Category Archives: election subversion risk

Breaking: Supreme Court Will Not Hear John Eastman Case Seeking to Wipe Out District Court Decision That He Likely Committed a Crime with Trump of Attempted Election Subversion; J. Thomas Recuses

From the order list:

The petition for a writ of certiorari is denied. Justice Thomas took no part in the consideration or decision of this petition.

I was glad to see, as I had suggested, that Justice Thomas recuse given the involvement of his wife in events with Eastman connected to Trump’s attempted subversion of the 2020 election.

My earlier coverage:

John Eastman Offers Warped View of 2020 Election, the January 6 “incursion into the Capitol,” and His Attempt to Subvert Election, in Supreme Court Brief Seeking to Erase District Court Case Finding He and Trump Likely Participated in a Crime

election subversion riskSupreme CourtRICK HASENEdit

Via Tierney Sneed at CNN, comes this cert. petition before the Supreme Court in No. 22-1138. Eastman is asking for Munsingwear vacatur of a federal district court ruling, which would wipe that case off the books on grounds it is moot. The case held that Trump and Eastman likely committed a crime in how they tried to interfere with the electoral college vote and turn an election loser into an election winner. Eastman now argues the case is moot because the documents and been released, and the ruling “created a stigma for both Petitioner and his client, the former President of the United States and current candidate for the presidency.”

Of particular interest to me was Eastman’s warped view of the facts of the 2020 election aftermath in his brief. It makes no mention of the crimes that Eastman and Trump were accused of participating in, only indirectly suggesting that Eastman did nothing wrong.

It also wrongly suggests that because the Wisconsin Supreme Court more than a year after the 2020 election found the use of drop boxes did not comply with Wisconsin law, that “thousands of illegal votes [were] included in certified votes in the election.” That is false. There was no finding that any illegal votes were cast in Wisconsin via drop boxes, even if the method used to collect those ballots cannot be used in future elections. Teigen v. Wis. Elections Comm’n, 976 N.W.2d 519 (Wis. 2022), did not involve any allegation that ballot drop boxes were used to commit election fraud, and there was no credible evidence presented that drop boxes in Wisconsin or anywhere else facilitated such fraud. Id. at 583 (Ann Walsh Bradley, J., dissenting) (“There is no evidence at all in this record that the use of drop boxes fosters voter fraud of any kind. None. And there certainly is no evidence that voters who used drop boxes voted for one candidate or party or another, tilting elections either direction.”); see also Trump v. Biden, 951 N.W.2d at 583 (Hagedorn, J., concurring) (“At the end of the day, nothing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country.”).

Eastman’s brief also wraps itself in the most extreme version of the independent state legislature theory, suggesting any time a state or local administrator administered an election in a way not explicitly described in a state statute, the election was conducted illegally. (See my amicus brief in Moore v. Harper for the absurdity of this position.)

Given Ginni Thomas’s involvement in some of these same events, I hope that Justice Thomas will be recusing from considering this cert. petition.

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October 20 Free Online Conference from the Safeguarding Democracy Project:  “The Law and Politics of Potentially Disqualifying Donald Trump from Running for President”

Dynamite lineup:

October 20, 9:00am-1pm – The Law and Politics of Potentially Disqualifying Donald Trump from Running for President

Online Conference

Registration link:

Conference: The Law and Politics of Potentially Disqualifying Donald Trump from Running for President

Friday October 20, 2023 | 9 am – 1 pm PT (12 pm – 4 pm ET) (on Zoom)

UCLA Law’s Safeguarding Democracy Project

Tentative Conference Agenda

9 am PT

  • Richard L. Hasen

9:15 am-10:15 am
Deciding on Presidential Disqualification: Who, How, When, and Where?

  • Edward B. Foley
  • Derek Muller
  • Lisa Manheim
  • Moderator: Rebecca Green

10:20 am-11:20 am
The Politics of Candidate Disqualification: Here and Abroad

  • Gretchen Helmke
  • Sam Issacharoff
  • Daniel Ziblatt
  • Moderator: Julia Azari

11:25 am-12:25 pm
Does Section 3 of the 14th Amendment Bar Trump from Holding Office?

  • Mark Graber
  • Sherrilyn Ifill
  • Kurt Lash
  • Gerard Magliocca
  • Moderator: Guy Charles

12:30 pm-1 pm
Conclusion: Roundtable Discussion and Q & A with All the Participants

Moderator: Richard L. Hasen

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“Twitter Fires Election Integrity Team Ahead of 2024 Elections”

Rolling Stone:

NEXT YEAR WILL see dozens of elections around the globe, but X (formerly Twitter) has seemingly abdicated responsibility for protecting users from misinformation during these democratic processes.

Several European staffers working on a threat disruption team for the social platform, including senior manager Aaron Rodericks, have been fired this week, according to a report in the tech publication The Information that cited anonymous sources familiar with the matter. Site owner Elon Musk confirmed the termination of the team members on Wednesday.

Last month, Rodericks, a Canadian senior manager based in Ireland, posted on LinkedIn that he was looking to hire eight staffers ahead of more than 70 elections worldwide in 2024, to work on combating material that could undermine democracy. “If you have a passion for protecting the integrity of elections and civic events, X is certainly at the centre of the conversation!” he wrote. The new employees would work at one of several U.S. offices, or in Toronto, Dublin, or Singapore. X’s Safety team likewise announced that they were “expanding our safety and elections teams to focus on combating manipulation, surfacing inauthentic accounts and closely monitoring the platform for emerging threats.”

But Rodericks — whose law firm did not respond to multiple requests for comment on his apparent termination by X — never got the chance to build his team. The hiring notice attracted the notice of right-wing influencers including Chaya Raichik (a.k.a. Libs of TikTok) and Mike Benz, a former State Department official who at one point was angling for access to the so-called “Twitter Files,” internal communications that conservatives believe demonstrated collusion between the company and the U.S. government to censor conservative views and media.

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“Trump Lawyers Assail Gag Order Request in Election Case”


Lawyers representing former President Donald J. Trump against federal charges accusing him of seeking to overturn the 2020 election offered an outraged response on Monday to the government’s request for a gag order, saying the attempt to “muzzle” him during his presidential campaign violated his free speech rights.

In a 25-page filing, the lawyers sought to turn the tables on the government, accusing the prosecutors in the case of using “inflammatory rhetoric” themselves in a way that “violated longstanding rules of prosecutorial ethics.”

“Following these efforts to poison President Trump’s defense, the prosecution now asks the court to take the extraordinary step of stripping President Trump of his First Amendment freedoms during the most important months of his campaign against President Biden,” one of the lawyers, Gregory M. Singer, wrote. “The court should reject this transparent gamesmanship.”

The papers, filed in Federal District Court in Washington, came 10 days after prosecutors in the office of the special counsel, Jack Smith, asked Judge Tanya S. Chutkan, who is overseeing the election interference case, to impose a narrow gag order on Mr. Trump. The order, they said, was meant to curb Mr. Trump’s “near-daily” barrage of threatening social media posts and to limit the effect his statements might have on witnesses in the case and on the potential jury pool for the trial. It is scheduled to take place in Washington starting in March.

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My New One in The Atlantic: “The Supreme Court Needs to Make a Call on Trump’s Eligibility; The question of the former president’s possible disqualification needs to be resolved sooner or later. Sooner is better than later.”

I have written this piece for The Atlantic. It begins:

There’s an old saying that sometimes it is more important for the law to be certain than to be right. Certainty allows people to plan their actions knowing what the rules are going to be.

Nowhere is this principle more urgent than when it comes to the question of whether Donald Trump’s efforts to subvert the 2020 election results have disqualified him from becoming president again. As cases raising the question have begun working their way through the courts in ColoradoMinnesotaand elsewhere, the country needs the Supreme Court to fully resolve the issue as soon as possible….

A number of legal doctrines could lead courts to kick this issue down the road for some time. Maybe the provision applies not to primaries, but only to candidates in a general election. Maybe voters don’t have standing to sue, because they can’t show a particularized injury. Maybe this is a political question to be decided by the political branches, such as Congress, rather than by the judiciary.

But courts should not dally, because judicial delay could result in disaster. Imagine this scenario: Election officials and courts take different positions on whether Trump’s name can appear on the ballot in 2024. The Supreme Court refuses to get involved, citing one of these doctrines for avoiding assessing the case’s merits. Trump appears to win in the Electoral College while losing the popular vote. Democrats control Congress, and when January 6, 2025, arrives and it is time to certify the vote, Democrats say that Trump is ineligible to hold office, and he cannot serve.

As I and my co-authors argue in our report on how to have a fair and legitimate election in 2024, such a scenario raises the possibility of major postelection unrest. The country would have one political party disqualifying the candidate of the other party from serving—after that candidate has apparently won the results of a fair election….

How the Supreme Court would—or should—resolve the question of Trump’s disqualification on the merits is far from clear. There is no question that Trump tried to subvert the results of the 2020 election, using pressure, lies, and even the prospect for violence to overturn Joe Biden’s victory. Trump so far has faced no accountability for his actions: The Senate did not muster the two-thirds vote in 2021 to convict him after his second impeachment, a step that could have led to his disqualification under Congress’s impeachment-related powers. The federal and Georgia cases against Trump for his alleged election interference may yet go to trial, but whether verdicts will ever be reached is far from certain. In any event, even a guilty verdict would not disqualify Trump. If there is going to be any accountability for Trump’s actions in 2020, it might have to come from this disqualification provision. A reading of the Fourteenth Amendment in this way helps protect our democracy.

But serious legal questions continue to dog any use of Section 3 of the Fourteenth Amendment. My general view is that to avoid the overall criminalization of politics, reserve prosecuting politicians for instances when both the law and the facts are clear; marginal cases are best left to other remedies. Disqualification, of course, is not a criminal procedure, but borrowing this principle from the criminal context recommends caution here too. In close cases, the voters should get to decide at the ballot box.

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“As Trump Prosecutions Move Forward, Threats and Concerns Increase”

NY Times:

At the federal courthouse in Washington, a woman called the chambers of the judge assigned to the election interference case against former President Donald J. Trump and said that if Mr. Trump were not re-elected next year, “we are coming to kill you.”

At the Federal Bureau of Investigation, agents have reported concerns about harassment and threats being directed at their families amid intensifying anger among Trump supporters about what they consider to be the weaponization of the Justice Department. “Their children didn’t sign up for this,” a senior F.B.I. supervisor recently testified to Congress.

And the top prosecutors on the four criminal cases against Mr. Trump — two brought by the Justice Department and one each in Georgia and New York — now require round-the-clock protection.

As the prosecutions of Mr. Trump have accelerated, so too have threats against law enforcement authorities, judges, elected officials and others. The threats, in turn, are prompting protective measures, a legal effort to curb his angry and sometimes incendiary public statements, and renewed concern about the potential for an election campaign in which Mr. Trump has promised “retribution” to produce violence.

Given the attack on the Capitol by Trump supporters on Jan. 6, 2021, scholars, security experts, law enforcement officials and others are increasingly warning about the potential for lone-wolf attacks or riots by angry or troubled Americans who have taken in the heated rhetoric.

In April, before federal prosecutors indicted Mr. Trump, one survey showed that 4.5 percent of American adults agreed with the idea that the use of force was “justified to restore Donald Trump to the presidency.” Just two months later, after the first federal indictment of Mr. Trump, that figure surged to 7 percent.

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“Misinformation research is buckling under GOP legal attacks”

Must-read WaPo:

Academics, universities and government agencies are overhauling or ending research programs designed to counter the spread of online misinformation amid a legal campaign from conservative politicians and activists who accuse them of colluding with tech companies to censor right-wing views.

The escalating campaign — led by Rep. Jim Jordan (R-Ohio) and other Republicans in Congress and state government — has cast a pall over programs that study not just political falsehoodsbut also the quality of medical information online.

Facing litigation,Stanford University officials are discussing how they can continue tracking election-related misinformation through the Election Integrity Partnership (EIP), a prominent consortium that flagged social media conspiracies about voting in 2020 and 2022, several participants told The Washington Post. The coalition of disinformation researchers may shrink and also may stop communicating with X and Facebook about their findings…..

Led by the Stanford Internet Observatory and the University of Washington’s Center for an Informed Public, the coalition of researchers was formed in the middle of the 2020 presidential campaign to alert tech companies in real time about viral election-related conspiracies on their platforms. The posts, for example, falsely claimed Dominion Voting Systems’ software switched votes in favor of President Biden, an allegation that also was at the center of a defamation case that Fox News settled for $787 million.

In March 2021, the group released a nearly 300-page report documenting how false election fraud claims rippled across the internet, coalescing into the #StopTheSteal movement that fomented the Jan. 6, 2021, attack at the U.S. Capitol. In its final report, the coalition noted that Meta, X (formerly Twitter), TikTok and YouTube labeled, removed or suppressed just over a third of the posts the researchers flagged.

But by 2022, the partnership was engulfed in controversy. Right-wing media outlets, advocacy groups and influencers such as the Foundation for Freedom Online, Just the News and far-right provocateur Jack Posobiec argued that the Election Integrity Partnership was part of a coalition with government and industry working to censor Americans’ speech online. (Posobiec didn’t respond to a request for comment, but after this story was published online he posted the request on X with the comment: “Every one of these programs will be penniless and powerless by the time I am done.”)

Jordan has sent several legal demands to see the coalition’sinternal communications with the government and social media platforms and hauled them into Congress to testify about their work.

Louis-Charles, the Judiciary Committee spokeswoman, said in a statement that the universities involved with EIP “played a unique role in the censorship industrial complex given their extensive, direct contacts with federal government agencies.”

The probe prompted members of the Election Integrity Partnership to reevaluate their participation in the coalition altogether. Stanford Internet Observatory founder Alex Stamos, whose group helps lead the coalition, told Jordan’s staff earlier this year that he would have to talk with Stanford’s leadership about the university’s continued involvement, according to a partial transcript filed in court.

“Since this investigation has cost the university now approaching seven [figure]legal fees, it’s been pretty successful, I think, in discouraging us from making it worthwhile for us to do a study in 2024,” Stamos said.

Kate Starbird, co-founder of the University of Washington Center for an Informed Public, declined to elaborate on specific plans to monitor the upcoming presidential race but said her group aims to put together a “similar coalition … to rapidly address harmful false rumors about the 2024 election.”

She added, “It’s clear to me that researchers and their institutions won’t be deterred by conspiracy theorists and those seeking to smear and silence this line of research for entirely political reasons.”…

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Larry Lessig on Trump Disqualification: “A Terrible Plan to Neutralize Trump Has Entranced the Legal World”

Larry Lessig in Slate:

No one thinks Jan. 6 was a repeat of Fort Sumter. No one, that is, believes that Trump and his allies were rallying to secede from the Union. Nonetheless, the argument these lawyers press is that the words of Section 3, as understood at the time they were ratified, should reach the behavior we saw on Jan. 6. That behavior, they insist, was “insurrection or rebellion.”

Others have resisted this argument—including a co-founder of the Federalist Society who initially endorsed the idea and then changed his mind—because they don’t believe that Section 3 applies to the president. But there is a much more practical reason why it would be a mistake to apply Section 3 to the events of Jan. 6. And to see why, we need only envision a different scenario from the one that actually played out.

Imagine that on Jan. 6, Vice President Mike Pence did what Trump’s lawyer John Eastman was advising him to do: assert a constitutional authority to decide which electoral votes should be counted. Imagine he then excluded the ballots for Joe Biden in a number of critical states, and instead counted the ballots for Donald Trump in those states. And then imagine, on the basis of that count, that Pence declared Donald Trump reelected.

Most believe that at this point the Supreme Court would intervene. Yet anyone close to constitutional law recognizes that that backstop is actually quite leaky. There would be a very strong argument that the counting of electoral votes by the joint session of Congress is a political question, beyond the scope of legitimate Supreme Court review. That argument could easily have persuaded a majority of that court to stay out of the conflict, leaving Trump declared to be the next president. And with that act, the thousands surrounding the Capitol would have broken out in cheers. They would have stopped the steal, as they saw it.

What, then, would be the status of anyone who would act to resist that outcome? What is the line that would divide “insurrectionists” from protesters? If 50,000 gathered on Capitol Hill to protest the Pence coup, would that render the protesters insurrectionists under Section 3? Would they be acting to overthrow a government? Or would it require violence for resistance to become a violation of Section 3? And if so, how much violence? If protesters on the House side broke into the Capitol, would protesters on the Senate side who didn’t break in be disqualified? Or, more pointedly, would those who rallied the protesters to resist the Pence coup then be disqualified from future office?

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“Former DOJ attorney acted under Trump’s direction, his lawyer says”


As a Justice Department lawyer after the 2020 election, Jeffrey Clark drafted a letter to top Georgia officials declaring that the agency had reason to doubt the legitimacy of the state’s election only after he was pressed to do so by then-President Donald Trump, Clark’s lawyer told a skeptical federal judge Monday.

That fact alone, Harry MacDougald argued, warrants that the criminal case against Clark, who was indicted last month in Fulton County, Ga., along with Trump and 17 others in connection with their efforts to overturn the 2020 election in Georgia, should be moved to federal court.

“They say he was acting outside of his lane,” MacDougald said. “The president put it in his lane.”

U.S. District Judge Steve C. Jones appeared wary of the claim, pressing MacDougald for evidence that Trump had directed Clark to act. MacDougald did not offer any and even appeared uncertain when Jones asked him whether Clark’s draft letter was written after a meeting among him, Trump and several other senior Justice Department officials.

MacDougald described how Clark drafted the letter in his office at the Justice Department and used his DOJ email to send the document. He said it would be “simply impossible” for Clark to do what he is charged with if he were not acting as a federal official and said Trump had “ratified” his client’s conduct.

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Must Read Yoel Roth NYT Oped on Threats and Intimidation of Those Who Kept the 2020 Elections Safe

This is truly must-read:

When I worked at Twitter, I led the team that placed a fact-checking label on one of Donald Trump’s tweets for the first time. Following the violence of Jan. 6, I helped make the call to ban his account from Twitter altogether. Nothing prepared me for what would happen next.

Backed by fans on social media, Mr. Trump publicly attacked me. Two years later, following his acquisition of Twitter and after I resigned my role as the company’s head of trust and safety, Elon Musk added fuel to the fire. I’ve lived with armed guards outside my home and have had to upend my family, go into hiding for months and repeatedly move.

This isn’t a story I relish revisiting. But I’ve learned that what happened to me wasn’t an accident. It wasn’t just personal vindictiveness or “cancel culture.” It was a strategy — one that affects not just targeted individuals like me, but all of us, as it is rapidly changing what we see online.

Private individuals — from academic researchers to employees of tech companies — are increasingly the targets of lawsuits, congressional hearings and vicious online attacks. These efforts, staged largely by the right, are having their desired effect: Universities are cutting back on efforts to quantify abusive and misleading information spreading online. Social media companies are shying away from making the kind of difficult decisions my team did when we intervened against Mr. Trump’s lies about the 2020 election. Platforms had finally begun taking these risks seriously only after the 2016 election. Now, faced with the prospect of disproportionate attacks on their employees, companies seem increasingly reluctant to make controversial decisions, letting misinformation and abuse fester in order to avoid provoking public retaliation…..

on Dec. 6, four days after the first Twitter Files release, I was asked to appear at a congressional hearing focused on the files and Twitter’s alleged censorship. In that hearing, members of Congress held up oversize posters of my years-old tweets and asked me under oath whether I still held those opinions. (To the extent the carelessly tweeted jokes could be taken as my actual opinions, I don’t.) Ms. Greene said on Fox News that I had “some very disturbing views about minors and child porn” and that I “allowed child porn to proliferate on Twitter,” warping Mr. Musk’s lies even further (and also extending their reach). Inundated with threats, and with no real options to push back or protect ourselves, my husband and I had to sell our home and move.

Academia has become the latest target of these campaigns to undermine online safety efforts. Researchers working to understand and address the spread of online misinformation have increasingly become subjects of partisan attacks; the universities they’re affiliated with have become embroiled in lawsuits, burdensome public record requests and congressional proceedings. Facing seven-figure legal bills, even some of the largest and best-funded university labs have said they may have to abandon ship. Others targeted have elected to change their research focus based on the volume of harassment.

Bit by bit, hearing by hearing, these campaigns are systematically eroding hard-won improvements in the safety and integrity of online platforms — with the individuals doing this work bearing the most direct costs.

Tech platforms are retreating from their efforts to protect election security and slow the spread of online disinformation. Amid a broader climate of belt-tightening, companies have pulled back especially hard on their trust and safety efforts. As they face mounting pressure from a hostile Congress, these choices are as rational as they are dangerous.

Yoel Roth is one of the panelists at our 9/26 event for the Safeguarding Democracy Project.

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“Special counsel warned Trump could ‘precipitate violence’ if told of Twitter search warrant”

The Hill:

Newly unsealed court records indicate special counsel Jack Smith’s team warned that former President Trump could “precipitate violence” unless the court shielded its efforts to obtain information on his Twitter account.

The records show Smith’s office obtained a total of 32 direct messages from Trump’s account as part of its investigation, with a copy of the warrant also unsealed Friday showing the breadth of the information prosecutors sought.

The 71-page filing from prosecutors, submitted to the court in April but unsealed Friday, offers new details about why Smith’s team feared alerting Trump to the matter….

While prosecutors reiterated prior arguments that Trump could jeopardize the case if the warrant was disclosed, it cites Trump’s past behavior as the need to do so.

“These are not hypothetical considerations in this case. Following his defeat in the 2020 presidential election, the former President propagated false claims of fraud (including swearing to false allegations in a federal court filing), pressured state and federal officials to violate their legal duties, and retaliated against those who did not comply with his demands, culminating in violence at the U.S. Capitol on January 6,” prosecutors wrote.

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