Re: Re-recount

This Week in Democracy

• Arizona Senate President Warren Petersen announced that he received a subpoena from the FBI for records related to a so-called “audit” of the state’s 2020 election results that confirmed President Trump’s loss. (A 2021 States United report analyzing the audit also concluded that Trump lost, but found that the audit’s process was flawed in numerous ways.)

  Dax Goldstein, the director of States United’s Election Protection work, told reporters this week that the Arizona subpoena and the FBI’s seizure of 2020 election records in Georgia in January share a lineage. “This is all part of a broader effort to take power away from the states and undermine our democracy,” they said.

  After news of the subpoena broke, Arizona Attorney General Kris Mayes and Secretary of State Adrian Fontes wrote to the top election officials of each of the state’s counties, warning them about the risks of complying with any subpoenas or requests from the federal government for voters’ private information.

  “We cannot overstate the importance of protecting voters’ private data. … We have a sacred duty to protect our constituents’ privacy and uphold the law, and we urge you to stand with American democracy and protect Arizona citizens from the federal government’s unprecedented abuse of authority,” they wrote.

  ➡️ READ: Sharing the Facts About the Trump Administration’s 2020 Election Investigation

• The Society for the Rule of Law, represented by States United, filed a brief in the U.S. Department of Justice’s cases against former FBI Director James Comey and New York Attorney General Letitia James. A federal judge dismissed the charges against Comey and James in November, ruling that the prosecutor who brought the cases, Lindsey Halligan, was unlawfully appointed to her role and did not have the authority to do so. The Justice Department is appealing the November decision.

  The U.S. Constitution and federal law define the steps the White House must take to appoint federal prosecutors. That process gives some authority to Congress and judges to check the executive branch’s power. But U.S. Attorney General Pam Bondi violated that process when she appointed Halligan, the brief argues.

  The Trump administration’s actions “threaten the legitimacy of prosecutions, the credibility of U.S. Attorney’s offices, and the fair and impartial administration of justice. … They show a President intent on using the justice system to punish his perceived political adversaries,” the group writes.

  ➡️ MORE: About the brief

• The Department of Homeland Security is pulling back on its most aggressive immigration enforcement tactics, according to reports, but states and organizations are continuing to demand accountability for federal agents.

  Sam Trepel, the director of States United’s Rule of Law work and a former attorney for the Justice Department’s Civil Rights Division, spoke to CBS News this week about the department’s decision to exclude civil rights prosecutors from the federal investigation into the shooting of Alex Pretti by federal agents in Minnesota.

  “The Civil Rights Division has experienced career prosecutors who are the experts in investigating use of force cases, including shootings by federal agents,” she said. “By bypassing them and assigning an employment discrimination attorney, it just shows that this administration isn’t serious about conducting a fair and comprehensive investigation.”

  ➡️ READ: What’s Breaking Through About Federal Law Enforcement Tactics

State of the States

In New Jersey, New York, and Wisconsin, judges rejected the Trump administration’s attempts to keep its preferred prosecutors in charge of U.S. attorney’s offices without approval from the U.S. Senate.

A federal judge in New Jersey ruled this week that Attorney General Pam Bondi violated federal law and the Constitution by attempting to divide the responsibilities of the state’s U.S. attorney among three Justice Department officials.

In August, the same judge ruled that Alina Habba, one of Trump’s former personal lawyers who was originally nominated to be the state’s U.S. attorney, was unlawfully appointed and disqualified her from holding the position. The Justice Department appealed, but a panel of judges upheld the ruling.

Another federal judge recently ruled that John Sarcone III, whom Bondi chose to run the U.S. Attorney’s Office for the Northern District of New York, was unlawfully appointed and disqualified him from continuing his investigations into New York Attorney General Letitia James.

The Justice Department is appealing that decision, too. The department asked the judge who ruled against it to allow Sarcone to be involved in the investigations while the appeal is pending, but this week the judge rejected that request.

Habba and Sarcone were both appointed using unusual legal maneuvers designed to avoid the requirement that federal prosecutors be confirmed by the Senate. The appeals court that upheld the ruling in New Jersey called the strategy an attempt to “sidestep” federal law.

In the Eastern District of Wisconsin, judges for the federal district court this week declined to extend Bondi’s appointment of Brad Schimel as the district’s interim U.S. attorney. Schimel’s term will end on March 17. The judges indicated that they would not yet use their authority to appoint a new U.S. attorney and will instead wait for a Senate-confirmed candidate to assume office.

Recommended Reading

In light of the FBI’s subpoena of election-related materials in Arizona this week, Stephen Richer, the former chief election official of Maricopa County and a member of States United’s Bipartisan Advisory Board, writes in The Dispatch about the multitude of reviews the 2020 results went through.

Richer, who oversaw the 2020 election process in the county—Arizona’s most populous and the fourth-most populous in the country—writes that “any future allegations would have to account for why all the previous probes didn’t uncover any material fraud or error. I would politely suggest that the reason is because no such fraud or error exists. The voters of Arizona chose Joe Biden more than five and a half years ago. It’s time to move on.”