“With Comey questioning, the Trump administration again targets speech”

Uncategorized

WaPo:

After James B. Comey posted a photograph of shells on a beach arranged to spell “86 47” — a reference to President Donald Trump, the 47th president — the former FBI director said he believed the image was a political message.

But Trump administration officials quickly accused Comey of something much more serious, saying he had committed a crime and should be jailed.

Homeland Security Secretary Kristi L. Noem, who oversees the Secret Service, described the post on Thursday as a “threat” and a call to assassinate Trump. Tulsi Gabbard, the director of national intelligence, said on Fox News that Comey should be put behind bars. By Friday, the Secret Service had launched an investigation and interviewed Comey in D.C. FBI Director Kash Patel said his agency would “provide all necessary support” as part of the investigation.

Legal experts said in interviews that they doubted Comey’s post would qualify as a genuine threat. Instead, they said, the incident appeared to mark the latest attempt by an administration with a maximalist view of executive power to criminalize or otherwise punish people for speech, protests and other actions traditionally viewed as legally protected in the United States….

Legal analysts and political observers said the focus on speech is meant to intimidate critics and exact political retribution.

“The threat of being investigated is enough to silence many people,” said Brendan Nyhan, a professor of government at Dartmouth College. “The pattern we’re seeing is state power being directed against Trump’s enemies and opponents.”…

What is known as “a true threat is typically defined as a serious expression of an intent to harm another,” said Timothy Zick, a professor at William & Mary Law School and an expert in the First Amendment.

But threats can be murky, Zick said. “The harder cases are the ones that fall into this question of, is this just a form of political rhetoric?” he said. “Is this just a person blowing off steam? Are they making a joke?”

Comey’s post “does not read as a true threat to me,” Zick said, though he noted that anything even perceived as threatening to a president can draw Secret Service attention.

In 2023, the U.S. Supreme Court adopted what is known as a “recklessness” standard for threat cases. True threats of violence are not protected speech under the First Amendment, the court said. But the court ruled that prosecutors must show a defendant acted recklessly and “disregarded a substantial risk that his communications would be viewed as threatening violence.” Otherwise, the court said, law enforcement could have a chilling effect on nonthreatening speech….

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“Trump’s DOJ focuses in on voter fraud, with a murky assist from DOGE”

fraudulent fraud squad

NPR:

Last October, at a library in Boynton Beach, Fla., Yelyzaveta Demydenko went with her mom and stepdad to vote for the first time.

Demydenko, who’s 22, told a federal investigator that she voted in the presidential election “because she wanted to make a difference.” Her mother, Svitlana, also voting for the first time, said she cast a ballot “because she wanted to support the country.”

The women, who were born in Ukraine, are green card holders, not U.S. citizens, as is required to vote in federal elections. They now represent two of the first illegal voting charges brought by the Justice Department under President Trump.

The same week, federal law enforcement also announced charges against an Iraqi man accused of casting a ballot in the 2020 election, and a Jamaican woman accused of illegally voting in last year’s presidential primary in Florida.

The four cases were made public about a month after Trump signed an executive order that seeks to add new document checks to voter registration, and as Republicans in Congress and in legislatures across the country try to pass laws with similar restrictions.

Trump and his allies have for years pushed the false narrative that non-U.S. citizens are voting in large numbers in federal elections, but nothing in these initial charges points to any widespread conspiracy.

The charges also come as the Justice Department’s Civil Rights Division turns its focus from its longtime mission of protecting the constitutional rights of all Americans to enforcing the president’s executive orders. And according to federal officials, at least some of the initial cases relate to work done by the Department of Government Efficiency, or DOGE, though the government has not disclosed many details on how the Elon Musk-led group was involved….

Justice Department press releases, and the head of the Department of Homeland Security, credit DOGE with assisting with the investigations into Jamiel and the Demydenkos, but it is not clear what role DOGE played, or whether DOGE also assisted with the arrest of Wallace.

NPR requested more information on DOGE’s involvement in the cases but did not receive more details from the White House, DOJ or DHS.

The case against the Demydenkos was already underway in December, before Trump’s inauguration, according to a statement from the Palm Beach County Supervisor of Elections, and so far there is no mention of DOGE in any court documents.

But those involved with DOGE have publicly mentioned election crimes work.

At a rally in Wisconsin at the end of March, Musk and associate Antonio Gracias, a DOGE staffer assigned to the Social Security Administration, revealed that DOGE was comparing Social Security data with state voter data in an effort to identify potential noncitizens who had illegally voted. Gracias said his team had referred cases of noncitizens voting to DHS’ Homeland Security Investigations arm.

Earlier that same week, Trump’s executive order instructed DHS to work with DOGE on voter list maintenance efforts. The next day, a Homeland Security Investigations special agent requested Jamiel’s voter record from local election officials in New York, according to an email acquired by NPR through a public records request.

It’s unclear how many potential noncitizen voters DOGE has uncovered.

Gracias told Fox News in early April that his team had found “thousands” of potential noncitizens on the voter rolls in a handful of states. But at the end of April, Musk and Gracias cited a smaller number — 57 — when they mentioned to reporters how many potential noncitizen voter fraud cases DOGE had referred so far to law enforcement, according to ABC News.

Elections administrators note this sort of records matching is notoriously arduous and can lead to huge initial numbers of potential noncitizens that get whittled down once investigators dig in, eliminate false positives, and find up-to-date citizenship information on people who have naturalized.

In Ohio last year, for instance, Republican Secretary of State Frank LaRose referred more than 600 potential noncitizen voters from the previous decade for prosecution. The state’s attorney general ended up announcing fewer than 10 indictments, and of those, the Associated Press found some who illegally voted had done so without understanding they were ineligible….

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“Kansas ends mail-in ballot grace period. Why have other states followed?”

absentee ballots, fraudulent fraud squad

KC Star:

Once a bipartisan safeguard against postal delays and slow mail processing times, Kansas’ three-day mail ballot grace period is now gone — axed by lawmakers, challenged in court, and mirrored in a growing number of Republican-led states. Following the 2020 election, former President Trump promoted false claims of widespread voter fraud, targeting states that allowed ballots postmarked by Election Day to be counted after polls closed, many under temporary pandemic-era policies. Trump and his allies seized on mail delays and extended deadlines to cast doubt on the legitimacy of the results.

A law passed nearly unanimously by the Kansas Legislature in 2017 granted a three-day grace period for legally postmarked mail-in ballots to be counted after Election Day, responding to concerns that U.S. Postal Service delays were causing some ballots, especially from rural areas, to arrive late and go uncounted.

Since the 2020 election, however, some Kansas lawmakers have leaned into unfounded voter fraud claims to justify changes to election law and signal to constituents that they’re taking action, said Chloe Chaffin, fellowship manager at Loud Light. “Because of the big lie, all of a sudden, state legislators that want to show their constituents that they’re responsive and taking action, they will likely use it as an easy scapegoat essentially just to chip away at legal votes.” Chaffin said.

According to the Secretary of State’s office, 2,110 properly postmarked ballots that were counted in 2024 would have been thrown out under the new law eliminating the grace period….

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“Revisiting Section 2 and the Electors Clause: On the Right of the People to Choose Presidential Electors”

electoral college

Mark Bohnhorst has posted this draft on SSRN. Here is the abstract:

Recent scholarship argues that Section 2 of the Fourteenth Amendment protects the people’s right to elect presidential electors. This Article offers fresh perspectives both on Section 2 scholarship and on the underlying history of the Electors Clause. It begins with a review of modern interpretations of the Fourteenth Amendment. It then summarizes the author’s recent research into the text and structure of the Electors Clause and its ratification. It also offers new perspectives on consequential debates over the constitutionality of legislative elections that began in 1800 and ended in 1826. When Section 2 was drafted in June 1866, the popular election of presidential electors was universal, challenged only by South Carolina’s formerly renegade but recently repudiated and abandoned practice. Section 2 created or reaffirmed the rights of the people and protected against backsliding. Our subsequent history-including a second ratification of the words of the Electors Clause in 1961-confirms the people’s right to elect the president.

See also this companion piece:

This paper is a full report of the author’s recent research into the meaning of the Electors Clause. It supports the thesis that the “plenary power” dictum of McPherson v. Blacker is based on a fundamental misreading of history. (Part I.D is a full treatment of ratification, which is summarized in a companion article that is forthcoming in Denver Law Review, SSRN # 5180256. The Appendices are new.) This paper takes an in-depth look at the following topics: (i) the constitutional text and structure, (ii) ratification, (iii) the state elections of 1800 in Virginia and New York, (iv) Rufus King’s advocacy in the Senate (1816-1824), and (v) the state elections in New York in 1823-24 (including Rufus King’s role in those elections). The paper adds to the already substantial evidence that the historical review that underlies McPherson’s “plenary power” dictum is unmoored from the history of the constitutional convention, the ratification, and the nation’s most serious and consequential debates about the meaning of the Electors Clause.

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“Elon Musk’s pro-Trump PAC failed to pay swing state petition signers, new suit alleges”

campaigns, chicanery

CNBC:

Elon Musk’s America PAC didn’t keep its promise to pay swing state voters who signed a pro-Trump petition ahead of the 2024 election, and who enlisted others to do the same, a new lawsuit alleges.

The case, a proposed national class action suit, was filed within the last week in a federal court in the Eastern district of Pennsylvania, a state that was viewed as critical to Donald Trump’s effort to return to the White House.

A related case was filed in April that only applied to residents of Pennsylvania.

Lead plaintiffs are three people who participated in the America PAC initiative while they were living in Pennsylvania, Nevada and Georgia. One formally worked as a canvasser for America PAC in Michigan and in Georgia, the complaint says.

In his efforts to propel Trump to victory, Musk spent around $300 million while also stumping at rallies and online for his preferred candidate. Musk, the world’s wealthiest person, had offered payments — initially $47 and later $100 — to those who signed a petition supporting his pro-Trump PAC. Additional payments were offered for each eligible person they referred who signed the petition.

Musk said the petitions showed support for the First Amendment and Second Amendment. The PAC viewed the awards as a way to drive voter registration and turnout in swing states.

The complaint says the plaintiffs are “in communication with numerous others who referred voters to sign the America PAC petition, who are likewise frustrated that they did not receive full payments for their referrals.” The group, represented by the law firm Lichten & Liss-Riordan, expects there to be “more than 100 Class Members,” with payments owed them “expected to exceed $5,000,000,” the filing says….

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Banana Republic Dept: “Comey under investigation for ‘threat’ to Trump on social media, officials say”

authoritarian threats in US

WaPo:

Trump administration officials said Thursday that they would investigate former FBI director James B. Comey, whom they accused of threatening President Donald Trump after Comey posted a picture of seashells on a beach arranged to spell out “86 47.”

Trump is the 47th president; “86” can mean banning or removing someone, but it can also be slang for killing a person.

“Cool shell formation on my beach walk,” Comey wrote in the original Instagram post, which he quickly removed after claims that the phrase communicated the threat of violence. In a follow-up post, Comey wrote that he assumed the shells he saw “were a political message” but said he was not advocating violence.

Trump insisted in a TV interview that Comey “knew exactly” what it meant.

“If you’re the FBI director and you don’t know what that meant, that meant assassination,” Trump told Fox News in an interview scheduled to air Friday evening. “And it says it loud and clear.”

Homeland Security Secretary Kristi L. Noem also accused Comey of calling for Trump’s assassination, writing on X on Thursdaythat the Department of Homeland Security and the Secret Service were “investigating this threat and will respond appropriately.” FBI Director Kash Patel said his agency would “provide all necessary support” as part of the investigation.

Director of National Intelligence Tulsi Gabbard said on Fox News that she believes Comey should be in jail because of the post and accused him of “issuing a hit” on Trump.

Asked what he wanted to happen to Comey, Trump told Fox News host Bret Baier it was up to “Pam and all of the great people,” referring to Attorney General Pam Bondi.

It is the job of the U.S. Secret Service, which is part of DHS, to explore potential threats to the president, but in general such inquiries are launched only when a person is believed to be actively threatening harm.

Used as a verb, “86” originated in hospitality, meaning to refuse service to a customer or that a menu item was not available, and its use expanded over time to broadly refer to rejecting, dismissing or removing, according to its dictionary definition. It can also refer to killing something or someone.

“I didn’t realize some folks associate those numbers with violence,” Comey said in his follow-up post. “It never occurred to me but I oppose violence of any kind so I took the post down.”…

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