You can watch here:
Category Archives: election subversion risk
Rick Hasen’s Live Blog of the Supreme Court’s Oral Argument Over Trump’s Claim of Immunity in the Federal Election Subversion Case (Updates completed)
[This post has been updated.]
After a couple of hours of oral argument, it appears that the Supreme Court is unlikely to embrace either Donald Trump’s extreme position—that would seem to give immunity for a president who ordered an assassination of a rival or staged a coup—or the government’s position that a former president is not absolutely immune even for his or her official acts. Conservatives on the Court are going to make it hard to prosecute a former president for most crimes. But they are likely to reject some of the most extreme, insane, authoritarian arguments that were made by Trump’s lawyer.
The final opinion will likely come closer to the government’s position, but it will almost certainly result in a divided set of opinions (which take more time to draft) and a lot of work on remand to rework the results of the case. The bottom line is that Trump is likely to get what he wants—a further delay of this election subversion case, maybe pushing it to after the election. If that happens, the public won’t get the benefit of having a jury determine before the election if Trump tried to steal the 2020 election. Further, if Trump is elected in 2024, he can end this and the other federal prosecution against him. He also is likely to try to pardon himself. And the Supreme Court will be complicit in much of this.
From earlier:
I have called the federal case against Donald Trump for attempting to subvert the results of the 2020 U.S. presidential election perhaps the most important case in U.S. history, at least when it comes to our democracy. That case should have gone to trial last month, but the case got put on hold when Donald Trump filed an interlocutory appeal (that is, an appeal in the middle of trial proceedings) arguing that he is absolutely immune from any criminal prosecution for any acts he undertook as President. Trump lost that argument in the trial court and in the U.S. Court of Appeals for the D.C. Circuit. The Supreme Court agreed to hear the case, on a somewhat expedited basis, but not on the basis that Jack Smith, the special counsel, had asked for (he originally wanted the Court to leapfrog over the D.C. Circuit but the Court said no). Trump already may have effectively won by running out the clock so a trial could not happen before the election. This is the last argument day of the term, and I would not expect an opinion until the very end of the Supreme Court’s term in late June or early July, unless there’s movement to expedite following oral argument.
What I was listening for: how much is there a focus on Trump’s actions in trying to subvert the election? Is there a path to saying that at least such interference is not immune, leaving other immunity issues to another day? Is the Court going to be worried about a slippery slope of potential criminal prosecutions of former presidents after they leave office?
Below the fold you will find my notes that I took as argument went forward:
Continue reading Rick Hasen’s Live Blog of the Supreme Court’s Oral Argument Over Trump’s Claim of Immunity in the Federal Election Subversion Case (Updates completed)“Trump is a co-conspirator in Michigan’s 2020 false electors plot, state investigator says”
Michigan prosecutors consider former President Donald Trump and some of his top aides co-conspirators in the plot to submit a certificate falsely claiming he won Michigan’s 2020 election, an investigator for Attorney General Dana Nessel’s office testified Wednesday in court.
Howard Shock, a special agent for Nessel, said Trump; Mark Meadows, who was Trump’s chief of staff; and Rudy Giuliani, who was his personal lawyer, are “unindicted co-conspirators” in Michigan’s false elector case. That means prosecutors believe they participated, to some extent, in an alleged scheme to commit forgery by creating a false document asserting Trump had won Michigan’s 16 electoral votes when Democrat Joe Biden had won them.
Shock’s testimony came on the sixth day of preliminary examinations in Ingham County District Court as Nessel’s office pursues felony charges against a group of Republican activists who signed the certificate of votes claiming Trump won….
“Inside Donald Trump’s Embrace of the Jan. 6 Rioters; The former president initially disavowed the attack on the Capitol, but he is now making it a centerpiece of his general election campaign.”
“Jan. 6 Obstruction Case at Supreme Court Could Help Trump and Many Others”
Adam Liptak for the NYT.
The Supreme Court Can No Longer Sidestep Considering January 6 and the Attempts to Subvert the 2020 Election
The Supreme Court was miraculously able to sidestep any grappling with attempts to subvert the 2020 presidential election in Trump v. Anderson, the case over whether Donald Trump was barred from serving as President again for encouraging an insurrection. The Court did not need to reach the issue of whether Trump’s actions qualified because they decided on technical grounds that states did not have the power of disqualification through removal from the ballot.
But the Court cannot sidestep the issues any longer, as they are coming to the Court’s April sitting. In the Fisher case, being heard on April 16, the Court will confront the question whether January 6 rioters could be charged with obstructing an official proceeding under a provision of the Sarbanes-Oxley act. The case turns on a technical issue of statutory interpretation—the meaning of the word “otherwise” in the statute—but in resolving the question it will be necessary to look at Fisher’s conduct as he invaded the Capitol, and how the Court discusses and characterizes the actions will be key.
Then, in the Trump immunity case being heard on April 25, the issues of Trump’s attempts to subvert the 2020 election will be front and center. Trump has been charged with a number of crimes related to his attempt to turn himself from an election loser into an election winner, and he’s arguing that he as a former president has absolute immunity from criminal prosecution for any official acts as President, even those that would be illegal for every other person in the country. One of the arguments that special counsel Jack Smith is making in response is that especially crimes related to trying to overturn the results of an election and interfere with the peaceful transition of power cannot be subject to immunity—with immunity, the Supreme Court simply gives a sitting president the power to use violence, intimidation, trickery, and any other crime to turn himself from an election loser into an election winner. That would be the end of democracy.
The Court has managed to stay out of this mess for the last 3+ years. Its free ride is over.
Watch Archived Video of Safeguarding Democracy Project Webinar, “Race and the Risk of Election Subversion”
You can watch this important conversation with Sophia Lin Lakin (ACLU), Spencer Overton (George Washington University Law School), and Sonni Waknin (UCLA Voting Rights Project), moderated by me, at this link.
See also Spencer Overton’s comments on the panel.
A Number Four-Star Admirals and Other Retired Military Leaders File Supreme Court Amicus Brief Raising Risk to Rule of Law and Peaceful Transitions of Power If Trump’s Absolute Immunity Argument is Accepted
You can read the brief at this link.
Danforth, Luttig Amicus Brief in SCOTUS Trump Immunity Case Warns of Dangers to Democracy If President Has Immunity to Steal the Next Election
Presidential immunity, under any label, should never be so broad as to embolden an outgoing President’s violations of federal criminal statutes as part of efforts that would prevent what Article II mandates—the vesting of the authority and functions of the Presidency in the next, lawfully-elected President. This basis to affirm rests on a compelling legal principle: Any presidential immunity has to flow from protecting Article II and the Presidency it designs.
But there can be no Article II rationale for extending criminal immunity to a former President’s alleged federal crimes undertaken in efforts that would violate Article II’s provisions that limit a presidential term to four years and vest the executive power in the duly-elected successor.
One dispositive basis that fully sustains the judgment of the D.C. Circuit is that a President does not have immunity to engage in unofficial or official acts that constitute federal statutory crimes that would overturn presidential election results. J.A. 33, 40-44. 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.”2 Under these allegations, former President Trump’s violations of federal criminal statutes, if successful, would have usurped the authority and functions of the Presidency for the current term to which President Biden was legitimately elected. That constitutes an alleged effort that, if successful, would have violated Article II, Section 1, Clause 1, also called the Executive Vesting Clause, and the Twentieth Amendment.
“‘Start the Steal’: Trump Once Again Planning to Overturn an Election”
HERE IS A PLAN AFOOT to overturn the results of the November election, and for both parties it is fast becoming a major concern. The scheme is being hatched by Republicans on behalf of Donald Trump, who seeks to steal the election if Joe Biden defeats him again. The Biden campaign and an army of lawyers are working to thwart it.
Trump can win on November 5, and polls show he likely would if the election were held today. But if Biden defeats him, the man who would trample the country for his ego can be expected to use even more extreme means than he did last time to flip the result—because he’s trying to stay out of jail.
Trump will declare victory on election night before all the votes are counted, as he did in 2020—and as we know he had planned before election night.
What happens next, depending on how many complicit Republicans aid Trump and his lieutenants in battleground states, could take the nation to dangerous new territory.
Should Biden prevail, Trump will claim the results were tainted—by mail-in voting, machine voting, machine counting, ballot harvesting, corrupt election officials, liberal cities, and illegal immigrants.
The Biden campaign and the Democratic National Committee have been working on an upgraded version of plans they made before November 2020. In anticipation of every nightmarish contingency, squadrons of lawyers are already drawing up the necessary legal filings to avert what they expect will be an all-out assault on the election.
Trump won’t be president this time, and lacks the power of the federal government, so his best path to stealing an election is through the states, before the question comes to Congress on January 6, 2025….
April 9 Safeguarding Democracy Project Event and Webinar: “Race and the Risk of Election Subversion”
I’m looking forward to moderating this event next week.
April 9, 12:15pm – 1:15pm Race and the Risk of Election Subversion
In-person at UCLA Law Room 1337 and Online
Sophia Lin Lakin (ACLU), Spencer Overton (George Washington University Law School), Sonni Waknin (UCLA Voting Rights Project)
“It Depends Who’s Doing the Jawboning”
I’ve got a new post up at Lawfare about a crucial piece missing from the discussion around Murthy v. Missouri, the SCOTUS case about jawboning the social media platforms. Plenty of the Justices had welcome real-world executive experience that came through in last Monday’s argument — but they didn’t recognize that their experiences were also different in ways that should matter. The governing philosophy and structure of different Administrations are distinct, and that context is really important in assessing the potential for coercion.
Or, if you prefer:
Happy Administrations are all alike; unhappy Administrations are each unhappy with social media platforms in their own way.
Judge Recommends John Eastman Be Disbarred, and Pay a Sanction of $10,000, for His Conduct Seeking to Subvert the 2020 U.S. Presidential Election
From the 128-page opinion:
As an initial matter, the court rejects Eastman’s contention that this disciplinary proceeding and Eastman’s resultant discipline is motivated by his political views or his representation of President Trump or President Trump’s Campaign. Rather, Eastman’s wrongdoing constitutes exceptionally serious ethical violations warranting severe professional discipline. As stated by Earl C. and others, “there is no right way to do the wrong thing.” As counsel for President Trump during a disputed presidential election, Eastman made multiple patently false and misleading statements in court filings, in public remarks heard by countless Americans and to others regarding the conduct of the 2020 presidential election and Vice President Pence’s authority to refuse to count or delay counting properly certified slates of electoral votes on January 6, 2021. These statements, made with varying degrees of intent, were improperly aimed at casting doubt on the legitimate election results and support for the baseless claim that the presidency was stolen from his client—all while relying on his credentials as an attorney and constitutional scholar to lend credibility to his unfounded claims.
Even after courts in key states authoritatively rejected unsupported allegations of outcome-determinative fraud in the election, Eastman persisted in proposing a legally unsustainable strategy. From November 2020 forward, as his many legal challenges failed, Eastman substantively advanced the false narrative that widespread fraud had tainted the election, and that Vice President Pence possessed the power to contravene the constitutional
electoral process. His demonstrated intent was to foment loss of public confidence in the integrity of the 2020 election and persuade Vice President Pence to refuse to count or delay the counting of electoral votes on January 6. Most of his misconduct occurred squarely within the course and scope of Eastman’s representation of President Trump and culminated with a shared plan to obstruct the lawful function of the government.
While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law. While his actions are mitigated by his many years of discipline-free practice, cooperation, and prior good character, his wrongdoing is substantially aggravated by his multiple offenses, lack of candor and indifference. Given the serious and extensive nature of Eastman’s unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system….The scale and egregiousness of Eastman’s unethical actions far surpasses the misconduct at issue in Segretti. Unlike Segretti whose offenses occurred outside his role as an attorney, Eastman’s wrongdoing was committed directly in the course and scope of his representation of
President Trump and the Trump Campaign. This is an important factor, as it constitutes a fundamental breach of an attorney’s core ethical duties. Additionally, while the Segretti court found compelling mitigation based on his expressed remorse and recognition of his wrongdoing, no such mitigating factor is present with Eastman. To the contrary, Eastman has exhibited an unwillingness to acknowledge any ethical lapses regarding his actions, demonstrating an apparent inability to accept responsibility. This lack of remorse and accountability presents a significant risk that Eastman may engage in further unethical conduct, compounding the threat to the public. Given the greater magnitude of Eastman’s transgressions compared to Segretti and the heightened risk of future misconduct from his complete denial of wrongdoing, imposing greater discipline than in Segretti is appropriate to protect the public and uphold public confidence in the legal system. Guided by the standards, case law, and the purposes of attorney discipline, the court recommends that Eastman be disbarred.
“‘Assured failure’: Ex-White House lawyer provides new details of final days of Trump’s 2020 election gambit”
Donald Trump’s deputy White House counsel, Pat Philbin, was nervous.
It was just a few days until Jan. 6, 2021, when Congress was slated to certify Joe Biden’s victory in the 2020 election, and Trump had suddenly resuscitated a plan to replace the leadership of the Justice Department with Jeffrey Clark, a little known DOJ official who Trump expected to mount a sweeping nationwide effort to help him remain in power.
So Philbin called Clark, a colleague from their days in private practice dating back to the 1990s and tried to talk him out of it.
“I tried to explain to him that it was a bad idea for multiple reasons,” Philbin recalled Tuesday at a long-delayed disbarment hearing for Clark. “He would be starting down a path of assured failure … If by some miracle somehow, it worked, there’d be riots in every major city in the country and it was not an outcome the country would accept.”…
When Philbin warned Clark that there would be riots in every major American city if Trump reversed the outcome of the election, Clark responded, “Well, Pat, that’s what the Insurrection Act is for,” Philbin recalled.
Clark, in Philbin’s telling, was referring to a 19th-century federal law that permits the president to use the military to quell civil unrest, an indication that he recognized the grave implications of his efforts. Though it was Philbin’s first time publicly discussing the exchange, the conversation was captured in special counsel Jack Smith’s indictment of Trump — without naming either Philbin or Clark, though the identities of both speakers were easily discerned. On Tuesday, Philbin was asked to elaborate on this discussion.
“I don’t think I said anything on the phone. I just thought that that showed a lack of judgment,” he said. “Triggering riots in every major city in America, you’ve got to be really sure about what you’re doing and have no alternatives … In my estimation, that was not the sort of situation we were talking about.”