerald, 457 U.S. 731 (1982), emphasized that the justification for even civil absolute immunity is not to protect any individual President, but rather “the Nation that the Presidency was designed to serve.” Id. at 753 (emphasis added). The last thing that would serve the Nation or the Presidency would be to embolden Presidents who lose re-election to engage in federal criminal statutory violations, through official acts or otherwise, as part of efforts to prevent the vesting of executive power required by Article II in their lawfully-elected successors. The scope of criminal immunity proposed by former President Trump would turn Nixon v. Fitzgerald on its head by encouraging the greatest possible threat of “intrusion on the authority and functions of the Executive Branch,” id. at 754 — a losing President’s efforts to usurp the authority and functions of a duly-elected successor President.

Mr. Trump mischaracterizes the D.C. Circuit as rejecting federal criminal immunity for former Presidents in “all” contexts. App’n at 1, 11, 25. This ignores the D.C. Circuit’s narrow holding that: “The Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution and the voters’ interest in democratically selecting their President . . . compel the conclusion that former President Trump is not immune from prosecution under the Indictment.” App’x at 31A. The Court emphasized: “[O]ur analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.” Id.; accord id. at 57A (public policy “compel[s] the rejection of his claim of immunity in this case”). As the court reiterated: “We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power—the recognition and implementation of election results.” Id. at 40A. Under Trump v. Thompson, the holding in these quotations by itself warrants denial of the application for a stay.

Although amici agree with the rest of the D.C. Circuit’s analysis, this Court should deny a stay even if this Court might not. The demonstrable need to deter attempted usurpation of the Presidency by itself provides a compelling ground that sustains the judgment below denying federal criminal immunity in this case. Because of at least this ground, denying a stay would not preclude possible federal criminal immunity for a President’s official acts in some different, exceptional situation. Nor would the Court have to address whether any alleged criminal
conduct here was an official act.


Preservation of the Presidency designed by Article II requires rejection of immunity from prosecution for a President’s engaging in violations of federal criminal statutes to alter declared presidential election results, whether that conduct consists of acts as a candidate, official acts, or both. Here, for example, the former President argues that he was acting officially when he allegedly conspired to commit federal criminal conduct by using Department of Justice personnel to make false statements to state officials to support his efforts to overturn declared state election results. Indictment, ¶¶ 70, 75, 78-79, 84. If that qualified for absolute immunity, the precedent would improperly encourage a future President to violate federal criminal statutes by deploying the military and armed federal agents in efforts to alter the results of a presidential election. See Part II.B, infra. This Court should deny a stay in this case because Mr. Trump’s claim of such a boundless immunity is wrong.


Share this:

“The Legal Coup; New Documents Reveal How Trump Lawyers Sought ‘Chaos’ to Force SCOTUS, or Whoever Else, to Anoint Trump”

Josh Kovensky for TPM:

In late 2020, a group of conservative movement attorneys set out to build a legal pathway by which Donald Trump could stay in power, having lost the election. 

We’ve known about the outcome of their work for three years now: how it led to the violence of Jan. 6, and fed the dream of Trump’s supporters that he might continue to serve after Jan. 20, 2021.

But TPM can now reveal the ways in which their theorizing, in early stages, went even further than previously known, imagining a Jan. 6 that lasted for not hours but days, an intervention by Supreme Court justices that they presumed to be loyal to President Trump, and a vice president who upended his constitutional duties, allowing the U.S. to descend into chaos. 

A trove of documents obtained by TPM details many of the conversations among Trump campaign lawyers, and, in particular, the theories offered by Kenneth Chesebro, an attorney who worked with the campaign in the months leading up to Jan. 6. 

Within weeks of Trump denouncing the election itself and claiming that he had won, Chesebro and Trump campaign attorneys around him began to explore more exotic legal theories in which endless chaos in Congress would prove that the legislature could not certify a winner. That stalemate, they theorized, would force the Supreme Court to act. 

Chesebro, an appellate lawyer, provided a legal framework in which, he contended, Trump could still win — or at least cause enough confusion and chaos that the conservative Supreme Court would have to get involved in picking the president. His plan envisioned several gambits which have now become familiar building blocks of the legal portion of the coup attempt, and the basis for criminal charges across the country: creating slates of fake electors, having Mike Pence refuse to count Biden’s electoral votes on Jan. 6, and ultimately tossing the whole issue to the high court. 

TPM obtained the trove of documents after Ken Chesebro supplied emails, texts, and memos from his time with the Trump campaign to Michigan prosecutors in Attorney General Dana Nessel (D)’s office, which has been investigating the fake electors scheme. Multiple defense attorneys for already-charged fake electors told TPM that they had received the documents as part of the discovery process in that case. After Michigan prosecutors sent out the documents, CNN and the Detroit News reported on his Oval Office encounter with Trump and the fake electors scheme using records from the same trove obtained by TPM.

The thousands of emails, memos, and texts only represent what Chesebro experienced directly and what he chose to share. Other emails and texts among Trump lawyers from which Chesebro was excluded are not included here. The records are not comprehensive of the Trump campaign’s entire effort to reverse the President’s loss; they reflect what Chesebro provided as he sought to avoid further prosecution, and what reached TPM. 

Specifically, some of the documents not in the trove obtained by TPM include a portion of Chesebro’s communications with another Trump attorney. Chesebro also sat for a 4 and a half hour long interview with Michigan prosecutors in December 2023 as part of his cooperation and recounted his actions from three years before. He told prosecutors in the interview that many of his communications with Boris Epshteyn, the Trump surrogate and attorney who reportedly appears in Jack Smith’s D.C. Jan. 6 indictment as co-conspirator 6, took place via Signal. Those were deleted automatically, he said. …

Share this:

“Exclusive: Biden officials confront limits of federal response in exercise preparing for 2024 election threats”

CNN:

When senior national security officials gathered in the White House Situation Room in December to prepare for the 2024 election, they faced a pair of stark, simulated scenarios that tested the limits of any federal response to election-related chaos, four people familiar with the meeting told CNN.

What if Chinese operatives created a fake AI-generated video showing a Senate candidate destroying ballots? And how should federal agencies respond if violence erupts at polling stations on Election Day?

For nearly an hour, the No. 2 officials at the FBI, CIA and departments of Homeland Security and Justice wrestled with how to respond to the deepfake video, including whether and how to notify the public about the activity if they weren’t sure that China was behind it, the sources told CNN.

When it comes to a coordinated federal response to things like rampant disinformation, deepfakes and the harassment of election officials, “We’re all f—king tied up in knots,” said one US official familiar with the election security drill.

The previously unreported meeting was the first such drill the Biden White House has held in more than three years in office. It highlights the wrenching questions confronting the administration as it games out potential threats to the 2024 election —and the limits of federal power to respond to them.

US national security officials have to weigh whether publicly calling attention to disinformation might inadvertently amplify the very message they’re trying to bat down. And they can act more swiftly to speak out publicly if they know that a foreign actor is behind an information operation targeting the election. If there’s a chance an American citizen is involved, US officials are more reluctant to counter it publicly out of fear of giving the impression that they are influencing the election or restricting speech.

In both scenarios, federal officials favored a muted public response, largely choosing to let state and local governments take the lead. That points to a deep-seated dilemma they face: How does the federal government protect voters from election threats when many of those voters don’t trust the federal government in the first place? State and local officials run elections and are more trusted voices in their communities, but how can federal officials act decisively to support them?

Share this:

“Election officials go on offense to prevent disruptions of 2024 vote”

Yvonne Wingett Sanchez for WaPo:

In training poll workers for this year’s presidential election, Arizona Secretary of State Adrian Fontes is preparing them for a series of worst-case scenarios, including combat.

His office is coordinating active-shooter drills for election workers and has sent kits to county election offices that include tourniquets to stem bleeding, devices to barricade doors and hammers to break glass windows.

Fontes, a Democrat and Marine Corps veteran, doesn’t think he is overreacting.

“We recognize the real and present danger that’s presented by the conspiracy theories and the lies,” Fontes said. “An ounce of prevention is really all we can afford right now, and so that’s what we’re going to do.”

Around the nation, those who run voting operations — more than a dozen of whom were interviewed by The Washington Post — say theyare preparing for the types of disruptions that historically had been more associated with political unrest abroad than American elections.

In a year when Republicans appear on track to nominate for president Donald Trump, who continues to deny the results of the last election and is already casting doubt on the integrity of this one, election officials are going on offense more than ever to try to keep election workers safe, educate voters on how the voting and counting processes work, debunk misinformation and hold accountable those who try to disrupt the democratic process.

They are amping upadvertising budgets, increasing training for election workers, learning how best to quickly correct false information and bolstering coordination with federal, state and local law enforcement to better respond to threats and harassment.

The scale of the undertaking reflects the magnitude of the challenge. After years of Trump’s relentless attacks on the election system, fewer than a third of Republicans see Biden’s 2020 victory as legitimate. Many voters who believe that the vote was rigged cite as evidence a series of claims that have been repeatedly debunked. New conspiracy theories sprout almost daily, some tracing their origins to authentic-looking AI-generated videos. All the while, election workers face harassment and threats.

Share this: