This week, the January 6th investigation has gained momentum, with high-profile figures such as Rudy Giuliani and Georgia Secretary of State Brad Raffensperger coming under the spotlight. This probe is of immense importance as it seeks to hold accountable those who sought to undermine the 2020 election, exemplifying that no one, not even a President, stands above the law. In addition, former President Donald Trump continues to face escalating charges over the mishandling of classified documents. Meanwhile, the Supreme Court delivered a landmark ruling in Moore v. Harper, rejecting the controversial ‘Independent State Legislature’ theory, which could have given state legislatures unchecked power in federal elections.
Here’s what you need to know for the weekend:
Main Points for the Weekend:
1. January 6th Investigation Intensifies: Giuliani, Trump Insiders and Secret Service Agents in Spotlight
The investigation into the January 6th events is gaining momentum, with a significant spotlight on Rudy Giuliani, the former personal lawyer of President Donald Trump. Giuliani voluntarily met with Special Counsel Jack Smith’s investigators, reportedly discussing critical aspects of the inquiry into Trump’s attempts to overturn the 2020 election results. Alongside Giuliani, Georgia Secretary of State Brad Raffensperg has met with the investigators, following his pressured involvement in Trump’s vote-finding efforts.The investigation continues to reveal new layers, such as the participation of former Trump campaign official Michael Roman, who is in talks to provide information on the fake elector plan. Additionally, Secret Service agents are testifying in front of the Jan. 6 grand jury.
- Top point to make: Among the multitude of legal cases against Donald Trump, the January 6th probe stands as one of the most consequential. Its significance stems not only from the alarming events of that day, but more critically, from the potential threat it posed to the democratic process in the United States. The case represents an effort to hold accountable those who sought to undermine the results of a legitimate and fair election, reflecting the principle that no individual, not even the President, is above the law. At the heart of the investigation is a series of distressing allegations that includes assembling pro-Trump electors in Biden-won swing states, raising funds through fraudulent election claims, attempting to manipulate the Justice Department to endorse these fallacious fraud allegations, and the alleged incitement of the Capitol attack. The significance of this case lies not just in its potential legal consequences, but also in the precedent it sets for the future safeguarding of our democratic process.
- If you read one thing: The New York Times, 6/28/23: Giuliani Sat for Voluntary Interview in Jan. 6 Investigation: Rudolph W. Giuliani, who served as former President Donald J. Trump’s personal lawyer, was interviewed last week by federal prosecutors investigating Mr. Trump’s efforts to overturn the 2020 election, people familiar with the matter said. The voluntary interview, which took place under what is known as a proffer agreement, was a significant development in the election interference investigation led by Jack Smith, the special counsel, and the latest indication that Mr. Smith and his team are actively seeking witnesses who might cooperate in the case.The session with Mr. Giuliani, the people familiar with it said, touched on some of the most important aspects of the special counsel’s inquiry into the ways that Mr. Trump sought to maintain his grip on power after losing the election to Joseph R. Biden Jr.
2. Trump Faces Legal Hurdles Over Mishandling of Classified Documents, Continues Shifting Defense Strategies Amid Escalating Charges
Former President Trump, now facing 37 felony charges, has offered a myriad of reasons for his non-compliance with a federal subpoena. The most recent defense Trump offered during a Fox News interview was attributed to a busy schedule, stating that he was too preoccupied to fully comply with a federal subpoena requiring the return of the classified documents. Behind the scenes, Trump is reportedly scrambling to assemble a competent legal team before a midsummer filing deadline. The release of a recording, in which Trump acknowledges lacking the authority to declassify documents, has belied any claims of ignorance.
Meanwhile, calls for complete transparency in the proceedings have been escalating. Multiple news organizations have petitioned a federal court to reveal the special counsel’s list of 84 witnesses who are prohibited from communicating with Trump about the facts of his case.They argue that full transparency is essential to uphold public confidence in the integrity of the proceedings and the judicial system at large.
- Top point to make: The alleged mishandling of classified documents by former President Donald J. Trump, if proven true, is a grave matter in and of itself. However, the situation becomes alarmingly worse if evidence, such as the recently released tape, suggests that this was a willful act rather than an oversight. Leaders at the highest echelons of power have a paramount responsibility to ensure national intelligence is secure. Any breach of this responsibility, especially intentional, constitutes a flagrant dereliction of duty that undermines the nation’s security and its trust in leadership. This is not just about adherence to procedures; it’s about preserving our democracy and the confidentiality integral to our national security.
- If you read one thing: US News & World Reports, 6/27/23: Trump’s Slippery, Shifting Self Defense in the Documents Case: None of Trump’s explanations appear to approach a solid legal argument, and he is scrambling to put a team of lawyers in place before a midsummer filing deadline in the criminal case against him. The Justice Department earlier this month charged Trump with 37 felony counts related to his retention of national defense information after leaving office, and his willful obstruction of justice – including his defiance of the subpoena last year. In the early months of the investigation, as the probe appeared to center on classified materials Trump had improperly kept in his possession after he left office, Trump’s main defense centered on the issue of classification.He and his allies argued that, as president, he had the power to declassify documents “instantly” and had, in fact, done so before leaving office – and, thus, had not improperly retained classified materials at all. Trump’s lawyers did not back up the legally dubious explanation with any evidence that Trump had actually moved to declassify the materials, but it remained one of Trump’s most robust defenses as the probe wound on.
3. Supreme Court Rejects ‘Independent State Legislature’ Theory, Reinforces Constraints on State Power in Federal Elections
In a landmark ruling, the U.S. Supreme Court has decisively shut down the radical “independent state legislature” theory, thus preventing an unregulated power of state legislatures in federal elections. The verdict was delivered with a majority of 6-3, dismissing the idea that state legislatures could have almost absolute power in determining federal election rules and crafting partisan congressional maps, devoid of state court interference. This judgment, lauded by Democrats, civil rights groups, and a diverse assembly of scholars, liberal lawyers, and conservative former judges, refutes the potentially transformative legal theory. The court’s decision also brings into question the validity of similar fringe theories, such as the fake elector scheme, thereby nullifying controversial election strategies and setting a precedent for future presidential elections. Chief Justice John G. Roberts Jr., writing the majority opinion, emphasized the importance of state and federal constitutions as well as ordinary state laws in constraining state legislative power, thereby upholding the integrity of the democratic electoral process.
- Top point to make: The recent Supreme Court decision in Moore v. Harper reaffirms a vital cornerstone of our democracy: the independence of state legislatures and the judiciary’s role in maintaining checks and balances. Discrediting the dangerous ‘Independent State Legislature’ theory, the ruling underscores that even rogue legislators cannot suppress voters or subvert elections unchecked. It’s essential to recognize that state legislatures must comply with their respective state constitutions in all matters, including congressional redistricting, with both state and federal courts standing as vigilant watchdogs over this process. The ruling, therefore, not only fortifies our democracy but also dispels looming uncertainties over numerous ongoing cases challenging gerrymandering and election laws.
- If you read one thing: The New York Times, 6/27/23: Supreme Court Rejects Theory That Would Have Transformed American Elections: The Supreme Court on Tuesday rejected a legal theory that would have radically reshaped how federal elections are conducted by giving state legislatures largely unchecked power to set rules for federal elections and to draw congressional maps warped by partisan gerrymandering. The vote was 6 to 3, with Chief Justice John G. Roberts Jr. writing the majority opinion. The Constitution, he said, “does not exempt state legislatures from the ordinary constraints imposed by state law.” Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented. The decision followed other important rulings this term in which the court’s three liberal members were in the majority, including ones on the Voting Rights Act, immigration and tribal rights. Though some of the biggest cases are still to come, probably arriving by the end of the week, the court has so far repeatedly repudiated aggressive arguments from conservative litigants. The case concerned the “independent state legislature” theory. It is based on a reading of the Constitution’s Elections Clause, which says, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”
Expert Voices
Michael Luttig, co-counsel for respondents in Moore v. Harper and former judge of the United States Court of Appeals for the Fourth Circuit: “It would be impossible to overstate the enormity of [this week’s] seminal decision in Moore v. Harper. Not only is it now the single most important constitutional case for American Democracy since the Nation’s Founding almost 250 years ago. It is also now one of the most important constitutional cases for representative government in America. Today, it takes its deserved place in the pantheon of great Supreme Court cases that give meaning to the Constitution’s genius of a separation of powers – among the national Legislature, Executive, and Judiciary, and also between the national government and the governments of the respective 50 states of the United States.” Tweets
Joanna Lydgate, president and CEO at the States United Democracy Center, which served as pro bono counsel to the State of North Carolina in Moore v. Harper: “The Moore v. Harper decision is a major victory for voters, for fair elections, and for our democracy. The Court rejected a radical legal theory that would have given state legislatures nearly unchecked power over federal elections. Partisan legislatures shouldn’t — and don’t — have unlimited power to lock in the election results they want by drawing unfair congressional maps and rewriting election rules. Today those checks and balances were upheld. This ruling comes at a critical moment, when a group of anti-democracy state legislators across the country are trying to interfere with and take power over our elections. The risk of election subversion keeps evolving, with attempts to undermine our elections coming on multiple fronts. We can’t sit back as bad-faith actors try to undermine our tradition of effective, nonpartisan election administration.” States United Democracy Center
Cameron Kistler, Protect Democracy counsel: “[This week], the United States Supreme Court issued its opinion in Moore v. Harper; the result is a big win for voting rights and our democracy…the six justice majority affirmed over a century of Supreme Court precedent recognizing that state legislatures must comply with state law when regulating federal elections. More importantly, the Moore decision didn’t just rely on existing precedent: it also engaged in an extensive originalist analysis of founding-era practice showing that state constitutions regulated federal elections at the time of the founding. That combination — the reaffirmation of existing precedent and the recognition that a proper originalist analysis precludes adoption of the independent state legislature theory — should ensure the independent state legislature theory is dead.” Protect Democracy Analysis
Steve Vladeck, a professor at the University of Texas School of Law and an expert on federal courts, constitutional law, and national security law: “I see two very different takeaways [from two major election law Supreme Court rulings this term]. In the short-term, both rulings seem to bespeak a Court – or, at least, a majority – that is wary of being seen as playing partisan favorites in election cases, and so is trying to reduce the temperature of these disputes. But in the long term, both rulings reinforce that, in the final analysis, it’s up to the Supreme Court – and not legislatures or state courts – to have the final word on the rules governing elections, if not the elections themselves. It’s positioning the unelected justices at the center of all future election disputes – even if they don’t and won’t always use that power to directly benefit Republicans.” Semafor
Michael Podhorzer: “[This week], the Supreme Court handed down a ruling in Moore v. Harper that surprised only those who insist on believing that the majority is doing the bidding of the Republican Party. We don’t have a “conservative” majority on the Supreme Court; we have a Federalist Society majority of six justices who are all members of that group, and who were only nominated by Republican presidents after being vetted by that group. We should think of the Federalist Society majority not necessarily as agents of the Republican Party, but as agents of the sponsors and corporate interests who created and continue to fund the Federalist Society, the Republican Party, and the Super PACs that support Republican candidates. The Federalist Society justices are not political partisans; they are interest group partisans…Many are celebrating the Court’s refusal to validate the absurd “independent state legislature” theory that could have allowed MAGA-dominated state legislatures to overturn federal election results. Unfortunately, these celebrations overlook that the decision further normalizes the idea of SCOTUS interventions in elections…on the tenth anniversary of Shelby, not only should we not be celebrating, we should again be lifting up the still-unacknowledged coup underway. As I’ve written before, the Federalist Society majority is key to a revanchist plot to repeal the social and economic progress of the 20th century. If we forget that, and if we take positive rulings like Moore as a sign that the Court may not be completely irredeemable as an institution, we are allowing ourselves to be gaslit.” Substack: Don’t Be Surprised by Moore v. Harper | Tweets
Heather Cox Richardson, American historian at Boston College: “These recent decisions [Moore v. Harper and Allen v. Milligan] are a significant step toward stopping extremist legislatures from deciding our elections, but it is worth noting that the cases came up before the 2022 election. Court stays on the challenges to the now-rejected maps meant that those maps were in place during the election, quite possibly swinging the House of Representatives to the Republicans.” Letters from an American
