NY Times reports. This news is not directly about election law, but I consider it worthy of note here because of its potential implications for the 2024 presidential election. None of us know whether Trump will attempt to repeat Grover Cleveland’s feat of winning a second term after being a defeated incumbent (and doing so under very different circumstances–Cleveland never was impeached, for example). But I agree with all of those who say that we have to assume that Trump will try, unless circumstances change. One of the circumstances that conceivably could change is developments concerning his tax returns. Although turning them over to Congress should not cause them to be publicly released, congressional leaks have been known to occur (to put it mildly). I don’t want to make too much of this news (today’s other disclosure, concerning DOJ’s notes seems much more significant, for example), but insofar as Trump remains a major threat to American democracy, this particular piece of news is at least somewhat relevant.
Two quotes in Politico’s summary seems especially damning to Trump: “Sir we have done dozens of investig., hundreds of interviews, major allegations are not supported by evid. developed.” And: “Told him flat out that much of the info he is getting is false, +/or just not supported by the evidence”. The recklessness of Trump’s continued repetition of false claims about the election is “flat out” as clear as can be.
The Washington Post provides additional details relating to today’s public release of DOJ notes showing Trump’s effort to overturn the result of the 2020 election. One interesting detail is that Trump did not want to stop this release because he believes any public discussion of the 2020 election helps advance his false claim that it was stolen:
Trump and his lawyers could have sought to block the release of Donoghue’s notes to Congress. There were days of discussion among Trump advisers about whether to do so, but the former president did not believe the notes showed anything problematic, even though some of his advisers feared the disclosures would be damaging.
“If it gets more attention on the election, he welcomes it,” one adviser said.
NY Times reports on notes that Richard P. Donaghue, a DOJ deputy to Acting AG Jeffrey A. Rosen, took of a conversation with then-president Trump. DOJ has turned these notes over to the House Oversight and Reform Committee. According to the Times, the notes include Donaghue telling Trump: “Much of the info you’re getting is false.” Also: “We look at allegations but they don’t pan out,” Trump was told according to the notes.
These notes further support the point that anytime Trump has claimed that the election was stolen from him since learning from the Justice Department, including Bill Barr and his successor, that these claims were baseless, Trump is making statements in reckless disregard of the truth and thus acting outside the protection of the First Amendment. This point may be relevant for civil litigation against Trump, as well as others (like Mike Lindell), but it’s also potentially relevant to possible criminal exposure from repeated reckless falsehoods. Garrison v. Lousiana, 379 U.S. 64 (1964), applied the same “reckless disregard” standard to criminal prosecutions that New York Times v. Sullivan developed for civil litigation. Although the “stolen valor” case (Alvarez) holds that Congress or a state legislature must have a reason to criminalize speech in order for the “reckless disregard” standard to apply, Alvarez recognized both defamation and fraud as longstanding appropriate bases for holding speech to the “reckless disregard” standard. To the extent that Trump, Lindell, and others think that their reckless repetition of disinformation about the 2020 election is protected by the First Amendment, they may be much more vulnerable to liability (both civil and criminal) than they realize.
The Hill reports. Deputy AG Lisa Monaco: “We will promptly and vigorously prosecute offenders to protect the rights of American voters, to punish those who engage in this criminal behavior, and to send the unmistakable message that such conduct will not be tolerated.”
Washington Post reports. We know Trump wanted to overturn the result of the election. What we don’t (yet?) know is the full extent of the lengths he went in this effort and whether anything he did crossed the line into seditious conspiracy under 18 U.S. Code § 2384. There is also the possibility of Trump crossing the line into criminal culpability under 18 U.S. Code § 371, which involves intent to defraud the United States. Trump’s various conversations in December and early January concerning so-called “stop the steal” activities, including those he had with Acting AG Rosen, could potentially be relevant to the inquiries that the Select Committee and the current DOJ are pursuing.
The Department of Justice issued two documents today: one on federal laws applicable to the kind of outsourced “audit” that Maricopa County, Arizona has been conducting; the other providing “guidance” on various federal laws potentially applicable to the changes in voting rules that many state legislatures are adopting.
Politico and The Hill have reports. The audit document is significant in emphasizing the need for states under federal law to preserve chain-of-custody integrity over their voting records that involve federal elections. The other document is noteworthy in warning states that a return to pre-pandemic voting procedures is not a “safe harbor” immune from DOJ scrutiny under the Voting Rights Act. For example, if the reason for the return to previous procedures was motivated by a racial animus (the goal being to cause lower turnout for racial minorities), that would trigger potential liability under section 2 of the VRA notwithstanding that the same procedures had been used previously.
Raleigh News & Observer on the latest court ruling in the tug-of-war between federal and state officials, as well as the press, over voting records in North Carolina.
A reader of the blog sent along a link to this article: How to Win a “Long Game”: The Voting Rights Act, the Republican Party, and the Politics of Counter‐Enforcement. Here’s the abstract:
ADRIENNE JONES and ANDREW POLSKY examine how the Republican Party engaged in counter-enforcement of the Voting Rights Act of 1965, notably during the Reagan and Bush 43 administrations, in an effort to maximize the voting strength of pro-Republican voting constituencies. They argue that sustained counter-enforcement efforts lead to sharp policy oscillations when parties alternate in power and that if a party pursues the long game of persistent counter-enforcement, it may find itself with the opportunity to achieve lasting results.
(When I first moved to Ohio in the early 1990s, a topic of political conversation was how the Republican Party had forged an alliance with the civil rights community to redistrict the state in a way that benefited their mutual interests, but at the expense of the Democratic Party. While the politics of redistricting remain complicated, there have been significant shifts in the decades since then.)
The Washington Post has an overview of where things currently stand with the House’s select committee investigating the January 6 insurrection. The Post says this committee’s investigation is supposed to be the “ultimate arbiter” of what happened that day. Maybe, but I think the DOJ investigation and, where appropriate, prosecutions are an important dimension to establishing both truth and accountability for the wrongdoing.
In this regard, I wonder about the applicability of a particular federal statute, 18 U.S.C. 371, to the Big Lie and what it led to on January 6. This is the statute that criminalizes fraud against the United States and which the Mueller probe used against Russian disinformation aiming to subvert America’s electoral processes. This type of use received federal-court approval, at least in principle, in U.S. v. Concord Management, 347 F.Supp.3d 38 (D.D.C. 2018).
Ordinarily, I’m very wary of efforts to criminalize political speech, but intentional dishonesty designed to subvert the official procedures of electoral democracy might be a justifiable exception. The goal of the Big Lie was, and continues to be, to prevent the United States and its government to get the benefit of the 2020 election according to its honest results. In particular, the “stop the steal” component of the Big Lie, seeking to disrupt the lawful process of the January 6 joint session of Congress, could be seen as intentional dishonesty aiming to defraud the United States of the proper functioning of the Electoral College procedures of the Twelfth Amendment and the Electoral Count Act.
The fact that Trump and his allies continue to perpetuate the Big Lie, including at his recent Arizona rally, weighs in my analysis of this issue. Insofar as the goal of the Big Lie, now six months after Biden’s inauguration, is to undermine the legitimacy of the Biden Administration in the minds of many Americans, and to make the functioning of government more difficult, one could argue that if the perpetrators of the Big Lie are being intentionally dishonest (knowing what they say to be untrue), then they are attempting to defraud the United States of the proper functioning of its lawful government.
There should be consequences forthe kind of Big Lie mendacity that Trump and his allies are inflicting on America. One reasonable question to pursue, it seems to me, is whether 18 U.S.C. 371 is an appropriate vehicle for the accountability that needs to occur. (Remember, in this context, that even if the bar to prosecuting political speech under the statute is extraordinarily high, the facts here still might warrant it. Trump has been been incessantly repeating the Big Lie despite knowing that his own Attorney General, Bill Barr, called it “bulls___.” This surely put Trump on notice of the falsity of the lies he was disseminating, and would seem to make his speech beyond the protection of the First Amendment according to the “reckless disregard of the truth” standard in the Court’s cases, including New York Times v. Sullivan and Garrison v. Louisiana. Also, the Alvarez “stolen valor” case distinguished fraud statutes from the scope of its holding and therefore offers no protection for potential prosecution of knowing or reckless dishonesty under a fraud statute, like 18 U.S.C. 371.)
Over at RealClearPolitics, I have this piece looking at the potential effect of Brnovich v. Democratic National Committee on intentional discrimination claims, including the lawsuit recently filed by the Justice Department against portions of Georgia’s SB 202. Much of the commentary after Brnovich has focused on the disparate impact components of the opinion, but I wanted to tease out some of the implications from the intentional discrimination side. Additionally, I try to puzzle out Justice Elena Kagan’s footnote in her dissenting opinion in which she concludes she “need not pass” on the intentional discrimination holding of the Ninth Circuit’s opinion.
Government Executive reports. [UPDATE: this correction has been appended to the report: After publication of this story, the Justice Department and Commerce Department inspector general revealed additional information to indicate the declination to prosecute took place during the Trump administration. This story has been corrected to note this information.]
Ariane de Vogue for CNN:
When Attorney General Merrick Garland appeared before cameras Friday to announce a lawsuit challenging Georgia’s new voting restrictions, it was the timing and the Justice Department’s strategy that intrigued voting rights experts.
That’s because the lawsuit — triggering the latest dispute about the scope of Section 2 of the Voting Rights Act — came as the Supreme Court is poised to release an opinion on the very same section of the law. The opinion — in one of the marquee cases of the term — will come down next week. In addition, Garland timed his announcement to the exact eight-year anniversary of the court’s last big voting rights case. In the landmark decision called Shelby County v. Holder, Chief Justice John Roberts, writing for a 5-4 majority, effectively gutted a separate section of the law and declared that “things have changed in the South.”
Garland wanted to send a clear message Friday: Roberts was wrong. “I express concern about the dramatic rise in state legislative actions that will make it harder for millions of citizens to cast a vote that counts,” the attorney general said….
But even if Carvin wins and the Supreme Court pares down the kinds of cases that can be brought under the “results test,” that may not impact Garland’s suit, and that’s why it was carefully crafted. Because instead of relying on the “results test,” the Justice Department made a different argument: It said Georgia legislators passed the law with the “intent” to discriminate.
That’s a different test under the law.
“The courts will consider a different set of factors in order to determine whether Georgia’s legislature intentionally discriminated against Black voters in the state,” said Sean Morales-Doyle, of the Brennan Center for Justice.”
The question of discriminatory intent could come up in the Brnovich case, but the focus of that case has been on the ‘results test,’ ” he said. “That means the Supreme Court’s decision is unlikely to impact the likelihood of success in the new case.”Rick Hasen, a voting rights expert at the UC Irvine School of Law, said in a blog post that because the Justice Department had brought its case only under the “intent test,” it “insulates it from an adverse ruling in Brnovich.” That means the new suit could go forward even “after a potentially adverse ruling.”