The Weekender: Throwing Down the Gauntlet for SCOTUS

Hello, it’s the weekend. This is The Weekender ☕

The Brooks Brothers Riot 2.0, 3.0, 4.0 …

There’s a curious reference several pages into the Jack Smith filing that was unsealed this week, which provided the fullest account yet of Trump’s effort to coup his way out of losing the 2020 election.

It’s to the 2000 Brooks Brothers Riot, an event that Smith characterized as a “violent effort” to block vote-counting in Florida after the 2000 election. On its face, Smith was using the riot as an analogy for aspects of what happened in 2020: just as a Trump staffer allegedly replied to a mention of the riot by exhorting a “colleague” to start one, so did Trump later exhort his followers to riot to stop the count of electoral votes in Congress on January 6.

But it may mean something else, too.

Smith wrote the filing as a “motion for immunity determinations.” It’s a response to the Supreme Court’s July decision largely siding with Trump in broadening the President’s immunity from prosecution for ostensibly official acts to a level approaching that of a monarch. For the trial court, the remaining question is, which of the actions detailed in the indictment falls outside of the SCOTUS ruling? What did Trump do to stay in power in 2020 that constituted a private act?

The argument of Smith’s filing is that Trump’s actions to overturn his election loss were so egregious and so far outside the perimeter of immunity as defined by the Supreme Court that the judge should find that they were private acts, and therefore prosecutable.

It’s the level of detail in Smith’s filing, in particular, that throws down the gauntlet for the high court.

Assuming this version of the case makes it up to the Supreme Court again for review on immunity grounds (Trump is virtually guaranteed to appeal any adverse rulings on this), the justices will be faced with the prospect of saying that all of Trump’s actions in the run-up to and during January 6 are outside the realm of what’s prosecutable. That includes him egging on the crowd to attack Mike Pence, the fake electors scheme, the pressure on the state legislatures, and much more, as laid out in detail by Smith.

This is what brings me back to the description of the Brooks Brothers Riot. Of the justices currently on the court, Justices Barrett, Kavanaugh, and Roberts all advised the Bush campaign in some form or another on the 2000 election fight. By including the reference to the Brooks Brothers Riot, Smith tied the violence of Trump’s 2020 election theft attempt back to the 2000 election. I’m open to interpretations here, but given his audience, it’s striking as a particularly sharp way of calling out the same people who will have final say over the case.

Here’s what else TPM has on tap this weekend:

• The go-to defense for Republicans who want to avoid questions related to January 6 is that the topic is a media fixation no one else wants to talk about. Unfortunately for them, Trump himself still really wants to talk about it, Emine Yücel writes.
• Khaya Himmelman unpacks the various legal challenges to the Georgia Election Board, which may block some of the Trump-backed activists’ more damaging rules before Election Day. 
• Emine Yücel takes a look at the Trump campaign’s fury that JD Vance was sort-of fact checked during the debate. 

Let’s dig in. 

Republicans Really Want Everyone To Forget About Jan. 6. — But Trump Just Can’t Let It Go.

Undoubtedly, the final topic of Tuesday night’s vice presidential debate was one of the strongest moments for Minnesota Gov. Tim Walz (D). Sen. JD Vance (R) had to reap what he sowed after he tried to dodge a question on the peaceful transfer of power.

“[Trump] is still saying he didn’t lose the election,” Walz said after a lengthy back and forth on Jan. 6. He then turned to Vance and asked the inevitable question: “Did he lose the 2020 election?”

“I’m focused on the future,” Vance replied, attempting to move on to a point about the COVID pandemic and content moderation.

“That is a damning non-answer,” Walz replied in response to Vance — creating one of the highlight moments of the night.

Vance’s non-answer and punt to focusing on “the future” is in line with what most Republicans seem to want desperately to do as they seek to memory hole Jan. 6. (I’m sure many would kill for a “Men In Black” neuralyzer right about now). Among them is House Majority Whip Tom Emmer (R-MN), who helped Vance prep for the debate.

When asked by CNN’s Kaitlan Collins if they discussed how to answer the inevitable 2020 election question ahead of the debate, Emmer tried to hold the line with a similar non-answer.

“Listen, he answered it. You don’t like the answer, but he answered it,” Emmer said. “This is something that you folks in the media want to focus on on a regular basis. The American people, and thank goodness JD Vance and Donald Trump, are focused on the election and how to fix the country.”

During the interview, Collins also pressed Emmer about the fact that he signed on to a lawsuit to invalidate election results in four states, as well as the fact that he later, apparently, changed his mind and voted to certify the election.

“What are you doing talking about something that’s four years ago?” Emmer responded.

Emmer, Vance, and much of the GOP have a big problem, however: The leader of their party is constantly talking about 2020.

“I didn’t rig the 2020 election, they did!” Trump screamed on Wednesday night in a Truth Social post.

If I may say, that doesn’t sound like the words of a man focused on the future.

The Latest Legal Challenge To The Rogue Georgia Board

The Democratic National Committee and the Georgia Democratic Party sued the MAGA-aligned Georgia state election board this week over yet another rule that could potentially delay the certification of the upcoming election results in the state. 

The rule, which passed on September 20 in a 3-2 vote, requires election workers to hand count the number of ballots cast in addition to a machine tabulation of the results in each precinct. 

Supporters of the rule, as previously reported by TPM, claim that it will, in the language of the rule’s proposal, “ensure the secure, transparent, and accurate counting of ballots by requiring a systematic process where ballots are independently hand-counted by three sworn poll officers.” The rule, however, is based on debunked and baseless conspiracy theories about vote tabulation machines from the 2020 election. 

“Putting 11, maybe 12 new rules into play days before Election Day is a grift. We are setting up our counties to fail. Why do we know they are going to fail? Because they are telling you that,” Georgia Democratic state Rep. Saira Draper said about the new rule, per the Washington Post.

The plaintiffs argue in their lawsuit that the board lacks the authority to approve a rule like this  close to an election, and are asking that the court declare the rule invalid. 

“If the Hand Count Rule is allowed to go into effect, the general election will not be orderly and uniform — large counties will face significant delays in reporting vote counts, election officials will struggle to implement new procedures at the last minute, poll workers will not have been trained on the new Rule because it was adopted too late, and the security of the ballots themselves will be put at risk,” the lawsuit argues. 

This is the second legal challenge mounted by Democrats against the board’s recently approved rules. 

The Democratic National Committee and the Georgia Democratic Party are also asking a Fulton County judge to issue a declaratory judgment that makes clear that county officials must certify election results despite the enactment of two additional rules that both have the power to delay certification. 

On August 6, the board passed a rule that gives the board the power to not certify the results of the election until after a “reasonable inquiry” into any discrepancies in the voting process at the county level has been conducted by election officials. The rule, experts told TPM, is intentionally vague, never defining what constitutes a “reasonable inquiry.”

Another rule, passed on August 19, gives election board members the authority “to examine all election-related documentation before certifying the results.” 

Judge Robert McBurney held a hearing in this case earlier this week, during which lawyers for both Democrats and the board agreed that certification must happen by the state-mandated deadline, which this year is 5 p.m. on November 12. Despite agreement about the certification deadlines, the plaintiffs argued that a declaratory judgment is still necessary because the rules themselves cause enough uncertainty to potentially prevent a county official from certifying. 

Words of Wisdom

“When they fact-checked Sen. Vance and shut off his mic — I thought that was pretty alarming, especially since the rules they agreed to were not to fact check the candidates on the stage but they just could not help themselves.”

That’s Donald Trump’s campaign press secretary Karoline Leavitt responding to a question about what stood out to her during the Tuesday night vice presidential debate. 
 

If anything, Tuesday night’s fact-checking was sparse and almost completely ineffective. The moderators allowed Vance to run them over several times, letting him completely take control of the narrative and yank viewers into an alternate MAGA reality. At some moments, however, it seemed like the moderators could not help themselves, and they offered up a few sentences to bring us back to reality. 
 

We’ve seen this again and again over the past decade. Giving Trump and his MAGA proxies air time without fact checking the disinformation they are so eager to spread is extremely dangerous and has consequences. We’re still watching the “Haitian immigrants in Springfield are eating your pets” line play out in the worst way possible — and that was fact checked. That’s the only “alarming” thing I see here.