  Friday, June 30, 2023

TODD ZWILLICH

Deputy DC Bureau Chief, VICE News

Washington, D.C. Bureau
@toddzwillich

John Eastman at a news conference outside of CU Boulder on Thursday, April 29, 2021. CU relieved Eastman of his public duties after he spoke at Donald Trump's rally preceding the Capitol insurrection on Jan. 6. (Andy Cross/MediaNews Group/The Denver Post via Getty Images)

The Moore you know

Coup lawyer John Eastman's disciplinary trial was on hold this week. One of his lawyers got sick. Eastman did a lot of things after the 2020 election that may get him disbarred in California (or even charged). But he, along with other MAGA attorneys, also tried to convince courts across the land that state legislatures had the power to overturn voters and appoint whatever electors the legislature wanted.

It was an extreme version of "Independent State Legislature" theory, a fringe piece of conservative election legal theory that was poised to do more damage to democratic elections than any subversion MAGA had mustered. The US Supreme Court rejected the theory this week in Moore v. Harper, in a 6-3 decision that said state legislatures don't get to check out of checks and balances.

Scholars from across the political spectrum celebrated. Conservative retired Judge J. Michael Luttig, who testified in the Jan. 6 committee about MAGA's danger to democracy, called the ruling "the single most important constitutional case for American Democracy" since the founding.

In the past I've relied on UCLA Law professor Rick Hasen for guidance on Moore, and on the North Carolina gerrymandering case that gave birth to it. So I called Rick back for some advice on the decision.

Judge Luttig says this is the most important Supreme Court case for American democracy in 250 years. Do you agree?

I can understand why he said that, but I have a different view. Had the court come out the other way and embraced the extreme version of the independent state legislature theory, it would have been the most important case, because it would have green-lit the most egregious power grab when it comes to elections in American history. The fact that the court rejected that is a relief.

But I don't think it fits up there along with Shelby County v. Holder, which killed off a key part of the Voting Rights Act in 2013; or with Citizens United freeing corporate money in elections; or the series of one person, one vote cases, including Baker v. Carr and Reynolds v. Sims, which fundamentally changed the way we elect people to office.

So maybe you think this is the biggest bullet dodged?

Yeah, I agree with that. The most extreme version of the theory posits that state legislatures act with this kind of free floating power when they're coming up with rules for congressional and presidential elections. Governors, state courts, even their own state constitutions can't get in the way.

I have this thought that this decision, combined with reforming the Electoral Count Act, which Trump tried to exploit on Jan. 6, has sealed the Trump-shaped hole he created in trying to steal 2020.

I wouldn't say that the hole is sealed up, but they've done a pretty good patch job. A full repair is to actually fix the Constitution. For example, if a state legislature passed a law before the election that said, "we're going to decide who's won the presidential election after the voters have voted," I think that would be perfectly constitutional under our existing Constitution. I don't think there's anything in Moore v. Harper that would prevent that from happening. So there's still a path to subversion, though a narrower one.

The extreme subversion you're describing was the heart of the Jan. 6 plan. Mike Pence reverses or delays the count, then the states can appoint their own electors. This was the heart of John Eastman's coup memo. This stuff is really real, not abstract.

It's real, and even after Congress passed the Electoral Count Reform Act in December, attorney Cleta Mitchell and Eastman were still claiming that they could potentially see state legislatures usurped the power of voters.

You warn there's a ticking time bomb in this ruling.

The crazy theory was rejected, and that's good news. But the court embraced what I would call a weaker version of the independent state legislature theory. They're setting up to favor state legislatures in dangerous ways.

Go back to 2000 and Bush v. Gore, the case that ended the disputed Florida election. The majority opinion stopped the recount on equal protection grounds. And that sealed it for Bush. But Chief Justice William Rehnquist, joined by Clarence Thomas and Antonin Scalia, had another theory as to why the recount had to stop. They said the Florida Supreme Court interpretation of the state election code improperly usurped the power of the state legislatures to set the rules for presidential elections.

In Moore, the Court doesn't exactly say, "we're gonna go with that Rehnquist interpretation," but it does say there are limits. That means that federal courts can second guess what state courts decide when it comes to federal elections. That's the time bomb.

In a 2024 hypothetical, a swing-state court decides to extend voting in a way the Trump campaign doesn't like. They can now have an open door at the Supreme Court to reverse that decision.

And not only that, potentially an open door in other federal courts, because this seems to be something that federal courts can apply. We haven't completely sealed these paths.

Don't forget to sign your friends up for Breaking the Vote!

BREAKING THE VOTE LAW

Walt Nauta, aide to former president Donald Trump, disembarks Trump's airplane in Bedminster, N.J. on Tuesday, June 13, 2023, following a first court appearance at in Miami, FL. (Jabin Botsford/The Washington Post via Getty Images)

Nauta-raigned

Donald Trump's valet Walt Nauta is a diligent servant, supplying his boss with a steady stream of diet soft drinks and—according to prosecutors—engaging in conspiracy, obstruction, and false statements. He might even be the one Trump's talking to at the end of the Bedminster tape, where the former president, possibly parched from sharing classified information with unauthorized persons, calls to someone nearby, "Bring some Cokes in, please."

A real Coke-getter, if you will.

Thing is, Nauta still hasn't been arraigned on the seven counts against him. That's because he hasn't yet obtained local counsel who's certified to rep clients in the Southern District of Florida. What's the hold up?

Nauta's temporary lawyer Stan Woodward (who's also Trump's actual lawyer) told the magistrate judge presiding over the arraignment that a fee dispute caused Nauta's prospective lawyer to bolt on him at the last minute. That's curious, considering that Trump's Save America PAC is paying for Nauta's representation.

Woodward also proffered some BS that Nauta missed court because of flight delays and bad weather. But Nauta could have Zoomed into the hearing and wasn't even required to be there.

The judge now has set Nauta's arraignment for July 6, more than three weeks after Trump was arraigned. As Marcy Wheeler pointed out, that translates to a full 23 days of delay that Nauta, and the folks paying his legal bills, bought for Trump.

Bastille my heart

Meanwhile, Judge Aileen Cannon scheduled the first pre-trial hearing on how to handle the case's many classified documents for July 14.

A proffer he can't refuse

Former Trump lawyer and walking fall from grace Rudy Giuliani has been meeting with federal prosecutors, apparently trying to offer up just enough information about the coup plot to avoid being charged.

Giuliani met with the feds voluntarily in what NYT says was a proffer session. That's where the subject of an investigation provides prosecutors with information, usually with the understanding it won't be used against them later. Often the information points investigators somewhere else when they're looking for who to blame in an indictment, or presages a cooperation deal. In addition to "former US Attorney" and "New York City Mayor," could Rudy be about to add "government witness" to his resume?

This is potentially big. Giuliani apparently answered questions about the fake elector plot, Trump's PAC fundraising, the Willard Hotel "war room" on the eve of Jan. 6, and what Trump knew or said about his election loss prior to lying about it up to and including on Jan. 6.

Raff out loud

Georgia Secretary of State Brad Raffensperger is also meeting with prosecutors investigating the attempted coup, but in a very different posture than Rudy's. Raffensperger met Wednesday with Jack Smith's team, and it's not clear whether he was subpoenaed or talked voluntarily. The tape from Jan. 2, 2021, where Trump urged Raffensperger to "find 11,780 votes, which is one more than we have," will surely be a key piece of evidence if Smith ever charges Trump in relation to trying to overturn the election in Georgia. It's extremely likely to come up in whatever charges Fulton County DA Fani Willis is set to announce in the next few weeks, too.

WHAT'S HAPPENING

Only in New York!

A federal judge in New York is not inclined to grant Trump's attempt to move his 34-felony-count indictment to federal court. That means Manhattan DA Alvin Bragg's case is likely to stay in New York, and to get a less Trump-sympathetic jury.

Trump's lawyers argued this week that he's immune from state prosecution since he made the alleged hush money payments to Stormy Daniels via fixer Michael Cohen while carrying out his official duties as president. This was federal hush money!

But Judge Alvin Hellerstein told lawyers that the payments had nothing to do with official acts of a president, and that there were no defenses based in federal law Trump could reasonably use. Hellerstein is expected to rule in the next couple weeks.

Breaking: Trump pays debt

This may come as a shock, but Donald Trump owed someone millions of dollars… and paid. He didn't have a choice, really. This was the $5 million Trump was ordered to pay E. Jean Carroll when a jury found him liable in May for sexually abusing and defaming her. Trump officially paid up on Wednesday.

Of course, Trump has no intention of letting it go. He countersued Carroll, alleging she defamed him when she repeated her claim that Trump raped her after the jury failed to find him liable for that.

Meanwhile the courts say Donald Trump is not immune from lawsuits, literally: US District Judge Lewis Kaplan rejected Trump's attempt to use presidential immunity to get out of E. Jean Carroll's sexual abuse and defamation claims against him.

Riot in front you

Security agencies had plenty of indications that pro-Trump demonstrators were likely to get violent, but failed to adequately prepare for the Jan. 6 riot, according to a Senate report out this week.

According to the report, which was compiled by Democrats on the Senate Homeland Security Committee, online chatter was full of rhetoric suggesting that some people weren't coming to Washington to peacefully protest. One example: "This is not a rally and it's no longer a protest. This is a final stand where we are drawing the red line at Capitol Hill… don't be surprised if we take the #capital building," one person wrote on Parler.

But investigators at the FBI and Department of Homeland Security downplayed the threats, concluding demonstrators were engaging in speech that was protected by the First Amendment.

This is a tough one. Federal agents too quick to treat political speech like threats goes to a bad place very quickly. On the other hand, "this attack was essentially planned in plain sight in social media… and yet it seemed as if our intelligence agencies completely dropped the ball," Homeland Security Committee Chair Sen. Gary Peters told NBC.

Sanctions corner

Rudy was sanctioned by a federal judge this week for failing to search for and turn over documents in the defamation suit against him brought by two Georgia election workers. US District Judge Beryl Howell ordered Rudy to pay lawyer's fees and court costs to Ruby Freeman and Shaye Moss, who accuse Giuliani of defaming them when he pushed conspiracy theories and sicced MAGA goons on them after the 2020 election. The amount Rudy has to pay hasn't been determined yet.

Meanwhile, MAGA super-lawyer Sidney Powell had her sanctions—for abusing the justice system and filing a frivolous 2020 election lawsuit in Michigan—largely upheld. A US District Court ordered Powell and a group of "Kraken" attorneys to reimburse the City of Detroit about $175,000 in court and attorney costs for acting "in bad faith" and filing lawsuits "for improper purpose." The 6th Circuit Court of Appeals affirmed the sanctions but reduced the sanction to a little over $152,000. Congrats!

Impeach pits

From lionizing Jan. 6 rioters, to attacking prosecutors, to actively helping spread pro-coup propaganda, the House GOP is using every ounce of its power to shield Trump, and themselves, from accountability. So… of course.

I SAID WHAT I SAID

"The supreme court said we can have a little democracy, as a treat."

— @democracydiva, on the US Supreme Court's opinion in Moore v. Harper.

ON OUR RADAR

Raving Madison — Wisconsin Republicans, still drunk on MAGA conspiracies, are trying to oust the state's top election official. And they're using some pretty nasty tricks in the state Senate to do it.

Schmidt happens — Al Schmidt, the former Philadelphia GOP election official who Trump harassed for rejecting his lies about 2020, is about to be officially named Pennsylvania's top election official. Schmidt was nominated to be Secretary of the Commonwealth by Dem Gov. Josh Shapiro. He cleared a GOP-led Senate committee this week, and faces a confirmation vote by Wednesday.

Schmidt's been featured in this newsletter and on VICE News Tonight, where our Breaking the Vote coverage of his targeting by Trump supporters just won a Cronkite Award.

Imp's totally possible — Mount Rushmore is a demonic portal spreading communism from Washington, D.C. to the whole nation, according to a GOP South Dakota state Rep., who also says God spoke to him about Donald Trump's defense of the Constitution. Get me Roger Stone!

Shocking discovery — Employees at right-wing news and disinfo purveyor Newsmax are getting caught up in Smartmatic's defamation suit against the company. Workers received subpoenas for their phones, emails, and more from lawyers for the voting machine company, which alleges Newsmax defamed it with false stories about 2020 election fraud. Employees are not happy, wondering why a dispute between two companies involves private communications of employees. Stay tuned.

"With no regrets, I quit" — Check out the resignation letter from Geraldine Roll, the election director of Pinal County, Ariz, who says local Republicans have subjected her to intimidation and harassment.