Full Text: Garland & Barr Political Sensitivities Memos

July 19, 2022

The full text of Merrick Garland’s May 25, 2022 DOJ Memorandum “Election Year Sensitivities” can be viewed in your browser by clicking on the link below titled “Garland Election Year Sensitivities Memo.” Clicking the “Download” button allows the full text of the opinion to be downloaded to your device. You can also share this post on Twitter and Facebook.

The full text of Bill Barr’s February 5, 2020 DOJ Memorandum “Additional Requirements For The Opening Of Certain Sensitive Investigations” which Merrick Garland fully adopted and extended in Garland’s May 2022 memo can be viewed in your browser by clicking on the link below titled “Barr Certain Sensitivities Memo.” Clicking the “Download” button allows the full text of the opinion to be downloaded to your device. You can also share this post on Twitter and Facebook.

Ukraine – Facing The Unthinkable

Ukrainian emergency employees and volunteers carry an injured pregnant woman from the damaged by shelling maternity hospital in Mariupol, Ukraine, Wednesday, March 9, 2022. A Russian attack has severely damaged a maternity hospital in the besieged port city of Mariupol, Ukrainian officials say. (AP Photo/Evgeniy Maloletka)

March 22, 2022

A superb analysis of Putin’s savage invasion of Ukraine written by Oregon Representative Marty Wilde. Rep. Wilde’s military experience includes deployment in Afghanistan as a member of the International Security Assistance Force.

Last month, Russia invaded Ukraine in the largest military operation in Europe since World War II. Putin launched this campaign expressly to destroy Ukraine’s military and overthrow its democratically-elected government, violating an earlier agreement to respect its borders in exchange for Ukraine giving up nuclear weapons. In response, Ukrainian President Volodymyr Zelenskyy requested military aid and direct US military action to save his country. To be effective, the US aid must match Ukraine’s needs with our capacity and squarely confront the potential for escalation.

What Does Ukraine Need?

Ukraine’s military most pressing needs are for defensive short range anti-armor systems and protective large-scale anti-air weapons systems. US aid has focused on small, portable systems, such as the Javelin anti-tank missile and Stinger anti-air missile. The Ukrainian military has used these well against Russian forces with longer-range weapons. I can’t imagine the bravery it takes to sneak up on foot on a tank that can shoot someone from miles away or to try to shoot down a heavily armed Russian Hind attack helicopter with only a small, hand-carried missile.

But these short-range systems cannot prevent aerial bombardment and the ongoing murder of civilians by missiles. US weapons like F-16 aircraft and Patriot air defense missiles could save lives, but their use would require us to enter the conflict directly or provide lengthy training. Instead, we are encouraging former Warsaw Pact countries to transfer their more familiar anti-air and anti-missile systems to Ukraine, in exchange receiving US equipment and training. For example, I expect that we will see Slovakia and Bulgaria give their S-300 air defense systems to Ukraine, in exchange for deployments of US air defense units to protect them.

The US as the Arsenal of Democracy

During World War II, the US provided $700 billion (in 2022 dollars) worth of planes, ships, tanks, and other military supplies to the UK, the Soviet Union, France, China, and others. This amounted to about 17% of the total war expenditures for the U.S. During just the first year of this “Lend Lease” program, we budgeted $182 billion. Since 2014, the US has delivered only about $3 billion in military support for Ukraine, with about $3.5 billion more budgeted. For comparison, the US Department of Defense budget is about $728 billion this year. We can do a lot more to support Ukraine, even without direct participation in the conflict.

Does Might Make Right?

While we consider the use of nuclear, chemical, and biological weapons unthinkable, Putin is actively considering the use of weapons of mass destruction. The Russian military does not draw a clear distinction between large conventional munitions like fuel-air explosives and tactical nuclear weapons. In comparison with the available alternatives, chemical weapons are not very useful against military targets, but they are effective terror weapons against civilians. Putin has already committed war crimes by targeting civilians directly with heavy munitions to try to force a surrender. He will likely escalate, regardless of US actions.

We must face the horror of these weapons directly. In the last decade, both Republican and Democratic Presidents engaged in missile strikes against the military units employing chemical weapons. In the Ukrainian context, that would mean US forces taking direct military action against Russian forces, with all the danger of escalation that entails. While no one wants that to happen, we should not pretend that the alternatives are all worse.

If we do not do more to support Ukraine, Russia will subjugate or divide Ukraine, which would allow Putin to credibly threaten other countries on his periphery, including Georgia, Latvia, Estonia, Lithuania, and Finland, some of which are NATO treaty allies. It would mark a significant advance for authoritarian regimes, especially if the lack of a strong response now encourages Putin to escalate to using weapons of mass destruction. A world in which any of the increasing number of nuclear powers can simply threaten to use these weapons to prevent any response to invasions of its neighbors is truly a world where might makes right.

Ukraine needs much more than the military support we currently provide. That likely means deploying tens of thousands of more US troops to Eastern Europe with US-built air defense systems to replace the Soviet-era equipment our allies will provide Ukraine. These troops will also have a long-term mission to train our allies in their own defense. The additional resources provided by US and allied countries would allow Ukraine to resist the Russian invasion more effectively. In turn, this could force a Russian withdrawal or settlement on terms favorable to a free and democratic Ukraine.

As Thomas Paine wrote, “These are times that try men’s souls.” After the long slogs of Iraq and Afghanistan, we yearn for a time of peace. But while we may not be interested in war, war is interested in us. If we do not answer the call to defend democracy, Putin’s aggression will not stop in Ukraine.

Full Text: Briefs & Orders Filed In TX Abortion Case

October 16, 2021

Use this link to find analyses of and access to full text documents filed in the Texas abortion case. The Texas abortion case began when the United States Supreme Court, in a case titled “Whole Women’s Health v. Austin Reeve (Supreme Court) (9.1.21),” declined to strike down a newly enacted Texas law allowing citizens to act as “abortion vigilantes” by empowering them to sue anyone who helps a woman obtain an abortion once fetal cardiac activity can be detected — usually around six weeks after a woman’s last menstrual period (for a more detailed explanation of the Texas abortion law read the Washington Post article “What To Know About The Texas Abortion Law“). The Supreme Court’s order, filed on September 1, 2021, with blistering dissents by justices Kagan and Sotomayor, effectively overruled the longstanding Supreme Court case Roe v. Wade, which held that women had a constitutional right to abortions. Further analysis of the Supreme Court’s order and the full text of the order can be found by clicking here: United States Supreme Court Order Allowing Texas Abortion Law To Stand.

When the United States Supreme Court allowed the draconian Texas abortion law to stand, the Department of Justice (DOJ) under Attorney General Merrick Garland began a lawsuit on September 9, 2021, by filing a complaint in the United States District Court for the Western District of Texas. The DOJ’s complaint was fiercely direct, opening with the statement: “It is settled constitutional law that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” Thus, concluded the DOJ, “Texas enacted S.B. 8 in open defiance of the Constitution.” Further explanation of the DOJ’s complaint and the full text of the complaint (which changed the name of the case to “United States of America v. The State of Texas”) can be found by clicking here: DOJ Complaint Challenging Texas Abortion Law.

After filing its complaint, and aware of the urgent health crisis created by the Texas abortion law, the DOJ just five days later, on September 14, 2021, filed an emergency motion for a temporary restraining order, or preliminary injunction, to prevent the abortion law from being implemented. In its motion, the DOJ noted that “[t]he devastating effects warned of in the pre-enforcement litigation immediately became a reality for patients and providers in Texas.” The DOJ established the factual basis for its motion by describing a litany of harrowing experiences suffered by Texas women as a direct result of the anti-abortion law. The DOJ’s description of the dire state of affairs in Texas and the full text of the emergency motion can be found by clicking here: United States’ Emergency Motion For A Temporary Restraining Order Or Preliminary Injunction.

The United States District Court was quick to respond to the DOJ’s motion. On October 6, 2021, United States District Judge Robert Pitman filed a 113-page order in favor of the DOJ issuing a temporary restraining order, or preliminary injunction (whether termed a “restraining order” or “preliminary injunction” the legal effect is the same). The consequence of this order was that the Texas abortion law could not be enforced. As described in a Vox article published on October 9, 2021, Judge Pitman blasted the Texas abortion law as an “unprecedented and transparent statutory scheme” to deprive Texas women of their constitutional abortion rights under Roe v. Wade. In an article published on October 17, 2021, the Guardian observed that Judge Pitman used “some of the strongest language ever heard from a federal judge,” noting that “Judge Pitman’s opinion explained that Texas concocted a transparent ‘scheme’ to ‘end run’ the constitution . . . [and] laid out the elaborate ‘machinations’ Texas devised to avoid a court doing anything about a clearly unconstitutional law.” The full text of Judge Pitman’s order can be viewed or downloaded by clicking here: U.S. v. Texas Judge Pitman Order Blocking TX Abortion Ban 10.6.21.

The District Court’s order stopping the Texas abortion law from being enforced was short lived. On October 8, 2021, the State of Texas filed a motion with the 5th Circuit Court of Appeals (the intermediate appellate court between federal district courts and the United States Supreme Court) asking for a stay of the preliminary injunction issued by Judge Pitman. The full text of the motion filed by Texas can be found by clicking here: U.S. v. Texas Motion To Stay Preliminary Injunction. The United States filed its opposition to the Texas motion on October 11, 2021. The full text of the United States’ brief can be found here: U.S. v. Texas DOJ Opposition to Motion to Stay. Also on October 11, 2021, a large group of prestigious organizations opposing the Texas abortion ban (particularly as a matter of women’s health) filed an Amici Curiae (i.e., “friend of the court”) brief in support of the United States’ opposition to the Texas motion. The full text of the Amici Curiae brief can be found here: U.S. v. Texas Amicus Briefs in Support of U.S. On October 14, 2021, a three-judge panel of the 5th Circuit Court of Appeals in a 2-1 decision issued a perfunctory one paragraph order staying the preliminary injunction filed by Judge Pitman just five days before. The legal consequence of the 5th Circuit’s order was to reinstate the Texas abortion ban, once again depriving the women of Texas the constitutional rights to an abortion guaranteed by Roe v. Wade. The full text of the 5th Circuit’s order can be viewed by clicking here: U.S. v. Texas 5th Circuit Panel Stays Preliminary Injunction.


Full Text: McConnell Poison Pen Letter To President Biden

October 8, 2021

Remarkably disrespectful, insulting, antagonistic, bellicose, and obstructionist are terms that barely begin to describe the political nastiness of Senate Minority Leader Mitch McConnell’s letter to President Joe Biden of October 8, 2021. For anyone harboring the misguided hope that today’s Republican party has any intention of engaging in true bipartisan governance, this letter makes clear that for Republicans there is but one overriding goal: to obstruct any attempt by the Democrats to engage in legislative action with the purpose of benefitting the citizens of the United States, their institutions and the very democracy they live under and cherish. Describing the heroic efforts of Senate Majority Leader Chuck Schumer and other Democratic senators to avoid a national and international financial crisis by raising the debt ceiling to cover the massive debt resulting from Donald Trump’s tax cuts for the wealthy as “childish,” “bizarre,” “partisan, angry and corrosive,” McConnell declared that in the future should such financial crises occur the Democrats should not look to him (and by implication the Republican party as a whole) for help. While McConnell lashed out at Chuck Schumer and the Democrats, it is McConnell’s behavior that has been consistently childish, bullying, selfish, petty, and destructively partisan. The Politico article quoted below provides an insightful analysis into what history will likely view as one of the most bizarre, reckless, and childish letters ever sent by a senator to a sitting president, a letter that will certainly find its way into the footnotes of political infamy.

“What he’s saying 👇

A TGIF grenade: Senate GOP Leader Mitch McConnell called President Joe Biden on Friday afternoon and sent him a letter making clear he has no intention of supplying any votes to raise the debt ceiling again.

McConnell said in the letter that after Senate Majority Leader Chuck Schumer’s Thursday speech castigating Republicans, “I will not provide such assistance again if your all-Democratic government drifts into another avoidable crisis.” After McConnell buckled this week to provide a two-month patch to prevent default, he is retrenching around his original strategy: That Democrats must use the budget reconciliation process to raise the debt ceiling long-term.

Key quote:

“Your lieutenants on Capitol Hill now have the time they claimed they lacked to address the debt ceiling through standalone reconciliation, and all the tools to do it.”

— Minority Leader Mitch McConnell (R-Ky.) in a letter.

The intended audience: The letter might be to Biden, but it’s really a message to Senate Republicans — who hated McConnell’s short-term debt deal — that he’s not changing his long-term strategy. He won’t deviate next time from blocking any debt ceiling increase not done on party-lines through reconciliation. It’s also a brushback at Schumer, whose speech on Thursday spiked the football after McConnell faced backlash from his party behind closed doors. McConnell in his letter accuses Schumer of “angry incompetence” and “childish behavior,” among other things.”

The full text of Mitch McConnell’s “poison pen” letter to President Joe Biden of October 8, 2021 can be viewed in your browser by clicking on the link below titled “McConnell to Biden 10.8.2021.” Other links allow the full text of the letter to be downloaded to your device and shared on Twitter and Facebook.

Full Text: Twenty Attorneys General Sue U.S. Postal Service

October 7, 2021

Twenty Attorneys General, including New York AG Lettitia James, have sued the USPS on grounds that the USPS failed to fully vet Trump appointee Postmaster Louis DeJoy’s 10-year plan which DeJoy specifically intends will slow down mail delivery. The nature of the complaint and why it important is concisely explained in the following article published in Axios of October 8, 2021, the date the complaint was filed.

20 Attorneys General Sue In Ongoing Battle Over Proposed Mail Slowdown

Twenty attorneys general on Thursday sued the Postal Regulatory Commission (PRC), arguing the agency did not fully vet Postmaster Louis DeJoy’s 10-year plan for the U.S. Postal Service, which ultimately led to a slowdown of mail delivery.

Why it matters: The USPS argued that the slowdown would save money, but the changes could affect people who depend on the mail for their businesses, medication and bills, according to North Carolina Attorney General Josh Stein.

  • “The Plan reflects multiple unprecedented changes in the Postal Service’s operations and service, at a time when reliance on the mail remains at historic levels,” the attorneys general said in a statement.

The big picture: The suit alleges that the PRC did not give an advisory opinion for most of DeJoy’s plan.

  • “The Postal Service has only submitted two requests for an advisory opinion [from the PRC], which represent only a small portion of the Plan’s scope,” the suit alleges.

Flashback: PRC report released in July said that the Postal Service did not prove “its case for reducing service standards for all Americans.”

  • “The plan also fails to provide sufficient evidence to justify exceptionally limited cost savings projections,” PRC Commissioner Ashley Poling wrote.
  • The slowdown went ahead despite the PRC’s report and began Oct. 1.

What they’re saying: The PRC said it received the lawsuit and plans to establish a docket and take it under advisement, per CBS News.

  • The USPS told CBS News that the lawsuit “has no legal or factual merit, and the Postal Service intends to move to dismiss it pursuant to the rules of the Postal Regulatory Commission.”


The full text of the Attorneys General complaint against the United States Postal Service filed with the Postal Regulatory Commission of Washington, D.C. on October 7, 2021, can be viewed in your browser by clicking on the link below titled “States v. USPS 10.7.2021.” Other links allow the full text of the letter to be downloaded to your device and shared on Twitter and Facebook.

Full Text: Subverting Justice

How the Former President and His Allies Pressured DOJ to Overturn the 2020 Election

October 7, 2021

Read “Subverting Justice,” the damning interim staff report of the Senate Committee on the Judiciary on Trump’s efforts to overthrow the 2020 election. The text below is from the introduction of the report. “Subverting Justice” details the sustained, audacious, unprecedented and arguably criminal efforts of Trump and his allies to overthrow the election and is supported by hundreds of pages of documentary and photographic evidence. Watch this space for the full text of the final report, not to mention the results of the ongoing House investigation into the now infamous January 6th insurrection.

On January 22, 2021, the New York Times reported that Jeffrey Bossert Clark, the former Acting Assistant Attorney General for the Department of Justice’s (DOJ) Civil Division, sought to involve DOJ in efforts to overturn the 2020 presidential election results and plotted with then President Trump to oust Acting Attorney General Jeffrey Rosen, who reportedly refused Trump’s demands. On January 23, 2021, the Wall Street Journal reported that Trump had urged DOJ to file a lawsuit in the Supreme Court seeking to invalidate President Biden’s victory. These reports followed Trump’s months-long effort to undermine the results of the election, which culminated in the violent insurrection at the United States Capitol on January 6, 2021.

The Senate Committee on the Judiciary immediately launched an investigation into Trump’s reported efforts to enlist DOJ in his election subversion scheme. On January 23, 2021, the Committee asked DOJ to produce documents related to these efforts. DOJ cooperated with the Committee’s request, producing several hundred pages of calendars, emails, and other documents in the ensuing months.

On May 20, 2021, following DOJ’s production of emails from former White House Chief of Staff Mark Meadows to Rosen asking DOJ to investigate several debunked election fraud claims, the Committee asked the National Archives and Records Administration (NARA) for additional Trump White House records related to Trump’s attempts to secure DOJ’s help in overturning the election results. The Committee’s request sought White House records between November 3, 2020 and the end of Trump’s presidency related to meetings and communications between and among White House and DOJ officials. NARA has not responded to date, and has represented to the Committee that the delay in transitioning electronic Trump records from the White House to NARA may prevent the Committee from obtaining a response for several more months.

In addition to obtaining and reviewing documents, the Committee interviewed key former DOJ personnel, including Rosen, former Principal Associate Deputy Attorney General Richard Donoghue, and former U.S. Attorney for the Northern District of Georgia Byung Jin (“BJay”) Pak. DOJ and the White House authorized these witnesses to testify about their internal communications without restriction, citing the Committee’s “compelling legislative interests … in understanding these extraordinary events: namely, the question whether former President Trump sought to cause the Department to use its law enforcement and litigation authorities to advance his personal political interests with respect to the results of the 2020 presidential election.”

The Committee also requested to interview Clark, whom DOJ authorized to testify on the same terms as the other former DOJ officials. DOJ authorized Clark’s appearance on July 26, 2021. More than two months after DOJ authorized him to testify without restriction, Clark still has not agreed to the Committee’s request that he sit for a voluntary interview.

Key Findings

The Committee continues to investigate Trump’s efforts to involve DOJ in his election subversion scheme, including by pursuing Trump White House records that NARA has thus far been unable to produce and additional witness interviews as appropriate. Given the gravity of the misconduct the Committee has uncovered to date, however—and in the interest of making a public record of Trump’s efforts to compromise DOJ’s independence—the Committee is releasing this interim staff report. The report makes six primary findings:

FINDING 1: President Trump repeatedly asked DOJ leadership to endorse his false claims that the election was stolen and to assist his efforts to overturn the election results.

FINDING 2: White House Chief of Staff Mark Meadows asked Acting Attorney General Rosen to initiate election fraud investigations on multiple occasions, violating longstanding restrictions on White House-DOJ communications about specific law enforcement matters.

FINDING 3: After personally meeting with Trump, Jeffrey Bossert Clark pushed Rosen and Donoghue to assist Trump’s election subversion scheme—and told Rosen he would decline Trump’s potential offer to install him as Acting Attorney General if Rosen agreed to aid that scheme.

FINDING 4: Trump allies with links to the “Stop the Steal” movement and the January 6 insurrection participated in the pressure campaign against DOJ.

FINDING 5: Trump forced the resignation of U.S. Attorney Byung Jin (“BJay”) Pak, whom he believed was not doing enough to address false claims of election fraud in Georgia. Trump then went outside the line of succession when naming an Acting U.S. Attorney, bypassing First Assistant U.S. Attorney Kurt Erskine and instead appointing Bobby Christine because he believed Christine would “do something” about his election fraud claims.

FINDING 6: By pursuing false claims of election fraud before votes were certified, DOJ deviated from longstanding practice meant to avoid inserting DOJ itself as an issue in the election.

The Committee’s investigation to date underscores how Trump’s efforts to use DOJ as a means to overturn the election results was part of his interrelated efforts to retain the presidency by any means necessary. As has been well-documented by other sources, Trump’s efforts to lay the foundation of the “Big Lie” preceded the general election by several months; Attorney General Barr inserted DOJ into that initial effort through various public remarks and actions prior to November 3, 2020 that cast doubt on voting by mail procedures implemented to facilitate exercise of the franchise during the worst public health crisis in a century. Concurrent with Trump’s post-election attempts to weaponize DOJ, Trump also reportedly engaged in a separate and equally aggressive pressure campaign on Vice President Mike Pence to set aside the electoral votes of contested states. This “back-up plan,” as it were, culminated on January 4—one day after Clark’s final attempt to wrest control of DOJ from Rosen, and again in the Oval Office—when Trump and outside attorney John Eastman attempted to convince Pence that he could circumvent the certification through a procedural loophole in the Electoral Count Act. All of these efforts, in turn, created the disinformation ecosystem necessary for Trump to incite almost 1,000 Americans to breach the Capitol in a violent attempt to subvert democracy by stopping the certification of a free and fair election.

The full text of the interim staff report of the Senate Committee on the Judiciary on the efforts of Donald Trump and his allies to overturn the 2020 election can be viewed in your browser by clicking on the link below titled “Subverting Justice.” Other links allow the full text to be downloaded to your device and shared on Twitter and Facebook.

Full Text: DOJ Indicts Ex-Clinton Attorney Michael Sussmann

September 16, 2021

Bill Barr-appointed DOJ special prosecutor, John Durham, filed a criminal indictment against Michael Sussmann, Perkins Coie attorney and former attorney for the Clinton Campaign, today, September 16, 2021. The following excerpt from an article published in Politico on September 16, 2021, provides the basic context for the indictment. (The complete article may be found at this link: “Special prosecutor John Durham charges ex-attorney for Clinton campaign with lying to FBI.“)

“The special prosecutor probing the origins of the federal investigation into ties between the Trump campaign and Russia, John Durham, has charged Washington lawyer Michael Sussmann with lying to the FBI during the early stages of the inquiry.

Sussmann, who worked through his firm as an attorney for the Hillary Clinton campaign, is accused in a grand jury indictment returned Thursday of a single felony count of making a false statement during a September 2016 meeting with FBI General Counsel James Baker.

Prosecutors allege Sussmann lied by denying that he was representing any client as he told the FBI about digital evidence allegedly linking computers in Trump Tower to Russia’s Alfa Bank. The FBI subsequently investigated the purported link but found ‘insufficient evidence’ to support it, prosecutors say.

Shortly after the indictment was announced, the law firm where he was a partner, Perkins Coie, said it had accepted Sussmann’s resignation. In a statement issued prior to the indictment, Sussmann’s lawyers insisted that their client was innocent and they suggested that politics were at work in the decision to charge their client.

‘Mr. Sussmann has committed no crime,’ defense attorneys Sean Berkowitz and Michael Bosworth said in the statement. ‘Any prosecution here would be baseless, unprecedented, and an unwarranted deviation from the apolitical and principled way in which the Department of Justice is supposed to do its work.’

Sussmann’s lawyers also contend that he never made such a statement, that the evidence in the case is weak and that there’s no sign the alleged falsehood affected the FBI’s work.”

Durham’s indictment is not only legally flimsy, based on a single alleged misreprentation made by Sussmann in 2016, it also appears to be politically motivated. One motivation was Donald Trump’s paranoia over the FBI’s investigation of links between the Trump campaign and Russian election interference and his attempts to thwart it, by whatever means available. That motivation is detailed in the Daily Beast article “William Barr Delivers Chilling Message to FBI for Trump,” by MSNBC contributor and former U.S. attorney Barbara McQuade on May 15, 2019. An even more devilishly cunning political motivation can be attributed to Trump henchman and political thug, former U.S. AG Bill Barr. As explained in the article “How Do You Solve a Problem Like John Durham?” published in Lawfare on December 4, 2020, Barr’s appointment of Trump acolyte John Durham to the high powered position of special prosecutor within the DOJ was always intended to monkeywrench the DOJ for its successor, in this case Merrick Garland. That Garland had the authority to override Durham’s indictment of Sussmann today and yet did not, a decision for which Garland is already taking media fire, can be construed as evidence that Barr’s plan has proven successful if even on a small scale.

The full text of the DOJ’s criminal indictment of Michael A. Sussmann can be viewed in your browser by clicking on the link below titled “Sussmann Indictment.” Other links allow the full text to be downloaded to your device and shared on Twitter and Facebook.

Full Text: Merrick Garland Seeks Emergency Injunction Over TX Abortion Ban

September 15, 2021

On September 14, 2021, the DOJ filed an emergency motion in federal court asking that enforcement of Texas’s ban on abortions after six weeks be temporarily or preliminarily enjoined. In its motion, the DOJ noted that “[t]he devastating effects warned of in the pre-enforcement litigation immediately became a reality for patients and providers in Texas.” The DOJ established the factual basis for its motion by describing a litany of harrowing experiences suffered by Texas women as a direct result of the anti-abortion law. Setting forth the dire state of affairs in Texas, the DOJ wrote: “Women are being forced to travel hundreds—and sometimes thousands—of miles to obtain an abortion under harrowing circumstances in the middle of a COVID surge. . . . One patient ‘got in her car at midnight in Texas so that she could drive through the night and make it to Oklahoma in the morning for her abortion appointment, and then she had to turn around the same day to travel back to Texas.’ Patients from Texas are traveling sometimes five to eight hours each way to get to a health center in Oklahoma, . . . and on average patients are traveling 650 miles each way to reach abortion clinics in the southwest . . . (detailing trips of 790 miles, 930 miles, 1000 miles each way). One minor, who was raped by a family member, traveled eight hours from Galveston to Oklahoma to get an abortion, . . . and other survivors of sexual assault have to bear the additional burden of taking time off work and arranging childcare because abortions are not available in Texas[.] . . . Another patient facing violence at the hands of her husband is ‘discreetly attempting to leave Texas without her husband finding out,’ and is ‘desperate’ and ‘selling personal items’ to scrape together the funds needed for an out-of-state abortion. . . . . Another ‘patient traveled six hours (one way) to get to Oklahoma and said she drove alone because she was worried’ that asking someone to ‘accompany her’ would subject that person to liability under S.B. 8. . . . In one day, one patient drove a 1000 mile round trip alone ‘because she didn’t have paid time off work and couldn’t afford’ to miss her shift.’ In addition to these extreme hardships and many others included in the DOJ motion, the DOJ reached the unavoidable conclusion that: “Not only has S.B. 8 imperiled the rights of Texas residents; it has had an extreme impact on the rights of women in other states, including in Oklahoma, Kansas, Colorado, Nevada, and New Mexico. Since S.B. 8 took effect, clinics in Tulsa and Oklahoma City have ‘seen an overall staggering 646% increase of Texan patients’ as compared to the first six months of the year.”

The following article published in Axios on September 15, 2021, summarizes the legal and political significance of the motion.

Why it matters: The action marks an escalation by the Biden administration in its challenge on the constitutionality of the GOP-led state’s restrictive new law, after the DOJ filed a lawsuit last week following the U.S. Supreme Court’s decision, in a 5-4 vote, to allow the ban to remain in place.

  • The law that took effect on Sept. 1 following the ruling is the most restrictive abortion ban allowed to be enforced since the Supreme Court’s landmark 1973 Roe v. Wade ruling that legalized abortion nationwide.

What they’re saying: The DOJ argues in its filing, submitted to the U.S. District Court in Austin, Texas, that the law, known as Senate Bill 8, was passed “to prevent women from exercising their constitutional rights.”

  • “This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States,” the statement added.

The full text of the DOJ’s emergency motion can be viewed in your browser by clicking on the link below titled “U.S. v. Texas Emergency Motion.” Other links allow the full text to be downloaded to your device and shared on Twitter and Facebook. 

Full Text: “Freedom To Vote Act”

September 14, 2021

On September 14, 2021, Senators Klobuchar, Warnock, Merkley, Manchin and four other senators introduced the Freedom To Vote Act, a compromise to The For The People Act, which was already destined to die in the Senate at Mitch McConnell’s hand and which even Democratic Senator Joe Manchin had refused to support. With The For The People Act officially dead, how should we feel about the new compromise bill? At this point, perhaps surprisingly good. Two of the heaviest hitters on voting reform, Marc Elias and Michael Waldman, both came out publicly as strongly supporting the Freedom To Vote Act on September 14, 2021, the very day the bill was introduced in the Senate. This post summarizes the thoughts of both Elias and Waldman on the Freedom To Vote Act. Near the end of the post is a link to an article comparing The For The People Act and the Freedom To Vote Act. The full text of the bill may be read online by clicking on the link at the end of this post. The bill may also be downloaded and shared on Twitter and Facebook. (The full text of The For The People Act may be found on the previous post.)

Marc Elias is a nationally recognized attorney who is best known for bringing a multitude of successful lawsuits against states enacting voter suppression legislation. Formerly an attorney at the mega-firm of Perkins Coie, Elias has recently formed his own law firm, the Elias Law Group. Elias is also the founder of Democracy Docket, a news website focusing on voting rights and election litigation in the United States. Democracy Docket has been described as “a leading progressive platform dedicated to opinion, advocacy and information about voting rights, elections, redistricting and democracy.” The following text is from an article titled “My Thoughts on Manchin’s Compromise Bill,” published by Elias on the Democracy Docket website on September 14, 2021.

“When it comes to voting rights, being asked to compromise is typically a warning sign. There is no middle ground between the arsonist and the firefighter. Just as we don’t ask the media to compromise their right to publish news stories, we should not require citizens to compromise their rights as voters.

After considering the For the People Act this past summer, Senator Joe Manchin, along with other key Senate Democrats, used the August recess to draft a long-awaited revision of the landmark voting rights bill. 

The Freedom to Vote Act, introduced this morning, reveals a surprisingly good voting rights bill.  It reflects a sobriety and understanding of the challenges facing voters that is worthy of its lofty name. It is not just a reformulation of the prior For the People Act, but in many places, it is an improvement.

Much of the new bill is familiar to those concerned about voting rights in our country. The new bill establishes minimum requirements for how states conduct federal elections. It expands voter registration, requires a minimum number of days and hours for early voting and creates a nationwide right to vote by mail.

With respect to voting by mail specifically, the bill rolls back many of the Republicans’ latest disenfranchisement schemes. For example, the bill forbids states from requiring notarization or witnesses to vote by mail. It also requires states to count ballots cast by Election Day if they are received up to seven days after the election. It provides for a free postage system for returned ballots, requires states to notify voters whose ballots are rejected due to a signature omission or mismatch and creates an easy way for voters to cure those ballots.

What makes this new bill exceptional, however, is its attention to several small, but important details that have been raised in the last few months. For example, it requires states to count provisional ballots cast by eligible voters in the wrong precinct but in the correct county. It also imposes a 30-minute limit on wait times for in-person voting. And, in a nod to a significant court victory in Florida, it requires polling locations on college campuses.

To prevent voter intimidation, it prevents frivolous challenges to voter qualifications. This provision alone would undo the worst provision of the Georgia suppression law. It bans the pernicious practice of voter caging as a technique to illegally purge voters. It restricts who can serve as poll observers and how close they can be to a voter (no closer than eight feet). It prevents states from outlawing the provision of food and water to voters waiting in line to vote.

The new bill would also provide increased protections for election workers. It would give them new protections from harassment and intimidation, while also making it harder to fire them for improper reasons.

To prevent excessive partisanship from dominating the redistricting process, the new bill imposes new standards prohibiting partisan gerrymandering. It also ensures that Republican efforts to rush new gerrymandered maps into place ahead of its passage will fail. 

But, the crown jewels of the Freedom to Vote Act are contained in the judicial review provisions. The bill not only creates a specific “right to vote” in federal elections but guarantees it. Under the new bill, states would be prohibited from enacting laws or policies that are “retrogressive” — i.e., that make voting harder. In addition, the bill would subject significant state restrictions on the right to vote to heightened judicial scrutiny. In another small but important improvement, the new bill allows for virtually all voting rights cases to be filed in the U.S. District Court for the District of Columbia, which has the promise of creating a national, uniform pro-democracy jurisprudence.

Put simply, if the new bill is enacted, more citizens will be able to register to vote, vote in person and by mail and have their votes counted. And, those of us fighting suppression laws in court will have the tools necessary to achieve fast, consistent victories for voters when states fail to follow the law.

This, of course, does not mean the new bill is perfect. 

While it gives election officials more protections, it does not tackle the underlying problems facing our counting and certification process. That will require a much more extensive rewrite of how states conduct post-election tabulation and certification. There are provisions, like the new 30-minute standard for in-person voting wait times, that lack sufficient enforcement mechanisms. And, there are additional provisions Congress could add that would prevent the undermining of our elections, such as heightened legal pleading standards for claiming fraud and additional safeguards to the right to vote.

None of these omissions or revisions to the bill are deal breakers. All can be fixed as the legislative process proceeds.

One of the biggest objections to the framework Senator Manchin announced in June related to a national voter identification requirement. The new bill permits states to decide whether to require voter identification, but broadens the list of acceptable IDs for states that choose to require them. Under the new bill, states must allow utility bills and leases as well as student IDs and virtually any identification issued by a governmental entity to serve as an acceptable ID. In effect, the bill would require states with stricter ID laws to accept these documents as well, thereby reducing the disenfranchisement caused by strict ID laws in many red states. 

Before the summer recess, Senate Majority Leader Chuck Schumer promised that “last month’s vote [on the For the People Act] represented the starting gun—not the finish line— in our fight to protect our democracy.” While we have not yet reached the finish line, this week he, and Senate Democrats, took a very big step towards making good on that promise.”

Michael Waldman is an attorney and political advisor. He is the president of the Brennan Center For Justice at the NYU School of Law, which he has lead since 2005. The Brennan Center describes itself as “a nonpartisan law and policy institute working to reform, revitalize, and defend our country’s systems of democracy and justice. We work to hold our political institutions and laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from ending mass incarceration to preserving Constitutional protection in the fight against terrorism. Part think-tank, part advocacy group, part cutting-edge communications hub, we start with rigorous research. We craft innovative policies. And we fight for them — in Congress and the states, the courts, and in the court of public opinion.”

In an article titled “Senators Introduce Freedom to Vote Act; Brennan Center President Michael Waldman Reacts,” published by Waldman on the Brennan Center website on September 14, 2021, Waldman offered the following brief but overall positive comments:

“The Freedom to Vote Act is a very strong bill. It gives powerful new momentum to the fight to protect democracy. It should be passed, and soon. 

The Freedom to Vote Act would protect millions of Americans’ access to the ballot box, now under siege by state laws meant to disenfranchise voters and subvert our elections. It would defend civil rights and advance racial justice. It would ban gerrymandering, which entrenches political party control and denies communities of color fair representation. It would curb the role of big money in our democracy through stronger rules on campaign finance and voluntary public financing of elections with an innovative new funding mechanism.

There is now no substitute for action. As redistricting unfolds across the country, time is of the essence. Lawmakers from both parties should embrace this new legislation, and will do so if they are serious about protecting democracy.”

For a comparison of The For The People Act with the Freedom to Vote Act, this article “How Sen. Amy Klobuchar’s new voting rights bill differs from her old voting rights bill,” published in the MinnPost on September, 17, 2021, is helpful. As noted in the article, “One thing the [Freedom To Vote Act] does not incorporate is the John Lewis Voting Rights Advancement Act, which would restore the 1965 Voting Rights Act. Civil rights activists had urged that the John Lewis act be passed in tandem with the For the People Act, but as of now it appears that it won’t be paired with the Freedom to Vote Act.”

The full text of the Freedom To Vote Act can be viewed in your browser by clicking on the link below titled “Freedom To Vote Act (Full Text).” Other links allow the full text to be downloaded to your device and shared on Twitter and Facebook.