Attention to the Unseen

Bloomberg reports: Pennsylvania Governor Tom Wolf and other state officials assailed a Pittsburgh judge for issuing what they described as an unprecedented order halting additional steps in the certification of President-elect Joe Biden’s election victory. “Since the birth of our nation nearly 250 years ago, no court has ever issued an order purporting to interfere with a state’s ascertainment of its presidential electors — until today,” state officials said in an appeal filed shortly after Commonwealth Court Judge Patricia McCullough’s…

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Politico reports: Outgoing President Donald Trump pardoned his former national security adviser Michael Flynn on Wednesday for lying to FBI agents investigating Russian interference in the 2016 election. “It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon,” the president tweeted. “Congratulations to @GenFlynn and his wonderful family, I know you will now have a truly fantastic Thanksgiving!” Trump’s move is an extraordinary intervention on behalf of an ally who pleaded guilty…

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Philip Allen Lacovara writes: After the final tumultuous months of the Nixon presidency, Gerald R. Ford decided to end the “long national nightmare” that was Watergate by pardoning his predecessor, thus sparing Richard M. Nixon from the dock where his senior aides awaited trial. Because I considered Ford’s pardon a serious mistake, I resigned in protest as the counsel to the Watergate special prosecutor. I hope that when President-elect Joe Biden assumes office, he will not repeat the same mistake….

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Eric L. Muller writes: As Donald Trump’s tenure in office comes in for its landing, a major question is whether the president—facing questions about liability for offenses including bank and tax fraud—can pardon himself. This might seem like the right operational question, but it is imprecise as a constitutional one. Article II of the Constitution says that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Did you…

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Andrew Weissmann writes: When the Biden administration takes office in 2021, it will face a unique, fraught decision: Should Donald Trump be criminally investigated and prosecuted? Any renewed investigative activity or a criminal prosecution would further divide the country and stoke claims that the Justice Department was merely exacting revenge. An investigation and trial would be a spectacle that would surely consume the administration’s energy. But as painful and hard as it may be for the country, I believe the…

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Law & Crime reports: The Trump campaign cannot block certification of Pennsylvania’s election results, which made Joe Biden President-elect of the United States, based on nothing more than “strained legal arguments without merit and speculative accusation,” a federal judge ruled in a blistering opinion on Saturday night. “In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters,” U.S. District Judge Matthew Brann wrote in a 37-page opinion. “This Court has been unable to find any case in…

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Law & Crime reports: A federal judge appointed by President Donald Trump rejected what he called a “creative” lawsuit on Thursday. It was a suit that Georgia’s assistant attorney general warned would cause the Peach State’s largest disenfranchisement since the Jim Crow era. “To halt the certification at literally the 11th hour would breed confusion and disenfranchisement that I find have no basis in fact and law,” U.S. District Judge Steven Grimberg declared at the end of a roughly two-and-a-half…

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The New York Times reports: Two separate New York State fraud investigations into President Trump and his businesses, one criminal and one civil, have expanded to include tax write-offs on millions of dollars in consulting fees, some of which appear to have gone to Ivanka Trump, according to people with knowledge of the matter. The inquiries — a criminal investigation by the Manhattan district attorney, Cyrus R. Vance Jr., and a civil one by the state attorney general, Letitia James…

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Matt Naham writes: There’s a big difference between a) waving around a stack of affidavits in a safe space and b) bringing your claims before a judge. We saw that difference on Tuesday in the Trump campaign’s case in Montgomery County, Pennsylvania. President Donald Trump has repeatedly and falsely said from the get-go that he “won Pennsylvania by a lot.” Now that the election has been called for Joe Biden, lawyers for the president’s campaign and the Republican National Committee—some…

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ProPublica reports: A hearing on Wednesday in an election case captured in miniature the challenge for the Trump campaign as it gears up for what could become an all-out legal assault on presidential election results in key swing states: It’s easy enough to file a lawsuit claiming improprieties — in this case, that Pennsylvania had violated the law by allowing voters whose mail-in ballots were defective to correct them — but a lot harder to provide evidence of wrongdoing or…

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Joshua A. Geltzer writes: Even as President Trump falsely claimed electoral victory early Wednesday morning, he implicitly acknowledged that the election results are not, in fact, decided yet by pledging to go to court to obtain the result he wants — reelection. But going to court requires making actual legal arguments. And, for all of the complex election-related legal questions that might still arise as the votes are counted, none of the claims Trump made on Wednesday morning qualifies as…

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USA Today reports: The U.S. Postal Service blew a court-ordered deadline Tuesday to sweep mail-processing facilities in more than a dozen states for missing election ballots that could number in the hundreds of thousands. U.S. District Court Judge Emmet Sullivan in Washington ordered the sweep Tuesday morning after the Postal Service said its delivery performance had dropped over the past five days and could not say whether more than 300,000 ballots received in its facilities had been delivered. The sweep…

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The New York Times reports: Geoffrey S. Berman was outraged. The top federal prosecutor in Manhattan, Mr. Berman had traveled to Washington in June 2019 to discuss a particularly delicate case with Attorney General William P. Barr and some of his top aides: a criminal investigation into Halkbank, a state-owned Turkish bank suspected of violating U.S. sanctions law by funneling billions of dollars of gold and cash to Iran. For months, President Recep Tayyip Erdogan of Turkey had been pressing…

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Reuters reports: The U.S. Supreme Court on Wednesday handed a setback to Republicans by declining to quickly decide whether to hear their latest bid to overturn a lower court’s ruling that extended Pennsylvania’s deadline to receive mail-in ballots in next Tuesday’s election. The justices declined to expedite their consideration of the request by the Republican Party of Pennsylvania to hear and decide before the election its appeal of a ruling by the state’s top court ordering officials to count mail-in…

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In an editorial, the New York Times says: What happened in the Senate chamber on Monday evening was, on its face, the playing out of a normal, well-established process of the American constitutional order: the confirmation of a president’s nominee to the Supreme Court. But Senate Republicans, who represent a minority of the American people, are straining the legitimacy of the court by installing a deeply conservative jurist, Amy Coney Barrett, to a lifetime seat just days before an election…

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Richard L. Hasen writes: If [Amy Coney] Barrett does not recuse herself from election disputes next month, there’s every reason to worry that a 5-4 court could interfere in the election to help Trump if a case that might swing the outcome gets before the court. So why not panic about all of this? Mainly because, as both Jonathan Lai and Greg Sargent explained on Tuesday, the chances of the election being decided by the Supreme Court are very slim….

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