DOJ picking up steam!

September 13, 2022

         Monday’s most significant development was a report by the NYTimes that federal grand juries issued approximately 40 subpoenas to Trump administration officials and campaign associates in the last week. The subpoenas related to a broad range of issues, including the “fake electors” scheme, efforts to plan and finance the “Stop the Steal” January 6th rally, and post-election fundraising.

          In other words, the DOJ has finally launched a broad-based effort to hold Trump accountable for multiple crimes committed during and after his tenure. All Americans should welcome this development. Without regard to the outcome of the investigations, the fact of their existence signals a strong effort to reestablish the rule of law.

          The flight of subpoenas also provides a clearer view of when the DOJ began its investigations in earnest. For more than a year, Merrick Garland’s defenders argued that the deafening silence from the DOJ and grand juries was proof that Garland was diligently working in the background to build an “airtight” case against Trump. In fact, as the present barrage of subpoenas proves, there is no such thing as working on a massive investigation “in the background.” Recipients of grand jury subpoenas are under no obligation to keep those subpoenas secret—which is why the NYTimes can report on the issuance of 40 subpoenas in the last week. As the Times notes,

          The Justice Department has spent more than a year focused on investigating hundreds of rioters who were on the ground at the Capitol on Jan. 6. But this spring [2022], it started issuing grand jury subpoenas to [organizers of] the pro-Trump Stop the Steal group, who helped plan the march to the Capitol . . . .

          Let’s hope that the DOJ moves with all deliberate speed in pursuing the multiple criminal investigations now open against Trump—including the investigation of his theft of defense secrets on his way out of the Oval Office. Read on!

The Mar-a-Lago search.

          Trump filed his opposition to the DOJ’s request to exclude 100 stolen classified documents from review by a special master. A smart judge would take personal offense at the bad-faith, nonsensical arguments included in the brief. Whether Judge Cannon takes offense at the brief remains to be seen. But before turning to the deficiencies in Trump’s brief, it is worth noting that the DOJ has played its hand masterfully in the case before Judge Cannon. The reason that Trump’s opposition brief was so bad is that the DOJ’s moving papers were devastating from a factual and legal perspective. The DOJ left Trump nowhere to hide—and that fact was apparent in Trump’s feeble opposition brief, which is here: Trump’s Opposition to Motion for Partial Stay.

          There are four major takeaways from the brief:

• Trump failed to provide Judge Cannon with any evidence to support his legal arguments. This deficiency alone is grounds for granting the DOJ’s motion.

•  Trump pretends that the matter before Judge Cannon relates to a civil dispute over the “storage” of Presidential Records and ignores that the documents were seized pursuant to an application that established “probable cause” that evidence of a crime would be seized at Mar-a-Lago.

•  Trump did not assert that he had declassified any documents. Instead, he stated (baselessly) “there remains a disagreement as to the classification status of the documents,” which is an “issue is to be determined later.” Wrong! If Trump claims that he declassified the documents and that they are therefore subject to review by the special master, now is the time for Trump to swear under oath that he declassified them. He hasn’t made that declaration because to do so would be a lie.

• Trump did not assert that any of the documents are subject to executive privilege. Instead, he points to Judge Cannon’s gratuitous and unfounded assumption in the prior order that some documents might be subject to executive privilege. Again, now is the time for Trump to swear under oath that some documents are subject to executive privilege. He hasn’t made that declaration because to do so would be a lie.

          The (retired) lawyer in me wants to write a full-scale, point-by-point refutation of Trump’s woefully inadequate brief, but I will refrain from doing so. You’re welcome!

Pollsters say their polls are unreliable because they were wrong in the past, which is (allegedly) bad for Democrats.

          As Democratic candidates have improved in the polls, several prominent pollsters have said, “Our polls are unreliable and, therefore, that is bad for Democrats.” Their argument goes something like this:

We were wrong in 2016, but not wrong in 2018, but wrong in 2020. Therefore, if we adjust our current polling for our errors in 2016 and 2020 (which we can’t explain) but ignore 2018, then it looks bad for Democrats.

          There is a saying in the military about someone “not knowing the difference between their butt and a hot rock.” I submit that when pollsters resort to predicting races based on historical errors they cannot explain, the adage applies with full force. See Nate Cohn in NYTimes, Yes, the Polling Warning Signs Are Flashing Again.

          Anyone who does not understand that Dobbs, the mass killings at Uvalde, January 6th, presidential espionage, and a culture war on LGBTQ people make 2022 unlike 2016, 2018, and 2020 should get out of the prediction business. See also Daily Kos, 2022 Midterms: 10 reasons why the situation has changed

          After listening to commentary on the spate of pre-apologies from pollsters, I conclude the following: In many races where Democrats are leading, it is too early to predict whether they will win because neither candidate has exceeded the threshold necessary to win the race—51%. Uh, okay. That seems unremarkable. But what is remarkable is that the pollsters’ “conventional wisdom” that Democrats should be headed for a shellacking is not supported by the fact that Democrats are tied or leading in races they are “supposed” to lose.

          Ignore the noise. Democrats are enthusiastic, mobilized, organized, and winning in fundraising and registering new voters (especially women). That’s what we can control. Ignore the pollsters as they try to figure out what that lump is they are sitting on. We must focus on executing our strategy.

Putting two doomsday scenarios in perspective.

          Multiple media outlets have begun running ominous headlines (again) about existential threats to democracy: (1) a “rogue” constitutional convention called by state legislatures and (2) the (supposed) impending adoption of the Independent State Legislature theory by the Supreme Court. Those headlines have some readers in a panic.

          I have written on these topics before. Both are serious threats that we must not ignore. But analysts frequently emphasize the doomsday scenario without appropriately mentioning the constitutional limitations on both threats. I will return to these topics in the future when I have more space, but the question that you should always ask yourself about these threats is, “But what about the Constitution? Does that afford us any protection?” The answer is, “Yes.”

          Commentators who write about the threat of a “rogue constitutional convention” that can be called by 34 state legislatures almost never mention that any proposed amendment from such a convention must be approved by 38 states! There are 19 state legislatures where Democrats control one or both of the legislative chambers. Thus, according to the math, in order for a constitutional amendment to be ratified by 38 state legislatures, 7—as in “seven”—state legislatures controlled in whole or in part by Democrats must ratify the amendment.

          So, take a deep breath. If seven state legislatures controlled by Democrats ratify an amendment, it deserves to pass and isn’t going to include any of the wild amendments prominently mentioned in the doomsday stories about a “rogue” convention.

          (There are other complications and obstacles to a “rogue convention. The Bulwark does a good job explaining the complexities in The Risk of the Right-Wing Push to Rewrite the Constitution.)

          As to the Independent State Legislature (“ISL”) theory, I urge you to keep in mind the difference between the fever-dream of reactionary conservatives and the reality of what is before the Supreme Court in Moore v. Harper. In the fever-dream of ISL, state legislatures are preternatural bodies that float above state and federal law, wreaking havoc at will. That won’t happen and isn’t before the Supreme Court in Moore v. Harper. Again, the ISL theory is dangerous and should be fought at every opportunity. But don’t let misleading headlines scare you.

          The question in Moore v. Harper is whether state courts can limit the actions of state legislatures when they regulate the “time, place, and manner” of federal elections. Here is the clause of the US Constitution at issue (Art. 1, Sec. 4):

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

          Because the “elections clause” does not mention a role for state courts in the process of regulating federal elections, some members of the US Supreme Court believe that state courts cannot limit the actions of state legislatures regarding federal elections. That is a fatuous argument with no historical support. It would be a travesty if the Supreme Court were to adopt that interpretation of the elections clause. See Laurence Tribe and Dennis Aftergut, Los Angeles Times, Op-Ed: The Supreme Court is poised to cut the heart out of majority rule

          But let’s assume that the Supreme Court agrees that state courts cannot overrule state legislatures regarding the “time, place, and manner” of federal elections. What then? Well, as the elections clause states, “Congress may by law make or alter such regulations.” So, state legislatures can be overruled by Congress in regulating the time, place, and manner of federal elections (e.g., by the John Lewis Voting Rights Act—if enacted).

          Moreover, the US Constitution serves as a check on state legislatures. Suppose that the Arizona legislature said that Republicans can vote for US Senators at any elementary school for two weeks before and including Election Day, but Democrats can do so only by appearing at the state capitol on Election Day between 5:00 AM and 8:00 AM. Of course, such a law would violate the equal protection and due process clauses of the US Constitution and would be invalidated by a federal court.

          To be sure, GOP state legislatures will make voting more difficult if the Supreme Court adopts the limited application of the ISL in Moore v. Harper. But even if that comes to pass, Congress and the Constitution will continue to serve as a check on runaway state legislatures. They are not—and never will be—preternatural bodies floating in the legal firmament free of any constitutional checks and balances.

         (How the ISL applies to the selection of electors in a presidential election is another topic. It is related but involves a different analysis. Again, the Constitution governs the actions of state legislatures in the selection of electors. More on that later.)

Concluding Thoughts.

          It has been some time since I have written about Russia’s war on the Ukrainian people. Over the last three weeks, Ukraine has launched a counter-offensive against Russian-occupied territory in the northeastern portion of Ukraine. The Ukrainian army has routed the Russian regular army, as well as its conscripts, mercenaries, and irregular recruits. The Russian retreat has been so hasty that its troops abandoned larges stores of weapons and ammunition. As one commentator noted, “The Russian army has become the major arms supplier to Ukraine.” See Russian Offensive Campaign Assessment, September 10 | Institute for the Study of War.

          There are many reasons for the rout, including differences in training, discipline, supplies, and weapons. The pervasive corruption of the Russian kleptocracy has infected its army, leaving Russian soldiers ill-equipped, under-fed, and “essentially homeless” as they attempted to maintain forward positions. In other words, we shouldn’t romanticize Ukraine’s current momentum.

          But neither should we dismiss the fact that Ukrainian soldiers are motivated and unified in the defense of their country in a way Russian soldiers are not. According to “conventional wisdom,” Russia was “supposed to” complete its invasion of Ukraine in four days. That conventional wisdom was based on traditional military metrics—the number of troops, tanks, jets, and missiles—all of which favored Russia. Most “experts” assigned a value of “zero” to the motivation, determination, and fighting spirit of the Ukrainian troops. As military experts doubted and dismissed the Ukrainian army, the soldiers fighting to defend their homeland have never doubted that they will win.

          I will let you draw your own parallels to our current situation. Experts are good at quantifying things, but not so good at measuring intangibles. Democrats have the intangibles on their side heading into 2022. That counts for a lot. Just ask Ukraine—and Russia.

          Talk to you tomorrow!