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      in Elections

      ‘Bait and switch’: Liz Cheney book tears into Mike Johnson over pro-Trump January 6 brief

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      In a new book, the anti-Trump Republican Liz Cheney accuses the US House speaker, Mike Johnson, of dishonesty over both the authorship of a supreme court brief in support of Donald Trump’s attempt to overthrow the 2020 election and the document’s contents, saying Johnson duped his party with a “bait and switch”.“As I read the amicus brief – which was poorly written – it became clear Mike was being less than honest,” Cheney writes. “He was playing bait and switch, assuring members that the brief made no claims about specific allegations of [electoral] fraud when, in fact, it was full of such claims.”Cheney also says Johnson was neither the author of the brief nor a “constitutional law expert”, as he was “telling colleagues he was”. Pro-Trump lawyers actually wrote the document, Cheney writes.As Trump’s attempts to overturn his defeat by Joe Biden progressed towards the deadly January 6 attack on Congress, Cheney was a House Republican leader. Turning against Trump, she sat on the House January 6 committee and was ostracised by her party, losing her Wyoming seat last year.Her book, Oath and Honor: A Memoir and a Warning, will be published next week. The Guardian obtained a copy.Johnson became speaker last month, after McCarthy was ejected by the Trumpist far right, the first House speaker ever removed by his own party.On Tuesday, CNN ran excerpts from Cheney’s book, quoting her view that Johnson “appeared especially susceptible to flattery from Trump and aspired to being anywhere in Trump’s orbit”.CNN also reported that Cheney writes: “When I confronted him with the flaws in his legal arguments, Johnson would often concede, or say something to the effect of, ‘We just need to do this one last thing for Trump.’”But Cheney’s portrait of Johnson’s manoeuvres is more comprehensive and arguably considerably more damning.The case in which the amicus brief was filed saw Republican states led by Texas attempt to persuade the supreme court to side with Trump over his electoral fraud lies.It did not. As Cheney points out, even the two most rightwing justices, Samuel Alito and Clarence Thomas, who wanted to hear the case, said they would not have sided with the complainants.Cheney describes how Johnson, then Republican study committee chair, emailed GOP members on 9 December 2020 to say Trump had “specifically” asked him to request all Republicans in Congress “join on to our brief”.Johnson, Cheney says, insisted he was not trying to pressure people and simply wanted to show support for Trump, by “affirm[ing] for the court (and our constituents back home) our serious concerns with the integrity of our electoral system” and seeking “careful, timely review”.“Mike was seriously misleading our members,” Cheney writes. “The brief did assert as facts known to the amici many allegations of fraud and serious wrongdoing by officials in multiple states.”Johnson, she says, then told Republicans that 105 House members had expressed interest. “Not one of them had seen the brief,” Cheney writes. She also says he added “a new inaccurate claim”, that state officials had been “clearly shown” to have violated the constitution.“But virtually all those claims had already been heard by the courts and decided against Trump.”Calling the brief “poorly written”, Cheney says she doubted Johnson’s honesty and asked him who wrote it, as “to assert facts in a federal court without personal knowledge” would “present ethical questions for anyone who is a member of the bar”.The general counsel to McCarthy, then Republican minority leader, told Cheney that McCarthy would not sign the brief, while McCarthy’s chief of staff also called it “a bait and switch”. McCarthy told her he would not sign on. When the brief was filed, McCarthy had not signed it. But “less than 24 hours later, a revised version … bore the names of 20 additional members. Among them was Kevin McCarthy.“Mike Johnson blamed a ‘clerical error’ … [which] was also the rationale given to the supreme court for the revised filing. In fact, McCarthy had first chosen not to be on the brief, then changed his mind, likely because of pressure from Trump.”It took the court a few hours to reject the Texas suit. But the saga was not over. Trump continued to seek to overturn his defeat, culminating in the deadly attack on Congress on 6 January 2021 by supporters whom he told to “fight like hell”.Cheney takes other shots at Johnson. But in picking apart his role in the amicus brief, she strikes close to claims made for his legal abilities as he grasped the speaker’s gavel last month. Johnson “was telling our colleagues he was a constitutional law expert, while advocating positions that were constitutionally infirm”, Cheney writes.Citing conversations with other Republicans about Johnson’s “lawsuit gimmick” (as she says James Comer of Kentucky, now House oversight chair, called it), Cheney says she “ultimately learned” that Johnson did not write the brief.“A team of lawyers who were also apparently advising Trump had in fact drafted [it],” she writes. “Mike Johnson had left the impression that he was responsible for the brief, but he was just carrying Trump’s water.”The Guardian contacted Johnson for comment. Earlier, responding to CNN, a Trump spokesperson said Cheney’s book belonged “in the fiction section of the bookstore”.Cheney also considers the run-up to January 6 and the historic day itself. Before it, she writes, she and Johnson discussed mounting danger of serious unrest. He agreed, she says, but cited support for Trump among Republican voters as a reason not to abandon the president. Such support from Johnson and other senior Republicans, Cheney writes, allowed Trump to create a full-blown crisis.Two and a half years on, notwithstanding 91 criminal charges, 17 for election subversion, Trump is the clear frontrunner for the Republican presidential nomination. He polls close to or ahead of Biden.In certain circumstances, close elections can be thrown to the House – which Mike Johnson now controls. More

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      in US Politics

      ‘It has to be done’: can Reconstruction-era laws hold Trump and allies accountable?

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      In attempts to hold former president Donald Trump and his allies accountable for election subversion, attorneys are reaching back to laws created in the wake of the civil war in the 1860s.Beyond Trump, too, lawsuits using these Reconstruction-era laws seek to enforce voting rights and prevent discrimination in modern-era elections.The laws from this time period were designed, in part, to reintegrate the Confederate states back into the country and ensure that they did not yet again attempt to overthrow the government or pass laws to restrict newly freed Black citizens.But the Reconstruction Congress created laws that were “flexible and responsive to modern-day threats”, making them applicable today and worth trying to enforce, said Jessica Marsden, an attorney with Protect Democracy, which has filed lawsuits using such laws.In recent years, the use of laws originally designed to crack down on the Ku Klux Klan and its allies in government after the civil war has grown. This set of laws bans political intimidation and violence, including insurrection, and has been used in legal claims from Charlottesville, to the January 6 insurrection, to the federal government’s charges against Trump.Section 3 of the 14th amendment, recently making headlines as various lawsuits attempt to use it to keep Trump off the 2024 ballot, makes it illegal for someone who was an officer of the US government to hold office again if they engaged in “insurrection or rebellion”.One novel approach also seeks to use a law that dealt with readmitting Virginia into the union to protect the voting rights of people with felonies.The resurgence of these laws in recent years has surprised some observers, but proponents say they are strong tools to fight back against anti-democratic movements happening today. And there aren’t more recent laws that deal directly with insurrection since the last major one happened during the civil war.“We have been compelled to use tools that we didn’t use in the past or didn’t need to use because we didn’t have the kind of threat and the kind of character prepared to break norms as we do now with Mr Trump and his confederates,” said Sherrilyn Ifill, a civil rights attorney who is opening a center focused on the 14th amendment at Howard University School of Law.Under Ifill’s leadership, in 2020 the NAACP’s Legal Defense Fund filed a lawsuit against Trump and the Republican National Committee using Ku Klux Klan Act statutes, alleging Trump’s campaign and the RNC were systematically trying to disfranchise Black voters by disrupting vote counting and trying to delay results. It’s “never easy to sue a president under the KKK Act,” Ifill said, “but it has to be done”.“We are in a moment of democratic crisis,” Ifill said. “Trump and his agenda and Trumpism is a unique threat to the core of American democracy. And I think that has sent everyone into the space that we have to use all of the tools that are available to us.”The Reconstruction Congress understood the threat of insurrection and the kinds of disfranchisement and violence that came from giving rights to Black men after the civil war because these activities had just happened or were still happening then, so they created a strong set of laws to prevent further violence and to hold accountable those who perpetuated it.Since then, these threats haven’t been as direct as they are now, those filing lawsuits under these laws say, rendering the historic tools both useful and necessary.“Congress in the 1860s and 70s gave us a toolkit that is surprisingly well-suited to this moment,” Marsden, of Protect Democracy, said.The laws from that time period were written with an understanding that opponents of democracy would be “quite creative” in how they’d try to deter people from participating in the democratic process, leaving open what kinds of actions can be considered voter intimidation, Marsden said.skip past newsletter promotionafter newsletter promotionThat has made the KKK Act, for instance, a valuable tool when addressing modern technology, like a successful lawsuit against robocalls with threatening messages targeting Black voters about voting by mail. Another KKK Act case that recently settled involved a “Trump train” of vehicles that harassed a Biden bus in Texas in 2020, in which Protect Democracy argued that a town’s police force knew of this intimidation but didn’t work to stop it.Protect Democracy is also arguing that the Virginia Readmission Act, which protected the rights of new Black citizens to vote, applies today to disfranchising people with felonies. In a lawsuit believed to be the first making this claim, the group says Virginia’s law that strips people with felonies of their right to vote is illegal because the Reconstruction-era readmission act says only certain felonies can be used to prevent voting.Eric Foner, a historian who specializes in the civil war and the Reconstruction era, said it makes sense to use existing laws from that time period because they haven’t been repealed, despite the lack of use in the many decades since then, and reflect similar ideas to what’s happening today. The recent use of them shows just how strong the laws created by the Reconstruction Congress are, he said.“It’s a political commentary on what is possible politically today,” Foner said. “And it’s an odd thing because it’s considered more possible to resurrect these laws than to pass new ones.”With the resurgence of these laws come some challenges with making the case to judges, who may not have dealt directly with Reconstruction-era statutes beyond scholarly arguments. In the 14th amendment lawsuits, for instance, judges have questioned how to apply this section of law and interpret its provisions. And, given the high-profile and political nature of seeking to boot a former president from the ballot, judges have expressed wariness to wade into what some consider a political question, not a legal one.Already, 14th amendment lawsuits in Colorado, Minnesota, Michigan and Florida have been tossed, though many are still ongoing and those bringing the lawsuits are likely to appeal, with the question expected to go before the US supreme court at some point.In one smaller case, though, which didn’t involve someone as high-profile as Trump, a judge in New Mexico ruled that a county commissioner who had participated in the January 6 riots couldn’t hold office any more because of the 14th amendment.Despite their discomfort with the politics of the issue, Ifill argues that judges need to show courage to enforce the amendment’s provisions.“They may not want to do it any more than I wanted to sue a president under the KKK Act, but their job is to apply the law to the facts and issue a ruling that is consistent with what the law demands,” she said. 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      in US Politics

      ‘People who are just like me will not be able to vote. That’s nuts’: Virginia to see first Black speaker of the house

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      Five years ago, while working on a high-profile case, the trial lawyer Don L Scott Jr received a call from a reporter. “Hey, is it true that you had gone to prison?” Scott remembers them asking. “I said, ‘It is, and if you want the entire story, before you print it, I hope that you will sit down and talk to me.’”On 10 January 2024, Scott will be sworn in as Virginia’s first Black speaker of the house in the commonwealth’s 400-year-plus history. His rise to the position started in 2018, when that reporter called him. Scott said that although he hadn’t hidden his past before, “it’s not something you put on your résumé either”. That call was a pivotal moment for him, empowering him to share his story widely, and helping him realize that he had the potential to be a politician.After the story was published in the Virginian-Pilot, everyone knew his past, and Scott said he was then able to discuss it more freely, even as an attorney. He thinks the impetus behind the piece might have come from a politician who was concerned Scott would run against him, or from the opposing attorneys on the case, but at this point it doesn’t matter.“They were thinking they were going to drop it on me to hurt me, but what they really did was free me up,” he said. “I got such positive feedback from my community and other folks that I knew that I said, ‘Heck, I’m free now. If I decide I want to run, I can run.’”Eventually, Scott, who’s 58, did run for election to the Virginia house of delegates – and won. Then he won again and again. In his new role as speaker of the house, Scott plans to help lead Virginia Democrats in following through on their campaign promises: namely, codifying Roe v Wade, banning assault weapons and increasing teacher pay.‘There are people who are just like me’On 30 July 1619, Virginia’s house of burgesses, the colonial predecessor to the commonwealth’s current general assembly, met for the first time. About one month later, enslaved Africans were brought to the Virginia colony, marking what is considered to be the start of chattel slavery in the colonial US. In several interviews since his election as speaker, Scott has referenced the historic importance of his nomination: “I know I stand on the shoulders of my ancestors who built that capitol.”Scott was born in Houston, Texas, and raised in a small town by a single mother who hid the family’s poverty so well that Scott didn’t realize how much she struggled until he was an adult. He grew up with five siblings, including his elder sister, Jeta Lenoir, who taught him to read.After his graduation from Texas A&M University, Scott enlisted in the US navy and served a few years before he was honorably discharged. He went on to obtain a law degree from Louisiana State University Law School, but in 1994, shortly after graduating, Scott was arrested on federal drug charges. He served seven years in prison. (Scott has said previously that he made a “bad decision”, but denies having ever handled any drugs.)In Virginia, citizens’ voting rights are not immediately restored after their release from prison – that decision depends on the governor. For almost a decade after rejoining society, Scott was unable to vote. Once his rights were restored in 2013, he was able to finally sit for the bar exam and become a trial lawyer.During his time as a partner at the Breit Biniazan law firm, Scott joined various civic organizations, including his state’s chapter of the NAACP. He started paying closer attention to the difference between what people around him were experiencing and what he saw and heard in courtrooms as a lawyer. As a result, his first campaign for the house of delegates in 2019 focused on criminal justice reform and alleviating poverty.“I came in saying that there are some things that are wrong, that are unfair in our criminal justice system and need to be fixed,” Scott said. “I think people have a misconception about Black communities that are sometimes having tough times and issues with crime. They don’t want to talk about poverty. They don’t want to talk about all the causes of crime. They don’t want to talk about mental health. They just want to say ‘crime’ and look at the outcome.”Scott’s lived experiences continue to inform how he sees the world. He intimately knows what it means to serve time and still be penalized after leaving prison. “I had a nonviolent drug offense that I was sentenced to 10 years [in prison] for,” he said. “There are people who are just like me who are not voting and can’t vote and are smarter than I am. [They] can’t vote because they’re waiting on somebody like Governor [Glenn] Youngkin to restore their rights. I will be speaker with a felony, while other people who are just like me … will not be able to vote. That’s nuts.”As speaker, Scott plans to help mitigate voter disenfranchisement by taking away the governor’s right to determine whether formerly incarcerated people can vote again. He wants to change the state’s constitution so that people have an automatic restoration of rights after completing their sentences. Earlier this year, in a separate voter-rights issue, about 3,000 Virginians were purged from voter rolls “in error”, according to Youngkin’s administration.skip past newsletter promotionafter newsletter promotion“Personally, this is important to me, that we take the restoration of rights away from the governor,” Scott said. Of the purged voters, he continued: Youngkin “abused that privilege that he has, that privilege that the people have bestowed on him. He used it arbitrarily and capriciously to deny the franchise – that sacred franchise – from people that he deemed unworthy to vote.”‘You have to deliver’Scott understands the historic nature of his impending leadership position. He also knows that his community and Virginians at large are expecting more than him to just be a face in power.Recently, Scott said, he attended a breakfast meeting with a former governor who was energized by his nomination, but who told him that it was time for the real work to begin. “He said, ‘Now you have to go and be great. You have to be competent. You have to deliver.’ And that’s what our community is looking for. They’re not looking for symbolic wins any more,” Scott recalled. “I’m the first Black speaker, but I’m also a speaker who happens to be Black.”Democrats gained control of Virginia’s state legislature this year, as voters opposed Youngkin’s attempt to pass a strict abortion ban. In addition to codifying Roe v Wade, many of the Democrats who ran and won promised to raise the minimum wage, to ban assault weapons, to pass a responsible gun act and to raise teacher pay.“These are the promises that we made … These are not extreme ideas. I think everybody can agree that we need to do these things, and I think we will,” Scott said.But for the moment, he is taking time to soak it all in.“I’m excited,” he said. “It’s the dream of a lifetime. I feel embarrassed of how much I’ve been blessed. I went to jail in ’94; 2004 is 30 years and I’ll be standing taking my oath. That’s a powerful testament to the power of faith, and the power of resilience.” More

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      in US Politics

      Prominent conservative lawyers band together to fight Trump threat

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      Three prominent US legal thinkers have announced a new organisation to champion conservative legal theory within the rule of law, to fight the threat of a second Donald Trump term.“Our country comes first,” the three wrote in the New York Times, “and our country is in a constitutional emergency, if not a constitutional crisis. We all must act accordingly, especially us lawyers.”The authors were George Conway, an attorney formerly married to Kellyanne Conway, Trump’s White House counselor; J Michael Luttig, a retired judge and adviser to Trump’s vice-president, Mike Pence, who became a prominent January 6 witness; and Barbara Comstock, a former Republican congresswoman from Virginia.The authors also rebuked prominent rightwing groups including the Federalist Society for not resisting the former president and his authoritarian ambitions.Their new group, the Society for the Rule of Law Institute, would “work to inspire young legal talent … focus on building a large body of scholarship to counteract the new orthodoxy of anti-constitutional and anti-democratic law … [and] marshal principled voices to speak out against the endless stream of falsehoods and authoritarian legal theories … propagated almost daily,” they said.The Federalist Society and its chair, Leonard Leo, played a key role in Trump’s judicial appointments, installing three hardliners on the supreme court who helped hand down rightwing wins including removing abortion rights and loosening laws on gun control, affirmative action, voting rights and other progressive priorities.Conway, Luttig and Comstock emerged among prominent conservative opponents of Trump, warning of his authoritarian threat before and after January 6, when rioters attacked Congress in an attempt to block Joe Biden’s 2020 election win.Ninety-one criminal charges and assorted civil threats notwithstanding, Trump is now the clear frontrunner for the Republican presidential nomination while polling strongly against Biden in battleground states.“American democracy, the constitution and the rule of law are the righteous causes of our times, and the nation’s legal profession is obligated to support them,” Conway, Luttig and Comstock wrote.“But with the acquiescence of the larger conservative legal movement, these pillars of our system of governance are increasingly in peril. The dangers will only grow should Donald Trump be returned to the White House next November.”Trump, they said, would stock a second administration “with partisan loyalists committed to fast-tracking his agenda and sidestepping – if not circumventing altogether – existing laws and long-established legal norms.“This would include appointing … political appointees to rubber-stamp his plans to investigate and exact retribution against his political opponents; make federal public servants removable at will by the president himself; and invoke special powers to take unilateral action on first amendment-protected activities, criminal justice, elections, immigration and more.”Saying Trump tried such attacks when in power but was blocked by lawyers and judges, the authors said the former president would if re-elected “arrive with a coterie of lawyers and advisers who, like him, are determined not to be thwarted again”.Though they said the Federalist Society had long been “the standard-bearer for the conservative legal movement”, they said it had “failed to respond in this period of crisis.“That is why we need an organisation of conservative lawyers committed to the foundational constitutional principles we once all agreed upon: the primacy of American democracy, the sanctity of the constitution and the rule of law, the independence of the courts, the inviolability of elections and mutual support among those tasked with the solemn responsibility of enforcing the laws of the United States.“This new organisation must step up, speak out and defend these ideals.” More

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      in US Politics

      Court rules that only US government can sue to enforce Voting Rights Act

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      A federal appeals court shocked voting rights groups on Monday with a ruling that only the US government, not outside groups or citizens, could sue to enforce the Voting Rights Act’s provisions.The civil rights law, which outlaws racial discrimination as it relates to voting, has typically been enforced by lawsuits from these groups, not by the government itself. Now that the Republican-appointed eighth circuit court of appeals has made the ruling by 2-1, this “private right of action” to enforce Section 2 of the law is called into question.The ruling stemmed from a case brought by the Arkansas State Conference NAACP and Arkansas Public Policy Panel over new maps created during redistricting that the two groups allege diluted the voting power of Black voters in the state.While courts at all levels have allowed private claims seeking to enforce the voting rights law for decades, this is an “assumption that rests of flimsy footing”, the opinion written by Judge David Stras, who was appointed by Donald Trump, said. The ruling dissected the law itself, finding it did not include specific language that allows anyone aside from the attorney general to bring enforcement action.In a dissenting opinion, Chief Judge Lavenski Smith said that, though the courts may not have directly addressed the idea of private parties trying to enforce this law, it has repeatedly heard these cases, so it would follow that “existing precedent that permits citizens to seek a judicial remedy”.The ruling is not simply an esoteric question of law: it would dismantle the primary mechanism voting rights groups use to protect against racial discrimination in voting, often in the form of lawsuits challenging electoral maps.Voting rights groups expect the ruling will be appealed to the US supreme court. The eighth circuit ruling applies to the states the circuit court covers: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.Wendy Weiser, the vice-president for democracy at the Brennan Center for Justice, called the decision “radical” and wrote on X that it was “deeply wrong, and it goes against decades of precedent and practice”. More

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      in Elections

      Groups increasingly use defamation law to ward off US election subversion

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      Groups seeking to protect US democracy from a renewed threat of subversion in the presidential race next year wield a new weapon against Donald Trump and his accomplices: the little-used law of defamation.Trump’s former lawyer Rudy Giuliani, the My Pillow CEO, Mike Lindell, and conspiracy theorist Dinesh D’Souza are among the individuals named in a spate of high-profile defamation cases targeting those who tried to overturn the 2020 election. Prominent rightwing media outlets such as Fox News and Gateway Pundit are also on the hook.Already the legal pain is mounting. Giuliani has been found liable for defaming two election workers in Georgia whom he falsely accused of criminally miscounting votes in 2020 in favour of Joe Biden.The case will go to trial in December with Giuliani facing possibly swingeing punitive damages.Lindell has notched up millions in legal fees in the $2bn defamation suits that have been brought against him by the voting machine firms Dominion and Smartmatic for falsely saying they rigged the count. His ongoing libel woes follow the April settlement in which Fox agreed to pay Dominion a shattering $788m for broadcasting similar lies.“This is lawfare,” Lindell protested in an interview with the Guardian. “Lawfare hasn’t been used in our country since the late 1700s, and that’s what they are doing.”The lawsuits are designed in part as a strategy of deterrence. Those pressing the libel suits hope that anyone contemplating a renewed assault on next year’s presidential election, in which Trump is once again likely to be the Republican candidate, will look at the potentially devastating costs and think twice.“We aim to demonstrate that there is no immunity for spreading intentional and reckless lies,” said Rachel Goodman, a lawyer with the non-partisan advocacy group Protect Democracy. “Ensuring accountability for intentional defamation is a crucial part of deterring election subversion from happening again in 2024.”Protect Democracy currently has five defamation suits on the go against individuals and outlets who propagated election denial. The defendants include Giuliani, the Gateway Pundit and the beleaguered undercover video outfit Project Veritas.D’Souza is being sued over his widely derided and debunked movie 2000 Mules. In it he depicted a Black voter in Georgia, Mark Andrews, as a “mule” who illegally deposited ballots in a drop box when in fact he legally delivered the votes of his own family.The fifth case concerns Kari Lake, the Arizona Republican who refused to accept her defeat in that state’s gubernatorial contest last year. The plaintiff is the top election official in Maricopa county, Stephen Richer, whom she falsely accused of injecting 300,000 phoney ballots into the count to swing the race against her.Defamation law has traditionally been sparingly used in the US, given the very high bar that plaintiffs have to meet. Under the 1964 supreme court ruling New York Times Co v Sullivan, they have to be able to show “actual malice” on behalf of the accused.“When lawsuits are brought against public figures they can only prevail if they can show that the speaker knew that the statements were false, or very likely false, and made recklessly without further investigation or caring for the truth,” said Eugene Volokh, a law professor at UCLA.The first Protect Democracy suit to reach trial will be that against Giuliani. A jury will convene in a federal court in Washington DC on 11 December to decide the scale of damages he will have to pay.Giuliani waged a “sustained smear campaign” against two Georgia poll workers in the 2020 count of absentee ballots, Protect Democracy alleged. The mother and daughter duo, Ruby Freeman and Shaye Moss, became the targets of a conspiracy theory in which they were said to have packed bogus ballots into “suitcases” which they then surreptitiously counted five times, transferring victory to Biden.Giuliani called their actions “the crime of the century”, and labeled them “crooks”.Georgia election officials and police investigators categorically disproved the falsehoods within 24 hours of Giuliani airing them. The suitcases turned out to be ballot storage boxes and the counting process was entirely normal, yet he continued to repeat the lies for months.Freeman and Moss faced a prolonged harassment campaign, including death threats from Trump supporters. At its peak, Freeman was compelled to flee her own home and to shutter her online business.In July, in an attempt to avoid disclosing evidence to the plaintiffs, Giuliani admitted that he had made defamatory statements and caused the pair emotional distress. The following month a federal judge ruled he was liable for defamation – leaving the jury to decide only the scale of damages.Goodman said the case summed up why Protect Democracy was bringing defamation suits against election denialists. “Ruby Freeman and Shaye Moss were Americans doing their civic duty, and they were put in the crosshairs of this election subversion machine – we should not stand for that.”Most defendants have tried to shield themselves behind the first amendment right to free speech. In Arizona, Kari Lake has attacked the lawsuit against her as an attempt to “punish or silence” her “core free speech about the integrity of the 2022 election”.In his Guardian interview, Lindell said: “I have a first amendment right. These defamation cases are damaging free speech – people are afraid to speak out, to come forward with anything.”Protect Democracy countered that the first amendment does not provide blanket protection for mendacity. “It does not protect those who knowingly spread lies that destroy reputations and lives,” Goodman said.Nina Jankowicz, an expert on disinformation, also rejects the idea that the first amendment shields reckless falsehoods. She is suing Fox News for what she claims were the “vitriolic lies” the channel spread about her in 2022 in her role as head of a newly created federal unit combatting misinformation.Jankowicz resigned from the Disinformation Governance Board, which was also disbanded, barely three weeks into the job. Her defamation complaint quotes the former Fox News star Tucker Carlson calling her a “moron” on air and labelling her unit “the new Soviet America”.Jankowicz said she took the decision to sue because she could see no other route to correct the public record. If there was a free speech component, she said, it was that her rights had been violated, not those of Fox News.“Their intention was to silence me, just as the defamation of election workers in Georgia was designed to silence them. That’s pretty un-American.”Fox has moved to have Jankowicz’s case dismissed, arguing that she has failed to meet the actual malice standard. A ruling is expected soon.The billion-dollar question is: can it work? Can the strategy of deploying defamation as a deterrent force denialists to think twice before they embark on renewed election subversion in 2024?Jankowicz, despite pressing ahead with her own libel suit, remains skeptical. “I haven’t seen any change in how these rumors and outright lies are being spread yet, and I do worry for 2024,” she said.She added that change would only come “when we see more big settlements, or juries siding with plaintiffs”.Parties accused of peddling anti-democratic lies certainly remain vociferous. The Gateway Pundit, the far-right website which Protect Democracy is suing for having published the same falsehoods as Giuliani about the Georgia poll workers, has used the lawsuit as a fundraising tool.Lindell said that he would never be silenced, and continued to insist that his statements about Dominion’s rigging of the 2020 election were “truths”. “I will continue to tell the truth, nothing’s going to stop me from speaking out. I’m not scared,” he said.There are though tentative signs of a shift in behavior. The far-right channel One America News backtracked on its lies about the Georgia poll workers last year after having settled its defamation suit with Freeman and Moss. Since then the outlet has been dropped by several major cable providers.In the wake of the huge defamation settlement between Fox and Dominion, Dinesh D’Souza and Trump himself complained that Fox News refused to give air time to 2000 Mules.Goodman is optimistic that defamation suits can help shore up the US’s shaken democratic norms. “This is about accountability as a way of ensuring that our democracy can get back on track,” she said. More

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      The US supreme court’s new ‘ethics code’ is an embarrassment | Moira Donegan

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      One of the unspoken rules of the US supreme court is that the justices will never admit that they were wrong, and no one else is allowed to admit it, either.Last week, in oral arguments in United States v Rahimi – which asks whether it is constitutional to take guns away from men who are subject to domestic violence restraining orders – the solicitor general, Elizabeth Prelogar, had to dance around this rule very delicately as she represented the federal government. The federal law disarming abusers had been thrown into question by a ludicrous and dangerous test for all gun restrictions that the supreme court instituted in its 2022 Bruen decision, one which makes it difficult to impose new gun laws if those laws aren’t sufficiently similar to ones on the books from either the revolutionary or civil war eras.It’s a ridiculous test, one that is self-evidently not workable. But Prelogar couldn’t say that; instead, she said that lower courts had simply misinterpreted the court’s perfect test, making mistakes of methodology; that the prospect that domestic abusers could be rearmed, leading to the murders of thousands of American women, was not a result of the court’s reckless, short-sighted and self-interested decision making, but a result of other people’s mistakes. She asked them not to clean up their mess, but to “clarify” their thinking.Something similar to Prelogar’s solicitous fiction about the justices’ infallibility was evident in the justices’ own missive, issued on Monday, declaring that the court would adopt a code of conduct. On the surface, this looked like a positive step. The supreme court has come under fire in recent months for its justices’ flagrant abuses of their station: their familiarity with billionaires who shower them with gifts and vacations; their lavish lifestyles and magically disappearing debts; their willingness to appear at fundraisers for political groups, and reluctance to recuse themselves from cases involving their family members, friends or financial interests.But none of this was a real problem, the justices assured us. These concerns, they claim in a statement accompanying their new code of conduct, were not legitimate, and certainly not the product of any actual mistakes or nefariousness on the justices’ part. Rather, they were merely the result of the failure of the silly, misinformed and stupid public to understand that the court, in its mighty wisdom, is already perfectly ethical.“The absence of a Code,” the justices wrote, “has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” However did Americans get that impression?It is meaningful that the justices issued this code of conduct; it means that the public pressure on the court – which has been the subject of outrage and disgust since its 2022 Dobbs decision eliminating the constitutional right to an abortion, and which has subsequently come under increased scrutiny for its indifference to either the appearance or the reality of conflicts of interests – is working.The justices often make it clear that they read their own press, but they do not often deign to make any changes to their actual behavior, or to try to discipline their own institution. More often than not, they suggest that such gestures would be beneath them. Not so with the code of conduct, which signals that the justices admit that there is at least some obligation they have to the American people. As the legal commentator Chris Geidner put it, “They have acknowledged that the public rightfully has expectations that they will behave in an ethical way.” It’s better than nothing.But not much better. The new code of conduct, the justices assure us, is merely a formalization of guidelines to which they already adhered, a claim which on its own raises doubts about the code’s sufficiency. The code is based on a binding code of conduct that is applied to judges on the lower courts – but significantly weakened in its application to the supreme court justices.The commanding word “shall” that characterizes the lower courts’ code of conduct is softened throughout, in the supreme court version, to “should”. Prohibitions on corruption are dotted with exonerating qualifiers, like Swiss cheese. Where the lower courts’ code says judges shall not “lend the prestige of the judicial office to advance the private interests of the Justice or others” or “convey or permit others to convey that they are in a special position to influence the Justice”, the supreme court modifies this influence-peddling prohibition with a loophole big enough to drive Clarence Thomas’s RV through: the modifier “knowingly”.This kind of softening edit appears throughout the code: its strained language and convoluted application of exceptions seems like the product of vociferous intra-court infighting, or the lobbying of certain justices to ensure that their own questionable ongoing conduct can be excepted from the code. This might be the code’s one silver lining: its language seems evidence of chaos, disagreement and discord on the court, reminding us that even though we are stuck with this conservative supermajority, they are also stuck with each other.Even this weakened and exception-ridden code, it should be noted, has no enforcement mechanism. There is no way to investigate whether a justice has broken the code, no way to adjudicate the question of his or her wrongdoing, and no way to discipline him or her for any violation. The question of how to interpret the code, how to abide by it, and what to do in the event that it is broken is left entirely to the justices themselves – just like all their ethical questions were before.This response to questions about the court’s ethics with a defiant insistence that they will only ever police themselves is consistent with the way the justices have responded in the past. This is, after all, the same court that has refused to cooperate with congressional oversight of its own ethical misdeeds and appearance of corruption just this year, with the chief justice, John Roberts, issuing a contemptuous refusal to appear before the Senate judiciary committee in April. Justice Samuel Alito, meanwhile, opined to the Wall Street Journal this summer that Congress had no right to impose oversight or regulation on the court – that the justices and their power are immune from the principles of checks and balances.A belief that the court is its own sole and highest authority was also evident the last time the justices tried to explain away their own misconduct, when they issued a “Statement of Ethics Principles and Practices”. Like this code of conduct, that statement, published just this past April, also had no enforcement mechanism; like this one, it seemed more designed to quell public outrage about the court than to meaningfully circumscribe the justices’ behavior. No one fell for it that time, either.
      Moira Donegan is a Guardian US columnist More

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      in Elections

      Former Fox News reporter sues after he was allegedly fired for protesting January 6 coverage

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      Fox News is being sued by a former Capitol Hill reporter who accuses the network of discriminating and retaliating against him because he refused to appease Donald Trump and the former president’s supporters by propagating lies about the “stolen” 2020 election.Jason Donner, who worked for Fox News for 12 years as a Capitol Hill reporter and producer, accuses the network of firing him because he spoke out against the coverage of Trump’s stolen election lie and the storming of the Capitol building on 6 January 2021. He was the victim of a wider purge of the newsroom, the lawsuit claims, designed to hold up the network’s ratings by playing along with election denial.The suit, which is being heard by a federal court in Washington DC, gives a vivid account of Donner’s experiences during the January 6 insurrection. Once rioters had entered the Capitol building, he sheltered along with other reporters in the news booths connected to the Senate.As they were hiding, and while reports were coming in of shots fired outside the House chamber, Fox news was broadcasting that the event was “peaceful”. Donner called the newsroom, the suit says, and exclaimed: “I don’t want to hear any of this fucking shit on our air ever again because you’re gonna get us all killed.”The suit claims that after Fox News became the first media outlet to call Arizona for Joe Biden shortly before midnight on election night in 2020, the network faced a furious backlash from Trump and his supporters. Ratings suffered.“To win back viewership and pledge its loyalty to President Trump, Fox’s corporate leadership purged the news division and those reporters who spoke out against claims of election fraud,” it states.Donner also objected to the conspiracy theories being touted by Fox’s star host at the time, Tucker Carlson, who has since been fired. Donner particularly objected to Carlson’s Fox Nation program, Patriot Purge, but was told by a manager, the suit says, that there was “nothing they could do because Tucker has gotten bigger than the network”.The former Fox News reporter claims that retaliation against him began in the spring of 2022. “It became evident to Donner he was now being targeted for speaking out against the false reporting on the election and the January 6 insurrection,” the lawsuit contends.Donner was fired on 28 September 2022 on what he claims were pretextual grounds related to the sick day he had taken two days previously having fallen ill after a Covid-19 vaccination.The new suit is one of a spate of litigation that Fox is fielding relating to its handling of the stolen election lie. In April, the company settled with the voting equipment company Dominion for $787.5m in a defamation suit over false allegations about the firm’s involvement in “rigging” the 2020 election.A similar $2.7bn suit from another voting machine company, Smartmatic, is ongoing. More