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      in US Politics

      After Trump review: a provocative case for reform by Biden and beyond

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      At times, the Trump administration has seemed like a wrecking ball, careening from floor to floor of a building being destroyed, observers never quite knowing where the ball will strike next. At others, it has worked stealthily to undermine rules and norms, presumably fearing that, as the great supreme court justice Louis Brandeis wrote, “sunshine is the best of disinfectants”.
      These changes, far beyond politics or differences of opinion on policy, should trouble all those who care about the future of the American republic. Jack Goldsmith and Bob Bauer, veterans of Republican (Bush) and Democratic (Clinton) administrations, are students of the presidency whose scholarship is informed by their service. They have combined to write a field guide to the damage and serious proposals to undo it.
      Presidencies do not exist in a vacuum, and many of the excesses of which the authors complain did not begin in 2017. But Trump upped the stakes: the violations of rules and norms are not merely quantitatively more numerous but qualitatively different. Whether seeking to fire the special counsel investigating him, making money from his businesses or attacking the press, he has made breathtaking changes.
      As the authors write, “Trump has merged the institution of the presidency with his personal interests and has used the former to serve the latter”, attacking “core institutions of American democracy” to an extent no president had before.
      The American constitutional system, unlike the British, is one of enumerated powers. But over 230 years, norms have arisen. Unlike laws of which violations are (usually) clear, norms are “nonlegal principles of appropriate or expected behavior that presidents and other officials tacitly accept and that typically structure their actions”. In an illustration of the great American poet Carl Sandburg’s observation that “The fog comes on little cat feet”, norms “are rarely noticed until they are violated, as the nation has experienced on a weekly and often daily basis during the Trump presidency”.
      Those two axioms – that Trump’s offences are worse than others and that norms can easily be overcome by a determined president – show reform is essential.
      The first section of After Trump deals with the presidency itself: the dangers of foreign influence, conflicts of interest, attacks on the press and abuses of the pardon power.
      Here the reforms – political campaigns reporting foreign contacts, a requirement to disclose the president’s tax returns and criminalizing pardons given to obstruct justice – are generally straightforward. Regarding the press, where Trump has engaged in “virulent, constant attacks” and tried to claim his Twitter account was not a public record even as he happily fired public officials on it, the authors would establish that due process applies to attempted removal of a press pass and make legal changes to deter harassment of or reprisals against the media because “the elevation of this issue clarifies, strengthens, and sets up an apparatus for the enforcement of norms”.
      Goldsmith and Bauer’s second section focuses on technical legal issues, specifically those surrounding special counsels, investigation of the president, and the relationship between the White House and justice department.
      The American constitution is far more rigid that the British but it too has points of subtlety and suppleness. One example is the relationship between the president and an attorney general subordinate to the president but also duty bound to provide impartial justice, even when it concerns the president.
      The issues may seem arcane, but they are vital: “Of the multitude of norms that Donald Trump has broken as president, perhaps none has caused more commentary and consternation than his efforts to defy justice department independence and politicize the department’s enforcement of civil and criminal law.”
      And yet even as the attorney general, William Barr, sought a more lenient sentence for Roger Stone, stood by as Trump fired the US attorney in New York City, and kept up a “running public commentary” on an investigation of the origins of the investigation into the Trump campaign, the authors oppose those actions but remain cautious. They decline to endorse some of the more radical proposals, such as separating the justice department from the executive branch. More

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      in Elections

      Supreme court rejects Trump-backed Texas lawsuit aiming to overturn election results

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      The US supreme court has unanimously rejected a baseless lawsuit filed by Texas seeking to overturn the presidential election result, dealing the biggest blow yet to Donald Trump’s assault on democracy.In a brief, one page order, all nine justices on America’s highest court dismissed the longshot effort to throw out the vote counts in four states that the president lost: Georgia, Michigan, Pennsylvania and Wisconsin.The decision hammers another nail in the coffin of Trump’s increasingly desperate effort to subvert the will of the people and deny Joe Biden the presidency.The suit filed by Ken Paxton, the Texas attorney general, sought to invalidate the results in four swing states, asking the court to extend the deadline for election certification so alleged voting irregularities could be investigated.It was backed by Donald Trump, 17 other states and 126 Republicans in the House of Representatives – more than half the caucus – including the House minority leader, Kevin McCarthy of California, and the minority whip, Steve Scalise of Louisiana.Trump had long expressed hope that a disputed election would go before the supreme court, to which he appointed three justices during his term, ensuring a 6-3 conservative majority. Earlier on Friday he tweeted: “If the Supreme Court shows great Wisdom and Courage, the American People will win perhaps the most important case in history, and our Electoral Process will be respected again!”But hours later, his hopes of a political miracle were all but extinguished. The supreme court wrote: “The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.”Officials in Michigan, Pennsylvania, Georgia and Wisconsin had derided the suit as a publicity stunt. More than 20 other attorneys general from states including California and Virginia also filed a brief on Thursday urging the court to reject the case.Josh Shapiro, the attorney general of Pennsylvania, welcomed the court’s ruling. “Our nation’s highest court saw through this seditious abuse of our electoral process,” he tweeted. “This swift denial should make anyone contemplating further attacks on our election think twice.”Democrats in Congress also expressed gratitude. Eric Swalwell of California tweeted: “The Supreme Court, a mix of conservative and liberal members, united to defend your vote against @realDonaldTrumpand his democracy deniers in Congress.”And Senator Ben Sasse, one of relatively few Republicans to acknowledge Biden’s victory, signalled that it was time for the party and government to move on. He said: “Since Election Night, a lot of people have been confusing voters by spinning Kenyan Birther-type, ‘Chavez rigged the election from the grave’ conspiracy theories, but every American who cares about the rule of law should take comfort that the Supreme Court – including all three of President Trump’s picks – closed the book on the nonsense.”Courts have dismissed numerous of lawsuits and appeals by the Trump campaign and its allies in various states. William Barr, the attorney general and a staunch Trump ally, has said the justice department uncovered no evidence of widespread voter fraud that could change the outcome of the election.Saturday will mark the 20th anniversary of the court resolving the 2000 election in Republican George W Bush’s favour but that was a much closer contest that came down to one state: Florida. Biden gained 306 votes in the electoral college – the same as Trump in 2016 – and leads the national popular vote by 7m.Some Democrats have accused Trump and his Republican backers of sedition. Chris Murphy, a senator for Connecticut, said in a floor speech on Friday: “Those who are pushing to make Donald Trump president for a second term, no matter the outcome of the election, are engaged in a treachery against their nation.” More

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      in Elections

      Nearly two-thirds of House Republicans join baseless effort to overturn election

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      More than 120 Republican members of the US House of Representatives formally asked the US supreme court this week to prevent four swing states from casting electoral votes for Joe Biden to seal his victory in the November election, a brazen move that signals how the Republican party has embraced Donald Trump’s baseless attacks on the American electoral system.The request from 126 GOP members – nearly two-thirds of the Republican caucus – came in support of a lawsuit Texas filed earlier this week that sought to block the electoral votes in Michigan, Pennsylvania, Wisconsin and Georgia, all states Biden won in November. The lawsuit also won support from top House Republicans.The suit was ultimately rejected by the supreme court on Friday. The US constitution gives states clear authority to set their own election and does not give other states the right to interfere. Texas’s argument in the suit was also based on unsupported claims of fraud that have been dismissed in lower courts.“The lawsuit has so many fundamental flaws that it’s hard to know where to start. It misstates basic principles of election law and demands a remedy that is both unconstitutional and unavailable,” Lisa Marshall Manheim, a law professor at the University of Washington, wrote in an email. “At core, it’s an incoherent amalgamation of claims that already failed in the lower courts.”Despite its ultimate failure the lawsuit represented a troubling case that was unprecedented in American history: a quest to overturn a presidential election on the basis of unsubstantiated claims by an incumbent who soundly lost his re-election bid.It also became a test of fealty for the president’s party that pitted Republican governors, lawmakers and elected officials against one another.One supreme court brief, filed by prominent Republicans in opposition to the Texas lawsuit, said the arguments “make a mockery of federalism and separation of powers”.Among the 126 lawmakers who signed on to the brief is a particularly puzzling group: 19 Republican members of Congress who represent districts in Pennsylvania, Michigan, Georgia and Wisconsin.Those members all appeared on the same ballot as the presidential candidates and all but one were elected under the same rules to which they are now objecting.(Meanwhile, Doug Collins, a Georgia congressman, ran for a US Senate seat and lost. Collins conceded his race, thereby accepting his defeat in a statewide election, and was later chosen by the Trump campaign to lead its recount effort in the state.)By signing on to the brief, those lawmakers are essentially arguing that their own results could have been tainted by the same irregularities they say cost Trump the election in their state.The Guardian contacted the offices of all 18 of those Republicans who won re-election to ask if they believed there should be further investigation into their electoral victories in November. None of them responded to a request for comment.Most of the lawmakers who supported the effort are far-right conservatives from deep red districts that voted for Trump. But collectively, their support for the lawsuit meant that more than a quarter of the House, including the California congressman Kevin McCarthy, the Republican minority leader, believe the supreme court should invalidate the votes of tens of millions of Americans.Seventeen Republican attorneys general have also signed on in support of the last-ditch legal bid to overturn the 2020 presidential contest before states’ electors meet on Monday to officially declare Biden the victor.Biden won the election with 306 electoral votes, the same number that Trump won in 2016, and he leads the popular vote by more than 7 million. The four states targeted by the Texas lawsuit represent 62 electoral votes.Biden soundly defeated Trump in Michigan and Pennsylvania, part of the “blue wall” that Trump shattered in 2016. Biden also clawed back a third “blue wall” state – Wisconsin – while eking out a surprise victory in Georgia, where multiple recounts have affirmed his win despite an audacious attempt by the president to pressure the Republican governor and secretary of state to reverse the result.Dozens of lawsuits brought by Trump’s campaign and allies in state and federal court were unsuccessful, with the cases so lacking in evidence of the widespread voter fraud they alleged that judges summarily dismissed, derided and even denounced them as meritless. Election law experts have also roundly criticized the Texas lawsuit, pointing to what they say are substantial legal flaws in the argument brought forth by the state’s Republican attorney general, Ken Paxton.Paxton, a staunch ally of the president, is under indictment in a long-running securities fraud case and faces a separate federal investigation related to allegations that he abused the power of his office in connection with a political donor. He has denied the allegations. Yet Paxton’s attempts to override the election results have raised speculation that he may be angling for a presidential pardon, though he insists that is not his motivation. More

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      in US Politics

      Hunter Biden says US attorney’s office is investigating his ‘tax affairs’

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      President-elect Joe Biden’s son, Hunter Biden, said on Wednesday that the US attorney’s office in Delaware had opened an investigation into his “tax affairs”.Hunter Biden, who has long been a target of Donald Trump and his allies, said he had learned about the federal investigation on Tuesday from his lawyer, who was informed of the matter by the US attorney’s office earlier that day.“I take this matter very seriously but I am confident that a professional and objective review of these matters will demonstrate that I handled my affairs legally and appropriately, including with the benefit of professional tax advisers,” Hunter Biden said in a statement released by the president-elect’s transition office.Trump and his allies have sought to tarnish his political opponent Joe Biden with unproven corruption charges involving his son. Trump’s early pursuit of these unsubstantiated allegations resulted in his impeachment, after he pressured the newly elected president of Ukraine to investigate Hunter Biden’s work in the country while his father was vice-president.Nevertheless, the president remained fixated on Hunter Biden throughout the campaign season, aided by his personal lawyer, Rudy Giuliani, and his Republican supporters on Capitol Hill. A Senate investigation into the allegations led by Trump’s allies found no evidence of improper influence or wrongdoing by the former vice-president, concluding only that Hunter Biden had leveraged his family name to secure lucrative business deals.In the final weeks of the campaign, Giuliani claimed a laptop recovered from a repair shop in Delaware and belonged to Hunter Biden documented his foreign business dealings. With Giuliani as a conduit, the allegations were published by the New York Post to buttress the baseless claim that Biden shaped American foreign policy in Ukraine to benefit his son. The Biden campaign categorically denied the story and many of the key details were disputed.On Wednesday, the Associated Press reported that, according to a person familiar with the matter, the tax investigation into Hunter Biden concerned some of his Chinese business dealings, among other financial transactions, and “does not have anything to do with the laptop”; the Guardian has not confirmed this.The disclosure about the investigation comes as Joe Biden is assembling his cabinet in advance of his inauguration, which will take place on 20 January despite Trump’s refusal to concede the election. Biden has yet to announce his pick for attorney general, a role that could have oversight of the investigation into his son’s taxes.The US attorney’s office in Delaware is led by David Weiss, who was appointed by Trump and sworn into the position in February 2018. A spokesperson for the US attorney’s office in Delaware declined to comment, citing the ongoing nature of the investigation.Though Hunter Biden’s businesses dealings and his years-long struggle with addiction provided ample political ammunition for Trump, Joe Biden continued to defend him publicly. Hunter Biden is the president-elect’s only living son, after the death of his eldest child, Beau Biden, of brain cancer in 2015.The Biden-Harris transition team said in a separate statement: “President-elect Biden is deeply proud of his son, who has fought through difficult challenges, including the vicious personal attacks of recent months, only to emerge stronger.” More

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      in Elections

      Supreme court rejects Republican bid to overturn Biden's Pennsylvania victory

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      The US supreme court on Tuesday turned away a long-shot bid by Republicans to overturn the election results in Pennsylvania, where Joe Biden defeated Donald Trump in the 2020 race.
      The suit, filed on behalf of Mike Kelly, a Republican congressman from Pennsylvania, took issue with a 2019 state law that adopted no-excuse absentee voting, and argued that the expansion of mail-in voting was illegal.
      Several courts, including the Pennsylvania supreme court, had already denied the request, noting that Kelly waited until after the 2020 election to file his suit when the law was in place well before the election.
      The case is the first piece of 2020 election litigation to reach the US supreme court, which has a 6-3 conservative majority including three Trump appointees. But the decision is not a surprise. As is customary with emergency requests, the supreme court did not offer an explanation for its decision. There were no noted dissents.
      Pennsylvania was one of the pivotal states in the election, with Biden, a Democrat, defeating Trump after the Republican president won the state in 2016. State officials had already certified the election results.
      Trump has falsely claimed that he won re-election, making unfounded claims about widespread voting fraud in states including Pennsylvania. Democrats and other critics have accused Trump of aiming to reduce public confidence in the integrity of US elections and undermine democracy by trying to subvert the will of the voters.
      “This election is over. We must continue to stop this circus of ‘lawsuits’ and move forward,” the Pennsylvania attorney general, Josh Shapiro, a Democrat, wrote on Twitter.
      The supreme court also must decide what to do with another election-related case brought on Tuesday. Republican-governed Texas, hoping to help Trump, mounted an unusual effort to overturn the election results in Pennsylvania and three other states – Georgia, Michigan and Wisconsin – by filing a lawsuit against them directly at the supreme court.
      The Republican plaintiffs argued that the universal, “no-excuse” mail-in ballot program passed by the Republican-controlled Pennsylvania legislature in 2019, enabling voters to cast ballots by mail for any reason, violated the state’s constitution.
      Biden won Pennsylvania by 80,000 votes and received a much higher proportion of the mail-in votes than Trump. Many more people voted by mail this year because of health concerns prompted by the coronavirus pandemic as they sought to avoid crowds at polling places.
      Ahead of the election, Trump urged his supporters not to vote by mail, making groundless claims that mail-in voting – a longstanding feature of American elections – was rife with fraud.Pennsylvania said in a court filing that the Republican challengers were asking the justices to “undertake one of the most dramatic, disruptive invocations of judicial power” in US history by nullifying a state’s certification of its election results.
      The state said most of what the challengers had sought was moot because the election results already were certified and what they were really wanted was for “the court overturn the results of the election”.
      Trump’s campaign and his allies have lost in a stream of lawsuits in key states won by Biden, also including Georgia, Michigan, Wisconsin and others. Judges have rejected sweeping assertions of voting irregularities.
      Biden has amassed 306 electoral votes – exceeding the necessary 270 – compared to 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.
      Tuesday represents a “safe harbor” deadline set by an 1887 US law for states to certify presidential election results. Meeting the deadline is not mandatory but provides assurance that a state’s results will not be second-guessed by Congress. After this deadline, Trump could still pursue lawsuits seeking to overturn Biden’s victory but the effort would become even more difficult.
      Reuters contributed to this report More

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      in US Politics

      Facebook faces antitrust allegations over deals for Instagram and WhatsApp

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      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

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      in US Politics

      Texas sues four states over election results in effort to help Donald Trump

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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

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      in US Politics

      Pardon me! Will Trump be indicted? Politics Weekly Extra podcast

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      As the US justice department investigates an alleged ‘bribery for pardon’ scheme at the White House, Jonathan Freedland and David Smith delve into the many possible legal issues Donald Trump could face after 20 January

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      Might Donald Trump, once stripped of the near-total immunity that came with his office, face the full might of the law? Could he be charged with crimes, or even go to jail? Or might he pardon himself in advance? Jonathan Freedland and the Guardian’s Washington bureau chief, David Smith, go through the many potential scenarios that could play out once Trump is no longer the commander-in-chief. Let us know what you think of the podcast and send us your questions to podcasts@theguardian.com Help support the Guardian by going to gu.com/supportpodcasts More