Archive for category: VOX

President Donald Trump waves to journalists as he returns to the White House on September 1 following a trip to Kenosha, Wisconsin, amid protests there. | Chip Somodevilla/Getty Images

This is what a president does when he thinks he can do whatever he wants.

Typically, when the White House releases a document laying out a new policy, that document includes at least a few paragraphs explaining why the president has legal authority to set that policy. President Trump’s latest policy memo, which seeks to strip federal funding from “anarchist jurisdictions,” does not even make this basic concession to the fact that the president is bound by laws.

The nearly 1,500-word memo does not contain a single legal citation. No statutes or judicial decisions are mentioned. It’s as though it were written by someone who is blissfully unaware that there is an entire profession — lawyers — whose job is to give advice on whether particular actions are lawful or unlawful, and to provide legal arguments supporting their clients’ actions.

The broad policy laid out in the memo — stripping federal funding from various cities because the president disagrees with those cities’ policing policy — is unconstitutional.

The federal government may attach conditions to federal grants, and it may strip funding from states or localities that do not comply with those conditions. But its power to do so is not unlimited. As the Supreme Court explained in South Dakota v. Dole (1987), “if Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously … enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.’”

A key word in this passage is “Congress.” The legislative branch may impose new conditions on federal grants, but Trump is not Congress. He may not.

What does Trump’s memo actually do?

The policy announced in the “anarchist jurisdictions” memo is not fully implemented. Trump did not explicitly order the government to cut off funding to anyone — yet. Rather, he instructed the Justice Department to come up with a list of cities that should lose funding, and he instructs the White House Office of Management and Budget (OMB) to limit funding to these cities “to the maximum extent permitted by law.”

It’s likely that the executive branch has no lawful authority to cut off funding to these cities. But the Justice Department and OMB will only reach that conclusion if the task of implementing the memo is assigned to competent lawyers who interpret existing law in good faith, and the mere existence of this memo inspires little confidence that they will do so.

Within two weeks, the memo instructs Attorney General Bill Barr to publish a list of “anarchist jurisdictions” on the DOJ’s website. The memo also lays out a few criteria that Barr may use in determining which jurisdictions deserve such public shaming, though many of these criteria are quite vague.

A city might wind up on the list because the Trump administration thinks that it “disempowers or defunds police departments,” or because the administration believes that the city “unreasonably refuses to accept offers of law enforcement assistance from the Federal Government.”

While the memo does not explicitly order Barr to add certain cities to the list, it communicates that specific cities should be included. The memo requires federal agencies to detail “all Federal funds provided to Seattle, Portland, New York City, Washington, D.C.” Much of the memo criticizes policing policy in these four cities.

While the Justice Department is coming up with its list of disfavored cities, OMB Director Russ Vought must “issue guidance to the heads of agencies on restricting eligibility of or otherwise disfavoring, to the maximum extent permitted by law, anarchist jurisdictions in the receipt of Federal grants.”

Though the memo does not explicitly state which federal grants should be cut off, it hints that the amount of money at stake could be enormous. “The Federal Government provides States and localities with hundreds of billions of dollars every year,” Trump’s memo states, and this money funds “a wide array of programs, such as housing, public transportation, job training, and social services.”

The executive branch does not have the power to cut off funding to cities

The 10th Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Implicit in this amendment, according to the Supreme Court, is a doctrine known as “Anti-Commandeering,” which typically prevents the federal government from giving orders directly to state officials such as state and local police.

As the Court explained in Murphy v. NCAA (2018), “conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.”

But, while the federal government may not directly order local police to take certain actions — it cannot, for example, order those police to crack down on protests that the president disapproves of — the federal government can place conditions on federal grants that states must comply with if they wish to keep that money.

The Dole decision, however, lays out several limits on the federal government’s power to attach conditions to grants — a few of which are relevant to Trump’s memo.

First, as mentioned above, the power to impose conditions is vested in Congress, not the president, so unless Trump can convince Congress to pass a law targeting “anarchist jurisdictions,” he may not impose new limits on existing federal grants.

Second, when Congress does impose a condition on a federal grant to a state or local government, it “must do so unambiguously” so that states are not surprised by unexpected obligations. In the Supreme Court’s words, grant recipients must be able to “exercise their choice knowingly, cognizant of the consequences of their participation.” If they don’t want the conditions, they don’t have to accept the money in the first place.

Thus, if the Trump administration wants to argue that an existing federal law permits it to strip federal funding from “anarchist jurisdictions,” it faces a heavy burden. It must find an existing law that clearly imposes specific policing obligations on states and localities. It is, to say the least, unlikely that Congress has already enacted a law that unambiguously permits Trump to strip federal funds due to a personal disagreement over local policing strategy.

Finally, Dole also states that conditions imposed on federal grants must be germane to the grant itself. As the Court put it, “conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’”

This germaneness requirement is not particularly strict. Dole, for example, permitted Congress to strip some federal highway funding from states that did not raise their drinking age to 21. The Court concluded that a higher drinking age is sufficiently related to highway funding because less drinking means less drunk driving and thus safer highways.

Nevertheless, the federal government may not impose conditions on grants that are completely unrelated to the purpose of that grant. If Trump attempted to strip all Medicaid funds from cities over a disagreement about policing policy, for example, courts could very well balk.

Trump’s “anarchist jurisdictions” memo is not the first time the Trump administration attempted to cut federal funding from states or localities over police-related disagreements. And most of the judges who considered the administration’s previous attempts agree that the administration acted unlawfully.

The Trump administration, for example, attempted to cut off a small federal criminal justice grant to jurisdictions that did not help the administration crack down on immigrants. At least three federal appeals courts concluded that the administration acted unlawfully — though one outlier court did not.

The outlier court, however, rested much of its decision on a novel claim that the Anti-Commandeering doctrine has less force in immigration-related cases. Whatever the merits of that highly unusual argument, Trump’s “anarchist jurisdictions” memo primarily concerns local policing of American citizens and does not even mention immigration.

So if the courts follow existing law — and there is always some risk that they won’t, given the growing number of deeply ideological Trump-appointed judges on the federal bench — Trump’s memo should fall. The president does not have the constitutional authority to strip funding from states or localities without congressional authorization to do so.

Yet, the fact that the law governing this memo is so tilted against Trump means that the stakes in any lawsuit challenging the memo will be very high. Trump wants a police crackdown on political dissidents. He lacks the legal authority to order such a crackdown. And so, without citing any legal justification whatsoever, he simply announced a plan to punish cities that don’t implement that crackdown.

This is not how presidents behave in a constitutional democracy. It is how authoritarian dictators behave. And if the courts allow Trump to punish cities in this way, it’s far from clear that they will impose meaningful limits on an increasingly imperious president.

---

Help keep Vox free for all

Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work, and helping everyone make sense of an increasingly chaotic world. Contribute today from as little as $3.

President Trump lifts his fist toward the crowd after speaking on the first day of the Republican National Convention, August 24, 2020. | Chris Carlson/Getty Images

Trump hasn’t managed to prosecute his enemies yet. What if he has four more years to try?

President Donald Trump wants his enemies locked up — he says so all the time.

He told Hillary Clinton that once he won, she’d be “in jail.” He wants foreign countries to investigate the Bidens. He said that John Kerry “should be prosecuted.” He wants Adam Schiff “questioned at the highest level for Fraud & Treason.” John Bolton, he says, should be “in jail, money seized.” James Comey should face “years in jail.” The list goes on. This isn’t just empty political rhetoric — Trump says similar things to officials in private, and grows angry when his demands aren’t carried out.

And so far, they haven’t been carried out. Yet the Justice Department under Attorney General Bill Barr has already become increasingly responsive to Trump’s preferences in criminal cases involving Trump’s friends. So the question is whether, if Trump wins in November, his talk of investigations and prosecutions will become more than just talk.

I spoke to more than a dozen former Justice Department officials about Trump’s increasingly tight grip on an agency that has long prided itself on independence when it comes to criminal matters.

“There’s the fear of the attorney general intervening in cases to benefit president’s allies,” said former US Attorney Barbara McQuade. “And you can also use that power to harm the president’s enemies.”

Already, since Barr took over, he has acted in unusual ways to try to help Trump and his friends, from pre-spinning special counsel Robert Mueller’s findings to intervening in Roger Stone’s sentencing and trying to throw out Michael Flynn’s prosecution.

Chip Somodevilla-Pool/AFP via Getty Images
Attorney General William Barr takes the oath before he testifies before a House Judiciary Committee hearing on July 28.

“In sensitive cases, there’s been a systematic disregard of procedures and norms of behavior, many of which were put in place after Watergate,” says Donald Ayer, who was deputy attorney general under George H.W. Bush (and was succeeded by Barr back then). “These things have been rent asunder by Bill Barr.”

Still, of all the people Trump has so often said he wants prosecuted, none have actually been charged with anything. (Instead, it’s Trump’s associates who keep getting charged, most recently Steve Bannon.) All this can be viewed as encouraging — that the Justice Department, despite so much political pressure coming from the top, maintains standards and won’t bring bogus charges to please the president.

Yet it’s too simple to say the department has fully ignored Trump. Andrew McCabe reportedly came quite close to indictment. News broke of another probe focusing on Comey earlier this year. Top Justice officials set up special processes to review allegations from conservatives about the Clintons and the Bidens. And Barr has given other prosecutors he trusts special, politically charged assignments — most notably, John Durham’s investigation of the handling of the Russia probe, an ongoing matter Barr often discusses publicly.

Despite all that Barr has done, there remain lines he hasn’t crossed. And this is increasingly trying Trump’s patience. “Bill Barr can go down as the greatest attorney general in the history of our country,” the president said in a recent Fox Business interview. “Or he can go down as just an average guy. We’ll see what happens.”

When Trump took office, there was a dam, preventing the president’s corrupt or political pressures from crashing through and flooding the Justice Department. Since then, that dam has sprung a great many leaks. And there’s a real question of whether it would burst entirely in a second Trump term, with the president no longer needing to constrain himself for reelection.

Barr brought big changes

For Trump’s first two years as president, the Justice Department maintained its independence to a great extent under Attorney General Jeff Sessions, and earned Trump’s fury as a result.

Sessions’s biggest mistake in Trump’s eyes was that he recused himself from involvement in the Russia investigation — standard operating procedure in criminal cases to protect against conflict of interest — and put Rod Rosenstein in charge instead.

“There was a really powerful norm in the Justice Department that you never wanted to be perceived as a political arm for the president personally,” says Asha Rangappa, a former FBI agent who is now a senior lecturer at Yale. “And there was a sense that if you violate it, there’s going to be criticism and pushback and consequences.”

Sessions was a staunch Trump supporter, but he felt he simply had to recuse — because he couldn’t effectively lead the Justice Department if he didn’t. He was constrained by the department’s norms.

Barr had no such qualms. He had been attorney general before, and he took the job again in part because he thought the department needed a firmer hand at the top. Again and again, he’s proven unafraid of criticism that he’s acting politically to help the president or his friends.

Barely a month after Barr was sworn in, he released his misleading spin on special counsel Robert Mueller’s findings a month before the report itself. His Justice Department decided Trump’s request that Ukraine’s president investigate the Bidens wasn’t worth investigating, and other federal investigations into Trumpworld appear to have fizzled out. Barr personally instructed prosecutors to weaken their sentencing recommendation for Roger Stone, and he is trying to have the case against Michael Flynn dismissed entirely. He instituted a new rule requiring his personal approval for any investigations into presidential candidates or campaigns. And he’s attempted to place loyalists into key US attorney posts, such as the Southern District of New York and the District of Columbia.

Yet even through all this, the Justice Department has not become a well-oiled machine that does President Trump’s bidding immediately at all times — far from it. Rather, the change has been more subtle and insidious.

“I think the message has come through loud and clear that if you do anything to cross the president and the attorney general, your career will be put at risk,” says Matt Miller, who directed the Justice Department’s Office of Public Affairs under Eric Holder.

Aaron Zelinsky, a prosecutor who had worked on Mueller’s team, made that explicit in congressional testimony this June. The newly installed acting US attorney for the District of Columbia, Tim Shea (a close Barr associate), wanted to lighten prosecutors’ sentencing recommendation for Roger Stone. Zelinsky testified that a supervisor agreed this was “unethical and wrong,” but told him to go along, because “this case was ‘not the hill worth dying on’” and that we could “‘lose our jobs’ if we did not toe the line.”

All this is worrying enough — but, of course, Trump wants more. Much more.

Averting their eyes

To assess just how likely it is that Trump could turn the Justice Department against his enemies in his second term, we have to understand why it largely hasn’t happened so far.

Up to this point, Justice officials have usually dealt with Trump’s demands for prosecutions by either blatantly ignoring them or assigning a US attorney to review the matter.

Ignoring Trump is easiest when his demands are completely absurd. Take his demand to have Rep. Adam Schiff investigated for treason because Schiff paraphrased Trump’s comments during his call with the Ukrainian president during a congressional hearing. This bears not even the faintest resemblance to treason. Accordingly, there’s no indication that the Justice Department has taken any action.

Trump can sometimes become fixated on a legally dubious demand. According to John Bolton’s book The Room Where It Happened, Trump became “obsessed” with the idea of prosecuting former Secretary of State John Kerry under the Logan Act (an obscure law banning private citizens from conducting US foreign policy) because Kerry had contacts with Iran’s foreign minister. Trump would mention this idea “in meeting after meeting in the Oval” to Barr “or anybody listening,” Bolton writes. Trump’s tweets about it have continued this year, and now he says he wants Sen. Chris Murphy (D-CT) investigated for it too.

The law was last used in 1852; some legal experts now view it as a “dead letter” and question its constitutionality. But the idea of a modern Logan Act investigation is not entirely far-fetched. While investigators under the Obama administration were probing Michael Flynn’s links to Russia, they researched whether the act would apply to Flynn’s conversations with Russian Ambassador Sergey Kislyak during the transition. The Logan Act was never the focus of their investigation, and they never came close to bringing charges under it. Still, there is recent precedent to look at it. As far as we know, Barr’s Justice Department has not done so.

There are reasons to doubt whether “just ignore the president” is a sound long-term strategy. A second-term Trump might get tired of taking no for an answer. If he really wants action, he could outright order the Justice Department to open some investigation and fire anyone who refuses to carry out that order. He may eventually find someone sycophantic enough to do it.

For the Logan Act, recall also that it was during the Obama administration that investigators explored using the law regarding Flynn. Is it so implausible that in a second term, Trump could find his own appointees who are willing to push the envelope further, against Kerry or other Democrats? That he could order them to do so?

Jonathan Adler, a law professor at Case Western Reserve University argued that the president has broad authority over the Justice Department, but that he should not use those powers for ill. “The Justice Department is certainly under the control of the president. It is part of the executive branch, so it is certainly legal for the president to dictate to the Justice Department how it should operate or what its priorities should be,” says Adler.

But, he continues, “We have long placed a value on the Justice Department being able to make judgments and prosecutorial decisions based on traditional legal criteria and with an eye toward attempting to do equal justice.”

The president may have other ideas. Take the example of James Comey. The fired FBI director had written memos chronicling his interactions with President Trump. Inspector General Michael Horowitz criticized him for having the unclassified contents of one memo leaked to a reporter, but that wasn’t a criminal matter. There were, however, very small amounts of retroactively classified information in some other memos that Horowitz dinged Comey for improperly handling. This was very thin gruel for a potential prosecution, and indeed, the Justice Department quickly determined not to charge Comey.

Chip Somodevilla/Getty Images
Former FBI Director James Comey is surrounded by reporters after testifying to the House Judiciary and Oversight and Government Reform committees on December 7, 2018.

Trump wasn’t willing to let things lie there. The Washington Post reported that after he learned of the decision not to prosecute Comey, he “complained so loudly and swore so frequently in the Oval Office that some of his aides discussed it for days.” A few months later, in December 2019, Trump accused Comey of “unlawful conduct” and suggested he could face “years in jail.”

Finally, in January 2020, the New York Times reported that Comey was again facing investigative scrutiny related to “a years-old leak of classified information about a Russian intelligence document.” The current state of this investigation, including whether it’s in response to a presidential demand, is unknown. But it is quite clear that the president has not forgotten his desire to see Comey prosecuted.

Handpicked investigators

Another way the Justice Department has lately responded to political demands for investigations — coming from the president or his allies in Congress — is by assigning someone to do the job.

Jeff Sessions started this trend in late 2017 when he announced that John Huber, the US attorney for Utah, would review the handling of an investigation into the Clinton Foundation and other Clinton-related matters.

This special effort aimed at Trump’s 2016 opponent worried some. But in practice, it was clearly not the “Get Hoffa” squad (which Attorney General Robert F. Kennedy assembled to take down union leader Jimmy Hoffa however they could). The Washington Post reported this January that Huber’s review had “effectively ended” and that officials “said they never expected the effort to produce much of anything.” In retrospect, this particular special assignment seems mainly aimed at quieting conservatives’ complaints, rather than locking up Clinton.

Yet the practice of special assignments has continued under Barr. Barr tasked US Attorney for Connecticut John Durham with investigating the origins of the Russia investigation. He got John Bash, US attorney for the Western District of Texas, to look into Obama officials’ use of “unmasking.” And Scott Brady, US attorney for Pittsburgh, got the job of looking into information Rudy Giuliani collected about the Bidens and Ukraine.

This is a process that, if approached in bad faith, can be very open to abuse. Are these US attorneys being chosen because of their professionalism, or because Barr knows they’re politically simpatico?

To take an example involving one of the president’s friends, Barr asked Jeff Jensen, US attorney for the Eastern District of Missouri, to review the case against Michael Flynn, more than two years after Flynn had pleaded guilty to lying to the FBI about his contacts with the Russian ambassador. And indeed, the Justice Department soon moved to have Flynn’s case withdrawn, claiming that Jensen has found new information meriting that move. (The judge overseeing the case, Emmet Sullivan, sounds deeply skeptical of these assertions, and hasn’t allowed Flynn’s case to be thrown out just yet, and the matter is tied up in court.)

The larger point is that Jensen could not have been unaware of what Trump was hoping he’d come up with — a reason to get Flynn off the hook. He delivered.

By contrast, look what happened with Huber, the US attorney who didn’t find any new Clinton-related information justifying action. President Trump publicly attacked him for this supposed failure, tweeting that Huber “did absolutely NOTHING. He was a garbage disposal unit for important documents & then, tap, tap, tap, just drag it along & run out of time.”

This, too, sent an unmistakable message to prosecutors who score such high-profile assignments — the president can and will attack them if they don’t deliver what he wants.

Casting clouds

One check against utterly baseless charges, though, is that they almost surely couldn’t hold up in court. Bringing a very high-profile case means you’ll be embarrassed in a very high-profile way if it falls apart. And already, as CNN’s Katelyn Polantz and Kara Scannell have argued, judges have begun showing more skepticism to the Trump Justice Department’s representations in these matters.

“You can see it already in the way that courts are reacting to the Justice Department’s positions,” says Mary McCord, who served as the acting assistant attorney general for national security in the late Obama and early Trump administrations. “That built-in credibility and trust that the department had with judges is eroding. They’re not just willing to accept at face value that their representations are fully accurate and correct and not the product of political pressure.”

All this is why Rangappa is skeptical that outright prosecutions of Trump’s enemies is “where the danger lies.” Trump’s Justice Department “can’t make up evidence and go after somebody in a court of law, because the defense lawyers would tear that apart and it would get exposed,” she says.

But there’s another danger, which to some extent has already manifested. Even if an investigation ends in no charges, its mere existence — if it leaks — can hang over someone, make them afraid, and have a political impact.

Trump understands this dynamic perfectly well. The email investigation loomed over Hillary Clinton’s 2016 campaign, and then the Russia investigation loomed over President Trump. Indeed, Trump told James Comey that it was a “cloud” hanging over his presidency, and asked the then-FBI director “what he could do to lift the cloud,” per Comey’s memos.

Saul Loeb/AFP via Getty Images
President Trump speaking with Ukrainian President Volodymyr Zelensky on during a meeting in New York on September 25, 2019.

More recently, Trump held up military aid to Ukraine in an effort to get that country to investigate the energy company Burisma and the Bidens (a move that, once it was discovered, led to Trump’s impeachment). But Trump didn’t just want an investigation. He was insistent that Ukraine’s president publicly announce that investigation, according to his aides’ testimony. That is: He wanted to put a cloud over Joe Biden’s presidential campaign, with the ominous phrase “under investigation.”

“Politically, I think it is to their benefit to not actually bring charges,” Rangappa says. “What’s good for them is to have an ongoing perception of criminality and a sense that these criminals are still at large, that it’s the Democrats who are doing it.”

The most prominent example of this so far is in Barr’s highly unusual handling of the Durham investigation. Shortly after Mueller finished his work, Barr assigned Durham to examine whether there was misconduct around the opening of the Russia probe. At some point in the following months, Durham’s probe became a criminal investigation, and its scope widened.

We have no idea what Durham found; his sole charge so far is of an FBI lawyer whose misconduct (altering an email) was revealed last year by the inspector general. Durham’s investigation is ongoing. That’s why it’s so odd that Barr has repeatedly made public comments, often to Fox hosts, always with the gist that he thinks the Russia investigation was deeply corrupt and riddled with malfeasance.

“No contemporary attorney general has, like Barr in the Durham investigation, offered such extended, opinionated, factually unsupported and damning public commentary, naming names and drawing conclusions, about an ongoing investigation that is at least in part a criminal investigation,” Jack Goldsmith and Nathaniel Sobel recently wrote while reviewing what we know of the Durham probe.

‘In my time, when something was before the grand jury or otherwise was a pending investigation, you didn’t talk about it,” says Stuart Gerson, who was a Justice Department appointee under George H.W. Bush and served as acting attorney general in the early Clinton administration. “And if there was no indictment, you didn’t say a word about it ever again.”

But if the point is just to cast a cloud over someone — or to help the president politically — rather than win in a court of law, you might take a different approach.

Gray areas

Actually bringing charges, of course, is more difficult. It is hard to imagine US federal prosecutors in the modern day being so far gone that they’d fabricate charges against a political enemy of the president out of whole cloth. “We are not yet in a banana republic where the Department of Justice will fabricate evidence and have a show trial and bring people into a soccer stadium, thank God,” says Rangappa.

Instead, they need something to work with. Conservative activists, media outlets, and politicians have gotten very adept at coming up with possible somethings — at generating unproven scandals that they then demand be investigated.

For instance, anything involving money, which the political system is awash in, can generate cries of scandal — such as with the Clinton Foundation, or Hunter Biden’s work in Ukraine. It’s not illegal to raise money for charity or to be paid a lot to sit on the board of a foreign company, but in both cases, conservatives alleged quid pro quos that do not seem to have really existed: Uranium One for Clinton, and the firing of Ukraine’s prosecutor general for Biden.

Furthermore, the law can be a malleable thing. Famously overbroad classification laws could likely imperil many government employees if they were actually enforced to the letter. Questioning can produce false statements charges.

Of course, if an enemy of Trump’s truly did break the law, and there’s evidence to prove it, they may merit prosecution. The problem is that Trump and Barr’s behavior has created deep doubt about whether any such assessment at DOJ would in fact be fair — or would instead be aimed at pleasing the president.

“It’s critically important that what the Justice Department does has legitimacy,” says Matt Axelrod, who worked for 13 years as a Miami federal prosecutor and then at Main Justice, under the George W. Bush and Obama administrations. “The whole foundation of convicting people of crimes and putting them in jail has to be based on the law. Basing it on politics would be abhorrent to the rule of law.”

But the law can be a malleable thing, and in politics especially, there are often gray areas.

Imagine, for instance, a situation where there really might be some underlying violation — but it just isn’t the sort of matter the federal government would usually bring charges about, Perhaps the offense isn’t that serious, the law is rarely enforced, or there are weaknesses in the evidence.

If a person implicated in something like this is an enemy of Donald Trump, prosecutors may have an extra incentive to pursue a case when they ordinarily wouldn’t.

That’s what some argue happened to Andrew McCabe, the former deputy FBI director. “It was one extended crazy nightmare where they apparently came very close, from what we understand, to getting an indictment,” says Michael Bromwich, McCabe’s lawyer and a former inspector general.

Trump came into office distrusting McCabe because of reports that a Clinton ally, Gov. Terry McAuliffe (D-VA), helped raise hundreds of thousands of dollars for McCabe’s wife when she ran for state Senate. This distrust deepened when the Russia investigation intensified, with Trump viewing McCabe as a Comey ally. He accused McCabe of using his FBI position for political reasons, to help Hillary Clinton (accusations that internal investigators found to be baseless).

However, McCabe also became embroiled in a leak investigation, the gist of which is that when he felt his reputation was being unfairly maligned, he leaked an anecdote intended to make him look good. The anecdote portrayed McCabe as standing up for an investigation into the Clinton Foundation despite pressure from Obama Justice Department higher-ups. This disclosure of internal deliberations about an investigation into a 2016 presidential candidate came shortly before that election. And when investigators asked him about it months later, McCabe initially claimed ignorance. The inspector general concluded McCabe lacked candor, and he was fired.

Trump’s grudge against McCabe had nothing to do with the leak, which didn’t involve him at all (and, if anything, hurt Clinton). But he continued to publicly attack and taunt McCabe, including after McCabe’s firing. And, as this was going on, the US Attorney’s Office for the District of Columbia began investigating whether McCabe made false statements to internal investigators. By September 2019, Justice officials rejected his lawyers’ appeals, signaling his indictment was imminent.

All this set off alarm bells for Lawfare’s Benjamin Wittes. “Criminal dispositions on false statements matters in internal investigations are exceptionally rare,” he wrote. “Absent some gross aggravating factor, I struggle to think of any other examples. Workplace false statements are normally handled through internal disciplinary means, not criminal charges.” Wittes wrote that his point was “not to suggest that McCabe did nothing wrong,” but instead to argue that criminal prosecution of such a matter was highly unusual.

“It was very clear to us that they were straining to make a case against him where there was no case to be made, and that he was being singled out for exceptionally harsh, politically motivated treatment,” Bromwich told me. “We had heard for a long time that there was tremendous political pressure being put on that office.”

The New York Times’s Katie Benner and Adam Goldman reported that the two main prosecutors on the case “came to believe that they could not get a jury to convict” McCabe and “were worried about the appearance of a vindictive prosecution” — and so one quit the case and the other left government entirely. Two other prosecutors pushed forward, and reconvened a grand jury.

But then nothing happened — the expected indictment didn’t materialize. Rumors circulated that the grand jury voted against the indictment (which would be extremely unusual), but that has never been officially confirmed. Another possibility is that prosecutors foresaw defeat and backed down. Finally, after radio silence for several months, and pressure from a judge overseeing a Freedom of Information Act lawsuit about the matter, Justice officials told McCabe’s team this February that he would not be charged after all.

As far as we know, McCabe came the closest of any of Trump’s targets to actually being indicted. He escaped it, but it wasn’t guaranteed to turn out that way. And without the judge pressuring prosecutors to come to a decision, the cloud could still be hanging over McCabe. Or a different grand jury or prosecutorial team could have produced a different outcome. (Barr replaced the US attorney overseeing it with his loyalist Tim Shea while this drama was winding down.)

Alex Brandon/AP
Acting FBI Director Andrew McCabe (second from left), Deputy Attorney General Rod Rosenstein, and Director of National Intelligence Dan Coats testify during a Senate Intelligence Committee hearing on June 7, 2017.

Another key takeaway is that there was a gray area here. McCabe was not the perfect victim — he really was behind an inappropriate (although not criminal and not partisan) disclosure to the press shortly before the election. Trump’s enemies will not always be saints, but they will deserve equal justice under the law, rather than unfair treatment because of their political views. But good lawyers can take advantage of gray areas and ambiguities to advance their client’s case, as Barr has done so often for Trump.

Bad incentives

To tie a lot of this together, Trump and Barr have so degraded the norm against political interference in criminal cases that a serious incentive problem now exists in the Justice Department and will grow dramatically worse if Trump wins a second term.

Career officials will face what Zelinsky described — pressure to either go with the tide on politically controversial cases or risk jeopardizing their jobs. And those hoping to advance their careers in the department would be keenly aware of these pressures.

“People of a right-of-center orientation may in some cases be basically rolling the dice,” Ayer, the former deputy attorney general, told me. “They may know that what they are being asked to do is really not right, but they also know that to prosper, they’ve got to please the authority figure they answer to, who for some of them is Bill Barr.”

Though Trump has achieved little legislatively, if Republicans hold on to the Senate, he will be able to keep the judge-confirmation factory working. And for an ambitious Republican lawyer, Ayer said, “The ultimate brass ring is a judgeship.”

Particularly ambitious GOP lawyers are probably well aware that prosecuting Trump’s enemies would thrill the president and make them heroes in conservative media. The trick, of course, would be to build a case that would hold up in court.

Then there are Trump’s incentives if he wins this fall. It’s worth remembering that everything we’ve seen so far has been from a Trump who’s restrained by reelection calculations.

Recall that the day after the 2018 midterms, he finally fired Attorney General Jeff Sessions. The day after Robert Mueller’s congressional testimony, he asked Ukraine’s president for a favor during a phone call. Perhaps the fear of a historically unprecedented second impeachment would constrain him somewhat, but he’s already learned that as long as he can maintain the support of 34 senators, he can’t be removed.

A Trump reelection would make him even more powerful within the Republican Party. In theory, he’ll be a lame duck — but so long as he remains widely popular among Republican voters, success in the GOP will continue to depend on maintaining Trump’s favor and defending him. Overall, there’s little evidence to suggest he’ll be chastened, and much to suggest that he’ll go even further.

It’s not just Trump

While most of the former DOJ officials I interviewed were deeply troubled by what’s happened to the department, most professed optimism that if Trump were defeated, these trends could quickly be reversed.

Yet the most pessimistic person I interviewed was Matt Miller, the former public affairs chief under Holder. “I actually think the damage is done, whether he gets reelected or not,” Miller said.

As Miller diagnosed matters, the problem wasn’t just that Trump wanted to politicize the administration of justice and that Barr was willing to help him. The even more worrying trend was that much of the Republican Party — from members of Congress to conservative media commentators to the voters who were part of his base — was either defending Trump or egging him on to go further.

I spoke to Miller shortly after the congressional hearing at which Aaron Zelinsky testified about Barr’s interference in Roger Stone’s sentencing — and what he saw from the Republican side troubled him. Whistleblowers had made accusations of misconduct, he said, and they “were treated as combatants, as instruments of the Democratic Party that were there to get Donald Trump and Bill Barr.”

Things weren’t always this way. Back in May 2017, when Trump fired Comey, there was widespread hesitancy among the congressional GOP to defend the firing. But gradually, Trump fought back against the Mueller probe, constructing his alternative narrative that the real crimes were on the “other side.”

Republican politicians have realized that they wouldn’t be struck down if they defended potentially corrupt behavior by Trump. Indeed, for many of them, quite the opposite happens. Those who most vocally defend Trump from accusations of scandal become stars in the party — and would often be rewarded with top jobs from Trump himself, like Chief of Staff Mark Meadows or Director of National Intelligence John Ratcliffe.

Jessica Koscielniak/Getty Images
President Trump speaks on the first day of the Republican National Convention on August 24.

Lately, the Republican base has increasingly cheered on Trump’s efforts to interfere with the Justice Department, with Fox News commentators urging Trump to give clemency to Roger Stone and hyping the possibility that some former Obama officials will be indicted in the Durham investigation. They are, it’s quite clear, catering to their audience — voters who believe Trump’s conspiracy theories and claims of Democratic crimes, and who want him to move harder against them.

The next Democratic president, Miller predicted, would genuinely try to restore norms of the Justice Department’s independence, because the party truly believes in those norms. But Republicans have learned that they no longer do — and that lesson will be applied in future Republican presidencies.

“The post-Watergate norm that the department should operate independently of the White House when it comes to criminal matters, and without consideration to politics, has completely broken down in the Republican Party,” Miller said. “And I just don’t know why anyone thinks it would just snap back.”

---

New goal: 25,000

In the spring, we launched a program asking readers for financial contributions to help keep Vox free for everyone, and last week, we set a goal of reaching 20,000 contributors. Well, you helped us blow past that. Today, we are extending that goal to 25,000. Millions turn to Vox each month to understand an increasingly chaotic world — from what is happening with the USPS to the coronavirus crisis to what is, quite possibly, the most consequential presidential election of our lifetimes. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work — and helping everyone make sense of an increasingly chaotic world. Contribute today from as little as $3.

President Donald Trump puts his hand on Justice Brett Kavanaugh’s shoulder during his ceremonial swearing-in in the East Room of the White House, October 8, 2018. | Chip Somodevilla/Getty Images

The Supreme Court has rejected some of the GOP’s sloppiest and most presumptuous arguments. It won’t anymore if Republicans grow their majority.

In 2019, Senate Majority Leader Mitch McConnell told a gathering of the conservative Federalist Society that President Trump owes his broad support among Republican voters to one issue. “The single biggest issue that brought nine out of 10 Republican voters home to Donald Trump,” McConnell claimed, “just like nine out of 10 voted for Mitt Romney, was the Supreme Court.”

McConnell’s “nine out of 10” estimate is almost certainly an exaggeration, but there’s no question that Republicans view filling the judiciary with Federalist Society stalwarts as one of their highest priorities, if not the highest priority.

The GOP-controlled Senate passes little legislation. It rarely even considers bills that arise from a Democratic House. But McConnell has transformed the Senate into a virtual factory that kicks out judicial confirmations almost as fast as Trump can nominate conservative lawyers for the bench.

If Trump prevails in November, he is likely to remake the courts — and, specifically, the Supreme Court — in his image. Two members of the Court’s liberal minority, Justices Ruth Bader Ginsburg and Stephen Breyer, are in their 80s. And Ginsburg began a course of chemotherapy earlier this year. If Trump wins, Republicans could gain a 7-2 majority on the nation’s highest Court by the end of his second term.

The stakes, if a vacancy does open up on the Supreme Court while Trump is still president, are enormous. Though Chief Justice John Roberts, frequently the median vote on the current Supreme Court, is very conservative, he is both less partisan and less aligned with movement conservatism than his fellow Republican justices. He sometimes rejects conservative legal arguments that are poorly reasoned or transparently partisan, or that ask him to move the law to the right faster than he is willing to go.

If Trump gets to replace a liberal justice, however, this check on Republican power is likely to disappear. Trump spent the past three and a half years filling federal appellate courts with staunch conservatives, often with the guidance of conservative organizations such as the Federalist Society. That gives him a deep bench of potential Supreme Court nominees who are unlikely to disappoint the GOP in the future.

The Court has already moved significantly to the right since it handed down some decisions protecting LGBTQ rights, limiting police surveillance, and preserving most of Obamacare, among many other things. If Trump fills a seat currently held by a liberal justice, those decisions are potentially in grave danger.

To be sure, there’s always some amount of unpredictability in the Supreme Court. Sometimes, a conservative justice is torn between competing ideological commitments, some of which lead them to form occasional alliances with their liberal colleagues. And it’s always possible that several conservative justices could be forced to leave the Court shortly after a Democratic president takes office.

But realistically, if Republicans gain a 6-3 majority on the Supreme Court, they are likely to hold that majority for a long time. And with six votes, Republicans could afford to have one of those six cast an occasional, futile vote for a liberal outcome.

Roberts is less tolerant than his fellow Republican justices of bad lawyering by conservatives

The Supreme Court completed its most recent term a little more than a week ago, a term that featured several high-profile — if narrow — losses for conservative causes. Notably, Roberts broke with his fellow Republicans in two cases where conservative advocates presented unusually weak arguments to his Court.

Roberts typically votes to limit abortion rights, and his recent opinion in June Medical Services v. Russo spends several pages criticizing the Court’s decisions protecting those rights. Nevertheless, Roberts reluctantly voted with his four liberal colleagues to strike down a Louisiana law requiring abortion providers to obtain admitting privileges at a nearby hospital — a credential that is very difficult for these doctors to obtain, and that does little or nothing to improve health outcomes in abortion clinics.

The reason for Roberts’s vote was simple: The Louisiana law at issue in June Medical was, in all relevant respects, identical to a Texas law the Supreme Court struck down four years earlier in Whole Woman’s Health v. Hellerstedt (2016). “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote in his June Medical opinion. But he concluded that the principle of stare decisis — the doctrine that courts should generally be bound by their prior decisions — compelled him to strike down Louisiana’s law.

A similar dynamic played out in Department of Homeland Security v. Regents of the University of California, where Roberts joined his four liberal colleagues in holding that the Trump administration didn’t complete the proper paperwork when it decided to terminate the Deferred Action for Childhood Arrivals (DACA) program, which allows nearly 700,000 undocumented immigrants to live and work in the United States.

The striking thing about Regents is the utter pointlessness of the Trump administration’s decision to bring this case all the way to the Supreme Court. If the administration wanted to end DACA, it should have corrected its paperwork error instead of spending years unsuccessfully trying to convince the courts to excuse this error.

In many cases, Roberts’s insistence on legal and procedural regularity will only delay conservative outcomes — Roberts, for example, is still overwhelmingly likely to dismantle the constitutional right to an abortion once abortion opponents bring him a better case. But Roberts’s formalism also places significant constraints on the Court’s Republican majority, and on the Republican Party’s ability to set policy through litigation.

As Justice Scalia wrote in 1989:

when, in writing for the majority of the Court, I adopt a general rule, and say, “This is the basis of our decision,” I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle.

Roberts appears somewhat committed to this same principle that procedural rules and inconvenient precedents cannot simply be tossed aside because they stand in the way of a conservative outcome. The other four Republicans appear far less committed to this principle, given their willingness to cast aside principles like stare decisis in cases like June Medical.

And, if Trump gets to fill another seat currently held by a liberal justice, then Roberts will no longer be the swing vote. It is likely that a majority of the Supreme Court will ignore many of the constraints that, as Scalia wrote a generation ago, prevent judges from ruling by fiat.

America becomes even less democratic if Trump gets to fill another Supreme Court seat

The United States is hardly a paragon of democracy. Americans have a president who received nearly 3 million fewer votes than his Democratic opponent in 2016 and a Senate where, thanks to malapportionment, the Republican “majority” represents 15 million fewer people than the Democratic “minority.” Both of Trump’s justices were nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the nation.

Meanwhile, the Court’s Republican majority has been a disaster for democracy. In this past term alone, the Court handed down several significant orders limiting voting rights in a pandemic — including a Texas order that effectively allows the state to make it very easy for older voters (who tend to favor Republicans) to obtain absentee ballots, while making it impossible for most younger voters to do the same.

Under Roberts’s leadership, the Supreme Court dismantled much of the Voting Rights Act. It’s neutered most of the nation’s campaign finance laws. And it’s permitted laws that serve no purpose other than voter suppression.

But it can get worse.

“There are already five conservative votes on the Supreme Court to dismantle campaign finance reforms,” according to Ciara Torres-Spelliscy, a law professor at Stetson University and an expert on money in politics. In this sense, Torres-Spelliscy told me, a third Trump justice would only provide a “superfluous 6th vote” for the Court’s decisions undermining these laws.

But there is one area of campaign finance law where the current Supreme Court has stayed its hand: disclosure laws. In Citizens United v. Federal Election Commission (2010), the Court’s landmark decision allowing corporations to spend unlimited sums of money to influence elections, Justice Clarence Thomas argued that his Court should have also tossed out many laws requiring many donors to disclose their donations.

At the time, Thomas was the only justice who took this position, but the Court has changed significantly in the decade since Citizens United was handed down. Justice Neil Gorsuch frequently provides a second vote for Thomas’s most radical opinions.

Similarly, as an aide to then-President George W. Bush, Justice Brett Kavanaugh wrote in a 2002 email that there are “constitutional problems” with laws imposing limits on how much donors can give directly to candidates — one of the few campaign finance laws left untouched by decisions like Citizens United. That suggests that Kavanaugh could join Thomas in striking down more campaign finance laws.

And then there’s Justice Samuel Alito. Though Alito did not join Thomas’s opinion in Citizens United, he is arguably the most reliable Republican partisan on the Supreme Court. As Adam Feldman, a lawyer and political scientist who runs the website Empirical SCOTUS, told me, Alito “is the sole conservative justice on the Court not to join the liberals in a 5-4 decision” — meaning that he has never once cast the deciding vote for a liberal outcome. (The one plausible exception to this trend is Alito’s brief opinion in Gundy v. United States (2019). But, in Gundy, Alito endorsed a conservative deregulatory project that is rejected by all four of the Court’s liberals.)

It is unlikely, in other words, that Alito would cast a liberal vote in a campaign finance case if four other justices already support a conservative outcome.

A third Trump justice could also erect new barriers before the right to vote. Although the Roberts Court has already dismantled much of the Voting Rights Act, the primary law preventing racial voter discrimination, it has thus far left in place the law’s “results test,” which prohibits any law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

Thus, while the Act is much weaker than it was just a decade ago, it still retains some vibrancy. Many state laws that disenfranchise voters of color remain illegal.

But Roberts is a longtime opponent of this safeguard against racism in elections. According to the voting rights journalist Ari Berman, Roberts was the Reagan Justice Department’s point person in a failed effort to scuttle the results test. As a young lawyer, Roberts “wrote upwards of 25 memos opposing” such a test, according to Berman.

Roberts may have the votes right now to effectively dismantle what remains of the Voting Rights Act. The Supreme Court has not heard a major Voting Rights Act case since the relatively moderate Justice Anthony Kennedy was replaced by the hardline conservative Justice Kavanaugh, so we don’t know how far the current Court is willing to go in dismantling what remains of the Voting Rights Act.

At the very least, however, every Republican added to the Supreme Court increases the likelihood that the remainder of the Voting Rights Act will fall.

20 million Americans could lose health coverage in the middle of a pandemic if Trump appoints another justice

Chief Justice Roberts famously broke with his fellow Republicans in NFIB v. Sebelius (2012), a decision upholding most of the Affordable Care Act. Three years later, in King v. Burwell (2015) Roberts and Justice Anthony Kennedy broke with their fellow Republicans again to reject a new attack on Obamacare.

But Kennedy is no longer on the Court. And if one of the four liberal justices is replaced by Trump, it’s far from clear that there will still be five votes to preserve the landmark legislation that provides health coverage to approximately 20 million people.

And, if Trump does get to fill an additional Supreme Court seat, Obamacare could fall quite rapidly. The Supreme Court plans to hear oral arguments in California v. Texas, the latest case seeking to repeal Obamacare by judicial decree, in the fall.

The plaintiffs’ arguments in Texas are, frankly, outlandish. They rest on the assumption that, when Congress repealed a single provision of the Affordable Care Act in 2017, that requires the courts to dismantle the entire law. But the fact that these arguments are widely viewed as ridiculous — even by many conservative legal scholars — won’t necessarily deter most of the Supreme Court’s Republicans from voting to strike down Obamacare.

On the eve of oral arguments in NFIB, the first Obamacare decision, the plaintiffs’ arguments in that case were also widely viewed as misguided. An American Bar Association poll of Supreme Court experts found that 85 percent believed the Affordable Care Act would be upheld, and another 9 percent believed the Court would dismiss the case for lack of jurisdiction.

That didn’t prevent four justices from voting to repeal the entire law. And, if Trump gets to fill another seat on the Supreme Court, that four could become five.

LGBTQ Americans could be stripped of their constitutional rights

The Supreme Court’s recent decision in Bostock v. Clayton County, which held that federal civil rights law prohibits workplace discrimination against LGBTQ workers, is probably safe. That decision was 6-3, with both Roberts and Gorsuch voting with the majority.

But the Court’s constitutional decisions protecting LGBTQ rights stand on far more precarious ground. Obergefell v. Hodges (2015), the Supreme Court landmark decision establishing that same-sex couples enjoy the same marriage rights as opposite-sex couples, was a 5-4 decision with Kennedy in the majority. Lawrence v. Texas (2003), which placed strict limits on the government’s ability to prohibit sexual activity between consenting adults, and Romer v. Evans (1996), which held that the government may not pass laws solely to express “animus” against gay people, were both 6-3 decisions with Justice Sandra Day O’Connor and Kennedy in the majority.

O’Connor and Kennedy were replaced with hardline conservatives.

It’s possible, in other words, that all three of these decisions could fall even if no vacancy opens up on the Supreme Court — although, for that to happen, a state would likely have to pass a law that violates Obergefell, Lawrence, or Romer to test whether the Supreme Court would strike that law down. If Trump gets to fill another seat, it is even less clear that the Court’s new majority will value stare decisis more than it values a conservative approach to LGBTQ rights.

It’s also possible that the Court could leave decisions like Obergefell nominally in place, but allow states to deny many rights to LGBTQ Americans. The Court, according to Shannon Minter, legal director of the National Center for Lesbian Rights, “might permit states to undermine Obergefell by treating married same-sex couples differently in some ways — for example, by permitting states to favor straight couples in adoption or family benefits or even in the definition of who is a legal parent.”

Minter’s view was echoed by Josh Block, a lawyer with the ACLU’s LGBT & HIV Project. While Block said he does not think a newly constituted Court “would vote to overrule Obergefell completely and allow states to ban marriage outright,” he fears that the Court’s new majority “could allow states to treat those marriages differently.”

Indeed, that’s more or less the approach that Gorsuch took in Pavan v. Smith (2017). Obergefell held that the Constitution protects same-sex couples’ right to marry “on the same terms and conditions as opposite-sex couples.” In Pavan, a majority of the Supreme Court struck down an Arkansas law that treated married same-sex couples differently than married opposite-sex couples with respect to which names appear on a birth certificate.

Gorsuch dissented, in an opinion joined by Thomas and Alito. His opinion suggested that states may be able to discriminate against same-sex couples so long as they argue that “rational reasons exist” for the discrimination.

The EPA could become a hollow husk

As a general rule, Congress may legislate in two different ways. The simplest way is to enact a law commanding certain individuals or businesses to behave in a certain way. Thus, for example, if Congress wishes to limit pollution, it can pass a law commanding power plants to install a particular device that reduces emissions.

But Congress may also lay down a broad policy and instruct a federal agency to issue relatively easily updatable regulations implementing that policy. The Clean Air Act, for example, provides that certain power plants must use “the best system of emission reduction” that currently exists, while also taking into account factors such as cost. It also gives the Environmental Protection Agency (EPA) the power to issue binding regulations instructing energy companies on which systems they must use to limit emissions.

That way, the regulations can adapt as technology evolves. Congress still sets the overarching policy — the impacted power plants must use the “best system of emission reduction” — but EPA determines what that “best system” is at any given moment in time.

In Gundy v. United States (2019), however, Gorsuch called for vague new limits on Congress’s power to delegate regulatory power to agencies. And, while Gorsuch’s opinion in Gundy was technically a dissent, all five members of the Supreme Court’s Republican majority have since signaled that they are supportive of Gorsuch’s approach.

Current precedents typically require courts to defer to Congress’s decision to delegate regulatory power to an agency. Gorsuch would replace these precedents with a new standard providing that a federal law permitting agencies to regulate must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

Under Gorsuch’s approach, judges — and ultimately, Supreme Court justices — would get to decide which federal laws delegating power to an agency are “sufficiently definite and precise,” and which ones should be struck down.

So it will matter a great deal who sits on the Supreme Court. In a post-Gundy world, courts will have far more power to make discretionary calls about which regulations they wish to uphold and which ones they wish to strike down. That means that a more conservative Court will tend to strike down more regulations favored by Democrats.

Police could gain far more power to engage in surveillance

The current Supreme Court is arguably more friendly to criminal defendants than it was 20 years ago. For many years, the Court was dominated by conservatives incubated in the “tough on crime” rhetoric preferred by presidents like Richard Nixon and Ronald Reagan. The current Court, by contrast, is more likely to see criminal justice cases through a libertarian lens.

A big reason for this libertarian turn is that individual conservative justices hold defendant-friendly views on certain criminal justice issues. Roberts often votes with his liberal colleagues in cases where police use new technology to conduct intrusive searches. Gorsuch wrote the lead opinion in a case holding that criminal defendants may only be convicted by a unanimous jury. Kavanaugh is a longstanding opponent of racial jury discrimination.

While it’s important that justices like Gorsuch and Kavanaugh sometimes take a broad view of the rights of criminal defendants at trial, Roberts’s support for limits on police conduct is likely to prove more consequential — because the overwhelming majority of criminal suspects never receive a trial to determine their guilt.

“97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence,” according to a 2012 analysis by the New York Times. So Supreme Court decisions protecting trial rights only impact a small minority of defendants.

The gap between Roberts and his fellow Republicans was most on display in Carpenter v. United States (2018), where Roberts voted with his four liberal colleagues, and held that police “must generally obtain a warrant supported by probable cause” before obtaining cellphone records that can be used to track an individual’s movement.

Carpenter was a significant case because, as Justice Kennedy wrote in dissent, the Court has typically held that “individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party.”

But Roberts recognized that, as police gain more and more technologically sophisticated methods of tracking criminal suspects, the Constitution must recognize new limits on these methods. It’s one thing to say that police can track every number dialed on a particular phone, but it’s another thing altogether to say that police can turn each individual’s cellphone into a homing device that monitors their every movement.

If Roberts is no longer the swing vote, Carpenter could potentially fall. At the very least, the Court is likely to grow less skeptical of police overreach, and less fearful of the awesome surveillance power given to police by new technology.

---

Support Vox’s explanatory journalism

Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.

A person holds up a sign supporting the US Postal Service and right to vote by mail on August 15, 2020, in Los Angeles, California. | Tommaso Boddi/Getty Images

Mark Meadows denied reports that hundreds of mail-sorting machines are being taken offline as part of a new initiative.

White House Chief of Staff Mark Meadows said in an interview on Sunday that US Postal Service mail-sorting machines will not be taken offline between now and Election Day — a statement at odds with reports that the Postal Service is decommissioning 10 percent of its machines this year under a new policy.

The way Meadows made the claim — by denying they were being removed in the first place, and making questionable claims in response to an on-air fact check by CNN’s Jake Tapper — left it unclear if he was actually pledging a reversal of the ongoing decommissioning of machines.

Some postal workers say the decommissioning of the machines — some of which would be sorting mail-in ballots — could hamstring the Postal Service’s ability to handle an unprecedented surge of absentee ballots in November’s election, and could contribute to the possibility of millions of voters being disenfranchised by an overwhelmed postal system.

On CNN’s State of the Union, Meadows first told Tapper that sorting machines being taken offline was “not happening” and that claims to the contrary were simply the product of Democrats trying to “stoke fear” with a “political narrative.”

When Tapper asked if Meadows was denying that sorting machines have been taken offline and removed recently, Meadows initially replied by dodging the question: “I’m saying that sorting machines between now and the election will not be taken offline,” Meadows said.

Meadows went on to say that “the drawdown” of postal machines was initiated by the previous postmaster general, who had been appointed by President Barack Obama — seeming to suggest that some machines actually did go offline in the past, but under a policy that predates the Trump administration.

When Tapper persisted in asking why sorting machines have been taken offline recently under new rules, Meadows said, “Get your producer to share where exactly those sorting machines were taken offline. Let them whisper in your ear, because what I’m telling you is you’re picking up on a narrative that’s not based on facts.”

Later in the episode, after being updated by a producer, Tapper fulfilled Meadows’s request: He cited Chris Bentley, president of the National Postal Mail Handlers Union Local 297, which covers Kansas and part of Missouri, who told CNN that postal management “has already taken out four machines in Kansas City, two machines in Springfield, Missouri, and one machine in Wichita, Kansas, that is earlier this year — under this new postmaster general.”

Meadows denied the claim that it was the result of the current postmaster general and said that it was an “already scheduled reallocation” and that there isn’t “a new initiative by this postmaster general.”

But reports from NBC News, CNN, and the Washington Post indicate that 671 machines are being taken offline under a new policy. NBC reports that, according to internal Postal Service documents it obtained, the new postmaster general appointed by Trump in May, Louis DeJoy, is the one responsible for the decommissioning initiative. And postal workers say the process of taking machines out of service under this initiative began in June.

A Postal Service spokesperson told NBC News that the decommissioning was due to “Normal business adjustments!” and that equipment was being adjusted due to a decline in the volume of mail and an increase in the volume of packages.

But that policy has some postal workers concerned about their ability to process mail-in ballots, which are expected to surge to unprecedented levels this year due to the coronavirus pandemic. The Washington Post reports that the American Postal Workers Union has filed a grievance claiming that the decommissioning of the machines — which are “concentrated in high-population areas” — could hinder processing of election mail.

Experts on voting behavior have said that before the pandemic, an estimated 25 percent of voters would’ve been expected to cast their ballots by mail; they now estimate that 60 percent or more will attempt to vote by mail because the pandemic is discouraging in-person voting.

If Meadows is claiming that a new machine removal initiative doesn’t exist when in fact it does, then his promise that new ones won’t be taken offline is, at best, questionable. How can the White House reverse a policy it claims doesn’t exist?

There’s a lot of concern surrounding the Postal Service right now

Experts say the Postal Service is in dire financial shape, already struggling with serious delays, and that new cost-cutting policies imposed by DeJoy are likely to exacerbate the problem.

In July the US Postal Service warned 46 states and Washington, DC, that tens of millions of voters could effectively be disenfranchised because their mail-in ballots might not be processed speedily enough for November’s election — even if voters follow all their state’s election rules.

The agency told six states and DC that a narrow set of their voters could experience delayed ballots, according to the Washington Post. But for the remaining 40 states, the warning is far more serious: They were told that “long-standing deadlines for requesting, returning or counting ballots were ‘incongruous’ with mail service and that voters who send ballots in close to those deadlines may become disenfranchised,” the Post reports.

That heightened warning applies to 186 million potential voters who are spread across blue states, red states, and battleground states such as Pennsylvania, Michigan, and Wisconsin.

CNN reported on Saturday that the Postal Service’s internal watchdog is reviewing some of DeJoy’s new policies. (It’s also investigating his compliance with federal ethics rules due to the recent revelation of his multimillion-dollar stake in his former company, XPO Logistics, a Postal Service contractor, which has raised conflict-of-interest questions.)

Many of these issues could be solved by emergency funds that the Postal Service has been pleading for, and which House Democrats included in the coronavirus relief bill they passed in May.

During his interview on CNN, Meadows said that Trump is open to injecting emergency funds into the Postal Service if he can come to a fair deal with Democrats. But that contradicts Trump’s admission on Thursday that he opposes providing additional funding for the Postal Service because he doesn’t want everyone to be able to vote by mail.

Democrats “want three-and-a-half billion dollars for something that will turn out to be fraudulent, that’s election money, basically … [And] they want 25 billion dollars — billion — for the Post Office,” Trump said.

“Now they need that money in order to have the post office work so it can take all of these millions and millions of ballots,” Trump continued. “By the way, those are just two items, but if they don’t get those two items, that means you can’t have universal mail-in voting.”

Trump has persistently attempted to delegitimize the reliability of mail-in voting, describing it as acutely vulnerable to fraud — without presenting evidence and despite the consensus among voting rights experts that it’s secure when funded properly.

When CNN’s Tapper pointed out to Meadows on Sunday that there’s “no evidence of widespread voter fraud,” Meadows retorted: “There’s no evidence that there’s not either. That’s the definition of fraud, Jake.”

President Trump outside the White House on August 9. | Samuel Corum/Getty Images

Trump’s attacks on mail voting and the political calculus behind them, explained.

Imagine this election night scenario: With a decisive number of mail ballots yet to be tallied, President Donald Trump enjoys a narrow lead over Joe Biden. But before all the votes can be counted — a process that could take days — Trump declares victory, citing purported irregularities with mail-in votes.

You can even picture Trump insisting that the preliminary election night tally must stand as final with a tweet that reads similarly to this one he posted in November 2018, when Florida’s US Senate and gubernatorial elections were still undecided:

It might be hard to fathom that sort of authoritarian power grab happening here in the United States, but it’s a scenario that election experts are worried about.

“That is my nightmare scenario,” said Paul Gronke, professor of political science at Reed College in Portland and director of the Early Voting Information Center. “We gotta slow down. Trump’s gonna be tweeting, the media, you, all of your counterparts, have to slow down. Because he’ll claim victory, or he’ll start to claim malfeasance and fraud, lawyers will be climbing into airplanes and arriving in all these small jurisdictions, and it will be not good.”

Gronke’s concern was echoed by Ari Berman, a senior reporter at Mother Jones and author of Give Us the Ballot: The Modern Struggle for Voting Rights in America.

“Trump is still trying to tell his voters that they should vote in person, and Democrats are telling their voters that they should vote by mail,” Berman said. “And mail ballots take longer to count then in-person ballots. So you could very much have a situation where the initial returns make it seems like Republicans are way up, because the mail ballots that are largely cast by Democrats haven’t been counted yet.”

“If you had a situation where Republicans are up and Democrats take the lead based on mail ballots, even if that’s a totally normal situation, Trump is absolutely going to try to weaponize that, and claim it’s evidence of some sort of voter fraud or rigged election,” he warned.

Winners, of course, don’t usually whine about the rules while a contest is ongoing. But Trump has been trailing presumptive Democratic nominee Joe Biden in polls for months. And with the interlocking public health and economic crises stemming from the coronavirus not trending in a positive direction, using the levers of state power to delegitimize election results would be a desperation play.

“You know, you could have a case where this election won’t be decided on the evening of November 3,” Trump told Axios’s Jonathan Swan in an interview that aired on HBO last week. Asked why that’s a problem — after all, there’s no rule that elections have to be decided on election night — Trump said, “lots of things will happen during that period of time; especially when you have tight margins, lots of things going to happen.”

Then, during a media availability on Sunday, Trump claimed that Democrats are using mail ballots to try and “steal an election.”

Experts worry that — as is so often the case with Trump — those comments are actually projection.

Despite what Trump would have you believe, mail-in election fraud isn’t really a thing

Since the coronavirus pandemic began to seriously disrupt American life in March, Trump has been conspiracy-mongering about mail voting, tweeting things like it’ll result in a “CORRUPT ELECTION” and the “SCANDAL OF OUR TIMES.” In a remarkable July 30 tweet, Trump went as far as to suggest that the election should be delayed until people can safely vote in person.

In reality, voter fraud of all forms is extremely rare, and that’s especially the case with mail voting. As the Brennan Center detailed earlier this year (emphasis theirs):

None of the five states that hold their elections primarily by mail has had any voter fraud scandals since making that change. As the New York Times editorial board notes, “states that use vote-by-mail have encountered essentially zero fraud: Oregon, the pioneer in this area, has sent out more than 100 million mail-in ballots since 2000, and has documented only about a dozen cases of proven fraud.” Rounded to the seventh decimal point, that’s 0.0000001 percent of all votes cast. An exhaustive investigative journalism analysis of all known voter fraud cases identified only 491 cases of absentee ballot fraud from 2000 to 2012. As election law professor Richard L. Hasen notes, during that period “literally billions of votes were cast.” While mail ballots are more susceptible to fraud than in-person voting, it is still more likely for an American to be struck by lightning than to commit mail voting fraud.

Trump has repeatedly cited episodes of attempted fraud on behalf of Republican Mark Harris in a North Carolina congressional race in 2018 and more recently in New Jersey as evidence there’s good reason to be worried. But as Berman explained to me, there’s an irony in Trump citing instances where attempted fraud was detected and ultimately unsuccessful.

“When you do absentee ballot fraud, or voter fraud in general, on a scale large enough to influence an election, you get caught because it’s obvious you’re cheating,” Berman said. “There’s lots of procedures in place to protect mail voting. Every mail ballot has its own ID number, for example. So there are lots of things you can do to protect the system, and if you try to game the system one way or another, that’s gonna catch the attention of election officials and authorities, and they’re going to be able to invalidate those ballots.”

Trump, however, is less interested in reports of actual fraud than he is creating the appearance of fraud. And that’s where his dismantling of the United States Postal Services comes in.

The USPS is designated with safeguarding mail-in ballots — and it’s facing some unique challenges

Louis DeJoy, a Trump megadonor, became postmaster general in June. Since he took over, he’s done some dramatic restructuring of the United States Postal Service (USPS), leading critics to wonder if he’s working to hamper the institution, which, of course, is tasked with collecting ballots from voters and getting them to polling locations in a timely manner.

After operational changes implemented under DeJoy’s leadership, mail carriers are no longer receiving overtime pay, resulting in service slowdowns. And while Trump has been bashing the USPS for years, the move to kneecap the Post Office just ahead of an election in which unprecedented numbers of voters will try to vote by mail because of a pandemic reeks of an effort to sow chaos — and perhaps provide Trump with a pretext to challenge the results of the election that, according to current polls, he’s more likely to lose than win.

During a recent Fox & Friends interview, Trump was asked to respond to Hillary Clinton’s accusation that he’s trying to sabotage the Post Office ahead of November’s election. Notably, he didn’t deny it.

“As you know, the Postal Service for 40 years has had big problems,” Trump said. “And they’re not equipped to handle a governor where they say, ‘millions of ballots, by the way, will be posted in a couple weeks. Gear up.’ You can’t do that. It doesn’t work that way.” (The Postal Service has said it has “ample capacity” to handle mail ballots.)

Gronke characterized Trump’s hampering of USPS as an effort “to fundamentally undermine the core of democracy.”

“They’re really gonna try this? I mean, this is pretty blatant,” he told Vox. “In some ways, for me, this is worse than the Trump attacks [on mail voting], which is just sort of — he’s flailing. But this could really be harmful.”

Gronke’s sentiment was echoed by Ari Berman.

“I think all of the changes at the Post Office — delaying mail, cutting overtime — can lead to mail ballots being delayed, and that also is an effort by the Trump administration to fight vote by mail,” Berman told Vox. “So I’m less concerned about the rhetoric, and I’m more concerned about the tangible thing that Trump and his allies are doing to try to make it harder to vote by mail, and to try to make it harder for votes to be counted.”

Even congressional Republicans — especially those representing rural areas in which people rely on the Postal Service for everything for medications to clothing — are uneasy with Trump’s detrimental changes to the Postal Service. Last Thursday, Rep. Greg Gianforte (R-MT) wrote a letter to DeJoy saying that “delaying mail service is unacceptable. Do not continue down this road.”

“This action, if not rescinded, will negatively impact mail delivery for Montanans and unacceptably increase the risk of late prescriptions, commercial products or bill delivery,” added another Montana Republican, Sen. Steve Daines.

Those letters came the same day as House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer said the changes “threaten the timely delivery of mail — including medicines for seniors, paychecks for workers and absentee ballots for voters — that is essential to millions of Americans.”

The USPS is very popular — it regularly tops the list of Americans’ favorite government agencies. Trump, however, is doing whatever he thinks necessary to maximize his chances of staying in power past next January.

The backdrop to all this is the coronavirus pandemic, which continues to rage out of control in large swaths of the country and makes it risky to vote at polling places that under normal circumstances can be crowded and feature long lines. But instead of embracing methods of voting that will keep people safe, Trump views voter suppression stemming from the pandemic as useful to his cause.

Republicans have suddenly gone to war with mail-in voting

Despite what Trump’s comments might lead you to believe, Republicans have a long history of doing just fine in systems that have lots of mail voting. Deep red Utah, for instance, is one of five states that already conducts elections almost entirely by mail. Republicans in swing states like Florida and Wisconsin have also had lots of success with absentee voting.

But Trump, for whatever reason, has long been convinced that mail voting is bad for him. In April, for instance, he tweeted (falsely) that mail voting has “tremendous potential for voter fraud” and “for whatever reason, doesn’t work out well for Republicans.” (Studies on vote-by-mail have shown no such partisan advantage.)

While Trump is wrong about whether mail-in voting favors Democrats in general, he appears to be correct in believing that mail voting could be bad for him this election cycle. According to Emerson College polling conducted late last month, a whopping 76 percent of voters who plan to vote by mail plan to vote for Joe Biden. By contrast, 65 percent of those planning to vote in person say they’ll vote for Trump.

A normal politician’s response to those numbers might be to work harder to appeal to voters who plan to vote by mail. Trump, however, is no normal politician.

“I think he’s concerned not about mail voting, but that more Democrats are going to vote by mail than Republicans,” Berman said. “I think that’s [the Trump campaign’s] big concern, because they had no problems with people voting by mail in 2012, or 2008, or any of the previous elections in which Republicans voted by mail and encouraged their own people to do so.”

Trump’s message to states trying to make it as safe as possible for people to vote during a pandemic: “See you in court!”

The Trump campaign has also been filing lawsuits against states like Nevada, where officials are expanding mail voting systems ahead of November’s election.

After Nevada Gov. Steve Sisolak (D) recently signed legislation to automatically provide all Nevada voters with a ballot in the mail, Trump responded with a tweet absurdly describing the legislation as “an illegal late night coup,” adding, “See you in court!”

Indeed, Trump’s lawyers quickly filed a lawsuit seeking to block the new law. As my colleague Ian Millhiser explained, the suit’s argument is a mess — but that doesn’t mean it won’t gain traction in federal courts dominated by Republicans.

Their legal complaint in Donald J. Trump for President v. Cegavske is not a model of careful legal argumentation. It claims, for example, that AB4 changed Nevada law to allow mailed-in ballots without postmarks to be counted so long as they arrive within three days of Election Day. In fact, Nevada law already allowed such ballots to be counted. An entire section of the complaint focuses on the fact that AB4 was enacted “on a weekend vote” — the state House approved the bill on a Friday, but the Senate passed it on a Sunday — without explaining how the day of the bill’s passage was relevant to its legality.

The Nevada lawsuit illustrates the Trump campaign’s broader strategy. CNN quoted an unnamed senior Trump campaign official who said “the game plan is to fight [new mail-in voting laws] at every turn,” and reported that the Republican National Committee plans to devote as much as $20 million to contest “voting laws and policies that they view as unconstitutional and potentially damaging to the President’s prospects of winning.”

“We’re not going to have election night in the traditional sense”

Amber McReynolds, the CEO of advocacy group Vote at Home, told Vox that one thing states can do to preempt the nightmare scenario of Trump prematurely declaring victory is pass laws allowing for the processing of mail ballots before election day.

“There are still some states that have outdated policies and laws around that issue. Michigan, Wisconsin, Pennsylvania, Maryland, New York, all don’t allow processing until Election Day, which is why they’re delayed,” McReynolds said. “So we’ve been working on various states to expand the timeline ahead of election day, so that frankly election officials aren’t so stressed with resources trying to get that work done.”

But McReynolds added that Trump’s degradation of the USPS will likely present problems no matter what state legislatures do between now and November.

“I’m very concerned, frankly, and it’s not just because of mail ballots,” she said. “The election process itself relies heavily on the USPS. So there’s required ballot issue notices, required poll worker notices, poll place notices, voter registration requirements — there’s all kind of election notices that are required under federal and state law, and that’s really what’s going to be impacted if the Post Office gets destroyed.”

Berman said that part of the challenge is a mental one. In the age of the coronavirus, people need to drop the assumption that we can always know winners and losers on election night.

“We’re not going to have election night in the traditional sense, and I think all the major institutions in the country should start preparing for that right now and informing people right now that it might take a little bit longer because of an unprecedented pandemic to count the ballots, and there’s nothing wrong with that, there’s nothing illegal about it, there’s nothing rigged about it,” he said. “That’s just how it’s gonna be. And it’s more important to get it right than get it quick.”

---

Will you become our 20,000th supporter? When the economy took a downturn in the spring and we started asking readers for financial contributions, we weren’t sure how it would go. Today, we’re humbled to say that nearly 20,000 people have chipped in. The reason is both lovely and surprising: Readers told us that they contribute both because they value explanation and because they value that other people can access it, too. We have always believed that explanatory journalism is vital for a functioning democracy. That’s never been more important than today, during a public health crisis, racial justice protests, a recession, and a presidential election. But our distinctive explanatory journalism is expensive, and advertising alone won’t let us keep creating it at the quality and volume this moment requires. Your financial contribution will not constitute a donation, but it will help keep Vox free for all. Contribute today from as little as $3.