Storming of the US Capitol (Jan, 2021)

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      Trump Can’t Stop Pence From Testifying to Jan. 6 Grand Jury, Court Rules

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      The ruling by an appeals court paved the way for the former vice president to appear before a federal grand jury as early as this week.A federal appeals court rejected on Wednesday night an emergency attempt by former President Donald J. Trump to stop former Vice President Mike Pence from testifying in front of a grand jury investigating Mr. Trump’s efforts to overturn the 2020 election.The 11th-hour ruling by the U.S. Court of Appeals for the District of Columbia paved the way for Mr. Pence to appear before the federal grand jury as early as this week.Mr. Pence has always been a potentially important witness in the inquiry because of conversations he took part in at the White House in the weeks leading up to the attack on the Capitol on Jan. 6, 2021. During that time, Mr. Trump repeatedly pressed Mr. Pence to use his ceremonial role overseeing the congressional count of Electoral College votes to block or delay certification of his defeat.Prosecutors have been trying to get Mr. Pence to talk about Mr. Trump’s demands for several months — first in requests by the Justice Department for an interview and then through a grand jury subpoena issued by the special counsel Jack Smith, who inherited the inquiry into Mr. Trump’s attempts to stay in power.Last month, in a pair of sealed rulings, Judge James E. Boasberg, the chief judge of Federal District Court in Washington, ordered Mr. Pence to appear before the grand jury, striking down two separate challenges that would have kept him from answering certain questions.In one of those challenges, Mr. Pence sought on his own to limit his testimony by arguing that his role as the president of the Senate on Jan. 6, when Mr. Trump’s defeat was certified by Congress, meant he was protected from legal scrutiny by the executive branch — including the Justice Department. That argument was based on the “speech or debate” clause of the Constitution, which is intended to protect the separation of powers.Judge Boasberg ruled that while Mr. Pence could claim some protections against testimony under the clause, he would have to answer questions about any potentially illegal acts committed by Mr. Trump. This month, Mr. Pence announced that he did not intend to appeal the decision.Two weeks ago, Mr. Trump’s lawyers took the opposite path, asking the appeals court to reverse Judge Boasberg’s ruling on their own attempts to narrow the scope of the questions Mr. Pence would have to answer. Mr. Trump’s legal team based its arguments on the concept of executive privilege, which protects certain communications between the president and some members of his administration.The appeals court’s sealed ruling on Wednesday night came in response to an emergency request — it was also sealed — to temporarily stop Mr. Pence from answering questions in front of the grand jury as the broader appeal is being considered.When Mr. Pence ends up testifying, it will mark a significant turning point in the monthslong behind-the-scenes battle waged by Mr. Trump and several witnesses close to him to block the disclosure of details about plans to overturn the election. More

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      Testimony Suggests Trump Was at Meeting About Accessing Voting Software in 2020

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      In a letter to federal officials, a liberal-leaning group highlighted testimony to the House Jan. 6 committee that described then-President Trump attending a meeting about the plan in December 2020.ATLANTA — Former President Donald J. Trump took part in a discussion about plans to access voting system software in Michigan and Georgia as part of the effort to challenge his 2020 election loss, according to testimony from former Trump advisers. The testimony, delivered to the House Jan. 6 committee, was highlighted on Friday in a letter to federal officials from a liberal-leaning legal advocacy group.Allies of Mr. Trump ultimately succeeded in copying the elections software in those two states, and the breach of voting data in Georgia is being examined by prosecutors as part of a broader criminal investigation into whether Mr. Trump and his allies interfered in the presidential election there. The former president’s participation in the discussion of the Georgia plan could increase his risk of possible legal exposure there.A number of Trump aides and allies have recounted a lengthy and acrimonious meeting in the Oval Office on Dec. 18, 2020, which one member of the House Jan. 6 committee would later call “the craziest meeting of the Trump presidency.” During the meeting, then-President Trump presided as his advisers argued about whether they should seek to have federal agents seize voting machines to analyze them for fraud.Testimony to the Jan. 6 committee from one aide who attended the meeting, Derek Lyons, a former White House staff secretary and counselor, was highlighted on Friday in a letter to the Justice Department and the Federal Bureau of Investigation from Free Speech for People, a liberal nonprofit legal advocacy group. Mr. Lyons recounted that during the meeting, Rudolph W. Giuliani, then Mr. Trump’s personal attorney, opposed seizing voting machines and spoke of how the Trump campaign was instead “going to be able to secure access to voting machines in Georgia through means other than seizure,” and that the access would be “voluntary.”Other attendees offered similar testimony to the committee, which released its final report on the Jan. 6 attack on the U.S. Capitol in late December. Among those involved in the Oval Office discussion were two prominent pro-Trump conspiracy theorists: Michael Flynn, the former national security adviser, and Sidney Powell, a lawyer who spread numerous falsehoods after the 2020 election and who also discussed Mr. Giuliani’s comments in her testimony.Fani T. Willis, the district attorney in Fulton County, Ga., is trying to clarify Mr. Trump’s role in a number of efforts to overturn his November 2020 election loss in Georgia — including the plan to gain access to voting machine data and software — and determine whether to recommend indictments for Mr. Trump or any of his allies for violating state laws.A spokesman for Ms. Willis’s office declined to comment Friday on Mr. Lyons’s testimony. Marissa Goldberg, an Atlanta-area lawyer representing Mr. Trump in Georgia, did not respond to a request for comment.In its letter, Free Speech for People argued that the testimony and other details that have been made public prove that Mr. Trump “was, at a minimum, aware” of an “unlawful, multistate plot” to access and copy voting system software. The group urged the Justice Department and the F.B.I. to conduct “a vigorous and swift investigation.”On Jan. 7, 2021, a small group working on behalf of Mr. Trump traveled to rural Coffee County, Ga., some 200 miles southeast of Atlanta, and gained access to sensitive election data; subsequent visits by pro-Trump figures were captured on video surveillance cameras.The group’s first visit to Coffee County occurred on the same day that Congress certified President Biden’s victory; the certification had been delayed by the storming of the Capitol by a pro-Trump mob. The visitors to Coffee County apparently saw it as an ideal place to gather intelligence on what they viewed as voting irregularities: At one point, video footage shows the then-chair of the Coffee County Republican Party, Cathy Latham, appearing to welcome into the building the members of a forensics company hired by Ms. Powell.Ms. Latham was also one of the 16 pro-Trump fake electors whom Georgia Republicans had assembled in an effort to reverse the election results there.Text messages from that period indicate that some Trump allies seeking evidence of election fraud had considered other uses for the Coffee County election data and their analyses of it. One cybersecurity consultant aiding in the effort even raised the possibility, in a text message to other Trump allies in mid-January 2021, of using a report on Coffee County election data “to try to decertify” a highly consequential United States Senate runoff election that Democrats had just won in Georgia. CNN reported on the existence of that text message on Friday.The Trump allies who traveled to Coffee County copied elections software used across the state and uploaded it on the internet, creating the potential for future election manipulation, according to David Cross, a lawyer involved in civil litigation over election security in Georgia filed by the Coalition for Good Governance. The Coffee County data was also used earlier this year in a presentation to conservative activists that included unfounded allegations of electoral fraud, The Los Angeles Times has reported.Some of those involved with the Coffee County effort came to regret it. A law firm hired by SullivanStrickler, the consulting firm hired by Ms. Powell to help gain access to the county’s voting machines, would later release a statement saying that, “With the benefit of hindsight, and knowing everything they know now, they would not take on any further work of this kind.” More

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      ‘One of the Odd and Scary Things About American Politics’ Is What Republicans Are Doing

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      Are democracies providing the rope to hang themselves?From Turkey to Hungary, from India to the United States, authoritarian leaders have gained power under the protective cloak of free elections.“There is no doubt that democratic processes and judicial decisions can be used to limit the power of the people, restructuring governments and institutions to make them less representative, more undemocratic,” Rogers Smith, a political scientist at the University of Pennsylvania told me, in response to my emailed inquiry.Smith continued:The classic examples are partisan gerrymandering and barriers to voting, but in recent years Republicans have gone further than ever before in using their overrepresentation in state legislatures to shift power to those legislatures, away from officeholders in Democratic-led cities, from officials elected statewide and from voters.Jack Goldstone, a professor of public policy at George Mason University, made a parallel argument by email:One of the odd and scary things about American politics, more reminiscent of the 19th century than anything in the post-World War II period, is that when the Republicans lost the presidential election in 2020 and did much worse than expected in 2022 (even worse than in a normal midterm contest), they did not abandon the leaders and policies that produced these results. Instead, they have doubled down on even more extreme and broadly unpopular leaders and policies, from Trump to abortion and guns.Goldstone believes that this developmentis a sign that normal politics have been replaced by extreme polarization and factional identity politics, in which the extremes grow stronger and drain the center. As a minority seeking to exercise control of government, it is actually necessary that the Trumpist G.O.P. suppress democratic procedures that normally produce majority control.If enough voters, Goldstone wrote,are deeply anxious or frightened of some real or imagined threat (e.g. socialism, mass immigration, crime, threats to their religion, transgender takeover), they may well vote for someone who promises to stand up to those threats, even if that person has no regard for preserving democracy, no regard for the rights and freedoms of those seen as “enemies.” If such a leader is elected, gets his or her party to control all parts of government, and wants to turn all the elements of government into a weapon to attack their enemies, no laws or other organizations can stop them.Goldstone warned “that should the Republicans manage to gain control of the House, Senate and presidency in 2024, building an electoral autocracy to impose their views without challenge will be their top priority.”There are two distinct mechanisms involved in overturning democracy, Goldstone argued:First, is controlling all elected and appointed elements of the government. If the same political party controls the House, Senate, judiciary and presidency, and disregards the principles of democracy and independence of officials, then sadly none of the institutions of democracy will prevent arbitrary and autocratic government.The second element, according to Goldstone, is unique to this country: “The United States has so many safeguards for minority rights that it is conceivable that a minority party could obtain complete control of all levers of government.”How so?The U.S. Senate is chosen on the basis of territory, not numbers, so that Wyoming and California both have two senators. Gerrymanders mean that states where Democratic and Republican voters are about even, like Wisconsin and North Carolina, have very unequal representation in Congress. Finally, the Electoral College method of aggregating state votes for president has meant that in 2000 and 2016 candidates with a minority of the people’s votes were elected.The consequences?“A determined effort to twist and benefit from these various opportunities and rules means that a party that represents a minority of the people can, in the U.S., control the House, Senate, and presidency,” Goldstone wrote, enabling “an oppressive government restricting freedom and ruling autocratically, and doing so to impose the goals and beliefs of a minority on an unwilling majority.”Robert Lieberman, a political scientist at Johns Hopkins and a co-author, with Suzanne Mettler, a political scientist at Cornell, of “Four Threats: The Recurring Crises of American Democracy,” argued in an email that “Democratic procedure is not a threat to democracy per se, but it is fair to say that it has vulnerabilities.”“Democratic procedures,” he continued, “are intended to provide a means to hold leaders accountable,” which include:Horizontal accountability — institutional checks and balances that enable public officials to hold each other accountable; and vertical accountability — ways for citizens to hold public officials accountable, such as elections or popular mobilization. In a well-functioning democracy, both kinds of accountability work together to limit the concentration of power in the hands of a single party or individual.But Lieberman pointed out, “Democratic procedures can also enable would-be authoritarians to undermine both kinds of accountability under the cloak of democratic legitimacy.”Democratic regimes, he wrote, “are less likely than in the past to be overthrown in a sudden violent burst, as in an overt coup d’état. Instead, democracies are more frequently degraded by leaders who use apparently legal, democratic means to hollow out democratic accountability.”Voter suppression or gerrymandering, Lieberman noted,can limit vertical accountability by making it harder for the opposition to win elections, while maneuvers such as court packing can lower barriers for a party in power to expand its power. And these kind of tactics can reinforce one another, as when the Supreme Court upheld the practice of partisan gerrymandering (in Rucho v. Common Cause). Taken together, these kinds of moves can enable a party to gain and keep power without majority support and increasingly unconstrained by public disapproval.How do authoritarian-leaning politicians gain the power to elude the institutional restraints designed to maintain democracy? Stephan Haggard, a professor at the School of Global Policy and Strategy at the University of California-San Diego, emailed me to say that “an important feature of populism is the belief in majoritarian conceptions of democracy: that majorities should not be constrained by horizontal checks, various rights, or even by the rule of law: Majorities should be able to do what they want.”This majoritarian conception of democracy, Haggard continued,is a leitmotif of virtually all democratic backsliding episodes. That the will of “the people” is being thwarted by an elite (read “deep state”) that must be purged. Of course, the definition of “the people” does not refer to everyone, but the favored supporters of the autocrat: whites in the U.S., Muslims in Turkey, Russian traditionalists and so on.One common characteristic of democratic backsliding, according to Haggard, is its incrementalism, which, in turn, mutes the ability of the public to perceive what is happening in front of its eyes:A constant refrain from observers who have weathered these systems is how difficult it is to be clear as to what is transpiring. This comes in part because autocrats lie and distort the truth — that is fundamental — but also because behaviors once thought out of bounds are normalized. Think Trump’s open racism or calls for violence against opponents at his rallies; all of that got normalized.Christina Ewig, a professor of public affairs at the University of Minnesota’s Humphrey School of Public Affairs, views contemporary challenges to democracy from another vantage point.In an email responding to my inquiry, Ewig wrote that she disagrees with the premise that democracy is providing the rope to hang itself. Instead, she argued, “Democracy and democratic procedure are not threats to democracy itself. Instead, anti-democratic actors that abuse the state are a threat to democracy.”The United States, Ewig continued, “shows evidence of becoming what the political scientists Steven Levitsky and Lucan Way call a ‘competitive authoritarian regime’ — a regime that is civilian, with formal democratic institutions, but in which incumbents ‘abuse’ the state to stay in power.”Prominent examplesinclude former President Trump’s attempts to influence Georgia officials to change election outcomes in November 2020, and then to impede the peaceful transfer of power on Jan. 6. Senator Mitch McConnell’s refusal to let President Obama nominate a Supreme Court justice is another. At the state level, Wisconsin Republicans, through district gerrymandering, have a chokehold on a purple state.All of these examples, Ewig argued,appear to be abuses of democracy rather than uses of democracy. Democracy requires an acceptance that one’s party will not always be a winner. But the Republican Party in the United States has, on more than one occasion, refused to lose.For now, Ewig wrote, the United States is not a competitive authoritarian regime. The results of the 2020 national elections and the institutional opposition to the insurrection in 2021 “helped to avoid that. But some U.S. states do look suspiciously competitive authoritarian.”Why is democracy under such stress now? There are many answers to that question, including, crucially, the divisiveness inherent in the elevated levels of contemporary polarization that makes democratic consensus so difficult to achieve.In an April 2021 paper, four scholars, Samuel Wang of Princeton, Jonathan Cervas of Carnegie Mellon, Bernard Grofman of the University of California-Irvine and Keena Lipsitz of Queens College, address the basic question of what led to the erosion among a substantial number of voters of support for democratic principles in a nation with a two-century-plus commitment to this tradition:In the United States, rules and institutions from 1790, when voters comprised white male landowners and slave owners in a nation of four million, were not designed to address today’s governance needs. Moreover, existing rules and institutions may amplify background conditions that drive polarization. The decline of civic life in America and the pluralism it once nurtured has hastened a collapse of dimensionality in the system.Americans once enjoyed a rich associational life, Wang and his colleagues write, the demise of which contributes to the erosion of democracy: “Nonpolitical associations, such as labor unions, churches, and bowling leagues, were often crosscutting, bringing people from different backgrounds into contact with one another, building trust and teaching tolerance.” In recent years, however, “the groups that once structured a multidimensional issue space in the United States have collapsed.”The erosion of democracy is also the central topic of a Feb. 13 podcast with Martin Wolf, a Financial Times columnist and the author of “The Crisis of Democratic Capitalism.” Wolf makes the case that “economic changes and the performance of the economy interacting produced quite a large number of people who feared that they were becoming losers. They feared that they risked falling into the condition of people who really were at the bottom.”At the same time, Wolf continued, “the immense growth of the financial sector and the dominance of the financial sector in management generated some simply staggering fortunes at the top.” Instead of helping to drive democratization, the market system “recreated an oligarchy. I think there’s no doubt about that.”Those who suffered, Wolf noted, “felt the parties of the center-left had largely abandoned them and were no longer really interested in their fate.”Two senior fellows at Brookings, William Galston and Elaine Kamarck, explore threats to American democracy in a January 2022 analysis, “Is Democracy Failing and Putting Our Economy at Risk?” Citing data from six surveys, including those by Pew, P.R.R.I., Voter Study Group and CNN, the authors write:Support in the United States for political violence is significant. In February 2021, 39 percent of Republicans, 31 percent of independents and 17 percent of Democrats agreed that “if elected leaders will not protect America, the people must do it themselves, even if it requires violent actions.” In November, 30 percent of Republicans, 17 percent of independents and 11 percent of Democrats agreed that they might have to resort to violence in order to save our country.In the wake of the Jan. 6 assault on the Capitol, Galston and Kamarck observe:Even though constitutional processes prevailed, and Mr. Trump is no longer president, he and his followers continue to weaken American democracy by convincing many Americans to distrust the results of the election. About three-quarters of rank-and-file Republicans believe that there was massive fraud in 2020 and Joe Biden was not legitimately elected president.In fact, Galston and Kamarck continue, “the 2020 election revealed structural weaknesses in the institutions designed to safeguard the integrity of the electoral process,” noting that “if Mr. Pence had yielded to then-President Trump’s pressure to act, the election would have been thrown into chaos and the Constitution placed in jeopardy.”Since then, Galston and Kamarck note, the attack on democracyhas taken a new and dangerous turn. Rather than focusing on the federal government, Trump’s supporters have focused on the obscure world of election machinery. Republican majorities in state legislatures are passing laws making it harder to vote and weakening the ability of election officials to do their jobs.American democracy, the two authors conclude,is thus under assault from the ground up. The most recent systematic attack on state and local election machinery is much more dangerous than the chaotic statements of a disorganized former president. A movement that relied on Mr. Trump’s organizational skills would pose no threat to constitutional institutions. A movement inspired by him with a clear objective and a detailed plan to achieve it would be another matter altogether.“The chances that this threat will materialize over the next few years,” Galston and Kamarck add, “are high and rising.”If democracy fails in America, they contend,It will not be because a majority of Americans is demanding a nondemocratic form of government. It will be because an organized, purposeful minority seizes strategic positions within the system and subverts the substance of democracy while retaining its shell — while the majority isn’t well organized, or doesn’t care enough, to resist. The possibility that this will occur is far from remote.The anxiety about democratic erosion — even collapse — is widespread among those who think about politics for a living:In his January 2022 article, “Democracy’s Arc: From Resurgent to Imperiled,” Larry Diamond, a senior fellow at Stanford’s Freeman Spogli Institute, joins those who tackle what has become an overriding topic of concern in American universities:For a decade, the democratic recession was sufficiently subtle, incremental and mixed so that it was reasonable to debate whether it was happening at all. But as the years have passed, the authoritarian trend has become harder to miss. For each of the last fifteen years, many more countries have declined in freedom than have gained. By my count, the percentage of states with populations over one million that are democracies peaked in 2006 at 57 percent and has steadily declined since, dropping below a majority (48 percent) in 2019 for the first time since 1993.In this country, Diamond continued, “Rising proportions of Americans in both camps express attitudes and perceptions that are blinking red for democratic peril. Common political ground has largely vanished.”He adds: “Even in the wake of the Jan. 6 insurrection at the U.S. Capitol, most Americans have still not come to grips with how far the country has strayed from the minimum elements of normative and behavioral consensus that sustain democracy.”At the close of his essay, Diamond goes on to say:It is human nature to seek personal autonomy, dignity and self-determination, and with economic development those values have become ascendant. But there is nothing inevitable about the triumph of democracy.The next test will be in November 2024.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Witness Testimony Helps Prosecutors Advance Trump Election Case

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      The Justice Department’s success in compelling top aides to former President Donald Trump to testify to a grand jury moves the special counsel closer to a decision on seeking indictments.Without fanfare, the Justice Department’s investigation into former President Donald J. Trump’s attempts to overturn the 2020 election is approaching an important milestone.After nearly nine months of behind-the-scenes clashes, Mr. Trump’s lawyers have largely lost their battle to limit testimony from some of his closest aides to a federal grand jury. The decisions, in a string of related cases, represent an almost total failure by Mr. Trump to constrain the reach of the inquiry and have strengthened the position of Jack Smith, the special counsel overseeing the investigation, as he builds an accounting of the former president’s efforts to retain power after his defeat at the polls.Having lost their challenges to grand jury subpoenas and largely failed to limit the scope of their testimony with assertions of executive and attorney-client privilege, a last group of aides is now being forced to answer questions.On Tuesday, it was Stephen Miller, an adviser and top speechwriter for Mr. Trump, who showed up in Federal District Court in Washington and spent several hours in front of the grand jury. On Thursday, it was John Ratcliffe, the former director of national intelligence. The process could culminate near the end of this month with an appearance by former Vice President Mike Pence.While questions linger over pending appeals and potential efforts by some of the witnesses to delay things further by invoking the Fifth Amendment, the developments suggest that Mr. Smith is close to finishing the fact-finding phase of his work and is moving closer to a decision about seeking charges against Mr. Trump and others.There are no clear indications about when Mr. Smith might decide about charges in the case, but he faces pressure on several fronts to keep the process moving.The political season could be a consideration: The 2024 presidential race is heating up, with Mr. Trump still regarded as the front-runner for the Republican nomination, and the first debate of the G.O.P. primary season has been scheduled for August.On the legal front, the looming decision by a district attorney in Georgia, Fani T. Willis, on whether to seek indictment of Mr. Trump on charges related to his efforts to overturn his election loss has placed added pressure on Mr. Smith, who must decide whether allowing another prosecutor to go first with similar charges could complicate any prosecution he pursues.Former Vice President Mike Pence may testify before a grand jury by the end of this month.Winnie Au for The New York Times“The speed of the Georgia state investigation increases the pressure on Jack Smith to move with alacrity and to get his witnesses before the federal grand jury now,” said John P. Fishwick Jr., an Obama appointee who served as the U.S. attorney for the Western District of Virginia from 2015 to 2017. “Once the state indictment comes down, it can really bog down the D.O.J. investigation.”Among those who have worked with him, Mr. Smith is seen as a diligent manager bent on collecting the information needed to make a decision while remaining cognizant of the time pressures and the highly partisan atmosphere in which he is operating.In his first and only public comments — a statement emailed to reporters shortly after his appointment in November — he vowed that the pace of his Trump investigations would “not pause or flag,” noting that he would “move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”Mr. Smith is also overseeing the parallel investigation into Mr. Trump’s handling of classified information after leaving office and whether the former president obstructed government efforts to reclaim the materials..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Attorney General Merrick B. Garland, who will ultimately make the decision on whether to indict Mr. Trump, has told associates that he will not overrule Mr. Smith’s judgment, whatever it turns out to be, unless he believes the special counsel has deviated from departmental standards and procedures.Mr. Garland, and his top deputy Lisa O. Monaco, have publicly projected an air of detachment from the case, but they have been following developments in the privilege fights that have been playing out in the federal courthouse that sits just a few blocks from their office. They have been receiving regular briefings from aides who are getting updates from members of Mr. Smith’s team, according to two people familiar with the situation.The legal battles over privilege began well before Mr. Smith was appointed to the special counsel post and have pitted two powerful forces against each other.Jack Smith has been leading the inquiry since his appointment in November.Pool photo by Peter DejongIn the course of the investigation into Mr. Trump’s efforts to overturn the election, federal prosecutors have subpoenaed an army of Mr. Trump’s former aides in an effort to have the grand jury hear as many firsthand accounts as possible of his behavior in the White House in the days leading up to the attack on the Capitol on Jan. 6, 2021.Mr. Trump’s lawyers have countered by asserting that any adviser close to the former president should not have to answer certain questions in front of the grand jury because of attorney-client privilege, which protects communications between lawyers and those they represent, and executive privilege, which shields some communications between the president and members of his administration.Among the first people to engage in this debate were Marc Short and Greg Jacob, two of Mr. Pence’s top aides, who went into the grand jury in July and asserted privilege in response to certain questions, prompting prosecutors to file motions compelling their full testimony. Setting a pattern for the months that followed, Mr. Trump’s lawyers fought those motions but ultimately lost their case in front of Beryl A. Howell, then the chief federal judge in Washington, and subsequently in front of a federal appeals court.With the privilege waived, Mr. Short and Mr. Jacob testified for a second time in October. They were followed two months later by Pat A. Cipollone and Patrick F. Philbin, the two top lawyers in Mr. Trump’s White House, who went through the same process.The fight dragged on into this year as another round of aides — including Mr. Miller; Dan Scavino, a onetime deputy chief of staff; and Mr. Scavino’s boss, Mark Meadows, Mr. Trump’s final chief of staff — all tried, and failed, to assert forms of privileges. The last skirmish took place just a couple of weeks ago when a new chief judge, James E. Boasberg, turned down efforts to limit Mr. Pence’s testimony.While getting these witnesses in front of the grand jury has been challenging and time consuming, the accounts they have given — or will eventually give — are only a fraction of the total body of evidence that Mr. Smith and his predecessors have gathered.Well before Mr. Smith arrived, another prosecutor, Thomas P. Windom, obtained grand jury testimony from pro-Trump figures like Ali Alexander, who organized several prominent “Stop the Steal” events, and from a wide array of state officials involved in a plan to create fake slates of pro-Trump electors in swing states that were actually won by President Biden.Mr. Windom, who now works with Mr. Smith, also oversaw the seizure of phones from lawyers close to Mr. Trump, including John Eastman, Jeffrey Clark and Boris Epshteyn. Mike Roman, a campaign strategist who was the director of Election Day operations for the Trump campaign in 2020, also had his phone seized under Mr. Windom’s watch.Other prosecutors who now work with the special counsel began an inquiry before Mr. Smith arrived into Save America PAC, a fund-raising operation that Mr. Trump created after his loss in the election. As part of that investigation, dozens of subpoenas have been issued to companies that have received money from the PAC, including some law firms.Danny Hakim More

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      The Republican Strategists Who Have Carefully Planned All of This

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      Republican leaders are now adopting increasingly autocratic measures, using the police powers of government to impose moralized regulations, turning private citizens into enforcement officers and expelling defiant elected Democrats just as county Republican parties, particularly in western states, are electing militia members, Christian nationalists and QAnon believers to key posts.Here’s one example. Last November, the Republican Party of Clackamas County in Oregon chose a new vice chairman, Daniel Tooze, a Proud Boy from Oregon City, and Rick Riley, head of the county chapter of Take Back America, which denies the results of the 2020 presidential election, as chairman. Oregon Public Broadcasting reported that in central Oregon’s Deschutes County, the local Republican Party chose Scott Stuart, “a member of the county chapter of People’s Rights, a nationwide network of militia groups and anti-government activists founded by conservative firebrand Ammon Bundy.”In June 2022, two of my Times colleagues, Patricia Mazzei and Alan Feuer, reported that “at least a half-dozen current and former Proud Boys” had secured seats on the Miami-Dade Republican Executive Committee, including two facing criminal charges for participation in the Jan. 6 attack on the Capitol:The concerted effort by the Proud Boys to join the leadership of the party — and, in some cases, run for local office — has destabilized and dramatically reshaped the Miami-Dade Republican Party that former Gov. Jeb Bush and others built into a powerhouse nearly four decades ago, transforming it from an archetype of the strait-laced establishment to an organization roiled by internal conflict as it wrestles with forces pulling it to the hard right.“On the right, support for violence is no longer a fringe position,” Rachel Kleinfeld, a senior fellow in the Democracy, Conflict and Governance Program at the Carnegie Endowment for International Peace, wrote in a November 2022 Politico essay, “How Political Violence Went Mainstream on the Right.”Those joining violent political events like the Jan. 6 insurrection, Kleinfeld continued,are more likely to be married middle-aged men with jobs and kids. Those most likely to support violence on the right feel most connected to the Republican Party. This is not a marginal movement: It is people who see violence as a means to defend their values, an extension of their political activity.Democrats are not driving today’s political violence, Kleinfeld argued,but they are at least partly responsible for driving many people into the arms of the far right. Fear is a major cause of violence. As America undergoes immense change, from a fourth industrial revolution to remaking the concept of gender, many Americans are struggling to understand why they feel unmoored, anxious and behind. Snake-oil salesmen like Tucker Carlson offer the racist Great Replacement Theory as an explanation. Rather than provide a better story, the progressive left calls people names if they can’t march to a radically new tune fast enough. No wonder that even people of color moved in 2020 toward a right that offers understanding and a sense of community.At the same time, Republican leaders are showing a growing willingness to disempower both Democratic officials and cities run by Democrats if they defy Republican-endorsed policies on matters as diverse as immigration, abortion and gun control.The expulsion of two Black state representatives by the Republican majority in Tennessee received widespread publicity this past week (one has already been reinstated by local officials and the other may be soon). But their expulsion, as spectacular as it was, is just the most recent development in a pattern of attempts by Republicans to fire or limit the powers of elected Democrats in Florida, Mississippi, Georgia and elsewhere. This includes Gov. Ron DeSantis’s decision in August 2022 to suspend Andrew H. Warren, the elected Democratic state attorney of Hillsborough County, who had signed a statement saying he would not prosecute those who seek or provide abortions.In defiance of public opinion, 22 Republican attorneys general and 67 Republican members of the U.S. House of Representatives filed amicus briefs that called on Matthew Kacsmaryk, a Federal District Court judge in Amarillo, Texas, to invalidate the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, which Kacsmaryk promptly went ahead and did last week. A February Ispos poll found that by a 3 to 1 margin (65-21), American adults agree that “medication abortion should remain legal in the United States,” including a healthy plurality (49-35) of Republicans.Republicans in states across the country are defiantly pushing for the criminalization of abortion — of the procedure, of abortifacient drugs and of those who travel out of state to terminate pregnancy — despite clear evidence, in the aftermath of the Supreme Court’s decision overturning Roe v. Wade, that public opinion had shifted in favor of abortion rights.According to research provided to The Times by the Kaiser Family Foundation, states that have abortion bans at various early stages of pregnancy with no exception for rape or incest include Alabama, Arizona, Arkansas, Florida, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin.An overwhelming majority of Americans of all political persuasions believe there should be exceptions for rape and incest. An October 2022 survey of 21,730 people by the University of Pennsylvania’s Penn Program on Opinion Research and Election Studies found overall support for these exceptions at 86-14; among Democrats at 94-6; among independents at 89-12; and among Republicans at 76-24.At least three states with Republican governors — Florida, Virginia and Texas — have adopted laws or regulations empowering private citizens to enforce restrictive policies governing abortion, sex education or the teaching of critical race theory, in some cases providing bounties for those reporting abortions.Jacob Grumbach, a political scientist at the University of Washington, argues in his 2022 book, “Laboratories Against Democracy”:When it comes to democratic backsliding in the states, the results couldn’t be clearer: over the past two decades, the Republican Party has eroded democracy in states under its control. Republican governments have gerrymandered districts, made it more difficult to vote and restricted civil liberties to a degree unprecedented since the civil rights era. It is not local changes in state-level polarization, competition or demographics driving these major changes in the rules of American democracy. Instead, it is the groups that make up the national coalition of the modern G.O.P. — the very wealthy on the one hand and those motivated by white identity politics and cultural resentment on the other.When I asked him why the Republican Party had moved in this direction over the past generation, Grumbach elaborated in an email, observing that the two major elements of the Republican Party — “extremely wealthy individuals in an era of high economic inequality” and “a voter base motivated by cultural and demographic threat” — have a “hard time winning electoral majorities on the basis of their policy agendas (a high-end tax cut agenda for the elite base and a culturally reactionary agenda for the electoral base), which increases their incentive to tweak the rules of the game to their advantage.”Pippa Norris, a political scientist at Harvard’s Kennedy School, argued in an email that contemporary cultural conservatism depends on support from declining constituencies — non-college whites (as pollsters put it), evangelical Christians and other ideologues on the right — which places these groups in an increasingly threatened position, especially in the American two-party system.“At a certain point, the arc of history, which bends toward liberalism, means that traditional values among social conservatives lose their hegemonic status,” Norris wrote, which “is eventually reflected in progressive changes in the public policy agenda evident in many postindustrial societies during the late twentieth century, from the spread of reproductive rights, equal pay for women and men, anti-sex discrimination laws, passage of same-sex marriage laws, support for the international rules-based world order based on liberal democracy, free trade, and human rights, and concern about protection against environmental and climate change.”The consequences of this long-term cultural development for the losers, Norris continued, is a buildup of “resentment at the loss of the hegemony of traditional values and identities.” The problem for the Republican Party, she observed, lies in the fact that “by appealing to their shrinking socially conservative base, the Republican Party has been unable to gain a majority of the popular vote in their bid for the White House in eight of the last nine presidential elections.”The reality, Norris wrote, is:Since the early 1980s, on issue after issue, from abortion, secular values, civil rights, racial, homosexual, and gender equality, gun control, cosmopolitanism, and environmentalism, the pool of social conservatives adopting traditional views on these moral and social identity issues has been shrinking in size within the U.S. national electorate, from majority to minority status. They are running down an up escalator.With their backs to the wall, Norris argued, conservatives have capitalized oninstitutional features of U.S. elections that allow Republicans to seek to dismantle checks on executive power — including the extreme decentralization of electoral administration to partisan officials with minimal federal regulation, partisan gerrymandering of districts, overrepresentation of rural states in the U.S. Senate and Electoral College, partisan appointments in the judiciary, primary elections rallying the faithful in the base but excluding the less mobilized moderate independents, the role of money from rich donors in elections and campaigns, and so on and so forth. The Trump presidency exacerbated these developments, but their roots are far deeper and more enduring.Nicholas Stephanopoulos, a law professor at Harvard, noted in an email “that state policy outcomes are becoming more bimodal” — liberal or conservative, rather than centrist — “than in previous eras” and that the “misalignment between public policy and public opinion is pervasive in modern American politics,” particularly in red states “where public policy is far more extreme and conservative than the public wants.”In theory, the hostility of average voters to extreme issue stances can pressure politicians to move toward the center, Stephanopoulos contended, “but this aligning impact of general elections can be reduced through tactics like gerrymandering, which make it unlikely that even large swings in public opinion will much alter the composition of the legislature.”In addition, in Stephanopoulos’s view, in a highly polarized era, the pressure to moderate in order to win general elections faces growing counter-pressure to take immoderate positions in order to win primaries:There’s little that could persuade many voters to ever support the other side. And while general elections might be aligning, they’re pitted against many misaligning forces: the views of activists and donors, the need to win the primary election to be re-elected, pressure from legislative leadership, politicians’ own often extreme ideologies, and so on. It’s no surprise that the misaligning forces are often stronger.Bruce Cain, a political scientist at Stanford, made the argument by email that “Given the clustering of communities along political, cultural, and social lines in the United States presently and the dispersion of powers in American federalism, we should expect our state and local laboratories to yield a wide dispersion of products, especially when they are given more freedom to experiment.”So why don’t all states converge on the national median, as revealed by the polls? Cain asked, and answered that “There are real public opinion differences across states and local communities, especially on hot button social issues.”Ultimately, Cain continued, “If elected officials and judges get too far out of alignment with voters, they will get the message in the form of surprising electoral outcomes, as recently occurred in Wisconsin. Democrats in the seventies and eighties experienced the same on busing, crime and welfare.”Of course, Cain cautioned, “my optimism about this assumes the Republicans do not give up on elections altogether, which is more in doubt than I ever anticipated a decade ago.”Other observers of American politics are more pessimistic. Theda Skocpol, a professor of political science and sociology at Harvard, contends that many of the developments in states controlled by Republicans are a result of careful, long-term planning by conservative strategists, particularly those in the Federalist Society, who are developing tools to build what she calls “minority authoritarianism” within the context of a nominally democratic system of government.Skocpol outlined her thinking in an email:The first-movers who figured out how to configure this new “laboratory of democratic constriction” were legal eagles in the Federalist Society and beyond, because the key structural dynamic in the current G.O.P. gallop toward minority authoritarianism is the mutual interlock between post-2010 Republican control, often supermajority control, of dozens of state legislatures and the Scotus decision in 2019 to allow even the most extreme and bizarre forms of partisan gerrymandering.These organized, richly resourced actors, she wrote,have figured out how to rig the current U.S. system of federalism and divided branches, given generational and geographic realities on the ground, and the in many ways fluky 2016 presidential election gave them what they needed to put the interlock in place. They are stoking and using the fears and resentments of about half or so of the G.O.P. popular base to undo American democracy and enhance their own power and privileges. They are doing it because they can, and they believe in what they are doing. They are America’s G.O.P. Leninists.Skocpol does not pull her punches:This situation, locked in place by a corruptly installed Supreme Court majority and by many rotten-borough judicial districts like the one in Amarillo, means that minority authoritarians, behind a bare facade of “constitutionalism,” can render majority-elected officials, including the president and many governors, officials in name only. The great thing from the minority authoritarian point of view is that those visible chief executives (and urban mayors and district attorneys) can still be blamed for government non-function and societal problems, but they cannot address them with even broadly supported measures (such as simple background checks for having military assault weapons).There are a number of factors that confirm Skocpol’s analysis.First and foremost, the Republican Party’s commitment to democratic values and procedures has been steadily eroding over the past two decades — and the momentum has accelerated. The brakes on extremism are failing, with Donald Trump gaining strength in his bid for renomination and the continuing shift to the right in states like Tennessee and Ohio.Second, in bright-red states, the embrace of far-right positions on such issues as abortion, guns, immigration and election denial is now a requirement rather than a choice for candidates seeking office. At the same time, in purple states like Arizona and Pennsylvania, a hard-right posture may be a liability in the general election, even as it is often mandatory in a primary contest.The 2024 presidential election, if it is close, will test the viability of a mainstay of Republicans’ current anti-democratic strategy: a drive to empower state legislatures to overturn election results. In August 2021, ABC News reported that eight states have enacted legislation shifting power over determining election results to legislatures or partisan boards: Arizona, Georgia, Texas, Florida, Arkansas, Kansas, Montana and Kentucky.The ability of state legislatures to determine the winners and losers of elections now hangs on the outcome of a pending Supreme Court case, Moore v. Harper, which will determine the constitutionality of a fringe legal theory promulgated by the right, the so-called independent state legislature doctrine.What’s at stake?In a 2021 essay, “Trump Is Planning a Much More Respectable Coup Next Time,” Richard Hasen, an election expert who is a law professor at U.C.L.A., wrote:A state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.Put another way, according to Hasen:The Jan. 6 insurrection, and Trump’s actions trying to change the Electoral College votes in five states, was an attempted coup built on the Big Lie of voter fraud. But the potential coup next time will come in neatly filed legal briefs and arguments quoting Thomas Jefferson and wrapped in ancient precedents and purported constitutional textualism. It will be no less pernicious.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Trump Appeals Decision Forcing Pence to Testify to Jan. 6 Grand Jury

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      The appeal seeks to narrow the scope of testimony that former Vice President Mike Pence can provide the grand jury investigating former President Donald Trump’s efforts to stay in power.Lawyers for former President Donald J. Trump asked a federal appeals court on Monday to narrow the scope of the testimony that former Vice President Mike Pence has to give a grand jury investigating Mr. Trump’s efforts to overturn the results of the 2020 election, according to a person familiar with the matter.The request to the U.S. Court of Appeals for the District of Columbia to reverse a lower court’s decision ordering Mr. Pence to testify was the latest attempt by Mr. Trump’s legal team to keep witnesses close to him from divulging information to prosecutors in the office of the special counsel, Jack Smith.Mr. Pence has always been a potentially important witness in the election inquiry into Mr. Trump because of the conversations he took part in at the White House in the weeks preceding the attack on the Capitol on Jan. 6, 2021. During that time, Mr. Trump repeatedly pressed him to use his ceremonial role overseeing the congressional count of Electoral College votes to block or delay certification of his defeat.Prosecutors have been trying to get Mr. Pence to talk about Mr. Trump’s demands for months — first in requests by the Justice Department for an interview and then through a grand jury subpoena issued by Mr. Smith, who inherited the inquiry into Mr. Trump’s attempts to stay in power.Should Mr. Pence end up testifying, it would be a turning point in a monthslong behind-the-scenes battle waged by Mr. Trump and several witnesses close to him to block the disclosure of details about plans to overturn the election..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Last month, in a pair of sealed rulings, Judge James E. Boasberg, the chief judge of Federal District Court in Washington, ordered Mr. Pence to appear before the grand jury, striking down two separate challenges that would have kept Mr. Pence from answering certain questions.In one of those challenges, Mr. Pence sought to limit his testimony by arguing that his role as the president of the Senate on Jan. 6, when Mr. Trump’s defeat was certified by Congress, meant he was protected from legal scrutiny by the executive branch — including the Justice Department. That argument was based on the “speech or debate” clause of the Constitution, which is intended to protect the separation of powers.Judge Boasberg ruled that while Mr. Pence could claim some protections against testimony under the “speech or debate” clause, he would have to answer questions about any potentially illegal acts committed by Mr. Trump. Last week, Mr. Pence announced that he did not intend to appeal the decision.Mr. Trump’s lawyers have now taken the opposite path, asking the appeals court to reverse Judge Boasberg’s ruling on their own attempts to narrow the scope of the questions that Mr. Pence would have to answer. Mr. Trump’s team based its arguments on the concept of executive privilege, which protects certain communications between the president and some members of his administration.Like all matters involving the grand jury, Mr. Trump’s lawyers filed their appeal under seal. A coalition of news media organizations has asked Judge Boasberg to unseal some of the proceedings, though he has not yet made a decision in the case.Since last summer, Mr. Trump’s lawyers have repeatedly — and unsuccessfully — asked judges to keep information from the grand jury by asserting both executive privilege and attorney-client privilege for an array of witnesses. The witnesses have included some of Mr. Pence’s chief aides, two of the top lawyers in the White House and advisers to Mr. Trump like Mark Meadows, his former chief of staff. More

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      Georgia Trump Investigation Poses Challenges for Federal Prosecutors

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      The concurrent investigations create complications for separate teams relying on similar evidence, some of the same criminal targets and a small, shared pool of witnesses.WASHINGTON — The Fulton County district attorney’s investigation into former President Donald J. Trump’s effort to overturn the 2020 election in Georgia is nearing a decision point, posing fresh challenges for federal prosecutors considering charging him in connection with the Jan. 6, 2021, attack on the Capitol.The long-running investigation by Fani T. Willis in Atlanta substantially overlaps with the broader inquiry into Mr. Trump’s conduct by the special counsel, Jack Smith, in Washington. Both rely on similar documentary evidence, some of the same criminal targets and a small, shared pool of witnesses with knowledge of the former president’s actions and intent.Mr. Trump’s critics believe the concurrent investigations provide assurance that the former president and architects of the scheme to install fake electors in battleground states, including Rudolph W. Giuliani and John C. Eastman, will be held to account.But they also create complications for two aggressive investigative teams pursuing some of the same witnesses, increasing the possibility of discrepancies in testimony that Mr. Trump’s lawyers could exploit. Ms. Willis and her team have a head start, having begun their work in February 2021, and are expected to seek indictments early next month. That raises the pressure on Mr. Smith, who has pledged to work quickly, to move even faster, according to current and former prosecutors.The investigation by the Fulton County district attorney, Fani T. Willis, overlaps with the broader inquiry into Mr. Trump’s conduct by the special counsel, Jack Smith, in Washington.Audra Melton for The New York Times“Normally, the lead federal prosecutor just picks up the phone and tries to work it out with the local prosecutor, but it’s obviously a lot more difficult in a case of this magnitude,” said Channing D. Phillips, who served as acting United States attorney for the District of Columbia from March to November 2021. “The stakes of not working things out are incredibly high.”The investigative efforts are by no means the same. Mr. Smith’s purview extends into other areas, most notably the investigation into whether Mr. Trump mishandled classified documents that were found at his Mar-a-Lago estate after he left office.The federal investigation into Jan. 6 focuses on several charges, according to two law enforcement officials: wire fraud for emails sent between those pushing the false electors scheme; mail fraud for sending the names of electors to the National Archives and Records Administration; and conspiracy, which covers the coordination effort. (A fourth possible charge, obstruction of an official proceeding before Congress, has been used in many cases brought against participants in the Capitol attack.)And some of Ms. Willis’s work has been more parochial in nature, including a review of false statements that Trump allies like Mr. Giuliani made at state legislative hearings in December 2020.Justice Department officials said the indictment of Mr. Trump by the Manhattan district attorney, Alvin L. Bragg, over a hush money payment to a porn star will have little effect on their investigations. Federal prosecutors in Manhattan passed on bringing a similar case.But the Georgia investigation is entirely different. The Justice Department has no authority to order local prosecutors to step aside in areas where the investigations do overlap, unless their investigations conflict with federal law. In fact, internal department rules discourage indicting the subjects of prior state prosecutions.Moreover, there is “no formal rule book” for settling jurisdictional questions or for deciding the chronological sequence of prosecutions, and disputes are usually hashed out informally, as they arise, on an ad hoc basis, said Preet Bharara, a former U.S. attorney for the Southern District of New York.Local and federal prosecutors routinely work together to coordinate charging decisions based on which jurisdiction offers better chances of conviction or a stiffer sentence. But in many high-profile cases, prosecutors view dueling investigations as a nuisance or even a hazard.Witnesses, even forthright ones, sometimes offer different accounts when interviewed by lawyers representing different offices. Differences between state and federal laws can lead to damaging conflicts over strategy and priorities. Then there is what is known as “witness fatigue,” when important players simply grow tired or uncooperative after running gantlets of government inquisitors.Fulton County prosecutors are conducting a wide-ranging investigation that includes calls made by Mr. Trump to exert pressure on state officials and efforts by the former president and his allies to replace legitimate electors in Georgia with pro-Trump alternates. Last year, Ms. Willis’s office sought to interview two key figures who had served in the Justice Department: Richard Donoghue, the acting deputy attorney general in the waning days of the Trump administration, and Jeffrey Clark, an assistant attorney general who led the department’s environmental division.Shortly after Mr. Trump left office, it emerged that Mr. Clark had tried to circumvent the department’s leaders and aid Mr. Trump’s efforts to stay in power. He even drafted a letter that was to have been sent to lawmakers in Georgia falsely claiming that the Justice Department had “identified significant concerns” that would affect the state’s election results and urging lawmakers to convene a special session.Mr. Donoghue was alarmed when he saw the draft, according to testimony he provided to the House committee that investigated the Jan. 6 attack.Aides to Ms. Willis filed what are known as Touhy requests, named after a 1951 Supreme Court case. Under the rule, local prosecutors are required to get authorization from the Justice Department to question its current or former employees. But the requests were ultimately rejected.It is not clear why the department rejected the requests. But both men were at the center of an investigation into Mr. Clark’s conduct by the Justice Department’s inspector general that was subsequently handed off to Mr. Smith’s team.A spokesman for Mr. Smith declined to comment.The possibility of an indictment in the Georgia investigation next month raises the pressure on the special counsel, Jack Smith, to move even faster, according to current and former prosecutors.Peter Dejong/Associated PressFulton County prosecutors also declined to comment. The forewoman of an Atlanta special grand jury that issued an advisory report in January, which has remained largely under seal, appeared to hint in an interview this year that it had recommended that Mr. Trump be indicted.The Atlanta case has put additional pressure on Mr. Smith. Justice Department officials have said they wanted to make charging decisions in the spring or summer, before the 2024 election kicks into high gear — which raises the question of whether Mr. Smith will try to bring charges before Ms. Willis does.“Looking at this as a federal prosecutor, I would just want to go first,” said Joyce Vance, a University of Alabama law professor who served as the U.S. attorney in Birmingham from 2009 to 2017. “I don’t want to have to try my case after it’s already been brought in a state court. You really want to go first to avoid problems with witnesses, and other technical or legal problems.”If Ms. Willis moves first, Mr. Smith’s team would have to obtain department approval to waive an internal rule that precludes “multiple prosecutions and punishments for substantially the same act(s).”Demonstrators rallying for Mr. Trump near his Mar-a-Lago estate this week.Hilary Swift for The New York TimesThat is not considered a high bar, however. Mr. Smith would simply have to show that the state case did not completely cover all the issues addressed in a federal case. It is believed that exemption was recently used to obtain a hate crimes conviction against three men who murdered Ahmaud Arbery, a young Black man who was jogging through their neighborhood.John P. Fishwick Jr., a former U.S. attorney for the Western District of Virginia, said he often requested that local prosecutors step aside when he thought their investigations conflicted with his. He suggested that Mr. Smith could at least consider asking Ms. Willis to do the same.“D.O.J. and state prosecutors do not play well in the same sandbox, but at the end of the day, if it gets into a tug of war, D.O.J. is usually going to win,” he said. “The federal government just has more power as far as compelling witnesses, more power to assign people to a case and more oomph, in general.”While prosecutors should clear up disputes over access to witnesses and documents, it is vital that the two efforts be seen as independent and fact-driven and not a “witch hunt,” as Mr. Trump has described all of the investigations into him, former Justice Department officials say.“I don’t think they would coordinate on things like timing or language of the charges or anything like that — although that wouldn’t be illegal,” said Mary McCord, a former top official in the department’s national security division who is now a visiting professor at Georgetown University Law Center.“But the goal here is avoid any appearance that they are coordinating prosecutions for political purposes,” added Ms. McCord.Glenn Thrush More

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      In Hundreds of Jan. 6 Cases, Justice Dept. Wins a Battle (for Now)

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      The ruling of a federal court left open the possibility of future challenges to a law that has been used against hundreds of people charged in the Capitol attack.A federal appeals court on Friday upheld the viability of a criminal charge that has been used against hundreds of people indicted in connection with the attack on the Capitol on Jan. 6, 2021 — and that congressional investigators have recommended using in a potential criminal case against former President Donald J. Trump.The decision by the U.S. Court of Appeals for the District of Columbia means that the charge — the obstruction of an official proceeding before Congress — can continue to be used in the Justice Department’s prosecutions related to the Jan. 6 riot. It could also ultimately be used against Mr. Trump should the special counsel, Jack Smith, decide to file a case against him related to his efforts to overturn the 2020 election.But even though the three-judge panel, in a 2-1 ruling, left in place the status quo and temporarily avoided crippling hundreds of Jan. 6 cases by invalidating the obstruction count, it still presented a serious challenge to the Justice Department moving forward.A provision of the law requires proving that any interference with a congressional proceeding be done “corruptly.” Two of the judges said they were inclined to define that term in a narrow way as receiving a personal benefit — even though the panel as a whole put off a final decision on the issue.The split decision left wiggle room for defense lawyers to try a flurry of complicated new efforts to invalidate the charge in all of the cases in which it has been used.A future ruling that narrowed the definition of “corruptly” could have significant effects on the Jan. 6 prosecutions.It could bar the Justice Department from using the obstruction count against defendants who did not commit other unlawful acts like assaulting a police officer. It could even lead to the charge being dropped in situations in which defendants did not personally benefit from the obstruction they are accused of taking part in — circumstances that could be hard to apply to Jan. 6 defendants.Almost from the start of the vast investigation of the Capitol attack, prosecutors have used the obstruction count to describe the event at the heart of Jan. 6: how, by storming the Capitol that day, members of a pro-Trump mob disrupted the certification of Mr. Trump’s electoral defeat that was taking place inside during a joint session of Congress.Defense lawyers have long maintained that prosecutors overreached in their use of the law, stretching the statute beyond its intended scope and using it to criminalize behavior that too closely resembled protest protected by the First Amendment. In December, they challenged the viability of the law in arguments in front of the appeals court, making various claims that the charge was a poor fit for what happened at the Capitol and that it should not have been used against any of the rioters.In its ruling, the appellate panel acknowledged that the obstruction count had never been used in the way it has been used in Jan. 6 cases, but decided that it was nonetheless a viable charge in the riot prosecutions. The ruling reversed decisions made in three separate Jan. 6 cases by Judge Carl J. Nichols, the only judge in Federal District Court in Washington, where the cases are being heard, to have struck down the obstruction charge..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.The obstruction charge — formally known in the penal code as 18 U.S.C. 1512(c)(2) — was never a perfect fit for the many cases stemming from the Capitol attack. It was passed into law as part of the 2002 Sarbanes-Oxley Act, which sought to clamp down on corporate malfeasance.The measure was initially intended to prohibit actions like shredding documents that were part of a congressional proceeding. In his initial rulings, Judge Nichols said the count had been used inappropriately because the cases of the three rioters he was considering had nothing to do with destroying or tampering with documents or records.The appellate panel — made up of two Trump appointees and one judge appointed by President Biden — ruled that Judge Nichols’s interpretation of the law was too narrow and that the obstruction committed by the three defendants in question did not have to relate solely to documents.The panel noted that the defendants had been rightfully charged with obstruction of a congressional proceeding. The cases included those of Joseph Fischer, a Pennsylvania police officer accused of pushing at law enforcement officers during the Capitol attack; Garret Miller, a Dallas man charged with storming the building and facing off with officers inside; and Edward Jacob Lang, a self-described social media influencer from New York who prosecutors say attacked the police with a baseball bat.The obstruction charge has been used so far in more than 300 riot cases, including against prominent defendants in far-right groups like the Proud Boys and the Oath Keepers militia. Part of the appeal of the count to prosecutors is that it carries a hefty maximum sentence of 20 years in prison.In December, in one of its final acts, the House select committee investigating Jan. 6 included the obstruction count in its recommendations to the Justice Department of what charges should be filed against Mr. Trump. A federal judge in California, considering a lawsuit stemming from the committee’s work, separately determined that Mr. Trump had likely committed obstruction as defined by the law.The appellate panel reserved judgment on the definition of “corruptly” because it was not directly part of the appeal of Judge Nichols’s earlier decisions, leaving open the possibility of future challenges on that issue.In its arguments before the appeals court, the government claimed that acting corruptly should be broadly construed and include various unlawful behavior like destroying government property or assaulting police officers. The defense had argued for a narrower interpretation, seeking to define the term as acting illegally to procure something to directly benefit oneself or another person.The panel split on the issue, with two of the judges — Gregory G. Katsas and Justin R. Walker — agreeing on the narrow, more personal view of “corruptly.” The third judge, Florence Y. Pan, took the broader view of the term but was able to get Judge Walker to vote with her to uphold the obstruction law overall.Judge Walker only agreed to join Judge Pan if they adopted the narrow definition, setting up a conflict that will, eventually, have to be resolved. More