Monthly Archives: January 2025

“D.C. U.S. attorney fires Jan. 6 prosecutors, launches new probes”

WaPo:

Interim D.C. U.S. attorney Edward R. Martin, Jr., on Friday dismissed about 30 federal prosecutors who have worked on Jan. 6, 2021, Capitol riot cases over the past four years, undertaking a housecleaning of the top prosecutor’s office in Washington, while preparing to extend the office’s scrutiny to top Democratic leaders and former Justice Department officials, people close to Martin said.

The prosecutors were on probationary status after being converted to full-time from shorter-term positions after Election Day under circumstances the Trump administration is investigating, according to documents from Martin and acting deputy attorney general Emil Bove that were emailed around 5 p.m. and viewed by The Washington Post.

In his first 11 days in office, Martin, 54, has moved quickly to align the office with President Donald Trump’s political views — and drawn significant criticism in the process. Since being appointed on Jan. 20, Martin has ordered top supervisors in the office to investigate their colleagues’ handling of the Capitol riot prosecutions in the wake of Trump’s mass pardons and threatened subordinates who disclose or criticize his actions.

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“How Trump Could Defy the Constitution — or Find a Loophole — and Seize a Third Term”

Politico:

But it can’t happen, right? After all, the Constitution imposes an explicit two-term limit on the presidency — even if those two terms, like Trump’s, are non-consecutive. “No person shall be elected to the office of the President more than twice,” the 22nd Amendment mandates.

Even Trump, notorious for bending norms and breaking laws, couldn’t possibly circumvent that clear constitutional stricture, right?

Don’t be so sure.

Around the globe, when rulers consolidate power through a cult of personality, they do not tend to surrender it willingly, even in the face of constitutional limits. And Trump, of course, already has a track record of trying to remain in office beyond his lawful tenure.

“Anyone who says that obviously the 22nd Amendment will deter Trump from trying for a third term has been living on a different planet than the one I’ve been living on,” says Ian Bassin, who was an associate White House counsel for President Barack Obama and is now the executive director of the nonprofit advocacy group Protect Democracy.

If Trump decided he wanted to hold onto power past 2028, there are at least four paths he could try:

  • He could generate a movement to repeal the 22nd Amendment directly.
  • He could exploit a little-noticed loophole in the amendment that might allow him to run for vice president and then immediately ascend back to the presidency.
  • He could run for president again on the bet that a pliant Supreme Court won’t stop him.
  • Or he could simply refuse to leave — and put a formal end to America’s democratic experiment.

Each path would face serious political, legal and practical impediments. But the prospect of a third Trump term shouldn’t be dismissed with a hand wave.

Trump, after all, is definitely not dismissing the prospect. He’s been openly floating it for years….

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“Musk Lawyer Tries to Build a Powerhouse Firm With a Billionaire Client”

NYT:

Several top Republican lawyers are joining forces with the lawyer for the billionaire Elon Musk in hopes of building a new conservative legal powerhouse.

Chris Gober, a swaggering Texas-based lawyer who has represented Mr. Musk in high-profile political fights for the last year, has hired four lawyers from Holtzman Vogel, a top law firm that recently drew the ire of some allies of President Trump.

The move is yet another sign of the expanding influence of Mr. Musk in big-money Republican politics.

Mr. Musk is the Republican Party’s top donor and has become one of Mr. Trump’s closest advisers. That rise has empowered those in Mr. Musk’s orbit, as well.

Mr. Gober has said that his enlarged firm, now called Lex Politica, drew inspiration from an unlikely source: Marc Elias, the Democratic Party’s own superlawyer, who has consolidated power in the Democratic legal world and influenced his party in a way that no political lawyer on the right has.

“His law firm is synonymous with the progressive movement,” Mr. Gober said of Mr. Elias in an interview. “And that’s what we want to do: Build the law firm that is synonymous with the conservative movement.”…

Some Trump advisers publicly criticized Holtzman Vogel during the 2024 campaign cycle after a top Republican lawyer at the firm, Jason Torchinsky, researched on behalf of a client whether Mr. Trump could be disqualified from the ballot using the 14th Amendment. That larger effort ultimately failed, but some Republicans now perceive Holtzman Vogel, accurately or not, as an establishment firm in a party led by a president who likes to hold grudges.

Jill Holtzman Vogel, the firm’s founder, said she wished Mr. Gober’s recruits “well” but bristled at Mr. Gober’s framing of their departure as a “coup.”

“They are taking two nonequity partners out of a 50-lawyer firm with the largest political and MAGA practice in the country,” she said….

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“Paramount in Settlement Talks With Trump Over ’60 Minutes’ Lawsuit” (Political Wire: Trump’s Lawsuit Settlements Look a Lot Like Bribery)

NYT:

When Donald J. Trump sued CBS for $10 billion days before the 2024 election, accusing the company of deceptively editing a “60 Minutes” interview with Vice President Kamala Harris, many legal experts dismissed the litigation as a far-fetched attempt to punish an out-of-favor news outlet.

Now Mr. Trump is back in the White House, and many executives at CBS’s parent company, Paramount, believe that settling the lawsuit would increase the odds that the Trump administration does not block or delay their planned multibillion-dollar merger with another company, according to several people with knowledge of the matter.

Settlement discussions between representatives of Paramount and Mr. Trump are now underway, according to three people with knowledge of the talks. There is no assurance, though, that they will result in a deal, and it is unclear what the terms of any such deal might include.

Shari Redstone, Paramount’s controlling shareholder, strongly supports the effort to settle, according to two people with knowledge of her thinking. Ms. Redstone stands to clear billions of dollars on the sale of Paramount, the media empire founded by her father Sumner Redstone, in a deal with Skydance, an entertainment company backed by the billionaire Larry Ellison and run by his son David.

A settlement would be an extraordinary concession by a major U.S. media company to a sitting president, especially in a case in which there is no evidence that the network got facts wrong or damaged the plaintiff’s reputation.

It could also cause an uproar within CBS News and among the “60 Minutes” staff. Journalists at the network have expressed deep concern about the notion of their parent company settling litigation that they consider tantamount to a politician’s standard-issue gripes about a news organization’s editorial judgment, according to several people familiar with internal discussions….

Political Wire:

Donald Trump may have found a new way to funnel cash into his pockets while serving as president—by turning litigation into a lucrative business model.

It started with ABC News, which agreed to settle a defamation lawsuit by paying $15 million to Trump’s future foundation and another $1 million to cover his legal fees.

Then Meta followed suit, forking over $25 million to Trump’s presidential library to resolve a 2021 lawsuit he filed against the company.

Now, Paramount—the parent company of CBS—is reportedly negotiating a settlement in a lawsuit Trump brought over what he claims was a “deceptively edited” 60 Minutes interview.

There are also reports that X wants to settle a lawsuit Trump brought when the social network was still called Twitter.

The pattern raises an obvious question: Has Trump effectively created a legal mechanism to extract money from corporations under the guise of litigation?

If these settlements serve as a backdoor way for companies to curry favor with the president, they look an awful lot like bribery—except with the thin veneer of legality….

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“Census Bureau Director Robert Santos is resigning, making way for Trump’s pick”

Hansi Lo Wang for NPR:

The director of the U.S. Census Bureau, Robert Santos, announced Thursday he is resigning, giving President Trump an early opportunity to nominate a new political appointee to lead the agency.

Arturo Vargas, chair of the bureau’s 2030 Census Advisory Committee, tells NPR that the committee’s members received an email announcement, a copy of which NPR has reviewed.

“It’s been such an honor to serve our nation,” Santos wrote Thursday in a LinkedIn post sharing NPR’s story after it was published. The bureau’s public information office did not immediately respond to NPR’s inquiries.

The decision by Santos, who started as the bureau’s director in 2022, cuts short a five-year appointment during key preparations for the 2030 census. The next constitutionally required head count of the country’s residents is set to be used to redistribute political representation and trillions in federal funding across the country over the next decade.,,,

Before becoming the agency’s director, Santos was a vocal opponent of how Trump officials handled the 2020 census — including a last-minute decision to end counting early during the COVID-19 pandemic and a failed push to add a question about U.S. citizenship status that was likely to deter many Latino and Asian American residents from participating in the official population tally

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California Appeals Court Publishes Opinion Rejecting Argument That the Elections Code Allows Election Observers to “Breath[e] Down the Necks of the Election Workers”

A California Court of Appeal issued this opinion a few weeks back, but did not deem it suitable for publication. I filed a request for publication, as did the defendant Ventura County election officials and the California State Association of Counties.

Today the court ordered publication and included this new opening paragraph:

The California Election Code makes provisions for those who wish to observe election workers processing and counting mail in votes. The observers must be sufficiently close to the election workers to do so. Here we determine “sufficiently close” does not mean breathing down the necks of the election workers.

This is the first published court opinion I am aware of that construes the meaning of California Election Code 15104.

The case is Election Integrity Project California v. Lunn.

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Did a sleepy decision in October 2024 open the door for more federal court power over state election disputes (like the North Carolina Supreme Court dispute)?

Back in October, I blogged about a Fourth Circuit decision in RNC v. N.C. St. Bd. of Elections. At the time, I briefly excerpted the “wonky” decision. But listening to oral argument in Griffin v. N.C. St. Bd. of Elections, I was struck by how broad the decision might reach (at least in that circuit).

RNC approved an effort by the Board of Elections to remove a case from state court to federal court under Section 1443. Removal typically happens when a plaintiff files a federal claim (e.g., Section 1331) or there’s some other pre-existing basis of a claim that could have been brought in federal court in the first place. But there are narrow carve outs for special, additional classes of removal under federal law. One of those, recently extensively litigated in some criminal cases involving Donald Trump and the 2020 election, is Section 1442. Another is Section 1443:

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

The provision was enacted after the Civil War to allow for the removal to federal court of cases where Congress was worried about the abridgement of civil rights. It has had relatively little use, in part because “equal civil rights” and “equal rights” has been construed fairly narrowly.

In RNC, the Fourth Circuit panel concluded that the NCSBE could remove under Section 1443:

Here, the State Board refused to perform Plaintiffs’ requested act—striking certain registered voters from North Carolina’s voter rolls—on the ground that doing so within 90 days of a federal election would violate provisions of Title I of the Civil Rights Act of 1964 . . . and the National Voter Registration Act of 1993 (“NVRA”) . . . . These are “law[s] providing for equal rights” within the meaning of Section 1443.

I had focused more on the section 1331 issues and not the 1443 issues. But as I listened to oral argument in Griffin, it struck me that this interpretation has a potentially broad scope.

It is not unusual for a state election official, when asked to construe a state statute in a particular way, to point to a federal statute and argue that something like the Civil Rights Act, the NVRA, or HAVA and argue that the state is complying with federal law. Incompatible state law must give away. Typically, this is construed as a question of state law, and the federal law is an affirmative defense raised, one the state court can suitably consider (and could not be removed to federal court under Section 1331 jurisdiction and the Section 1441 removal statute).

In Section 1443 cases, however, the election official, pointing to a federal law and acting “under color of” that law providing for “equal rights,” can move the case into federal court. And if you point to the Civil Rights Act or the NVRA in the Fourth Circuit (i.e., Maryland, Virginia, West Virginia, North Carolina, and South Carolina), you can now remove to federal court.

Now, when I say it is “not unusual,” I don’t have empirical evidence for how often this happens. Sometimes, in state court, you could avoid the federal conflict by construing the state statute more narrowly, avoiding any need to point to a federal statute in conflict in the first place.

But while there is an “abstention” issue in this case, the reason abstention arose was because this question feels very state law-heavy, and the federal law issues are raised at the back end by federal officials. Granted, we like federal courts to resolve federal legal issues. But, federal courts also like to defer to state courts on matters of state law, especially matters that could avoid the federal question. (That’s Pullman abstention–but the federal district court, unusually, in my view, relied on Burford abstention.) (Update: one additional note. It’s also unusual because the NVRA applies only to federal elections. This is a state election, but state law points to the NVRA under the state’s unified system of voter registration. Another wrinkle in the relationship of federal law to this case.)

I don’t know what the Fourth Circuit will do with this case. But I’m now watching the federal docket more closely for more removal claims under Section 1443 and if we might see an uptick of state election officials trying to get election disputes into the federal courts.

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“Internal Emails Offer Glimpse Into Early Days of Trump Election Inquiry”

NYT:

A series of internal F.B.I. emails released on Thursday showed that agents and officials followed standard procedure nearly three years ago when they opened the historic criminal investigation into Donald J. Trump’s attempts to stay in power after he lost the 2020 election.

The emails were released by the Senate Judiciary Committee in the middle of a contentious hearing for the nominee for F.B.I. director, Kash Patel, at which Republicans sought to paint the F.B.I. as a politicized agency that improperly went after targets like Mr. Trump.

But in fact, the emails showed that F.B.I. investigators took normal bureaucratic steps and precautions when opening the extraordinarily sensitive inquiry into Mr. Trump’s attempts to overturn the election using slates of electors pledged to him in states he had actually lost.

The emails also revealed the names of several F.B.I. agents and bureau officials who worked on the Trump investigation. It is rare for the F.B.I. or the Justice Department to disclose the names of specific agents working on cases — particularly at a time when public servants are facing rampant threats….

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“Scorched-earth Shanahan: RFK Jr’s former running mate threatens political war against confirmation opponents”

Fox News:

Robert F. Kennedy Jr.’s former presidential running mate Nicole Shanahan called out various senators by name, warning that she will fund primary challenges against them if they oppose confirming Kennedy to serve as secretary of Health and Human Services.

“Dear U.S. Senators, Bobby may play nice; I won’t,” she wrote in a post on X.

In a video, Shanahan said that in 2020 she “cut large checks to Chuck Schumer to help Democrats flip two Senate seats in Georgia from red to blue.” Peach State Democratic Sens. Raphael Warnock and John Ossoff both initially took office after winning runoff contests in early 2021.

Shanahan bluntly warned the two senators, “Please know I will be watching your votes very closely. I will make it my personal mission that you lose your seats in the Senate if you vote against the future health of America’s children.”

She then proceeded to call out Sens. Mitch McConnell, R-Ky.; Lindsey Graham, R-S.C.; Lisa Murkowski, R-Alaska; Susan Collins, R-Maine; Bill Cassidy, R-La.; Thom Tillis, R-N.C.; James Lankford, R-Okla.; Cory Booker, D-N.J.; John Fetterman, D-Pa.; Bernie Sanders, I-Vt.; and Catherine Cortez Masto, D-Nev.

“While Bobby may be willing to play nice, I won’t. If you vote against him, I will personally fund challengers to primary you in your next election. And I will enlist hundreds of thousands to join me,” she declared….

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“Job satisfaction among election administrators continues to sink, survey shows”

Jessica Huseman for Votebeat:

The vast majority of America’s local election administrators would not encourage their children to do the same job, and a shrinking share of them say they would be proud to tell others about their work.

The findings come from a survey conducted every federal election year by the Elections & Voting Information Center, an academic research group. While it contains small bright spots — election administrators largely find the job personally rewarding, for example — the number willing to encourage their children to follow in their footsteps has decreased by nearly half in the past two election cycles. In 2020, 41% said they would do so. In 2024, that number dropped to 22%.

The full survey results will be released next week. The survey was fielded from early August to late October.

A survey of local election officials found declines in many measures of job satisfaction since 2020. 

The negative outlook on election work continues a trend researchers say they began observing in 2020, when increasing scrutiny, threats, and misinformation fanned by supporters of President Donald Trump began reshaping the profession. Public confidence in elections hit new highs after the November 2024 presidential election — which had a clear outcome despite narrow margins — but election administrators are still pessimistic…..

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New York Court Reverses Lower Court, Upholds NYVRA

In a major decision today, a New York appellate court reversed a trial court decision striking down the New York Voting Rights Act on its face. The court held that the town of Newburgh wouldn’t necessarily be forced to violate the Equal Protection Clause by any remedy the town might be ordered to adopt. Accordingly, the town lacked the capacity to facially challenge the NYVRA. Harvard Law School’s Election Law Clinic is helping to litigate this case, and I argued the appeal in December. The case will now head to trial on plaintiffs’ vote dilution claims. Some excerpts from the decision are below:

For the reasons discussed below, it cannot be said as a matter of law on this record that compliance with the NYVRA would force the defendants to violate the Equal Protection Clause.

[R]ace-based districting is only one of the possible remedies under the NYVRA; the NYVRA also contemplates remedies that do not sort voters based on race, such as such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms. . . .

Further, we conclude that the NYVRA need not contain the first Gingles precondition, that the “minority group . . . be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district” to survive a facial challenge to its constitutionality under the Equal Protection Clause. The United States Supreme Court has never said that the Gingles test was required by the constitution, as opposed to resulting from a statutory interpretation of section 2 of the FVRA. The only time the Fourteenth Amendment is mentioned in the majority opinion in Gingles is in the background section where the court noted that the plaintiffs’ lawsuit challenged the subject districts as violating the Fourteenth and Fifteenth Amendments in addition to violating section 2 of the FVRA. The reason that the United States Supreme Court included the first Gingles precondition was because of its conclusion that if the minority group were unable to demonstrate that it was sufficiently large and geographically compact to constitute a majority in a single-member district, “the multi-member form of the district [could not] be responsible for minority voters’ inability to elect its candidates” (id. at 50). Gingles was not contemplating influence districts or remedies such as ranked-choice voting, cumulative voting, limited voting, or the elimination of staggered terms. . . . Since the NYVRA specifically allows for remedies that might allow for minorities to elect their candidates of choice or influence the outcome of elections without their constituting a majority in a single-member district, it was rational for the New York Legislature to not include the first Gingles precondition as a precondition to liability under the NYVRA.

Further, while the text of the NYVRA is unlike the FVRA in that it does not require the plaintiff in every vote dilution case to show that “under the ‘totality of the circumstances’ . . . the political process is not ‘equally open’ to minority voters,” in order to obtain a remedy under the NYVRA, a plaintiff still must show that “vote dilution” has occurred, and that there is an alternative practice that would allow the minority group to “have equitable access to fully participate in the electoral process.” Thus, the NYVRA does not significantly differ from the FVRA in this respect.

Finally, even if it were unconstitutional to apply the NYVRA in situations where the Gingles test has not been satisfied, the NYVRA could still be constitutionally applied in situations where the Gingles test has been satisfied. All parties agree that the FVRA as interpreted by Gingles is constitutional (see Allen v Milligan, 599 US at 41). Here, the plaintiffs contend that the evidence they submitted in opposition to the defendants’ motion demonstrates that each element of the Gingles test has been satisfied.

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