Category Archives: election subversion risk

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….

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Supreme Court Hands January 6 Rioters a Win in Fischer Case, But It Likely Won’t Help Trump Beat Similar Charges Against Him (Should He Ever Go To Trial on Election Interference)

election subversion risk, Supreme Court

The key holding in Fischer v. United States is to read the obstruction statute so that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other
things used in the proceeding, or attempted to do so.” Rioters were not interfering with evidence, so even though they were trying to stop the counting of electoral college votes, they could not be charged with obstruction under this particular statute.

But Trump allegedly did try to obstruct the proceeding with evidence: the fake electors scheme. So those charges could potentially go forward. (We are still waiting on the immunity ruling which impacts those charges, and Trump likely has run out the clock on the trial before the election.)

Make no mistake: this is a huge political victory for Trump and the January 6 supporters, who will now claim government overreach. And it’s horrendous that, unlike what Justice Jackson did in her concurrence n condemning the attempt to interfere with the peaceful transition of power, there’s not a word from Chief Justice Roberts on how despicable the conduct was. (He does, however, acknowledge that it was Trump supporters (not antifa!) that stormed the Capitol.)

But it doesn’t stop these charges from going forward against Trump.

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Don’t Let the Dismal Biden Debate Performance Overshadow Donald Trump’s Whitewashing of January 6 and His Refusal to Commit to Accepting the Results of the 2024 Election

election subversion risk

All eyes of course are on Biden’s dismal performance in last night’s debate. (I wrote about the election law implications here.) But that should not overshadow the continued serious risk of election subversion coming from Donald Trump. Plans are already underway for 2024.

I’ll have more to say about this in coming days, but Trump refused to take responsibility for January 6 during the debate, lied about the actions he took to quell the violence, and committed to accepting the results of the election only if it is “fair” in his view. We know he has never seen a fair election in which he has lost (and even some that he has won). The risks to free and fair elections remain quite high in this country, and we are in quite dangerous times. The most likely thing that avoids a protracted fight and potential violence surrounding the 2024 election is a Trump cakewalk to victory.

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“Trump trusted more than Biden on democracy among key swing-state voters”

election subversion risk

WaPo:

President Biden and his Democratic allies have cast his reelection campaign as a battle for the country’s survival, warning that a second Donald Trump presidency would present an existential threat to American democracy.

In speeches and campaign ads, Biden points to Trump’s efforts to overturn the results of the 2020 election, his incitement of an angry mob that ransacked the U.S. Capitol on Jan. 6, 2021, and the former president’s boasts that he will use the powers of his office to punish his political enemies.

But that message may not be resonating with the voters Biden needs in order to win another term in the White House.

In six swing states that Biden narrowly won in 2020, a little more than half of voters classified as likely to decide the presidential election say threats to democracy are extremely important to their vote for president, according to a poll by The Washington Post and the Schar School of Policy and Government at George Mason University.

Yet, more of them trust Trump to handle those threats than Biden. And most believe that the guardrails in place to protect democracy would hold even if a dictator tried to take over the country….

Among key-state voters who identify themselves as locked-in Biden supporters, 78 percent see threats to democracy as extremely important. Among Trump backers, that’s true of 71 percent. Threats to democracy are second only to the economy in the percentage of swing state voters overall who describe the issue as extremely important.

But definitions of what constitutes a threat to democracy vary depending on which candidate voters are supporting. On the campaign trail, Biden and Trump have described threats to democracy in sharply different terms.

Trump has tried to flip the democracy issue, claiming falsely that he and his allies are facing multiple criminal investigations because Biden is weaponizing the judicial system against him. The former president also continues to undermine the legitimacy of elections with baseless claims of widespread fraud.

Biden, meanwhile, has pointed to Trump’s own vow that he will direct the justice system to prosecute his enemies in a campaign of “retribution.” The president has also highlighted Trump’s boast that he will be “a dictator” on his first day in office and the former president’s refusal to accept the results of the 2020 election. While 64 percent of key-state voters and 69 percent of Deciders say Biden’s 2020 election win was “legitimate,” that falls to 19 percent of locked-in Trump voters.

Among the Deciders, more than 7 in 10 believe that Trump will notaccept the results of the election if he loses, compared with one-thirdwho say the same for Biden. Nearly half, 47 percent, say Trump would try to rule as a dictator if he is elected to another term as president, compared with 15 percent who say Biden would. The poll finds that just over half of Deciders think Trump is guilty of criminal charges of lying about voter fraud in an attempt to overturn the 2020 election, and more say he has been treated fairly rather than unfairly by the criminal justice system….

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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.”…

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“I Study Disinformation. This Election Will Be Grim.”

cheap speech, election subversion risk

Renee DiResta NYT oped:

This brings us to the present, when another election looms. The 2024 rerun is already being viciously fought. Since 2020, the technological landscape has shifted. There are new social media platforms in the mix, such as Bluesky, Threads and Truth Social. Election integrity policies and enforcement priorities are in flux at some of the biggest platforms. What used to be Twitter is under new ownership and most of the team that focused on trust and safety was let go.

Fake audio generated by artificial intelligence has already been deployed in a European election, and A.I.-powered chatbots are posting on social-media platforms. Overseas players continue to run influence operations to interfere in American politics; in recent weeks, OpenAI has confirmed that Russia, China and others have begun to use generative text tools to improve the quality and quantity of their efforts.

Offline, trust in institutions, government, media and fellow citizens is at or near record lows and polarization continues to increase. Election officials are concerned about the safety of poll workers and election administrators — perhaps the most terrible illustration of the cost of lies on our politics.

As we enter the final stretch of the 2024 campaign, it will not be other countries that are likely to have the greatest impact. Rather, it will once again be the domestic rumor mill. The networks spreading misleading notions remain stronger than ever, while the networks of researchers and observers who worked to counter them are being dismantled….

osts, both financial and psychological, have mounted. Stanford is refocusing the work of the Observatory and has ended the Election Integrity Partnership’s rapid-response election observation work. Employees including me did not have their contracts renewed.

This is disappointing, though not entirely surprising. The investigations have led to threats and sustained harassment for researchers who find themselves the focus of congressional attention. Misleading media claims have put students in the position of facing retribution for an academic research project. Even technology companies no longer appear to be acting together to disrupt election influence operations by foreign countries on their platforms.

Republican members of the House Judiciary subcommittee reacted to the Stanford news by saying their “robust oversight” over the center had resulted in a “big win” for free speech. This is an alarming statement for government officials to make about a private research institution with First Amendment rights.

The work of studying election delegitimization and supporting election officials is more important than ever. It is crucial that we not only stand resolute but speak out forcefully against intimidation tactics intended to silence us and discredit academic research. We cannot allow fear to undermine our commitment to safeguarding the democratic process.

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“Trump Allies Begin First Line of Attack Against Arizona Election Case”

election subversion risk

NYT:

Allies of former President Donald J. Trump charged in a sweeping Arizona election case on Friday began filing what is expected to be a series of challenges, seizing on a new state law aimed at curbing litigation and prosecutions involving political figures.

The law was originally crafted by Kory Langhofer, a Phoenix lawyer who worked for the Trump campaign during the 2020 election but who subsequently fell out of favor with the former president. He said the 2022 law’s intent was to limit politically motivated prosecutions on both sides of the aisle.

The new challenges could have the effect of delaying the election case in Arizona for several months, given the timeline for decisions and appeals. The case was brought in April by the state attorney general, Kris Mayes, a Democrat.

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ELB Podcast 5:8: Renee DiResta: Invisible Rulers and the 2024 Elections

cheap speech, ELB Podcast, election subversion risk

Season 5 Finale of the ELB Podcast:

What’s the difference between how Americans communicated about politics and policies 20 or 30 years ago and how we do it today?

What are the most effective ways to combat disinformation in elections and otherwise?

Are the platforms and the rest of us ready for election-related threats in 2024?

On the season finale of Season 5 of the ELB Podcast, we speak with Renee DiResta, author of the new book, Invisible Rulers.

You can subscribe on Soundcloud, Apple Podcasts, and Spotify.

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“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.

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Must read Katherine Miller: “The System Isn’t Built for Jan. 6, and Neither Are We”

election subversion risk

Katherine Miller NYT column:

The riot at the Capitol was happening and then it wasn’t. Mr. Trump eventually left, but didn’t leave. The House impeached, but the Senate acquitted. Prosecutors brought charges, but the process has spooled out into an in-between place.

Committees aired hearings and released transcripts; people wrote books and filed civil suits; individuals such as Rudy Giuliani have faced punishing financial penalties. And we have learned more and worse details about the inner workings of the Trump White House that melted down into disaster.

But Mr. Trump might still become president again, and he has never let go of the idea that animated Jan. 6 — that the election was stolen from him — and that idea has hardened in regular people.

It’s as if the country had a simultaneous, destabilizing experience, and it’s sitting there under the surface, and it must be doing something to the American psyche.

One of the things that makes Jan. 6 hard to neatly contain in the collective memory is the emotional, sloppy, accidental disaster nature of it. The event unfolded in public, and learning more about the lead-up to it tends to affirm the broad contours of what we knew when it took place. The select committee testimony and hearings, the indictments and civil suits and the many reported books are filled with examples of how ill conceived so much of what led to Jan. 6 was — and yet it eventually became a surreal scene where real people died, the police got beaten with American flags, aides and lawmakers ran and hid, and hundreds of people who believed Mr. Trump got wrapped up in the legal system.

The origin point of that day was Mr. Trump’s inability to accept that he lost, but everything in service of it is hard to wrap your head around. It’s not as if anybody needs a trial to form an opinion about Jan. 6. It’s not even that the criminal justice system absolutely had to be the way to handle this matter; it wasn’t, and charging or convicting Mr. Trump might have unintended consequences.

But a trial was possibly the last remaining avenue for a public re-examination of Jan. 6, certainly before the election, and possibly for years. Everyone has instead lived through an intense period of anticipating that consideration and its potential consequence, without getting it.

What all this lack of resolution can obscure is how fundamental this is to Mr. Trump as a political figure. Jan. 6 and his expansive idea of power being taken from him is something the voter has to embrace or reject or ignore or try to square with the other things the voter might care about. That the election was stolen from him is what Mr. Trump cares about, and that the transfer of power must take place is what the country was founded on, and that Mr. Trump’s endless words can manifest in cataclysmic real-life action is what people fear and the most hard-core supporters love about Mr. Trump….

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“334 public officials in 5 swing states have undermined or cast doubt on elections: study”

election subversion risk

USA Today:

Hundreds of public officials in five key swing states have denied election outcomes, tried to overturn an election, or made statements to undermine an election, a new study says.

The study identified 334 of these public officials in Arizona, Georgia, Michigan, North Carolina, and Wisconsin running the gamut from a state’s second-highest elected official to local boards that certify election results. Those closely divided states are likely to decide the 2024 presidential election.

The study by Public Wise, a left-leaning nonprofit group that advocates for representative democracy, is the most comprehensive study to date of state and local public officials who have power over elections but whose commitment to election fairness has been questioned.

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