SCOTUS escalates Trump’s trial delay gambit
Plus, why preparing for election crises can help avoid them
As you've likely seen, the Supreme Court decided to take up Trump's claim to absolute immunity, even though two lower courts have thoroughly – and unanimously – rejected the argument that Trump is immune from criminal prosecution.
Calling in my colleague Kristy Parker, a former federal prosecutor, to explain what this disappointing move from SCOTUS means:
More than two weeks after Trump filed his stay application (which the Court treated as a petition for certiorari), the court issued a two-paragraph order setting oral argument for April 22nd. That’s roughly twice as long as it took the Court to hear argument in Trump’s 14th Amendment disqualification case. It’s hard not to conclude that at least one of the justices is not eager to see this case go to trial.
But the trial still can and should happen before the election — as Genevieve Nadeau and I argued in Lawfare last week, there’s nothing wrong with the Special Counsel opposing Trump’s delay strategy and pressing for the case to move forward quickly, even as the election gets closer.
The Supreme Court may have just helped Trump’s delay strategy, but the case is not over and accountability is not yet out of reach.
The Court has issued quick decisions following argument in other major cases (it decided Bush v. Gore in a matter of days) and should do so here.
See also, from the former head of public affairs at DOJ:
In the meantime, the delay is at 78 days and counting. Keep track here.
Hope for the best, prepare for the worst
“[A] major candidate’s challenging the election and seeking to delegitimize the results.”
“[A] president who refuses to participate in a peaceful transfer of power.”
“A killer pandemic that ravaged the country and kept people homebound before Election Day.”
Back in late 2019 and early 2020, storylines like these felt more akin to speculative fiction than anything.
Or at least, they did if it wasn’t your job to worry about them. To a cross-partisan group of election lawyers and administrators, national security experts, voting rights leaders, cybersecurity specialists and emergency response professionals — people like former Homeland Security Secretary Michael Chertoff and then-head of the NAACP Legal Defense Fund Sherrilyn Ifill — the possibility that things could go wrong in the 2020 election seemed dangerously high. They just didn’t know how it would go wrong.
So, in fall of 2019, those experts formed the National Task Force on Election Crises, a nonpartisan group with the mission to “prevent and mitigate a range of election crises.”
Of course, many of those crises did happen. And the Task Force went on to become — in my view — an invaluable stabilizing force in the most chaotic election of the modern era. (Full disclosure, I staffed much of their media availability through that election — I can report directly that they’re the real deal.)
And since 2020, the fifty-plus Task Force members have continued to serve as an anchor of election stability during these turbulent times. They were instrumental expert voices in successfully amending the Electoral Count Act, whose shaky foundation was severely tested in the 2020 election, and have since helped push a range of election protection reforms.
Now we have another presidential election coming up. I for one am very much hoping this one will be different. Less crisis-y. But like Outkast said: “You can plan a pretty picnic but you can't predict the weather.” The Task Force is once again preparing for the many possible storms.
Why focus on election crises, anyway?
I wanted to introduce you to this group early this election year for two reasons.
One, if you’re reading this briefing, you’re likely to find their resources and updates handy.
You should sign up for their emails here (and Twitter & Instagram if you’re into those).
And two, I think it’s helpful to talk honestly about the possibility of destabilizing events in our democracy — this election year and beyond.
Being prepared for crises isn’t just about preparing for the shock waves. It’s about working proactively to mitigate the impacts, or ideally evade them altogether.
Just one example: In 2020, the legal experts on the Task Force spent a staggering amount of time explaining the minutiae of how we go from ballots to inauguration day. Things like the “Safe Harbor Deadline” and certificates of electors.
All of that could have felt like wasted time… until bad actors tried to game that system to overturn the will of the voters at every stage. Instead of scrambling to react, the Task Force — and all the reporters, lawyers, elected officials, and administrators relying on their expertise — could immediately reach for actionable summaries of the way things were supposed to work under established law and practice. That, in turn, made it harder for bad actors to convince key officials to violate the law.
Alexandra Chandler has staffed the Task Force since its inception (Protect Democracy staffs and facilitates the group, but the members make their own decisions). I asked her how she thinks about crisis preparedness:
I come from the Intelligence Community, with 13 years at the Office of Naval Intelligence and the Pentagon. There, your job is to prepare for the worst, to protect against threats from abroad. In recent years, we’ve seen why we need that same approach at home to protect our elections. Because it’s not enough to focus on how our democracy should ideally work — we also need to pay attention to the ways it can break, and to get in the heads of bad-faith actors who will try to break it. Elections are run by trustworthy professionals, but they are complicated processes with lots of potential vulnerabilities. When a crisis hits, things happen fast and there can be lots of confusion, and even panic. You rarely get do-overs. And so the sensible course of action is, always, to over-prepare.
How are things going so far?
This past weekend, Task Force members Adav Noti, executive director of the Campaign Legal Center, and Jennifer Morrell, CEO and co-founder of The Elections Group, were in South Carolina, observing the voting, coordinating with local officials and ready to help inform responses to potential crises if they cropped up.
What did they see on the ground?
Not much. And that's a good thing. The "first in the South" Republican primary took place this past Saturday, February 24 and ran very smoothly.
Some counties consolidated polling locations between the last election and this one, so some additional outreach and education was needed to ensure that everyone could cast their ballots. Overall, the state of South Carolina ran an election that voters can trust, with no major incidents. Read more.
(As always, the Task Force experts were prepared in advance — see their explainer on South Carolina elections here.)
Join the over-preparers
The 2024 election is still in its earliest stages. We need you to be part of the ecosystem of actors who are thinking ahead, hoping for the best and planning for the worst.
You can start by signing up for the Task Force’s updates here, and if you want to go deeper check out their library of resources here. I’m hoping many of these flashpoints don’t return this year — but they might.
There are also lots of other things you can do to make sure you’re prepared. Consider becoming a poll worker, especially if you live in a place where staffing has been a problem. Make sure your voter registration is up to date. And most importantly, whoever you are, wherever you are — start thinking about how you’ll respond if things go wrong. How will you be a conduit of clear and accurate information, and not misinformation and panic?
Chris Crawford now leads Protect Democracy’s staffing of the Task Force. He told me:
Preparation isn’t just for public officials, lawyers, and experts. Every community should be thinking ahead. During the 2020 election, I helped the Task Force with outreach to faith communities and other civil society leaders from the outside. I saw firsthand the way that the Task Force’s materials were a lifesaver for religious leaders, grassroots organizers and communities across the country who were trying to navigate such a complicated election environment.
The Task Force will have lots more on how to be prepared in the coming months.
But they may also be missing things. This time four years ago, there had only been a couple dozen COVID cases in the U.S. — no one knew how much the virus would go on to impact the election. If you have election crises you are worried about that you think aren’t getting attention, drop us a line: digital@protectdemocracy.org.
In the end, the effort to illegally and violently disrupt the process in 2020 failed. Maybe that was inevitable — maybe things would have been fine even if we all hadn’t been so prepared.
But that’s kind of the point. In crisis prep, you prepare for the worst. And then, worst case scenario, things are ok.
How to summarize the authoritarian threat
Democracies don’t die like they used to — instead of tanks in the street, in the 21st Century they’re overthrown by a thousand small violations. Incremental erosion still leads to the same end, but it’s easier for autocrats to disarm any resistance. “You’re overreacting,” they’ll say.
So how do you connect the many dots drawn by a would-be autocratic leader? How do you summarize a whole made up of hundreds of small, often innocuous-seeming parts?
Three resources this week that do exactly that.
First, Just Security’s American Autocracy Threat Tracker is a catalog of Donald Trump and his associates’ plans. Their topline:
We assess there is a significant risk of autocracy should Trump regain the presidency. Trump has said he would deploy the military against civilian protestors and his advisors have developed plans for using the Insurrection Act, said he would invoke the Alien Enemies Act to conduct deportations of non-citizens, continued to threaten legally-established abortion rights, and even had his lawyers argue that a president should be immune from prosecution if he directed SEAL Team Six to assassinate his political enemies. Trump also seeks the power to protect his personal wealth as he faces staggering civil fines, and to bolster his immunity as he faces 91 criminal charges in prosecutions in different parts of the country.
(Sidebar: if you don’t read Just Security, you’re missing out. Their Trump Trial Clearinghouse is also a critical resource.)
Second, this full episode of WBUR’s On Point (one of my favorite nationally syndicated NPR shows) features Protect Democracy’s Aisha Woodward and Genevieve Nadeau (who lead our work to prepare for and safeguard against a future authoritarian in the White House). The episode discusses in plain language the ways in which Trump is pledging to rule like a dictator. Listen now.
One snippet, from Aisha:
This time around there is a lot more proactive work going on, both from the Trump campaign, but [also] a whole ecosystem that has cropped up around him to enable him to take office in January 2025 and be much more successful at executing his agenda from day one.
But you asked what's really changed. You mentioned the fatigue that folks are feeling in thinking about another potential Trump administration, and that's part of one of the several guardrails that have really eroded over the past several years and what we're really worried won't exist in a second Trump administration. People have seen our norms be battered for several years and are walking away kind of feeling like it's hard to tell what is normal anymore.
Third, The New York Times’ Carlos Lozada read all 887 pages of the plans for a second Trump term as, essentially, a book review. It is a review like no other. His takeaway:
[W]hat is most striking about the book is not the specific policy agenda it outlines but how far the authors are willing to go in pursuit of that agenda and how reckless their assumptions are about law, power and public service.
Protect Democracy has our own analysis of the promises, powers, and plans, The Authoritarian Playbook for 2025. Summary here.
What else we’re tracking:
Speaking of crisis risks: federal agencies are limiting communications with social media companies. That could lead to big trouble for the 2024 election and for U.S. cybersecurity, explain Quinta Jurecic and Eugenia Lostri in Lawfare.
Why did Putin kill Navalny? Even in prison, he was a threat to the autocracy, writes Anne Applebaum in The Atlantic.
John Hendrickson has a must-read profile, “Inside No Labels,” that breaks down many of the confounding contradictions of the third-party effort.
Is Wisconsin going sane? A variety of indicators suggest so, writes Bill Leuders in The Bulwark. Another one of those sanity efforts: groundbreaking work to regulate AI in political advertising.
The number of states removing Trump from the ballot for engaging in insurrection is growing. Illinois joined yesterday. (Read more on the disqualification issue here.)
Podcast recommendation: Lee Drutman, Julia Azari and James Wallner’s Politics in Question. Last week: Is the House broken? with Chip Roy (R-TX).
Speaking of Congress being broken, it’s not just politics. It’s also not a great workplace. Can the House Subcommittee on Modernization fix it? In Washintonian.
The Biden Administration’s strikes against the Houthis are raising key legal questions, including whether the administration is circumventing Congress and its obligations under the War Powers Resolution.