News bits: A democracy threat analysis; Georgia court case update

A NYT opinion by two legal scholars points to the most likely path that radical right authoritarian state legislatures can subvert the 2024 election. They write (not paywalled off):

After the assault on the nation’s Capitol three years ago, we worked through every strategy we could imagine for subverting the popular will by manipulating the law. What we found surprised us. We determined that the most commonly discussed strategies — such as a state legislature picking a new slate of electors to the Electoral College — wouldn’t work because of impediments built into the Constitution. We also concluded that the most blatantly extreme strategies, such as a state canceling its election and selecting its electors directly, are politically unlikely.

The scenario we see as the most alarming was made possible by the Supreme Court itself. In a 2020 decision, the court held, in our reading, that state legislatures have the power to direct electors on how to cast their electoral votes. And this opens the door to what we think is the most dangerous strategy: that a legislature would pass a law that directs electors to vote for the candidate the legislature picks.

Imagine the election results in a state are close. Charges of fraud cloud a recount. Leaders in the state legislature challenge the presumptive result. In response to those challenges, the legislature votes to direct their electors to cast their ballots for the candidate who presumptively lost but whom the legislature prefers. Any elector voting contrary to the legislature’s rule would be removed and replaced with an elector who complied.

The question now is whether there is any way to close that loophole before a stolen election slides through.

In my very humble opinion, for the foreseeable future there is no way to close that loophole before a stolen election slides through. The 2024 election would very well be stolen by Trump and his corrupt authoritarian enablers.

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Some news sources are reporting that the criminal lawsuit against DJT is in serious trouble due to misconduct by chief prosecutor Fani Willis. Willis added prosecutor Nathan Wade to her team, but dirt diggers somehow found out that Willis and Wade were having an affair. As you an imagine, Michael Roman, the Trump co-defendant who discovered the affair, immediately filed a motion to remove Willis and Wade from the case due to alleged prosecutor misconduct. The authoritarian radical right dark free speech machine fired up in self-righteous moral outrage claiming witch hunt and etc. Legal experts at a group called Just Security published an analysis of the situation based on the limited public information available so far. JS writes:

Why Fani Willis Is Not Disqualified Under Georgia Law

 

Based on what is known so far, it represents poor judgment—especially in a case of this magnitude, even if a prosecutor’s private life is generally none of the public’s business. Willis has already said publicly that she is “flawed” and “imperfect” in her public remarks at Bethel AME Church following the allegations. But whether there were personal failings is not the operative legal test for whether Willis or Wade should be disqualified from the case, and accordingly that question is not the focus of this essay.

The key point is that regardless of whether the factual circumstances involving Willis and Wade give rise to separate ethical concerns with respect to his hiring, such questions do not affect the propriety of the prosecution against [Trump co-defendant Michael] Roman and his co-defendants.

As a matter of both common sense and Georgia law, a prosecutor is disqualified from a case due to a “conflict of interest” only when the prosecutor’s conflicting loyalties could prejudice the defendant leading, for example, to an improper conviction. None of the factual allegations made in the Roman motion have a basis in law for the idea that such prejudice could exist here – as it might where a law enforcement agent is involved with a witness, or a defense lawyer with a judge.

When this story first broke, it seemed as if this revelation could derail the entire criminal lawsuit against DJT and his co-defendants. The Just Security analysis suggests it would be best if Wade removed himself from the prosecution, but it does not yet look like this will get Trump off the hook for his crimes. Nonetheless, we can count on DJT howling in faux sanctimonious moral outrage about the horrors of prosecutorial misconduct. 

Just Security is right to say that Willis showed poor judgment on a case this important. She had to know that her private life would be looked at by professional dirt diggers and the affair found and exposed. Unbelievable stupidity by Willis. Time will tell if this turns out to be a way that Trump once again gets to weasel out of accountability for his crimes. If it turns out that Willis is hiding more than just an affair, the entire lawsuit could crash and burn.