The New York Times - USA (2020-08-01)

THE NEW YORK TIMES NATIONALSATURDAY, AUGUST 1, 2020 Y A

More national news ap- pears on Page A20.

Election

She is hardly the only defeated candidate to see injustice in her loss. Going back to the early days of the republic, questions have been raised about the legitimacy of presidential victories from those on the losing side. Andrew Jackson, who won the popular vote and had the most Electoral College votes in 1824 but not a majority in a four-way race, ended up losing to John Quincy Adams when the House decided the matter. Jackson spent the next four years accus- ing Adams of a making a “corrupt bargain” to secure the support of the third-place candidate, Henry Clay, in exchange for appointment as secretary of state. Jackson got his revenge by beating Adams in 1828. Likewise, Democrats com- plained when Rutherford B. Hayes won in a disputed election in 1876, calling him Rutherfraud B. Hayes and His Fraudulency. Republicans suspected that John F. Kennedy beat Richard M. Nixon in 1960 thanks to vote fraud in Texas and Illinois, and many Democrats never accepted George W. Bush’s victory over Al Gore in 2000 after the Florida recount was halted by the Su- preme Court. But the complaints do not typically come from the Oval Office, especially before the election. And no sitting president

ton, a claim seemingly made up out of thin air and one for which his own commission found no evidence. Already 91 times this year, Mr. Trump has made public com- ments, posted Twitter messages or reposted others suggesting election fraud, according to data compiled for The New Yorker by Factba.se, a service that collects and analyzes data on his presi- dency. Going back to 2012, Fact- ba.se counted 713 instances when Mr. Trump cited vote fraud, spiking especially in 2016 and 2018 before elections in which he had a stake. Some of Mr. Trump’s allies have said that he has justifiable reasons to raise concerns about widespread mail-in voting being employed in light of the coronavirus pandemic, even though there is a long history of its use without evidence of widespread fraud. And they accuse the Dem- ocrats of being the ones unwill- ing to accept election results when they lose, pointing to the yearslong effort to investigate Russian interference in the 2016 campaign and any ties to Mr. Trump’s organization. In an interview last year with CBS News, Mrs. Clinton made clear that she considered Mr. Trump’s election shady. “I believe he knows he’s an illegiti- mate president,” she said.

doing is seeding distrust about the legitimacy of even the hold- ing of the election.” Michael J. Gerhardt, a constitutional scholar at the University of North Carolina who testified on the other side in those hearings, said Mr. Trump’s state- ments were part of a pattern of disdain for the norms that have defined the United States for generations. “In the long term, I think there’s going to be a lot of institu- tional damage,” he said, “and the rule of law is going to be under- mined to a very large extent.” Even some of Mr. Trump’s own current and former advisers see his attacks on the election system as a reflection of fear that he may lose and as a transparent effort to create a narrative to explain that away. Sam Nunberg, an adviser on Mr. Trump’s 2016 campaign, said the president was “trying to get ahead of a poten- tial loss” by blaming it on exter- nal factors like the coronavirus. “What President Trump does not seem to understand is that unlike past experiences where he was able to frame a defeat as a win, there is no spin for losing a re-election as an incumbent president and taking down the Republican Party with him,” Mr. Nunberg said. “Despite what he may believe, even the over- whelming majority of the president’s supporters are not inter- ested in this claptrap.” He added: “Republican voters and conservative media will ultimately feel that if you cannot beat Joe Biden, you do not deserve another term.” As recently as April, a Republi- can National Committee official said Mr. Biden was “off his rocker” to suggest that Mr. Trump might seek to “kick back the election somehow.” But in fact, Mr. Trump has a long history of sowing doubt in election results that do not go the way he wants them to go. When he appeared to be losing to Hillary Clinton in 2016, he repeatedly suggested that the election was being rigged and would not commit to accepting the results — until he won, that is. And even after winning the Electoral College, he insisted that he had actually won the popular vote, too, because three million illegal immigrants had supposedly voted for Mrs. Clin-

Nothing in the Constitution
gives President Trump the power
to delay the November election,
and even fellow Republicans
dismissed it out of hand when he
broached it on Thursday. But
that was not the point. With a
possible defeat looming, the
point was to tell Americans that
they should not trust their own
democracy.
The idea of putting off the vote
was the culmination of months of
discrediting an election that polls
suggest Mr. Trump is currently
losing by a wide margin. He has
repeatedly predicted “RIGGED
ELECTIONS” and a “substan-
tially fraudulent” vote and “the
most corrupt election in the
history of our country,” all based
on false, unfounded or exagger-
ated claims.
It is the kind of language reso-
nant of conspiracy theorists,
cranks and defeated candidates,
not an incumbent living in the
White House. Never before has a
sitting president of the United
States sought to undermine
public faith in the election sys-
tem the way Mr. Trump has. He
has refused to commit to respect-
ing the results and, even after his
election-delay trial balloon was
panned by Republican allies, he
raised the specter on Thursday
evening of months of lawsuits
challenging the outcome.
Mr. Trump has put on the line
not merely the outcome of this
fall’s contest but the credibility of
the system as a whole, even
according to scholars and opera-
tives normally sympathetic to
the president. Just floating the
possibility of postponing a presi-
dential election, an idea anath-
ema in America and reminiscent
of authoritarian countries with-
out the rule of law, risks eroding
the most important ingredient in
a democracy — the belief by
most Americans that, whatever
its manifest flaws, the election
result will be fundamentally fair.
“It undermines the faith of the
public in our electoral process,”
said Jonathan Turley, a George
Washington University law pro-
fessor who testified on Mr.
Trump’s side last year during the
House impeachment hearings.
“Any constitutional system is
ultimately held together by a
leap of faith. Citizens must trust
the process if you want them to
yield to it. What the president is

has made a serious effort to delay his own re-election, not even Abraham Lincoln in 1864 during the Civil War or Franklin D. Roosevelt in 1944 during World War II. Elections were held as scheduled during the pandemics of 1918 and 1968. Ronald C. White, a Lincoln biographer, noted that the 16th president did not try to postpone the election even though he thought he was likely to lose. Instead, he made it possible for soldiers in the field to cast their ballots, recognizing that they might support their former general, George B. McClellan, who was his Democratic challenger. “Even as the pandemic, eco- nomic collapse and racial pro- tests have Trump calling himself a wartime president, the real wartime president, Lincoln, determined that the election of 1864 must go forward as a sign that the Union would go forward,” Mr. White said. Jill Lepore, a Harvard Univer- sity professor and the author of “These Truths: A History of the United States,” said presidents bear a responsibility to foster faith in democracy. “Far from undermining public confidence in the democracy over which he presides, it is the obligation of every president to cultivate that confidence by guaranteeing voting rights, by

condemning foreign interference in American political campaigns, by promoting free, safe and secure elections, and by abiding by their outcome,” she said. Mr. Trump has for years been drawn to leaders of other countries who did not share that view, especially autocrats like Presi- dents Vladimir V. Putin of Rus- sia, Recep Tayyip Erdogan of Turkey and Xi Jinping of China. He has expressed admiration for their leadership and envy that in their systems they can be deci- sive without bureaucratic or political impediments while avoiding criticism of their crack- downs on internal dissent. For Americans who have made it their mission to encourage free and fair elections in countries like those and elsewhere, Mr. Trump’s suggestion to delay the November vote and his drum- beat of criticism leading up to it sounded like what they confront abroad, not at home. “I have never seen such an effort to sow distrust in our elections,” said Michael J. Abramo- witz, the president of Freedom House, a nonpartisan organization that promotes democracy around the world. “We are used to seeing this kind of behavior from authoritarians around the globe, but it is particularly dis- turbing coming from the president of the United States.”

President Trump floated the idea of delaying the election in a tweet on Thursday, which could erode Americans’ faith in the results.

ANNA MONEYMAKER FOR THE NEW YORK TIMES

NEWS ANALYSIS

More Than Just a Tweet:

Behind Trump’s Effort

To Undercut Democracy

By PETER BAKER

BOSTON — A federal appeals court on Friday overturned the death sentence of Dzhokhar Tsar- naev, who was convicted of the 2013 Boston Marathon bombings, and ordered a new penalty-phase trial. The ruling, from the U.S. Court of Appeals for the First Circuit, concluded that the presiding judge in the 2015 trial, George A. O’Toole Jr., “did not meet the standard” of fairness, in part because he did not sufficiently scru- tinize sitting jurors for bias. In arguments in December, law- yers for Mr. Tsarnaev, 27, had pointed to 22 Twitter posts and re- tweets by the jury’s forewoman — one referring to Mr. Tsarnaev as “that piece of garbage” — that had not been voluntarily disclosed as part of jury screening. Mr. Tsarnaev’s defense had ar- gued that it was impossible to select an impartial jury in Boston, a city that was gripped by powerful emotions and deluged with pretrial publicity. But Judge O’Toole had denied three motions for a change of venue, arguing that he could easily select impartial jurors. The federal death sentence that Mr. Tsarnaev received was a rare event in Massachusetts, which has no death penalty for state crimes, and has now been at least temporarily revoked. “A core promise of our criminal justice system is that even the very worst among us deserves to be fairly tried and lawfully pun- ished,” Judge O. Rogeriee Thomp- son wrote for the appeals court. “Despite a diligent effort, the judge here did not meet the standard set by Patriarca,” a rule that requires judges to investigate jurors’ exposure to pretrial publicity, the decision said. The ruling went on to say that “to be crystal clear,” Mr. Tsarnaev is still subject to multiple life sen- tences and “will remain confined

to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.” The office of U.S. Attorney An- drew E. Lelling made no comment on Friday. But Liz Norden, the mother of two men who lost legs in the bombings, said the decision was a bitter disappointment. “If this case didn’t deserve the death penalty, what would?” she said. “He admitted to it. His attorney admitted to it. I’m in disbe- lief.” The backpack bombings near the finish line of one of the world’s most famous races killed three people and injured 260 more, many of them grievously. Sev- enteen people lost limbs. A fourth person, a law enforcement officer, was killed as Mr. Tsarnaev and his older brother, Tamerlan, fled a few days later; Tamerlan died in a shootout with the police. At the appeals hearing in De- cember, Mr. Tsarnaev’s team ze- roed in on Judge O’Toole’s decision not to further question two jurors who had failed to disclose tweets and Facebook posts about the crime. Juror 286, a restaurant man- ager who had been chosen as forewoman of the jury, retweeted a post praising “all of the law enforcement professionals who went through hell to bring in that

piece of garbage.” She also sympathized with Twitter friends who sheltered in place during the manhunt, and noted that her own family had been forced to do so while she worked. Juror 138, who worked for the Peabody water department, had posted on Facebook that he was in the jury pool for the case, prompt- ing a friend to comment that “if you’re really on jury duty, this guys got no shot in hell.” On the day of the sentencing, the same juror said on Twitter that Mr. Tsarnaev was “scum” and “trash” and that he belonged in a “dungeon where he will be forgot- ten about until his time comes.”

Court Voids

Death Penalty

For Bomber

Of Marathon

By ELLEN BARRY

A memorial for the Boston Marathon bombing victims. A ruling found the presiding judge didn’t “meet the standard” of fairness.

CASSANDRA KLOS FOR THE NEW YORK TIMES

WASHINGTON — The Su-
preme Court on Friday rejected a
request from environmental
groups to stop construction of
President Trump’s border wall
while the administration seeks re-
view of an appeals court loss.
The vote was 5 to 4, with the
court’s more conservative mem-
bers in the majority. Its brief order
was unsigned and gave no rea-
sons, which is typical when the
court acts on emergency applica-
tions.
In dissent, Justice Stephen G.
Breyer wrote that he feared that
the court’s action effectively de-
cided the case before the justices
even considered whether to hear
the administration’s appeal. Jus-
tices Ruth Bader Ginsburg, Sonia
Sotomayor and Elena Kagan
joined the dissent.
A year ago, by the same 5-to-
vote, the court allowed the admin-
istration to start using $2.5 billion
in Pentagon money to build the
wall on the southwestern border
while the case moved forward in
the lower courts. In June, a divid-
ed three-judge panel of the United
States Court of Appeals for the
Ninth Circuit, in San Francisco,
ruled against the administration,
saying Congress had not autho-
rized the spending.
But the Supreme Court’s earlier
order allowing the construction
remains in place and will not ex-
pire until the court either denies
the administration’s petition seek-
ing review or agrees to hear the
administration’s appeal and rules
on it.
On July 22, the Sierra Club and
the Southern Border Communi-
ties Coalition, represented by the
American Civil Liberties Union,
asked the justices to lift their earli-
er stay. The alternative, the
groups said, was to allow the ad-
ministration to run out the litiga-
tion clock and complete construc-
tion in Arizona, California and
New Mexico even in the face of an
appeals court ruling that the work
was unlawful.
The administration’s deadline
for filing its appeal is 150 days
from the appeals court’s judg-
ment. As a practical matter, the
environmental groups told the
court, the disputed portions of the

wall would be built before the administration had to file its petition seeking review, in late November. “A stay should be just that: a stay,” the brief said. “Not a victory for the party that has lost before every court that has adjudicated the wall’s legality.” In response, Jeffrey B. Wall, the acting solicitor general, said nothing of significance had changed since the Supreme Court issued its stay last year. He added that the administration planned to file its petition by Aug. 7, far ahead of the deadline. That would allow the justices to consider whether to hear the case at their first private conference after their summer break, on Sept. 29. In a second brief, the environmental groups said that the

quicker timeline contemplated by the government was too slow and “still means that they will complete the very border wall construction in dispute before this court can hear argument on the case, much less render a decision.” “Only by lifting the stay will the court ensure that it will have the opportunity to resolve plaintiffs’ claims on the merits before the wall is built,” the brief said. The Supreme Court’s earlier order indicated that the groups challenging the administration may not have a legal right to do so. That suggested that the court’s conservative majority was likely to side with the administration in the end. The lawsuit arose from Mr. Trump’s efforts to make good on a campaign promise to build the barrier. In early 2019, he declared a national emergency along the Mexican border. The declaration followed a two-month impasse with Congress over funding to build the wall, a standoff that gave rise to the longest partial government shutdown in the nation’s his-

tory. After Congress appropriated only a fraction of what Mr. Trump had sought, he announced that he would act unilaterally to spend bil- lions more. Soon after, the environmental groups sued to stop the president’s plan to use money meant for military programs to build bar- riers along the border in what he said was an effort to combat drug trafficking. Judge Haywood S. Gilliam Jr., of the United States District Court for the Northern District of Cali- fornia, blocked the effort in a pair of decisions that said the statute the administration had relied on to justify the transfer did not authorize it. “The case is not about whether the challenged border barrier construction plan is wise or unwise,” Judge Gilliam wrote. “It is not about whether the plan is the right or wrong policy response to exist- ing conditions at the southern border of the United States. Instead, this case presents strictly legal questions regarding whether the proposed plan for funding border barrier construction exceeds the executive branch’s lawful author- ity.” The Ninth Circuit affirmed Judge Gilliam’s injunction, saying that “the Constitution delegates exclusively to Congress the power of the purse.” “The executive branch lacked independent constitutional au- thority to authorize the transfer of funds,” Judge Sidney R. Thomas wrote for the majority. “Therefore, the transfer of funds here was unlawful.” In their first brief, the environmental groups urged the Su- preme Court to act. “Although some of plaintiffs’ in- juries can be reversed by taking down the unlawful construction, ” the brief said, “much of the damage defendants are inflicting on the borderlands will be beyond re- pair.” In a statement after the court acted on Friday, Dror Ladin, a law- yer with the A.C.L.U., said “the fight continues.” “We’ll be back before the Su- preme Court soon to put a stop to Trump’s xenophobic border wall once and for all,” he said.

Justices Let Wall Construction Continue

By ADAM LIPTAK

An emergency ruling

rebuffs a request by

environmental groups.

The New York Times - USA (2020-08-01)

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