“Special Counsel Is Said to Be Planning to Pursue Trump Cases Past the Election”

Department of Justice, election subversion risk

NYT:

The special counsel Jack Smith plans to pursue his two criminal cases against former President Donald J. Trump through the election and even up until Inauguration Day if Mr. Trump wins the presidential race, according to a person familiar with Mr. Smith’s thinking.

Mr. Smith believes that under Justice Department regulations, his mandate as special counsel and his authority to keep the cases going do not depend on a change of administration and extend until he is formally removed from his post, the person said.

As a practical matter, that means that the special counsel’s office is prepared to push forward for as long as possible on the two indictments it has filed against Mr. Trump. One of those, brought in Washington, has accused the former president of plotting to subvert the 2020 election. The other, filed in Florida, has charged Mr. Trump with holding on to a trove of highly sensitive classified documents after he left office and then obstructing the government’s repeated efforts to retrieve them.

Mr. Smith’s decision to keep the cases going, reported earlier by The Washington Post, comes as a landmark Supreme Court ruling on executive immunity this week has effectively postponed the election interference case until after voters go to the polls in November.

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“Big wins for Trump and sharp blows to regulations mark momentous Supreme Court term”

Supreme Court

AP:

Donald Trump and the conservative interests that helped him reshape the Supreme Court got most of what they wanted this term, from substantial help for Trump’s political and legal prospects to sharp blows against the administrative state they revile.

The decisions reflected a deep and sometimes bitter divide on a court in which conservatives, including three justices appointed by Trump, have a two-to-one advantage over liberals, and seem likely to reinforce the views of most Americans that ideology, rather than a neutral application of the law, drives the outcome of the court’s biggest cases.

The justices also contended with ethics controversies that led to the adoption of the court’s first code of conduct, though one with no means of enforcement. Months later came public statements from Justice Samuel Alito rejecting calls that he step aside from several cases over questions of his impartiality, including following the revelations that two flags associated with rioters who attacked the U.S. Capitol flew over Alito’s homes in New Jersey and Virginia.

Chief Justice John Roberts, often viewed with suspicion by Trump and his allies over his concerns about judicial independence and worries about the court’s reputation, delivered the most consequential decisions. Those include the court’s grant of broad immunity from criminal prosecution to former presidents and its reversal of a 40-year-old case that had been used thousands of times to uphold federal regulations.

“He’s got competing inclinations. One is to be the statesman and institutionalist,” University of California at Los Angeles law professor Richard Hasen said. The other, Hasen said, is to dig in “when it is something that is important enough to him.”

Presidential power is one of those issues for Roberts, who worked in the White House counsel’s office during the Reagan administration.

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“Virginia certifies John McGuire as primary winner over Rep. Bob Good, who says he’ll seek a recount”

recounts

AP:

The Virginia State Board of Elections on Tuesday certified the apparent narrow defeat of Republican Rep. Bob Good, one of America’s most conservative congressmen, to a challenger endorsed by former President Donald Trump in the state’s June 18 primaries.

The board’s unanimous vote to certify the results does not end the matter, though. Good, who chairs the hard-right House Freedom Caucus in Congress, has said he will seek a recount now that the state has declared his opponent, state Sen. John McGuire, the winner of the primary in Virginia’s 5th Congressional District.

The margin of victory certified by the electoral board was roughly 375 votes out of nearly 63,000 ballots cast, or 0.6 percentage points. That falls within the 1% margin allowing a recount to be requested. But because the margin is larger than 0.5 percentage points, Good will be required to pay for the cost of a recount himself.

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“Democratic lawyers get ready: ‘If Trump wins, there will be chaos’”

election law biz

Politico:

When Donald Trump issued a ban on travelers from some Muslim-majority countries just a week into his presidency, Democratic attorneys general were caught off guard. They hadn’t expected the policy, long promised by Trump on the campaign trail, to materialize so quickly.

Over the course of a few days, they scrambled to sue to stop the executive order, setting off four years of intense hostility between top Democratic lawyers and a Republican White House.

Now, Democratic attorneys around the country are already gearing up for the possibility of a second Trump administration by beginning to map out an aggressive legal strategy to fight him again in court — this time with a fresh sense of urgency.

Democratic attorneys general are exploring hiring outside experts and dispatching staff to study areas of the law anticipated to come under attack, like reproductive health, immigration and the environment.

They are identifying staff members best equipped to fight assertions of executive privilege — which Trump invoked in his most high-profile controversies — and states best positioned to lead bigger cases.

And they are scrutinizing Project 2025, the 900-page blueprint from The Heritage Foundation that lays out a conservative agenda for the next Republican presidency.

The early but serious preparations are an acknowledgment that a second Trump presidency would entail these lawyers filing lawsuit after lawsuit against the federal government, to mitigate what they view as a significant threat to democracy and individual rights.

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“Architects of the Trump Supreme Court See Culmination of Conservative Push”

legislation and legislatures, Supreme Court

Carl Hulse NYT analysis:

Back in 2016, a colleague handed Donald F. McGahn II, then a top legal adviser to the presidential candidate Donald J. Trump, an appeals court opinion that eloquently and powerfully echoed much of what Mr. McGahn saw as the evils of an out-of-control federal bureaucracy.

The opinion from the Denver-based appeals court by the relatively unknown Judge Neil M. Gorsuch suggested it might be time for federal courts to confront the “behemoth” of a longstanding precedent conferring substantial regulatory power on federal officials.

One month later, Mr. McGahn placed Judge Gorsuch on Mr. Trump’s list of potential Supreme Court nominees should he be elected.

Four months later, he was President Trump’s first nominee to the high court.

And over the past week, Justice Gorsuch wrote for the conservative majority on the Supreme Court that made sure the behemoth was slain.

While much of the attention to the conservative-dominated court has been about the sweeping decisions it has made to roll back abortion rights and now greatly expand presidential immunity, that was never the main goal for the architects of the effort to pull the judiciary to the right.

For those who led the drive to place Justice Gorsuch and two other conservatives on the court during the Trump administration, a sweeping series of rulings by the Supreme Court this year that shrank the power of federal agencies was the true victory. Their longtime target, the so-called administrative state, has been beaten back with the overturning of the 40-year-old Chevron doctrine and a flurry of other decisions aimed at reining in federal government reach — just as they envisioned it.

“None of this was an accident,” Mr. McGahn, a partner at Jones Day, said in an interview about the court’s landmark rulings on administrative law — an arcane area but one that was a cornerstone of his campaign to place jurists skeptical of federal power on the bench. “It was a way to corral the runaway bureaucracy to get judges in place who were actually going to read the law as it was written.”…

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In New Supreme Court Social Media Case, Echoes of Citizens United on “AntiDistortion” and the Foreign Campaign Spending Ban, with Implications for Shutting Down Tik-Tok

campaign finance, social media and social protests, Supreme Court
I want to pick up a point first flagged yesterday by Eugene Volokh from yesterday’s decision in Moody v. NetChoice that could have relevance to new legislation, currently being challenged in court, that could ban Tik-Tok as being foreign owned.… Continue reading