From the introduction to this brief:

Democracies do not necessarily live forever. Sometimes, they die. Amici’s scholarship shows that they often erode from within, through the degradation of free and fair elections and the capture of independent courts or electoral commissions by ruling parties seeking to expand and entrench their own power. Over the last 20 years, political scientists have documented and analyzed these patterns of democratic backsliding in countries like Hungary, Turkey, and Venezuela. The process is typically piecemeal—so gradual that it may not “set off society’s alarm bells.” Steven Levitsky & Daniel Ziblatt, How Democracies Die 6 (2018).

Such backsliding is happening now in North Carolina. And Judge Griffin’s effort, to invalidate tens of thousands of votes retroactively and overturn an election in the absence of any evidence of fraud or impropriety, is a dramatic escalation.

If we saw this happening in another country, we would know what to call it.

This is no ordinary legal dispute. Alarm bells should be ringing. From the perspective of political scientists and scholars whostudy the breakdown of democracy, Judge Griffin’s actions represent a profound challenge: Will an American state break with democratic norms and overturn an election decided by a majority of voters? Or will Judge Griffin’s efforts be rejected, despite the ruling party’s wishes?

One thing that separates North Carolina from Hungary or Venezuela is the ability of federal courts to enforce democratic norms embodied in federal law. Most nations do not have the benefit of an independent, politically insulated, supervening judicial authority with a duty to effectuate fundamental democratic commitments. But North Carolina has that, in the form of this Court. This Court should assert jurisdiction here, to enforce the statutory and constitutional rules that prohibit retroactively invalidating thousands of votes and to prevent further degradation of democracy in North Carolina.

Marshall Cohen for CNN:

Some rioters charged or convicted in the 2021 attack on the US Capitol are returning to Washington, DC, for President-elect Donald Trump’s inauguration, according to court filings in a dozen cases and multiple sources familiar with the matter.

But some federal judges also recently blocked a handful of other January 6 defendants from attending the inauguration, agreeing with Justice Department prosecutors who argued that letting the rioters “return to the scene of the crime” could put police officers in danger.

Members of the January 6 community – who hold nightly vigils at the DC jail that houses some defendants – have already secured official inauguration tickets, according to multiple sources, and are tapping allies in Trump’s orbit to solicit additional tickets. At least one rioter was invited by members of Congress.

The attempt to hold Donald Trump accountable for seeking to illegally overturn the results of the 2020 election ended shortly after midnight on Tuesday with a whimper, as the United States Department of Justice posted online special counsel Jack Smith’s report just days before Trump reassumes the office of the presidency following his legitimate victory in the 2024 elections. Mitch McConnell, Merrick Garland, and the conservative majority on the United States Supreme Court share responsibility for this remarkable failure of democracy and governance, a failure that could reverberate throughout Trump’s presidency and beyond.

The report succinctly and clearly lays out the attempt to subvert the election through false claims of fraud, attempts to manipulate the rules for choosing presidential electors, pressure on election and elected officials, and ultimately an attempt at political violence. As the report notes, there is no precedent in American history for this attempt to interfere with the peaceful transition of power and turn oneself from an election loser into an election winner. The dangers going forward are deadly serious, as I wrote in Richard L. Hasen, Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States, 135 Harvard Law Review Forum 265 (2022).

It is also no mystery as to who is to blame for this state of affairs. As I wrote in Slate back in October:

There’s a ton of blame to go around for this situation, beginning with then–Senate Majority Leader Mitch McConnell’s refusal to support Donald Trump’s conviction in the Senate after the House impeached him for these activities. Although 57 senators, including seven Republicans, voted for conviction, McConnell did not bring more Republicans along. Had he done so, the Senate could have disqualified Trump from running for office again.

Then there is Joe Biden’s Attorney General Merrick Garland, who dragged his feet for well over a year before taking decisive action against the biggest threat to American democracy since the Civil War of the 1860s. His timidity is inexplicable and disappointing.

But worst of all is the United States Supreme Court. Smith’s Wednesday filing was not a trial brief laying out the case. It is instead a document meant to determine which of Trump’s acts in attempting to subvert the 2020 election were “official acts” that are immune from prosecution and which are unofficial acts, or official acts that may be subject to prosecution (under a set of rules very protective of the former president). Nowhere are the stakes clearer and the difficulty of the task more explicit than when Smith attempts to rebut the presumptive immunity the court offered in regard to Trump’s conversations with Pence seeking to pressure him not to certify the electoral vote….

The fact that no jury may pass on the deadly serious allegations in Smith’s complaint will do more than simply let Trump and others off the hooks for their potential crimes. It will make future criminal activity related to American elections much more likely. And it all could have been avoided if McConnell, Garland, and especially the Supreme Court had done the right thing.

The Smith report notes specifically how if the prosecution had been allowed to go forward, the Supreme Court’s decision in the Trump immunity case stood to give Trump multiple attempts to further delay prosecution and to exclude relevant evidence through the Court’s newly-created and historically unsupported murky new immunity doctrine. The Court ignored the danger of election subversion before it, worried instead about impingement on a hypothetical future president’s power.

Now we will see the ramifications of this epic failure to prosecute what I had called “the most important case in U.S. history.”

Punchbowl:

With President-elect Donald Trump set to take office in less than a week, members of the Jan. 6 Select Committee and White House are privately discussing whether to issue presidential pardons to lawmakers who served on the panel, according to lawmakers and sides.

In an interview, Rep. Bennie Thompson (D-Miss.), who chaired the Jan. 6 committee, said he spoke to the White House counsel’s office last month about the issue. Thompson noted that he hadn’t talked directly with President Joe Biden on the topic, but the veteran Mississippi Democrat said he’d accept a pardon if offered.

“I believe Donald Trump when he says he’s going to inflict retribution on this,” Thompson said on Monday night. “I believe when he says my name and Liz Cheney and the others. I believe him.” Thompson and former Rep. Liz Cheney (R-Wyo.), the panel’s vice chair, were recently awarded the Presidential Citizens Medal by Biden.

As recently as last week, Biden said he’s considering preemptive pardons for high-profile Trump critics. However, the communication between the White House and some committee members on this topic hasn’t been previously reported. Members who served on the panel haven’t asked Biden for a pardon, though we’re told others have lobbied the White House to grant them.

Thompson noted that members have some legal protection under the Speech or Debate Clause, a constitutional privilege that prevents lawmakers from executive-branch action over legitimate legislative activities.

Yet Thompson is concerned that Trump could use other means to strike back at Jan. 6 committee members beyond pressuring the Justice Department to prosecute them….