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3.57pm EST15:57
Biden confirms Lloyd Austin to be nominated as defense secretary

3.50pm EST15:50
Judge dismisses Flynn’s criminal case after Trump pardon

3.04pm EST15:04
Trump peddles false election claims during vaccine event

2.45pm EST14:45
Fauci at Biden event: ‘The road ahead will not be easy’

2.09pm EST14:09
Biden calls for ‘100 million shots in first 100 days’ of his presidency

2.01pm EST14:01
Biden formally introduces team of health care advisers

1.00pm EST13:00
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4.44pm EST16:44

Senator Doug Jones would not say whether he has recently had talks with Joe Biden about becoming attorney general.
“I know that the transition team has a really good process that’s working out really well I think so far,” the Alabama Democrat said on Capitol Hill.

Manu Raju
(@mkraju)
Doug Jones, the outgoing Dem senator, wouldn’t say if he’s had talks recently with Biden or his team on AG job. “I know that the transition team has a really good process that’s working out really well I think so far,” he said.“I’m not going to comment any further.”

December 8, 2020

NBC News reported earlier today that Jones is now the leading contender to become attorney general, although former deputy attorney general Sally Yates and federal judge Merrick Garland are also under consideration.
Jones has been in the Senate since winning a 2017 special election, but he lost his bid to serve a full term last month. He and Biden have known each other for decades.

4.25pm EST16:25

As soon as Lloyd Austin’s nomination as defense secretary was officially announced, the Atlantic published an op-ed from Joe Biden defending the choice, and another contender for the job, Michèle Flournoy, released a statement congratulating Austin.
The coordinated publicity campaign seemed to suggest Biden’s team is worried about Austin’s confirmation, as one Daily Beast writer argued.

Sam Stein
(@samstein)
An oped from Biden around his Lloyd Austin nomination coupled with a statement from Flournoy right as the nomination is made formal suggests that the transition team believes it has work to do to sell this one

December 8, 2020

Some Democrats have already voiced concerns about granting Austin a waiver to run the department, which the former general will need because of his recent military service.
Depending on how Republicans handle Austin’s nomination, it could be a very close confirmation vote.

4.11pm EST16:11

Joe Biden has written an op-ed for the Atlantic explaining his nomination of Lloyd Austin to lead the defense department.
The president-elect writes:

Austin’s many strengths and his intimate knowledge of the Department of Defense and our government are uniquely matched to the challenges and crises we face. He is the person we need in this moment. …
Above all, I chose Lloyd Austin as my nominee for secretary of defense because I know how he reacts under pressure, and I know that he will do whatever it takes to defend the American people. …
Moreover, we need leaders like Lloyd Austin who understand that our military is only one instrument of our national security. Keeping America strong and secure demands that we draw on all our tools. He and I share a commitment to empowering our diplomats and development experts to lead our foreign policy, using force only as our last resort.

The president-elect also urged Congress to grant Austin a waiver to be confirmed as defense secretary. Because of Austin’s recent military service, he must receive the waiver before assuming the role.

Lloyd Austin retired from military service more than four years ago. The law states that an officer must have left the service at least seven years before becoming secretary of defense. But I hope that Congress will grant a waiver to Secretary-designate Austin, just as Congress did for Secretary Jim Mattis. Given the immense and urgent threats and challenges our nation faces, he should be confirmed swiftly.

But some Democrats have already expressed hesitation about granting the waiver, expressing a desire to honor the tradition of civilian leadership at the Pentagon.

4.03pm EST16:03

Michèle Flournoy, who was previously considered the leading contender to be nominated as defense secretary, released a statement congratulating Lloyd Austin on his nomination.

Natasha Bertrand
(@NatashaBertrand)
And JUST IN: Statement by Michèle Flournoy, who was the other frontrunner for SecDef. “I look forward to helping him and the President-elect succeed in any way that I can.” pic.twitter.com/s1JsA5PQHU

December 8, 2020

“General Austin is a man of deep integrity who has spent a lifetime in service to our country,” Flournoy said.
“General Austin is a colleague and friend, and I know he will bring his impressive skills to bear to lead all those who volunteer to defend our country, military and civilian, at this critical moment.”
If she had been nominated and confirmed, Flournoy would have been the first woman to lead the Pentagon.

3.57pm EST15:57

Biden confirms Lloyd Austin to be nominated as defense secretary

Joe Biden confirmed in a new statement that retired four-star general Lloyd Austin would be nominated to lead the defense department.
“General Austin shares my profound belief that our nation is at its strongest when we lead not only by the example of our power, but by the power of our example,” the president-elect said.
“He is uniquely qualified to take on the challenges and crises we face in the current moment, and I look forward to once again working closely with him as a trusted partner to lead our military with dignity and resolve, revitalize our alliances in the face of global threats, and ensure the safety and security of the American people.”
If confirmed, Austin would be the first African American to lead the Pentagon. News of his nomination comes as some civil rights leaders have complained about the level of representation of African Americans among Biden’s cabinet members.
However, some Democrats have voiced concern about a recently retired general leading the Pentagon, given the tradition of a civilian leading the department. Austin will have to receive a waiver from Congress to be confirmed.

3.50pm EST15:50

Judge dismisses Flynn’s criminal case after Trump pardon

A federal judge officially dismissed the criminal case against Michael Flynn today, two weeks after Donald Trump issued a pardon for his former national security adviser.
The AP reports:

The order from U.S. District Judge Emmet Sullivan was largely procedural in light of the pardon from President Donald Trump, which wiped away Flynn’s conviction for lying to the FBI during the Russia investigation.
Sullivan made clear in a 43-page order that he was compelled to dismiss the case because of the pardon. But he also stressed that a pardon, by itself, did not mean that Flynn was innocent. Flynn had twice pleaded guilty to lying to the FBI about his contacts during the presidential transition period with the Russian ambassador.
‘The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one,’ Sullivan wrote. ‘Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot.’

Flynn became a cause célèbre among the far right, with many of the president’s supporters pushing claims that Flynn was unfairly targeted by the FBI, even though he pleaded guilty twice.
In recent weeks, Trump has reportedly also weighed potential preemptive pardons for some of his closest advisers, like Rudy Giuliani, and his family members.

3.29pm EST15:29

The White House is reportedly pushing to include $600 stimulus checks in the next coronavirus relief package.
The Washington Post reports:

Senate Majority Leader Mitch McConnell (R-Ky.) did not include a second round of stimulus payments in the relief proposal he released last week. Senior Republican leadership in Congress are listening to White House officials push for the inclusion of the stimulus checks, the two people said, a provision also broadly supported by congressional Democrats.
President Trump has privately indicated a willingness to send another round of stimulus checks of as much as $2,000, according to one person in direct communication with the president.

Republican senator Josh Hawley has also pushed for another round of stimulus checks, but Republican lawmakers have generally expressed skepticism about the idea.
The first round of stimulus checks was approved as part of the March CARES Act, and the treasury department broke precedent by printing Trump’s name on the checks.

3.14pm EST15:14

During his vaccine event, Donald Trump was also asked why the White House was holding Christmas parties with hundreds of unmasked guests despite urgent warnings from public health experts to avoid indoor gatherings.
“Well, they’re Christmas parties,” Trump replied. “And frankly we’ve reduced the number very substantially, as you know, and I see a lot of people at the parties wearing masks.”

Bloomberg Quicktake
(@Quicktake)
“They’re Christmas parties, and frankly we’ve reduced the number of them substantially and I see a lot of people at the parties wearing masks,” Trump said after a reporter asked about the White House hosting large gatherings amid the pandemic pic.twitter.com/6IX5MPkzRX

December 8, 2020

Trump’s comments came hours after reports emerged that one of his campaign’s legal advisers, Jenna Ellis, had tested positive for coronavirus.
Ellis attended a White House Christmas party on Friday, raising concerns about another coronavirus outbreak among Trump’s senior staffers.
Ellis posted a photo of herself at the party on Instagram. She is not masked in the picture.

3.04pm EST15:04

Trump peddles false election claims during vaccine event

David Smith

Donald Trump’s Operation Warp Speed vaccine summit went off the rails when a reporter asked him about coordinating the effort with members of Joe Biden’s transition.The US president has boasted about the achievement of getting vaccines much quicker than expected and claimed that even his critics were praising “one of the miracles of modern medicine”. He signed an executive order that he said would prioritize the vaccine for Americans before it is shipped abroad.But once the touchy subject of his election defeat was raised, Trump reverted to ranting about false conspiracy theories that last month’s vote was rigged and stolen from him.

Aaron Rupar
(@atrupar)
“Well, we’re gonna have to see who the next administration is … hopefully the next administration will be the Trump administration … we were rewarded with a victory” — Trump is still lying about his election loss pic.twitter.com/amriO46DW9

December 8, 2020

“Hopefully the next administration will be the Trump administration because you can’t steal hundreds of thousands of votes,” he said in the south court auditorium in the White House grounds. “You can’t have fraud and deception and all of the things that they did and then slightly win a swing state.“And you just have to look at the numbers, look at what’s been on tape, look at all the corruption and we’ll see you can’t win an election like that. So hopefully the next administration will be the Trump administration, a continuation.”The homeland security department and state leaders have found no significant evidence of interference or fraud in the election. Back in the real world, as Trump was making his attack on democracy, a sombre Biden was sitting in Wilmington, Delaware, listening intently to Vivek Murthy, his nominee to become surgeon general, assess the challenges ahead.

2.52pm EST14:52

Speaking at the Wilmington event, vice-president-elect Kamala Harris congratulated Joe Biden on building an impressive team of health care advisers made up of eminently qualified experts.
Harris noted she and Biden spoke to frontline health care workers over the Thanksgiving holiday to express their gratitude for the workers’ service amid the coronavirus pandemic.
The vice-president-elect said one nurse told her it felt like a matter of when, not if, she would contract the virus.
Harris sent this message to those frontline workers: “Help is on the way, and it is long overdue.”
Once Harris’ speech concluded, the event wrapped up. Biden did not take any questions from reporters.

2.45pm EST14:45

Fauci at Biden event: ‘The road ahead will not be easy’

Dr Anthony Fauci, who will serve as Joe Biden’s chief medical adviser, filmed a speech that was played during the president-elect’s event in Wilmington, Delaware.
Fauci noted that he was missing the event because the National Institutes of Health is simultaneously holding a ceremony to honor Harvey Alter winning the Nobel Prize in medicine.
The infectious disease expert thanked Biden for allowing him to join his health care advisory team, noting that many of the president-elect’s other advisers are longtime colleagues whom he deeply respects.
Reflecting on past pandemics the US has experienced, Fauci described the coronavirus pandemic as “the toughest one we have ever faced as a nation.”
“The road ahead will not be easy,” Fauci said. “I also know we can get through this pandemic together as a nation.”

2.26pm EST14:26

Xavier Becerra, Joe Biden’s nominee to lead the department of health and human services, delivered a virtual speech for the Wilmington event.
Speaking from his home state of California, Becerra emphasized the need to get the virus under control in order to help the country recover from the pandemic.
“To build back a prosperous America, we need a healthy America,” Becerra said. More

Joe Biden pleads with Americans to wear masks for 100 days after he takes office. ‘It’s not a political statement, it’s a patriotic act,’ says the president-elect. At an event announcing nominees for his health team, Biden pledged to vaccinate 100 million Americans in his first 100 days
US politics live More

Facebook is expecting significant new legal challenges, as the US Federal Trade Commission and a coalition of attorney generals from up to 40 states are preparing antitrust suits.
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Although the specific charges in both cases remain unclear, the antitrust allegations are expected to center on the tech giant’s acquisition of two big apps: a $1bn deal to buy the photo-sharing app Instagram in 2012, and the $19bn purchase of the global messaging service WhatsApp in 2014. Together, the buys brought the top four social media companies worldwide under Facebook’s control. The purchases would constitute antitrust violations if Facebook believed the companies were viable competitors.
At the time of its acquisition, Instagram had 30 million users, and, even though it was growing rapidly, it wasn’t yet making money. WhatsApp boasted more than 450 million monthly active users when it was acquired. “WhatsApp is on a path to connect 1 billion people,” Zuckerberg said in a statement at the time.
The FTC cleared Facebook for the acquisitions when they occurred, and the company is hoping to leverage those approvals in mounting a defense. Facebook executives have also argued their company has helped the apps grow.
But Facebook has come under greater scrutiny since the deals were done, and the FTC launched a new investigation into the potential antitrust violations in 2019.
The FTC probe will build on findings from a separate inquiry conducted by the US House Judiciary subcommittee, which released millions of documents that appeared to show that Facebook executives, including CEO Mark Zuckerberg, were concerned the apps could become competition, before aggressively pursuing them.
In one 2012 email, made public through the House investigation, Zuckerberg highlighted how Instagram had an edge on mobile, an area where Facebook was falling behind. In another, the CEO said Instagram could hurt Facebook even if it doesn’t become huge. “The businesses are nascent but the networks are established, the brands are already meaningful and if they grow to a large scale they could be disruptive to us,” Zuckerberg wrote. Instagram’s co-founder also fretted that his company might be targeted for destruction by Zuckerberg if he refused the deal.
The FTC is expected to vote on a possible suit this week. Three of the five-member commission are believed to be in favor of the move, including chair Joseph Simons, who is expected to leave the agency before the new Biden administration is sworn in, Politico reported.
Commissioners also have to decide where to file the suit: in federal court, which would leave the outcome to a judge; or in the FTC, where the commission could ultimately decide.
The suit expected from the bipartisan coalition of states is headed by New York attorney general Letitia James. While details of their complaint are also scant, several states’ top law enforcement offices launched probes into Facebook’s acquisitions last year, adding to the pressure put on the company by federal regulators.
Facebook did not respond to a request for comment.
Facebook’s possible legal challenges come as a growing number of US lawmakers are arguing that companies including Amazon, Google, Facebook and Apple have amassed too much power and should be reined in.
These companies “wield their dominance in ways that erode entrepreneurship, degrade Americans’ privacy online, and undermine the vibrancy of the free and diverse press”, the House judiciary committee concluded in its nearly 500-page report.
“The result is less innovation, fewer choices for consumers, and a weakened democracy.”
President-elect Joe Biden, too, has been critical of the tech companies. “Many technology giants and their executives have not only abused their power, but misled the American people, damaged our democracy and evaded any form of responsibility,” said Biden spokesperson Matt Hill to the New York Times. “That ends with a President Biden.”
In May, Facebook took over Giphy, a hugely popular moving-image app, with plans to integrate it with Instagram. Late last month, the company also announced plans to acquire Kustomer, an e-commerce app.
“This deal is about providing more choices and better products for consumers,” a company spokesman said in a statement to the New York Times. “The key to Facebook’s success has always been innovation, with M&A being just a part of our overall business strategy, and we will continue to demonstrate to regulators that competition in the technology sector is vibrant.” More

The Trump administration on Tuesday scrambled to justify a decision not to buy millions of backup doses of a Covid-19 vaccine developed by Pfizer as the vaccine appeared likely to become the first approved for use in the United States.Government regulators with the Food and Drug Administration (FDA) announced favorable preliminary findings on Tuesday from a review of Pfizer data, following approval for use in the UK and the first post-approval vaccination there.The Trump administration last spring made a deal for 100m doses of the Pfizer vaccine candidate, but the administration turned down an offer to reserve additional doses, Scott Gottlieb, a current Pfizer board member and former FDA commissioner, confirmed on Tuesday.“Pfizer did offer an additional allotment coming out of that plan, basically the second-quarter allotment, to the US government multiple times – and as recently as after the interim data came out and we knew this vaccine looked to be effective,” Gottlieb told CNBC.“I think they were betting that more than one vaccine is going to get authorized and there will be more vaccines on the market, and that perhaps could be why they didn’t take up that additional 100m option agreement.”With global demand for its vaccine soaring following successful trial results and approval in the United Kingdom, New York-based Pfizer cannot guarantee the United States additional doses before next June, the New York Times reported.The extent to which the decision not to acquire more of the Pfizer vaccine could impede the vaccination effort in the United States was unclear.The news came as the US was on the verge of surpassing 15 million coronavirus cases, the highest number in the world.A second vaccine candidate is currently up for emergency approval from the FDA, and multiple additional vaccine candidates – some of them easier to manage than the Pfizer vaccine, which must be stored at extremely cold temperatures – are in the final stages of clinical review.But Donald Trump and officials involved in the vaccine development program scrambled on Tuesday to head off the perception that the government had failed to get first in line for sufficient supplies of a vaccine produced by an American-based company. US-based Pfizer partnered and its German pharmaceutical partner, BioNTech, are on track to have the first vaccine approved in the US.To celebrate the good vaccine news and tout his role in it, Trump planned to host an event at the White House on Tuesday billed as a “vaccine summit”. He planned to unveil an executive order to prioritize vaccine shipments to “Americans before other nations,” but as with many headline-grabbing orders issued by Trump the decree did not appear to be impactful or enforceable, analysts said.Asked on ABC’s Good Morning America on Tuesday how the order would work, the official in charge of the government’s vaccine development program, Operation Warp Speed, Moncef Slaoui, said: “Frankly, I don’t know.”Health officials named by president-elect Joe Biden, who will lead the vaccine rollout effort after taking office next month, were not invited to the White House event, underscoring the risks of a lack of continuity in the effort.And executives from two drug companies, Pfizer and Moderna – whose own vaccine candidate is also up for approval from the FDA – were invited to the White House by Trump but declined, Stat News reported.Slaoui defended the administration’s decision not to buy more doses of the Pfizer vaccine, in his appearance Tuesday on ABC, saying they were looking at several different vaccines during the summer when it had the option to lock in additional Pfizer vaccine doses.“No one reasonably would buy more from any one of those vaccines because we didn’t know which one would work and which one would be better than the other,” said Slaoui. Before taking his current post, Slaoui resigned from the Moderna board.The US government has also contracted for 100m doses of the Moderna vaccine. Both vaccines require two doses per patient, although a preliminary report on the Pfizer vaccine issued on Tuesday by the FDA found some protection after just one dose.The report, which found “no specific safety concerns identified that would preclude issuance” of an emergency use authorization, accelerated the path to approval. “FDA has determined that [Pfizer] has provided adequate information to ensure the vaccine’s quality and consistency for authorization of the product under an EUA,” the report said.A spokeswoman for the Department of Health and Human Services told the Times that in addition to Pfizer and Moderna, the government had signed contracts for doses for other vaccine candidates that have not yet reached the stage of seeking regulatory approval.“We are confident that we will have 100 million doses of Pfizer’s vaccine as agreed to in our contract, and beyond that, we have five other vaccine candidates, including 100 million doses on the way from Moderna,” she said. More

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The state of Texas, aiming to help Donald Trump upend the results of the US election, decisively won by Joe Biden, said on Tuesday it has filed a lawsuit against the states of Georgia, Michigan, Pennsylvania and Wisconsin at the US supreme court, calling changes they made to election procedures amid the coronavirus pandemic unlawful.
The extraordinary and probably long-shot lawsuit, announced by the Republican attorney general of Texas, Ken Paxton, was filed directly with the supreme court, as is permitted for certain litigation between states.
The supreme court has a 6-3 conservative majority, including three justices appointed by Trump.
The lawsuit represents the latest legal effort intended to reverse the Republican president’s loss to Democratic candidate Biden in the 3 November election, which had appeared to be running out of steam after dozens of losses by the Trump campaign in its court challenges over the past month.
Republican-governed Texas in the lawsuit accused election officials in the four states of failing to protect mail-in voting from fraud, thus diminishing “the weight of votes cast in states that lawfully abide by the election structure set forth in the constitution”.
State election officials have said they have found no evidence of such fraud that would change the results, and local and national officials have declared it the most secure election in US history.
There was an increase in voting by mail in the election due to the pandemic, as many Americans stayed away from polling places to avoid the spread of Covid-19.
Texas is asking the supreme court to block the electoral college votes in the four states – a total of 62 votes – from being counted.
Biden has amassed 306 electoral votes – exceeding the necessary 270 – compared with 232 for Trump in the state-by-state electoral college that determines the election’s outcome, while also winning the national popular vote by more than 7m votes.
Texas also is asking the supreme court to delay the 14 December deadline for electoral college votes to be cast.
Paul Smith, a professor at Georgetown University’s law school, said Texas did not have a legitimate basis to bring the suit.
“There is no possible way that the state of Texas has standing to complain about how other states counted the votes and how they are about to cast their electoral votes,” Smith said.
Trump’s campaign and his allies have pursued unsuccessful lawsuits in Georgia, Michigan, Pennsylvania, Wisconsin and other states, making unfounded claims of widespread election fraud. Judges appointed under Democratic and Republican administrations, including Trump’s, have ruled against the president’s campaign, often in excoriating tones.
Trump lost those four states after winning them in 2016.
The supreme court is not obligated to hear the case and has said in previous decisions that its “original jurisdiction” that allows litigation between states to be filed directly with the nine justices should be invoked sparingly. More

Donald Trump aims to take credit on Tuesday for the rapid development of coronavirus vaccines, even as concerns grow about supply and timelines for inoculating Americans and the government comes under scrutiny for failing to lock in a chance to buy millions of additional doses of one of the leading contenders.That decision could delay the delivery of a second batch of doses until Pfizer fulfills other international contracts.The revelation, confirmed by people familiar with the matter, came on the eve of Trump’s plans to host a White House summit aimed at celebrating the expected regulatory approval of the first vaccine for emergency use in the US, later this week.The news came as the first person to receive a coronavirus vaccination in the world since regulatory approval was granted, post-clinical trials, was a 90-year-old woman in the UK who was inoculated on Tuesday.It also emerged as the US was set to surpass 15 million coronavirus cases and experienced a record death toll in the past week of almost 16,000 Americans killed as a result of Covid-19, the highest totals in the world.Trump’s administration is seeking to tamp down public skepticism over the vaccine and secure a key component of the president’s legacy.The focus was to be on the administration’s plans to distribute and administer the vaccine, but officials from the president-elect Joe Biden’s transition team, which will oversee the bulk of the largest vaccination program in the nation’s history once he takes office on January 20, were not invited.Pfizer’s vaccine is expected to be endorsed by a panel of regulators from the US Food and Drug Administration (FDA) as soon as this week, with delivery of 100 million doses – enough for 50 million Americans as two shots per person are required for optimal immunity – expected in coming months.Under its contract with Pfizer, the Trump administration committed to buy an initial 100 million doses, with an option to purchase as many as five times more.This summer, the White House opted not to lock in an additional 100 million doses for delivery in the second quarter of 2021, according to a report in the New York Times, backed by others who spoke to The Associated Press about the matter on condition of anonymity because they were not authorized to discuss it publicly.Days ahead of the vaccine’s expected approval, the administration is reversing course, but it is not clear that Pfizer, which has since made commitments to other countries, will be able to meet the latest request on the same timeline.The Pfizer vaccine is one of two on track for emergency FDA authorization this month, the other coming from drugmaker Moderna.The Trump administration insisted late Monday that between those two vaccines and others in the pipeline, the US will be able to accommodate any American who wants to be vaccinated by the end of the second quarter of 2021.Health secretary Alex Azar told NBC the administration is “continuing to work across manufacturers to expand the availability of releasable, of FDA-approved vaccine as quickly as possible … We do still have that option for an additional 500 million doses.”The “Operation Warp Speed” summit will feature Trump, vice president Mike Pence and a host of government experts, state leaders and business executives, as the White House looks to explain that the vaccine is safe and lay out the administration’s plans to bring it to the American people.Senior administration officials provided details on the summit on Monday. An official with the Biden transition confirmed no invitation was extended.Officials from the pharmaceutical companies developing the vaccines also were not expected to attend, despite receiving invitations, according to people familiar with the matter.Some expressed concerns about the event contributing to the politicization of the vaccine development process and potentially further inhibiting public confidence in the drugs.Trump is set to kick off the event with remarks aiming to “celebrate“ vaccine development, according to an official who previewed the event.Trump also will sign an executive order to prioritize Americans for coronavirus vaccines procured by the federal government. A second official said the order would restrict the US government from donating doses to other nations. More

While Donald Trump continues to falsely insist he won the 2020 race, Tuesday marks an important deadline further cementing that Joe Biden will be inaugurated as America’s 46th president on 20 January.
This year, 8 December is the so-called “safe harbor” deadline, which federal law says must fall six days before electors meet across the country to cast their votes for president. The statute says that as long as states use existing state law to resolve disputes about electors by the deadline, the votes cast by those electors will be “conclusive”. It is meant to act as a safeguard so that Congress, which will count the electoral votes on 6 January, can’t second-guess or overturn the election results.
At least one Republican member of Congress, Mo Brooks of Alabama, has said he will object to electors and Republicans in Pennsylvania have urged lawmakers to do the same. Those challenges are unlikely to be successful because a majority of both houses would have to agree to the challenge. Democrats control a majority of the US House of Representatives.
The Guardian spoke to Edward Foley, a law professor at Ohio State University, about the importance of the safe harbor deadline and what it could mean.
Why is the safe harbor deadline so important?
The key concept of safe harbor is the benefit that states get if they meet it. But it’s optional.
It’s desirable that they get this benefit, but it’s not essential. And what makes it desirable is Congress promises to accept as “conclusive” – that’s the statutory language – any resolution that the state itself meets if it complies with these two requirements, one being timing and the other being the use of existing law.
A state puts itself in as good a position as possible to have its electoral votes accepted by Congress if it’s safe-harbor-compliant. Because if Congress obeys its own promise, then it’s a done deal.
Lacking safe harbor status doesn’t mean a state’s electoral votes are going to be rejected by Congress. It just means that they’re arriving in Congress without the benefit of a super-shield, if you will.
Are there states that are at risk of not meeting safe harbor? It seems like every state has certified.
Yes. Certification is not sufficient for safe harbor status.
Electors have to be certified and they have to get their own certificates of ascertainment from the governor, and that then allows them to go to the state capitol and vote … That’s happened at least in enough states now for Biden to be above 270 electoral votes. There’s no danger of that not happening.
States that have litigation procedures written into state law to challenge a certification, even after the certification has occurred … it’s often called a contest. That’s a term of art, in law, that means you’re contesting the certification. If any state has a procedure like that … that’s what has to be finalized by 8 December for safe harbor status.
Wisconsin, for example, is a state that’s looking like at the moment like it’s not going to achieve safe harbor status because it has a hearing on 10 December in state court pursuant to a procedure that exists in state law … I’m not expecting that procedure to be successful in overturning certification. But I think it does mean that there will not be a final determination of that controversy or contest concerning the appointment of electors until after 8 December.
And that opens the door for Congress to second-guess the electoral votes that Wisconsin is sending?
It deprives Wisconsin of that super-shield that we were talking about. It doesn’t mean that Congress will reject the votes. I don’t think it puts Wisconsin’s votes in any practical jeopardy. But it does put them in a different legal status.
Representative Brooks from Alabama says he’s going to object to Biden’s electoral votes. I don’t know if he specified which states. But in my judgment it is inappropriate for any member of Congress, representative or senator, to file an objection to any electoral votes that actually have safe harbor status.
Congress should treat safe harbor status in the way the law calls for it to be treated. It’s conclusive. There shouldn’t be any objections filed to anything that a member of Congress believes to have safe harbor status. But if it doesn’t have safe harbor status, then I think it opens it up, as you said, to congressional second-guessing, in a way that safe harbor status shouldn’t.
When a state meets safe harbor, a member of Congress and a senator can still object to its electoral votes. And I expect we will see those objections. You talked about safe harbor offering a super-shield. What does that protection actually look like?
Unless there’s some court that’s gonna try and tell Congress what to do on 6 January, which I don’t really envision, then it’s up to Congress to police itself in terms of its own rules.
Every conscientious member of Congress, whether representative or senator, once the objection is raised … they’re not supposed to say: ‘Who do I think won Georgia? Who do I think won Pennsylvania?’ They’re supposed to ask themselves: ‘Did Georgia and Pennsylvania utilize a procedure to achieve its own resolution of that issue? Did they do so by 8 December?’
It’s up to Congress to abide by that rule that Congress created and not be tempted to second-guess a decision that it’s not supposed to second-guess. But human beings being human beings, if members of Congress want to ignore their own rules and second-guess something which they shouldn’t be second guessing, then who’s to stop them?
A lot of people are going to hear that and say: ‘If it’s up to Congress to police itself, that’s not reassuring.’ I think a lot of people will have a hard time believing there are going to be Republican senators, with a few exceptions, that aren’t willing to go along with an objection.
I totally get the realism there. And I understand why readers would want to think that. But here’s where I think maybe the safe harbor concept might provide a buffer for some.
Take someone like Senator Rob Portman of Ohio. It might be that the concept of this super-shield could actually help him both in his own internal and mental deliberations and also with his constituency, by saying: ‘Look, I’m trying to do a job here and the job I’m supposed to do is respect state law. I’ve been told by the relevant act of Congress that I’m obligated to accept the state’s judgment. I’m not going to ask myself who won Georgia. I’m only going to ask myself whether Georgia reached a final answer.’
How concerned should people be if a state like Wisconsin doesn’t meet safe harbor?
This year, as a practical matter, I wouldn’t have any concern. I think it’s unfortunate that Wisconsin wound up where it will. I think it was unnecessary.
I think the extent to which we get more objections of the Representative Brooks kind, it’s going to erode Congress’s own self-policing, which they should do, which is probably not a good thing.
There’s no threat to Biden’s inauguration. What there is potentially … if one senator signs anything that Representative Brooks submits, that’s going to cause there to be a repeat of what happened in 2004 … I think there will be roll-call votes.
Even though Biden’s going to be inaugurated, if a lot of senators go on record agreeing with Brooks, that’s agreeing with a claim that Biden didn’t win those states.
I think that’s a very likely scenario.
It’s taking us into a realm of American politics that I’m not sure we’ve had before. I mean, it’s a denial of reality that’s very dangerous.
Elections require accepting results, even if your team loses. Your team will win next time, maybe. You give the winning team a chance to govern based on what the voters said this time. You have to acknowledge that reality. For significant numbers of members of Congress, going on the record, if that’s what happens, in defiance of that reality, that will be really dangerous for the operation of competitive elections.
This interview has been condensed and edited for clarity More

The Trump administration passed up a chance last summer to buy millions of additional doses of Pfizer’s coronavirus vaccine, a decision that could delay the delivery of a second batch of doses until the manufacturer fulfills other international contracts.
The revelation, first reported by the New York Times and confirmed to the Associated Press on Monday, came a day before Donald Trump aimed to take credit for the speedy development of forthcoming vaccines at a White House summit.
Pfizer’s vaccine, one of the leading Covid-19 vaccine contenders, is expected to be approved by a panel of Food and Drug Administration scientists as soon as this week, with delivery of 100m doses – enough for 50 million Americans – expected in coming months.
Under its contract with Pfizer, the Trump administration committed to buy an initial 100m doses, with an option to purchase as many as five times more. This summer, the White House opted not to lock in an additional 100m doses for delivery in the second quarter of 2021, according to people who spoke to the Associated Press on condition of anonymity.

Days ahead of the vaccine’s expected approval, the administration is reversing course, but it is not clear that Pfizer, which has since made commitments to other countries, will be able to meet the latest request on the same timeline.
The Pfizer vaccine is one of two on track for emergency FDA authorization this month, the other coming from drugmaker Moderna.
The Trump administration insisted late Monday that between those two vaccines and others in the pipeline, the US will be able to accommodate any American who wants to be vaccinated by the end of the second quarter of 2021.
Health and Human Services secretary Alex Azar told NBC the administration is “continuing to work across manufacturers to expand the availability of releasable, of FDA-approved vaccine as quickly as possible. We do still have that option for an additional 500m doses.”
The “Operation Warp Speed” summit on Tuesday will address the Trump administration’s plans to distribute and administer the vaccine. But officials from president-elect Joe Biden’s transition team, which will oversee the bulk of the largest vaccination program in the nation’s history, were not invited.
Both the Pfizer and the Moderna vaccines have been determined to be 95% effective against the virus that causes Covid-19. Plans call for distributing and then administering about 40m doses of the two companies’ vaccines by the end of the year – with the first doses shipping within hours of FDA clearance. Each of the forthcoming vaccines has unique logistical challenges, including storage, distribution and administration.
The news comes as states across the US continue to experience some of the worst surges since the pandemic began. On Monday, millions in California went back under the nation’s harshest lockdowns, as Covid-19 cases hit record levels. New York is also weighing further restrictions as hospitalisations climb.
Health officials are warning Americans not to let their guard down, even with a vaccine on the horizon. Dr Anthony Fauci, the nation’s leading infectious disease expert, said that “without substantial mitigation, the middle of January can be a really dark time for us”. More