Monthly Archives: July 2021

Dan Balz on DOJ notes: more to learn

Balz observes that new details on the period leading up to January 6 will be crucial to developing a full picture of Trump’s efforts to deny Biden his victory: “The new information is a reminder … that not everything he did was done in plain sight. How much more is there?”

Balz also cautions that Trump’s efforts are still ongoing: “For months, Trump has been on a political jihad. It began the night of the election and has never ended.”

For anyone who doubts that Trump and his supporters remain a serious threat, Balz provides a succinct and useful summary of what we know so far: “every such piece of evidence that comes to light adds to the pattern of a president obsessed with having lost the election and willing, even determined, to undermine the integrity of the election process — of democracy itself.”

Also: a separate story in the Washington Post discusses the issue of the Select Committee issuing subpoenas to members of Congress.

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No vacation w/o voting reform

So argue Dave Daley and Mike Parsons: “Whatever else Democrats decide to do with election reform before the recess, they should put partisan gerrymandering to a vote ASAP.”

I agree wholeheartedly that Congress needs to act now to ban gerrymandering of House seats for the 2022 midterms. I would not include in the bill a prohibition on gerrymandering of state legislative districts. I get the argument that Congress would have the power to do that, but the major problem of the last six months is Democrats trying to do too much, rather than just getting the essential done. Filibuster reform is going to be difficult enough; if a move to a “talking filibuster” is all that’s possible on that front, it will be a whole lot easy to defeat a talking filibuster if the bill at hand just bans gerrymandering in congressional elections and doesn’t attempt to control the districting of state legislative seats.

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DOJ backs Congress in Trump tax return fight

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.

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Politico links to the DOJ notes

Politico’s story includes a link, so we can all read the notes ourselves.

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.

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Trump didn’t fight release of DOJ notes

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.

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DOJ took notes of Trump’s efforts to subvert 2020 result

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.

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MyPillow’s CEO is at it again

WSJ reports that My Pillow is pulling all its ads from Fox News because of controversy over an ad that CEO Mike Lindell wanted to run to promote a “cyber symposium” he’s organized to propagate his conspiracy theories about how China hacked the 2020 election. (The Hill also has a follow-on report.)

Meanwhile, in The Atlantic Anne Applebaum has an extensive piece on Lindell with the ominous title “THE MYPILLOW GUY REALLY COULD DESTROY DEMOCRACY.” You’ll want to read it just for its description of the lunch Applebaum had with Lindell. But its significance is its description of the sheer zealotry by which Lindell holds his bizarre beliefs about how China managed to steal the election for Biden.

What has been so astounding to me since these claims surfaced (and the similar one about Venezuela) is how demonstrably false based on the kind of statewide manual recount that Secretary of State Brad Raffensperger ordered in Georgia. It doesn’t matter what software is inside a state’s voting machines once all the ballots have been hand counted and the initial machine count is confirmed. Chris Krebs made this point to Applebaum when she asked him about Lindell’s latest claims:

When I called Chris Krebs, the Trump administration’s director of the Cybersecurity and Infrastructure Security Agency, he refused even to get into the question of whether Lindell has authentic data, because the whole proposal is absurd. The heavy use of paper ballots, plus all of the postelection audits and recounts, mean that any issues with mechanized voting systems would have been quickly revealed. “It’s all part of the grift,” Krebs told me. “They’re exploiting the aggrieved audience’s confirmation bias and using scary yet unintelligible imagery to keep the Big Lie alive, despite the absence of any legitimate evidence.”

If Lindell and his demonstrably false claims are really as dangerous to American democracy as Applebaum argue, the crucial question is how to counteract this threat. The defamation lawsuits by the voting machine companies against Lindell and others may help. If the judiciary requires Lindell to pay punitive damages for deliberate or reckless falsities that are beyond First Amendment protection under New York Times v. Sullivan, that might have a deterrent effect against the future propagation of similar electoral disinformation.

But should the legal remedy for Lindell’s threat to democracy go beyond private party civil defamation suits? I’ve raised the possibility of invoking 18 U.S. Code § 371 against Trump for his incessant repetition of the demonstrably false claim that he was robbed of a reelection victory. Once AG Barr called it “b__s__”, Trump and his team were on notice that repetition of this false claim was beyond First Amendment protection. Lindell was part of Trump’s team, going to the White House as part of their mutual effort to undo Biden’s victory.

One should at least explore the question whether Lindell warrants prosecution for attempting to “defraud the United States” through his orchestrated disinformation campaign. If this statute can be properly invoked against Russian disinformation aimed at undermining US elections, can it not also be used (although cautiously so) against US citizens aiming to destroy America’s democracy through blatant falsity that is clearly reckless (if not deliberate) under New York Times v. Sullivan? One goal of prosecuting Lindell under this statute might be a plea agreement pursuant to which he publicly and widely renounces his disinformation campaign. Then Lindell would be paying for messages, not that Trump lost, but that it was all “b__s__” all along, just as Barr said.

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Michigan Mess: Internecine War in GOP

Politico has a fascinating read on the infighting among Michigan Republicans between Trump supporters, for whom belief that 2020 election was stolen from Trump remains the focus of attention, and traditional Republicans who (like Bill Barr) recognize that this stolen election claim is nonsense. For Michigan, the question is whether this GOP infighting will prevent them from being successful in 2022, especially in the key gubernatorial election.

For those who remember the Tea Party movement of 2010 and 2012, if the GOP veers too far right, Democrats can win November elections that they otherwise would lose in battleground states. Michigan right now would seem an example of this. In their competition with Democrats, it matters what kind of profile the GOP presents to voters. Presumably, the same is true in a state like Pennsylvania.

Conversely, in states that are more right-of-center (like Ohio has become), the dynamic is different. If the GOP there becomes overtaken by obsession over the stolen election claim, there is less likelihood that the GOP will suffer consequences in the November elections. Thus, the consequence of Trump’s takeover of the GOP may differ state to state. One obvious state to watch, given its potential implications for 2024, is Wisconsin.

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Dems Attempt to Jumpstart S1

NY Times: Meeting at the White House, maybe. “Democrats are close to finalizing a scaled-back bill that activists hope could be a battering ram in the fight over the filibuster.” I still wonder whether the better filibuster strategy is to focus on one issue at a time, starting with redistricting for a variety of reasons including the need to act before new maps are drawn, rather than even a scaled-back version of the omnibus S1. But the whole issue might be moot if Senator Schumer doesn’t want a filibuster fight: “Mr. Schumer has yet to commit to a timeline, and it is unclear if he would want a full-fledged filibuster fight playing out just as he and Mr. Biden are trying to maneuver a bipartisan infrastructure bill through the Senate.”

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“Georgia Republicans take first step to Fulton elections takeover”

Atlanta Journal Constitution reports. The article notes that Fulton County is “home to a tenth of all Georgians.” Under Georgia’s new law, “the State Election Board can replace a county’s election board following a performance review/audit/investigation. Then, a temporary superintendent would enjoy full managerial authority of how the county counts votes and staffs polling places.” Thus, the request for a performance review “by two dozen state senators” is a significant first step “toward a possible takeover of Fulton County’s elections.” 

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