Worthwhile read on the role of Justice Bradley in the Hayes-Tilden dispute.

Today at 10am ET. Adam Liptak has a preview. One thing I’ll be looking for in the argument, from an election law perspective, is the extent to which the immunity issue focuses more narrowly on the specific context of alleged criminality in this case–Trump’s actions as an incumbent president to subvert the electoral process to give him a second term in office that he did not win according to the applicable rules–or instead focuses more broadly on the issue of presidential immunity from criminal prosecution in general (relating to such issues as the exercise of military authority as commander-in-chief). I continue to believe that much, if not all, of Trump’s conduct in an effort to subvert the electoral process was not even remotely part of his official duties under Article II as president, because Article II–and the rest of the Constitution–give an incumbent president absolutely no role to play in the Electoral College (and related) procedures concerning presidential elections. But whatever analytic route the Court takes to reach the conclusion that an incumbent president is not immune from attempting to steal from the electorate a second term he did not win, the Court ought to reach that conclusion as quickly as possible. As many others have observed recently, including Liz Cheney, this case could end up being one in which justice delayed is justice denied.

As a follow-up to my previous post on this development, the N.Y. Times is now reporting that Giuliani and Mark Meadows are among those indicted:

“They were among a number of defendants whose names were redacted from the indictment, though it was clear from the context and the descriptions who they were.

“Also indicted were Boris Epshteyn, who remains one of Mr. Trump’s most senior lawyers; Mike Roman, a Trump campaign operative in 2020, and John Eastman, an architect of the fake electors plan. Two other lawyers who advised Mr. Trump and his 2020 campaign were also indicted, Jenna Ellis and Christina Bobb.”

UPDATE: The Washington Post also identifies the same individuals whose names were redacted in the indictment. The Post story also contains extensive details behind the electors scheme:

“Mayes’s case had been squarely focused on local conservatives up until late last year. Then,Arizona prosecutors and investigators met in December with Kenneth Chesebro, an attorney and an architect of the elector strategy who pleaded guilty in Georgia in October to a single felony count of participating in a conspiracy to file false documents. Chesebro provided Mayes’s team with records — some that had been previously unseen — that revealed more information about those involved in the Arizona effort, according to two people familiar with the investigation who requested anonymity to talk about the sensitive conversations. After that, they said the Arizona investigation widened.”

Indeed. This is an argument I made, at much greater length, in my book Presidential Elections and Majority Rule. The problem is that we seem unable to engage in the structural reforms we need in order to make sure that the winners of elections actually reflect the majority view of the voters who cast their ballots. When will we ever learn? And will it be before it’s too late?

Benjamin Sevart, at the University of Wisconsin, has posted this Comment on SSRN. Here’s the abstract:

This Comment presents the first extensive academic analysis to argue that the writ of mandamus enables the federal courts to compel the Vice President of the United States to open Electoral ballots at the quadrennial joint session of Congress that certifies the result of the Electoral College or to convene the session. Mandamus is justified under current law because text, history, and common sense demonstrate that the Vice President’s duties are ministerial and not discretionary, and the joint session uniquely paralyzes Congress, withdrawing all of its usual tools to secure compliance with the law.

The certification of the 2020 Presidential election was nearly the worst constitutional crisis since the election of 1876, if not the Civil War. The nation narrowly avoided catastrophe, in large part because Vice President Michael Pence refused to join President Donald Trump’s massive conspiracy to subvert the Electoral College and usurp the presidency. This Comment is the first in the academic literature to identify and evaluate a specific legal mechanism for the federal courts to ensure that the lawful transfer of power need not rest on the Vice President’s integrity alone. 

While the courts may be reluctant to intervene in such a fundamental constitutional dispute, they will find no off-ramps in the scenario presented here. All of the Vice President’s justiciability objections will fail. The courts will face the question squarely on the merits, and they may face it soon. Trump could conceivably be the one seeking mandamus against Vice President Kamala Harris at the upcoming certification. 

The question is not just whether to issue mandamus against the Vice President. Nor is it whether to trigger a constitutional crisis. The question is whether to sit one out, or else to affirm that the United States of America remains a nation of laws, and not men.