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      Judge puts Trump’s 2020 election interference case on hold

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      Donald Trump’s 2020 election interference case in Washington will be put on hold while the former president further pursues his claims that he is immune from prosecution, the judge overseeing the case ruled Wednesday.US district judge Tanya Chutkan agreed to pause any “further proceedings that would move this case towards trial or impose additional burdens of litigation on defendant”. But the judge said that if the case returns to her court, she will “consider at that time whether to retain or continue the dates of any still-future deadlines and proceedings, including the trial scheduled for March 4, 2024”.At issue is an appeal last week by Trump’s lawyers of an order from Chutkan denying their claims that the case must be dismissed on immunity grounds. Special counsel Jack Smith’s team has also asked the supreme court to take up the legally untested question.“The prosecution has one goal in this case: to unlawfully attempt to try, convict, and sentence President Trump before an election in which he is likely to defeat President Biden,” defense lawyers wrote Wednesday. “This represents a blatant attempt to interfere with the 2024 presidential election and to disenfranchise the tens of millions of voters who support President Trump’s candidacy.”The issue is of paramount significance to both sides given that a ruling in Trump’s favor would presumably derail the case and because a protracted appeal could delay a trial well beyond its currently scheduled start date of 4 March. Trump faces charges he plotted to overturn the 2020 election after he lost to Democrat Joe Biden, and he has denied doing anything wrong.Special counsel Jack Smith, whose team has brought two federal cases against Trump in Washington and in Florida, has sought to keep both on track while Trump has attempted to delay the proceedings – at one point even asking for the Washington prosecution to be pushed back until 2026.A separate potential hiccup for the prosecution developed Wednesday when the Supreme Court said that it would review a charge of obstruction of an official proceeding that the Justice Department has brought against more than 300 participants in the January 6, 2021 riot at the US Capitol. That’s among four counts brought against Trump by Smith, meaning that a high court ruling that benefits the defendants in the riotA postponement until after the election would clearly benefit Trump, especially since, if elected president, he would have the authority to try and order the justice department to dismiss the federal cases.In telling the Washington-based federal appeals court that there was no reason for it to fast-track the immunity question, Trump’s lawyers wrote that the “date of March 4, 2024, has no talismanic significance.“Aside from the prosecution’s unlawful partisan motives, there is no compelling reason that date must be maintained, especially at the expense of President Trump and the public’s overriding interest in ensuring these matters of extraordinary constitutional significance are decided appropriately, with full and thoughtful consideration to all relevant authorities and arguments,” they wrote.At issue is an appeal by the Trump team, filed last week, of a trial judge’s rejection of arguments that he was protected from prosecution for actions he took as president. Smith sought to short-circuit that process by asking the supreme court on Monday to take up the issue during its current term, a request he acknowledged was “extraordinary” but one he said he was essential to keep the case moving forward.Smith’s team simultaneously asked the US court of appeals for the DC circuit to expedite its consideration of Trump’s appeal, writing: “The public has a strong interest in this case proceeding to trial in a timely manner. The trial cannot proceed, however, before resolution of the defendant’s interlocutory appeal.”skip past newsletter promotionafter newsletter promotionThe Trump team made clear its opposition to that request, saying the case presents “novel, complex, and sensitive questions of profound importance.“Whether a president of the United States may be criminally prosecuted for his official acts as president goes to the core of our system of separated powers and will stand among the most consequential questions ever decided by this court,” they wrote. “The manifest public interest lies in the court’s careful and deliberate consideration of these momentous issues with the utmost care and diligence.”The supreme court has indicated that it would decide quickly whether to hear the case, ordering Trump’s lawyers to respond by 20 December. The court’s brief order did not signal what it ultimately would do.A supreme court case usually lasts several months, from the time the justices agree to hear it until a final decision. Smith is asking the court to move with unusual, but not unprecedented, speed.If the justices decline to step in at this point, Trump’s appeal would continue at the US court of appeals for the DC circuit. Smith said even a rapid appellate decision might not get to the supreme court in time for review and final word before the court’s traditional summer break. More

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      US supreme court agrees to consider abortion pill access

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      The US supreme court on Wednesday agreed to hear oral arguments in a case that could determine the future of a pill used in most abortions in the US, in the first major abortion rights case to land at the country’s highest court since the justices overturned Roe v Wade and abolished the national right to the procedure in 2022.A decision in the case will probably arrive in summer 2024, just months before the presidential election. The outcome of the case could affect not just access to the pill, which has been repeatedly deemed safe and effective, but the Federal Drug Administration’s authority to regulate all manner of medications.The drug at the heart of the case is mifepristone, one of the two drugs typically used in medication abortions, which make up the majority of US abortions. Last year, an association of anti-abortion organizations and doctors, the Alliance for Hippocratic Medicine, filed a federal lawsuit arguing that the FDA had overstepped its authority when it approved mifepristone in 2000.In April, a Texas federal judge appointed by former president Donald Trump issued a preliminary ruling to suspend the FDA’s approval of mifepristone and pull the medication off the market. The US court of appeals for the fifth circuit – one of the most conservative federal appeals courts in the US – ruled in August that, while it was too late to suspend the FDA’s approval, the agency should significantly restrict access to mifepristone. The Biden administration and Danco Laboratories, which manufactures mifepristone, then asked the supreme court to weigh in on the case.The supreme court paused lower-court rulings while the case plays out, so mifepristone remains widely available in states that permit abortion. If the court allows the fifth circuit ruling to stand, it would roll back recent FDA efforts that refined the drug’s dosage and expanded access by allowing it to be prescribed later on in pregnancy and through telehealth.On Wednesday, the supreme court agreed to hear the consolidated petitions from the Biden administration and Danco Laboratories, which asked the justices to focus on the legal attempts to roll back those later FDA efforts. Those petitions also asked the justices to consider whether the challengers have the legal right, or standing, to bring the case in the first place.“You can’t just bring random lawsuits in court. You actually have to have been harmed by something,” said Greer Donley, an associate law professor at the University of Pittsburgh Law School. “That’s really what standing analysis is all about, to try to figure out if if the people who bring the lawsuit actually have a stake in the case.” Numerous legal experts have questioned whether the challengers in this case have properly demonstrated that they have been harmed by mifepristone’s continued legality.The supreme court also denied a petition from the Alliance for Hippocratic Medicine that asked the justices to explicitly consider the FDA’s 2000 approval of mifepristone. That move suggests that the supreme court is unlikely to pull mifepristone off the market entirely.In Donley’s view, the outcome of this case will probably signal whether the supreme court, which is controlled 6-3 by conservatives, wants to be involved in the post-Roe war over abortion rights. If the justices decide to focus on the standing issues in the case, they could sidestep having to rule on the substance of the case entirely.“I could see the more moderates on the supreme court thinking: ‘we don’t want to touch this,’” Donley said. “It might make the supreme court look like less of an activist court if it were to dismiss this case on the basis of really legitimate standing problems.”Any ruling by the court would affect all 50 states, including those that have protected abortion rights. (In recent months, officials in states such as Washington and California have announced that they have begun to stockpile mifepristone.)A ruling could also imperil the FDA’s regulatory power writ large and pose an existential threat to pharmaceutical companies. If courts can rewrite the FDA’s approval of abortion pills, any kind of drug – including, for example, drugs used to protect against HIV or to provide gender-affirming care – could end up in conservative jurists’ crosshairs.The ruling from the federal appeals court, Danco Laboratories warned in its briefs to the supreme court, “destabilizes the pharmaceutical and biotechnology industries by questioning when scientific studies – accepted by FDA – are sufficient”. More than 100 studies, conducted across 26 countries, have concluded that mifepristone is safe, a New York Times review found.If deprived of access to mifepristone, several abortion clinics have said that they would keep providing medication abortions using only misoprostol, the other drug typically used in medication abortions. Although misoprostol-only abortions are still overwhelmingly safe, they can have more side-effects and are slightly less effective than the two-drug protocol.Ultimately, regardless of how the supreme court rules, its decision will not curtail the thriving underground networks that routinely supply mifepristone to women looking to end their pregnancies, including in the 16 states with near-total abortion bans. In fact, a move to ban mifepristone is likely to cause a sharp rise in demand for the drug through those networks.In the wake of Roe’s fall, a vast web of abortion rights supporters and opportunistic merchants have sprung up to ship abortion pills to Americans. Inducing your own abortion is not illegal in most US states, even in states that have banned in-clinic abortions, and medical experts widely agree that it can be safe to use pills to “self-manage” an abortion early in pregnancy. More

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      Jack Smith just made a gutsy, momentous decision in his prosecution of Trump | Margaret Sullivan

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      Timing isn’t everything. But it certainly matters, and seldom more so than in special counsel Jack Smith’s prosecution of Donald Trump.The former US president intends to use timing – delay, delay, delay – to avoid punishment for trying to overturn the 2020 election, which he lost to Joe Biden, and for fomenting a violent coup.Nope, said Smith this week. A tough guy who has prosecuted war crimes in the Hague, Smith clearly recognizes that putting off the case until after next fall’s presidential election could let Trump off the hook.So the prosecutor made a bold legal maneuver. Smith moved to bypass the court of appeals, whose involvement could slow things down considerably, and to go directly to the US supreme court for a decision on a foundational issue.He wants the US’s highest court to rule – immediately – on whether Trump, as he claims, is immune from criminal prosecution.“Jack Smith wants to cut straight to the chase,” writes former US attorney Joyce Vance, noting that the supreme court has never decided this issue before.Should the court rule in Trump’s favor on immunity, the case goes away. That looks like a gamble, but the case is headed to the supreme court anyway.The key question is rather simple.Is Trump above the law? Or, like every other US citizen, must he abide by it?Smith’s maneuver was heralded by several prominent legal experts.“A huge and possibly brilliant move, a game changer one way or the other,” Harry Litman, a former justice department official who teaches constitutional law, wrote on Twitter/X.So far, the signs are encouraging. The court granted Smith’s request to speed up the question of whether to hear the case, asking for a quick response from Team Trump.In other words, the court quickly agreed to decide whether to decide the case, an important first step.Of course, this supreme court doesn’t exactly inspire confidence, given its terrible rulings on voting rights and abortion rights and the appalling ethical malfeasance of some of its members.But even this tainted court probably doesn’t want to be associated for all time with the notion that a US president is above the law.Watching Jack Smith’s aggressive efforts throughout this prosecution, I can’t help but think of two earlier high-level legal situations involving presidents.One was decades ago, during the Watergate scandal, when the supreme court ruled that President Nixon’s tape recordings were fair game; Nixon had appointed some of those justices but the ruling was unanimous nonetheless.That ruling was among the many contributing factors in holding Nixon accountable, to some extent, for the crimes he encouraged while in office. Ultimately, of course, he resigned and was pardoned by his successor, Gerald Ford.The other, much more recent, was the way special counsel Robert Mueller handled the investigation into whether Trump and his allies played ball with Russian operatives in order to sway the outcome of the 2016 presidential election.Unlike Smith, Mueller was particularly rules-bound and reserved. He never wanted to rock the procedural boat. His extremely low-key approach hampered the outcome of his important investigation.With the help of attorney general Bill Barr’s dishonest work in interpreting it favorably on Trump’s behalf, Mueller’s report dwindled into something that ultimately didn’t matter much – though it should have. Trump ran around claiming he was entirely cleared and that it was all a hoax, though that was far from true.Smith is a different cat. Thinking strategically at all times, he knows he needs to stay on track for a March trial date in order to hold Trump accountable.If that doesn’t happen, the strategy of delaying the trial until after the November election could – if Trump is elected – allow him to install an unpatriotic loyalist as attorney general and wriggle out of the mess that he created.That makes what happens next so consequential. (Smith wisely is hedging his bet by asking the court of appeals to rule immediately, too, should the supreme court decide not to take on the matter after all.)“It may be the most important democracy decision of our lifetimes,” Norm Eisen, a senior fellow at the Brookings Institution, has argued.Could be – for two reasons.One is that some members of the voting public, the non-cult members at least, might be affected by a guilty verdict. Given Trump’s obvious authoritarian plans for a second term, his election could be a death knell for US democracy.The other is that no president, or former president, should be above the law.Let’s hope that the supreme court – whatever its shortcomings – does its duty, takes on this question, and rules in accordance with our nation’s founding principles.
      Margaret Sullivan is a Guardian US columnist More

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      Special counsel deals deft blow to Trump’s bid to delay federal trial

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      Donald Trump’s attempt to delay his impending federal trial on charges over his efforts to overturn the 2020 election results may have been dealt a deft blow by special counsel prosecutors, after they directly asked the US supreme court to resolve whether the former president can be criminally prosecuted.Earlier this month, Trump asked the US court of appeals for the DC circuit to reverse a decision by the trial judge rejecting his motion to dismiss the case on presidential immunity grounds. On Monday, the special counsel Jack Smith sought to bypass the DC circuit by asking the supreme court to resolve the issue.While the supreme court has increasingly agreed to hear cases before an appeals court judgment, especially for constitutional questions related to presidential power, the petition from the special counsel puts Trump in a fraught situation regardless of whether it takes up the matter.Later on Monday, the court indicated it would decide quickly on whether to hear the case, ordering Trump to file his reply to the filing from the special counsel Jack Smith within nine days – by 20 December – a deadline widely considered to be particularly expeditious.The problem for Trump is that his hands are tied. The former president would prefer the court to take up the case after the DC circuit rules because he’s eager to delay his impending trial as much as possible. But he can’t oppose the prosecutors’ request now and then make the same request in several months’ time.If Trump had his way, according to people close to his legal team, he would have wanted the DC circuit to go through the likely months-long appeals process before going to the supreme court. That process would have included setting a briefing schedule, oral arguments and then issuing a ruling.The federal 2020 election interference trial is currently set for trial on 4 March, the day before Super Tuesday, when 15 states are scheduled to hold Republican primaries or caucuses. Trump, the frontrunner for the GOP nomination, has been adamant that he did not want to be stuck in a courtroom.Trump has also made no secret that his overarching legal strategy, for all of his criminal cases, is to pursue procedural delays. If the cases do not go to trial before next year’s election and he wins a second term, then he could direct his handpicked attorney general to drop all of the charges.And even if the case did go to trial before November, the people said, Trump’s preference would have been for the trial to take place as close as possible to the election because it would have given his 2024 campaign ammunition to miscast the criminal case against him as political in nature.Yet with the special counsel moving to circumvent the DC circuit, Trump and his legal team have effectively been forced to grapple with the supreme court plank of his delay strategy far earlier than they had expected.The eventual outcome could still be good for Trump: the justices could, for now, deny the request to review the lower court’s decision – a process known as certiorari – and instruct the special counsel to resubmit his request after the DC circuit issues a decision. Alternatively, the justices could grant certiorari and a majority rule in Trump’s favor.skip past newsletter promotionafter newsletter promotionBut even with a conservative-leaning supreme court, those are the more unlikely options, according to the supreme court expert Steve Vladeck. The more likely outcome is that the court grants certiorari and rules against Trump – thereby eliminating the additional months of delay he had anticipated.The probability that the supreme court rules against Trump on his presidential immunity claim, if it hears the case, is seen as a more likely scenario in large part because Trump’s interpretation is so far-reaching and without precedent in criminal caselaw.The motions to dismiss submitted by Trump’s lawyers contended that all of his attempts to reverse his 2020 election defeat in the indictment – including trying to obstruct the January 6 congressional certification – were in his capacity as president and therefore protected.And at the heart of the Trump legal team’s filing was the extraordinary contention that Trump both was entitled to absolute presidential immunity and that the immunity applied whether or not Trump intended to engage in the conduct described in the indictment.The issue is considered ripe for the supreme court because while it has previously ruled that presidents have expansive immunity in civil lawsuits, it has never explicitly ruled on whether presidents can face criminal charges for crimes they are alleged to have committed while in office. More

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      Special counsel asks US supreme court to rule on Trump’s claim of immunity

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      Special counsel prosecutors on Monday asked the US supreme court to make an expedited decision on whether Donald Trump can be criminally prosecuted on federal charges over his efforts to overturn the results of the 2020 presidential election.The move amounts to an attempt by prosecutors to bypass Trump’s recent appeal to the DC circuit after the federal judge overseeing his case rejected the notion that he had immunity for acts he committed during his presidency.The petition to the supreme court shows prosecutors were concerned that going through the appeals process – submitting briefs, scheduling oral arguments and waiting for a decision while the case remained frozen – could delay the March 2024 trial date.Trump has made no secret of the fact that delaying the trial as long as he can remains his overarching legal strategy. If it was postponed until after next year’s presidential election and Trump won, he could direct his attorney general to drop the charges.“This case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or constitutionally protected from federal prosecution when he has been impeached but not convicted,” the petition said.The request that the supreme court grant what is known as certiorari before the appeals court issues judgment is unusual. It is typically used in cases of national crises, like when Richard Nixon refused to hand over White House tapes to a special prosecutor.By citing US v Nixon and asking for expedited treatment in their petition, prosecutors essentially contended to the supreme court that they consider the Trump case of equal magnitude and constitutional consequence.“The United States recognizes that this is an extraordinary request,” the filing said. “This is an extraordinary case.”The supreme court has previously ruled that presidents have expansive immunity in civil lawsuits but has never explicitly ruled whether presidents can face criminal charges for crimes they are alleged to have committed while in office.Whether the court will take up the case remains uncertain, but it has increasingly granted certiorari before an appeals court judgement in recent years, and especially for presidential power cases, according to research by supreme court experts Steve Vladeck and David Merlinsky.The prosecutors on the filing included the special counsel Jack Smith himself, two of his deputies JP Cooley and James Pearce, as well as veteran supreme court litigator Michael Dreeben, who was also formerly a top appellate litigator for special counsel Robert Mueller in the Russia investigation.Having the case go to trial in Washington after the election would also mean voters would not know the full extent of the evidence of Trump’s attempts to reverse his 2020 defeat before deciding whether to give him a second term in the White House.“It is of imperative public importance that respondent’s claims of immunity be resolved by this court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” the petition said. “Only this court can definitively resolve them.”Last week, the presiding US district judge Tanya Chutkan rejected Trump’s claims that he enjoyed absolute immunity through a sweeping interpretation of executive power, arguing the former president could not be held accountable for actions undertaken in office.“Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade criminal accountability that governs his fellow citizens,” Chutkan wrote in her 48-page opinion.Trump swiftly challenged the denial of his motion to dismiss to the US court of appeals for the DC circuit. Notably, the ex-president also asked Chutkan to freeze all aspects of the 2020 election subversion case until the question was resolved.The motions to dismiss submitted by Trump’s lawyers contended that all of his attempts to reverse his 2020 election defeat in the indictment were in his capacity as president and therefore protected. Those actions ranged from pressuring his vice-president, Mike Pence, to stop the congressional certification to organizing fake slates of electors.At the heart of the Trump legal team’s filing was the extraordinary contention that Trump both was entitled to absolute presidential immunity and that the immunity applied whether or not Trump intended to engage in the conduct described in the indictment. More

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      Trump can be sued over January 6 Capitol attack, US appeals court rules

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      A US appeals court on Friday ruled that Donald Trump must face civil lawsuits over his role in the 6 January 2021 attack on the Capitol by his supporters, rejecting the former president’s claim that he is immune.A panel of the US court of appeals for the District of Columbia circuit found that Trump was acting “in his personal capacity as a presidential candidate” when he urged his supporters to march to the Capitol. US presidents are immune from civil lawsuits only for official actions. Part of the lawsuit was filed under the 1871 Ku Klux Klan Act, a Reconstruction-era law, which makes it illegal to prevent an officer of the United States from performing their duties through threats or intimidation.“When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act,” Sri Srinivasan, the chief judge of the US court of appeals for the DC circuit wrote for a unanimous three-judge panel. “While Presidents are often exercising official responsibilities when they speak on matters of public concern, that is not always the case.”Srinivasan, an appointee of Barack Obama, was joined by Gregory Katsas, a Trump appointee, and Judith Rogers, an appointee of Bill Clinton.While the panel ruled Trump could be sued, it made it clear it was not precluding him from arguing that he was acting in his official capacity as a defense as the lawsuit proceeds.“When these cases move forward in the district court, he must be afforded the opportunity to develop his own facts on the immunity question if he desires to show that he took the actions alleged in the complaints in his official capacity as President rather than in his unofficial capacity as a candidate,” the opinion said.The ruling clears the way for Trump to face lawsuits from police officers and US lawmakers seeking to hold him responsible for the violence by his supporters during the riot, which was an attempt to overturn his 2020 election defeat.“More than two years later, it is unnerving to hear the same fabrications and dangerous rhetoric that put my life as well as the lives of my fellow officers in danger on January 6, 2021,” said James Blassingame, a Capitol police officer who is a plaintiff in the case, James Blassingame v Donald Trump. “I couldn’t be more committed to pursuing accountability on this matter. I hope our case will assist with helping put our democracy back on the right track; making it crystal clear that no person, regardless of title or position of stature, is above the rule of law.”Trump is currently the frontrunner for the Republican nomination to challenge Joe Biden in the 2024 election.The civil suits will only add to the significant legal problems the former president faces. In total, Trump already faces 91 felony charges.Both the justice department and the Fulton county district attorney have criminally charged Trump for trying to overturn the 2020 election. The justice department is also prosecuting him for his handling of classified documents after leaving office. The Manhattan district attorney also has a pending case against Trump over hush-money payments to the adult film star Stormy Daniels.Trump has also spent much of the last month defending his business in a civil case in New York on charges it committed fraud by inflating the value for obtain more favorable terms on loans and insurance. More

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      ‘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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      ‘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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