Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
President Donald Trump’s effort to cast doubt on the 2020 election is in full swing. In the past week, he has wrongly called lawful vote-by-mail programs in Michigan and Nevada “voter fraud,” “illegal,” and “cheat[ing],” threatening to withhold federal funds if those states carry out their existing, lawful balloting processes. On Sunday, he tweeted that mail-in vote proponents were “trying to use Covid for this scam.”
In reality, the President has virtually no legal power to determine how states cast their ballots. But Trump’s effort here seems to be less about exercising actual legal imperatives than signaling to others his desire to fight hard to limit access to mail-in ballots – a particularly critical issue given widespread concerns about public gatherings during the coronavirus pandemic. Indeed, we are about to see a series of legal battles across the country that will determine whether millions of people can vote by mail, and the outcome of those cases could swing the 2020 election.
Trump’s threats to unilaterally withhold federal funding ring hollow – and I’m confident he won’t even try, despite the bluster, because any such effort is destined to backfire in the courts. Under the Constitution’s Spending Clause, Congress – not the President – holds the power to distribute federal funds to states and to condition those funds on certain terms; a President’s decision to withhold funding approved by Congress likely is an illegal “impoundment.” Further, the vast majority of federal election funds for 2020 already have been distributed or allocated by Congress to the states, and any conditions on federal funding must be imposed before such funds are disbursed.
So what’s the goal, then? On a thematic level, Trump’s public statements appear designed to undermine confidence in the election and its outcome. And on a practical level, Trump is sending unmistakable marching orders to his political supporters: fight like mad to limit mail-in balloting.
Here’s what those legal battles will look like. About one-third of all states allow voting by mail, but only if the voter shows specific “cause” or need, such as disability, absentee status or religious observance. (Other states either vote entirely by mail or allow “no-excuse” absentee voting, meaning voters do not need to provide any reason to vote by mail). The big question in those “cause” states is whether voters who fear exposure to the coronavirus by physically going to polling places can qualify to vote by mail.
This exact question came to a legal head recently in Texas. A federal district court judge ruled that Texas voters who fear catching the coronavirus can vote by mail under the state’s law permitting mail-in voting based on disability or physical condition. The Texas attorney general, a Republican, had argued against such an expansion of voting access, claiming that it could lead to voter fraud – a claim (often made by Trump, including in last week’s tweets) not supported by any meaningful evidence. The Texas AG did not accept defeat, instead appealing to the federal Court of Appeals for the Fifth Circuit, a famously politically conservative bench. The Court of Appeals promptly halted the district court’s order, and now will consider whether to decide the appeal on its merits.
The legal battle over mail-in ballots in Texas promises to be just one front in a broader legal campaign. Both political parties reportedly have invested tens of millions of dollars in upcoming legal battles over electoral access across the country; the Republican National Committee alone has allocated $20 million to fight lawsuits seeking broader electoral access. This expenditure might ultimately backfire on Republicans, however. There is no conclusive proof that vote-by-mail favors Democrats. Some data shows that Republicans are more likely to vote by mail than Democrats and several prominent Republican officials favor mail-in balloting.
Despite Trump’s bluster, he simply has no meaningful legal power here. But he certainly can rally the troops to fight legal battles in states across the country to limit mail-in voting. The outcome of these cases will determine whether millions of voters can safely cast their ballots from home – or must choose between risking exposure to the coronavirus at polling places or not voting at all.
Now, your questions:
Kirk (Michigan): Could the US Department of Justice bring federal charges in the shooting death of Ahmaud Arbery?
Yes, the DOJ could bring its own criminal charges in the Arbery case, even though Georgia prosecutors already have filed state-level murder charges against three defendants. The Supreme Court last year unanimously upheld the “separate sovereigns” doctrine – meaning that the federal government is separate from state government, so both can bring criminal charges for the same matter.
\There is a federal hate crime statute, which was passed in 1968, during the Civil Rights Movement. The law carries a potential life sentence. Prosecutors would need to prove that a defendant committed an unjustified killing “because of the actual or perceived race, color, religion, or national origin of any person.” The Justice Department has said it is “assessing all of the evidence in the case,” so we should see a decision sometime soon.
Manoj (Pennsylvania): Wouldn’t Michael Flynn, or any person, have to be sentenced before he can be pardoned?
No. Article II of the Constitution gives the President the “power to grant reprieves and pardons for offenses against the United States,” without any explicit time limitation. Accordingly, Presidents can issue pardons at any point during – or even before or after – formal legal proceedings. For example, President Gerald Ford famously (or infamously) pardoned former President Richard Nixon shortly after Nixon’s resignation in 1974. At that point, Nixon had not yet been charged with any crime.
On the other side of the spectrum, presidents can pardon people who already have completed their sentences. For example, President Barack Obama pardoned dozens of drug offenders and other low-level offenders who had long since finished serving their sentences. Most recently, President Donald Trump pardoned former NYPD Commissioner Bernard Kerik and Wall Street junk bond trader Michael Milken years after both finished serving their sentences. Presidents even have, on occasion, issued posthumous pardons, including Trump’s 2018 pardon of the boxer Jack Johnson.
Nancy (Arkansas): If the Justice Department does nothing to investigate the firing of inspectors general, is there anything the Senate and House can do?
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There is no legal mechanism by which Congress can undo Trump’s recent firings of various IGs. Congress can, however, investigate them by issuing subpoenas and holding public hearings. Members of Congress from both parties have expressed concerns over the recent firing of State Department IG Steve Linick, and congressional Democrats have announced the opening of an investigation.
A congressional investigation can bring public attention to the matter and can result in anything from impeachment (which is extraordinarily unlikely at the moment, given the recent impeachment and impending election) to new legislation. And if Congress uncovers new facts, those new facts could spur the Justice Department to open a criminal investigation – under this administration or potentially a new one if the White House changes hands in 2021.
Three questions to watch this week:
1. Will more cases challenging state-level stay-home orders make their way through courts around the country, and how will they be resolved?
2. Will the Court of Appeals instruct the district court judge in the Michael Flynn case that he does not have discretion to reject the Justice Department’s motion to dismiss charges?
3. Will the Court of Appeals overrule the Texas federal court decision permitting voters to submit ballots by mail based on fear of contracting coronavirus?