Jeff Danziger lives in New York City. He is represented by CWS Syndicate and the Washington Post Writers Group. He is the recipient of the Herblock Prize and the Thomas Nast (Landau) Prize. He served in the US Army in Vietnam and was awarded the Bronze Star and the Air Medal. He has published eleven books of cartoons, a novel and a memoir. Visit him at DanzigerCartoons.
A federal judge appointed by Donald Trump has, for now, just effectively destroyed the main case against a January 6 defendant by ignoring the rulings of seven other judges – a move that “clouds the legal path of as many as 270 cases,” according to The Washington Post.
U.S. District Judge Carl Nichols “said late Monday that the Justice Department cannot charge Jan. 6 defendants with obstructing Congress’s certification of President Biden’s 2020 election victory unless the defendants tampered with official documents or records in the attack on the U.S. Capitol.”
By doing so Judge Nichols “broke with at least seven other U.S. trial judges in Washington who have ruled that prosecutors can use the obstruction charge in Capitol riot cases.”
Judge Nichols clerked for Supreme Court Justice Clarence Thomas. He has ruled against Trump allies in defamation cases brought by Dominion Voting Systems, but also temporarily blocked the State of New York from handing Trump’s tax returns to a top House committee.
Nichols’ ruling Monday is in the case of Garret Miller, of Texas, but defense attorneys in hundreds of other cases could point to it to slow down prosecutions of their clients or even force the DOJ to retry cases. DOJ can appeal Nichols’ ruling.
“This ruling, which seems contrary to the plain language of the statute & conflicts with other judges’ rulings,” warns noted former U.S. Attorney Joyce Vance, “has serious implications if applied to yesterday’s indictment of the Proud Boy’s [Enrique] Tarrio. He’s charged with conspiracy under the same provision.”
Another noted U.S. Attorney, Barb McQuade, adds: “DOJ will likely appeal judge’s dismissal of obstruction charge, a decision that’s contrary to the plain language of the statute and prior decisions by 7 other judges, but the decision will delay DOJ’s work to hold Jan 6 defendants accountable.”
In a deeper dive, national security and civil liberties journalist Marcy Wheeler calls parts of Nichol’s ruling in the Miller case “far too clever,” noting he is “ignoring some language addressing issues he raises in his opinion."
Reprinted with permission from Alternet
More than 200 judges have been embedded in the federal judiciary by outgoing Senate Majority Leader Mitch McConnell and Donald Trump. The huge majority of those judges come from the Federalist Society, the right-wing dark money association that has been working for years to erode civil rights, end abortion, oppose LGBTQ equality, stop gun safety laws, and fight regulations protecting the environment, health care, and worker safety—aka everything achieved in roughly half a century of progress. They are responsible for the current makeup of the Supreme Court and most of the Republican Senate. And they also have at least partial responsibility for the insurrection that happened at the U.S. Capitol on Jan. 6.
John Eastman, until this week the chairman of the Federalist Society's Federalism & Separation of Powers practice group, spoke at the pre-insurrection rally. "Anybody that is not willing to stand up and [vote to overturn the election] does not deserve to be in the office!" Eastman told the crowd. Standing next to Rudy Giuliani at the rally, he broke into a smile when Rudy incited the crowd with "Let's have trial by combat!"
Those linked tweets are from Slate's Mark Joseph Stern, who highlighted Eastman's role in pushing Trump's various plots to overturn the election: "As the president's actual attorneys backed away from his coup, Eastman rushed in to fill the void, attempting to bolster the scheme with incoherent legal theories," Stern writes. "When Texas Attorney General Ken Paxton urged the Supreme Court to overturn the election by nullifying millions of votes, it was Eastman who intervened on Trump's behalf to endorse Paxton's suit."
Worse, Eastman was in the Oval Office on Jan. 5 telling Trump — and Vice President Mike Pence — that Pence could legally toss out the real, certified electoral votes and throw the election to Trump. Because of his participation in the coup attempt, he's been tossed from the Chapman University School of Law, where he was a law professor and onetime dean. He's officially "retired" — at age 60, in the middle of the school year. But sure, retired. Eastman has been a visiting scholar at the University of Colorado Boulder, where calls for his dismissal have so far resulted in cancellation of two courses he was going to teach this spring.
As of now, the Federalist Society has not thrown out Eastman. Never mind that his name has been floated as one of Trump's impeachment lawyers, which would be kind of awkward. In what can only be considered an effort to save face — and its ability to someday again be able to shape the federal judiciary — one of the group's co-founders is calling Trump "a danger to the nation" who must be convicted by the Senate.
But the Federalist Society, which has supplied 85 percent of Trump's judges, has made no comment on Eastman, who is an insurrectionist. That's a problem for the organization. It's a much larger problem for the nation. Expanding the courts to dilute the influence of these judges is going to have to be a high priority for President-elect Joe Biden and the Democratic Senate.
Two countervailing forces are competing to determine the outcome of the 2020 elections' highest-stakes contests before the close of voting on November 3.
President Trump and his Republican allies are pursuing a full-court press where their success hinges less on winning popular vote majorities and more on disqualifying volumes of absentee ballots via lawsuits to be filed after Election Day—if preliminary results in a few key states are close. The Democratic Party and their allies, meanwhile, have been pushing their party's more highly motivated voter base to continue their turnout lead seen in early and absentee voting, so Republicans cannot gain traction when they turn to the courts to disqualify late-arriving absentee ballots, or cite other technicalities to disqualify votes.
"We are targeting 8.8 million students, faculty and staff in universities in Alabama, Arizona, Florida, Georgia, Mississippi, North Carolina, South Carolina and Texas. We have state-specific ads for every one of our campaigns," said Andrea Miller, executive director of People Demanding Action, which has been turning out voters in communities of color. "And then we are also advertising our election protection tool, 'See Something, Say Something'… We have done outreach to nearly 20 million people and the election isn't over."
More than 85 million people have already voted as of Friday, October 30, according to the U.S. Elections Project early voting tracking website. So far, more than 55 million absentee ballots have been received by local election officials, 30 million people have voted in person, and another 35.5 million absentee ballots have yet to be returned. According to those voters' party registrations, Democrats and Republicans have split the in-person voting, but Democrats lead in absentee ballots—where sizable numbers of voters registering as independents have cast ballots.
Whether or not the apparent enthusiasm gap continues through Election Day—or shifts via what the Republicans hope will be a large in-person turnout on November 3—is an open question. However, the Trump campaign and its allies are not counting on popular vote victories to secure a winning margin among state Electoral College delegations. Their litigation strategy arguably has been the Republican Party's most overt voter suppression effort in years—building on Trump's ongoing and baseless attacks on the legitimacy of absentee balloting.
The voting wars are legal fights over technicalities in processes that can end up disqualifying—or empowering—blocs of voters to tilt close-margin contests. The 2020 election has seen more litigation over these technicalities, especially surrounding the use of mailed-out (or absentee) ballots, than any recent presidential election. While Democrats secured many early victories, especially in state and federal district courts, Republicans in recent days have won notable decisions—and legal arguments—in the Supreme Court and federal appeals court.
There's a common thread running through these decisions that appears to give Republicans an opening to initiate post-Election Day litigation. In rulings affecting Wisconsin, Pennsylvania, North Carolina and Minnesota, conservatives have highlighted a way to disqualify what may become thousands of absentee ballots that were properly mailed and postmarked (by Election Day), but are received by election officials days later via mail delivery.
Various judges—including a likely Supreme Court majority among the high court's conservatives without Chief Justice John Roberts—have said that only state legislatures have the authority to regulate elections with federal candidates. That construction is based on the U.S. Constitution, whose opening articles delegate no power to state supreme courts, state constitutions, secretaries of state or statewide election boards to run elections. These non-legislative actors took steps this year to issue regulations to assist voters and election officials in response to COVID-19.
Thus, in Wisconsin, the Supreme Court said absentee ballots that were not received by November 3 would not be counted—because the state's (Republican majority) legislature did not extend the deadline. Justice Brett Kavanaugh also commented that election results should be known by election night, which mirrors Trump's rhetoric but does not reflect the reality of states like Wisconsin where local clerks will only start processing 1.1 million ballots that morning.
In Pennsylvania and North Carolina, the Supreme Court said one week before Election Day that it was too late to overturn ballot-return deadlines that went past Tuesday. (In Pennsylvania, it's Friday, November 6. In North Carolina, it's Thursday, November 12.) While much national press coverage said those two rulings were Democratic victories, those assessments glossed over statements, concurrences and dissents from four conservative justices that basically said that ballots arriving after Election Day could be disqualified if a legislature didn't extend the return deadline. Newly seated Justice Amy Coney Barrett didn't participate in those cases.
In response, Pennsylvania's attorney general told the Supreme Court that the secretary of state was directing all county election officials to "segregate" all absentee ballots arriving after November 3 and through the November 6 deadline. Election law experts said that Pennsylvania's move would insulate absentee ballots arriving earlier from challenges—because late-arriving ballots would not be mixed in with those earlier batches of ballots when counted.
North Carolina's state election board is not following Pennsylvania's lead—as a precautionary measure. It issued a statement urging all voters to return absentee ballots as soon as possible, but said the final deadline was on November 12.
A day after the Supreme Court ruling in the Pennsylvania and North Carolina suits, a federal appeals court in Minnesota threw out its week-long absentee ballot-return deadline extension—issued this summer by the secretary of state as part of a legal settlement with Republicans.
"The Secretary and his respective agents… are ordered to identify, segregate, and otherwise maintain and preserve all absentee ballots," the Eighth Circuit Court's decision said, "in a manner that would allow for their respective votes [for president and vice president]… to be removed from vote totals in the event a final order is entered by a court."
Taken together, the highest rungs of the federal courts have given the Republicans an opening to seek to disqualify any late-arriving ballots in Pennsylvania, North Carolina and Minnesota. (All other states with extended absentee ballot-return deadlines resulted from legislation.)
How many votes could be implicated should post-Election Day legal challenges arise? Former Oregon Secretary of State Phil Keisling, a Democrat who oversaw its shift to all-mail balloting, said that 90 percent of voters who apply to vote with absentee ballots return those ballots. According to the U.S. Elections Project, which gets its data from state election officials, as of Friday, October 30, hundreds of thousands of absentee ballots are still in play.
Under any scenario, it's not likely a presidential election winner would be known until later in the week—at the earliest. The U.S. Senate's majority will take longer, as some states such as Georgia are likely to see runoffs. And control of state legislatures may take longer still, if the balance comes down to a few contests where recounts are triggered.
Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.
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