Your weekly source for analysis and insight from experts at the Brennan Center for Justice
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The Briefing
Despite his grumbling on Twitter, President Trump won at least a partial victory in last Thursday’s Supreme Court decisions about whether his financial records can be subpoenaed by state prosecutors or congressional committees. The reality, as I noted in the Washington Post
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, is that Trump’s taxes will likely remain secret from the public until after the election.
But that shouldn’t distract from the significance of these decisions. As a matter of constitutional law, the rulings represent significant and justified constraints on the authority of Trump and his successors.
As the Court ruled, a state grand jury can subpoena a sitting president. This could have big consequences for this particular current or possibly former chief executive. (His lawyer and fixer Michael Cohen already sits in prison for making illegal payments on Trump’s behalf.) The justices also ruled that Congress can subpoena a president. In the long run, that may be a bigger deal.
As Brennan Center Fellow Victoria Bassetti wrote
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: “In a historic battle between coequal branches of government, Congress came out with a formidable tool for oversight.” Remarkably, this was the first time the Supreme Court considered whether Congress can compel presidents to produce records. Such demands are typically resolved in bruising battles between the branches, but Trump stonewalled so vigorously that the high court felt it had to get involved — a legal backfire of potentially historic dimensions.
Under the new ruling, the House will have to show the appeals court that this request for documents meets four newly established tests to ensure that the request is narrow and legitimate. Good lawyering should make that goal easy to meet.
The ruling does leave one cloud.
Previous court rulings held that Congress lacks the power to probe just to embarrass individuals. Instead, it needs a legitimate legislative purpose. Investigations of wrongdoing have been essential throughout U.S. history, resulting in landmark statutes, from campaign finance reform to government ethics measures. But some inquests — think Teapot Dome, Watergate, or Iran-Contra — weren’t about crafting legislation, even if legislative reforms followed. They were noteworthy simply because they exposed wrongdoing to the public.
Will this ruling serve as a charter for strong oversight? Or will it mischievously limit it, so that future White Houses can duck accountability? That will be up to courts, who have put themselves in the center of these disputes.
For now, Congress has new weight behind its constitutional authority. When they negotiate, lawmakers will know that, sooner or later, the Supreme Court has said it would be willing to step in. That alone can help reset the balance between the two branches at opposite ends of Pennsylvania Avenue.
Democracy
Can Voting Systems Be Both Secret and Secure?
Each of the 9,000 election jurisdictions in the United States has its own way of running and maintaining elections. Nearly every one uses computerized voting systems, many of which do not provide readable paper backups, meaning there’s no way to confirm they haven’t been hacked. “We’ve decided in this country that private vendors will play a central role in running our elections and counting our votes,” Lawrence Norden tells the New Yorker. “Private equity owning these companies means the public doesn’t have a critical piece of information about our elections.” // New Yorker
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The Census Count in New York City Is Too Low
New York City and its surrounding urban areas are severely lagging in census responses. Wealthy neighborhoods with a history of high response rates such as the Upper East Side and SoHo have especially low response rates this year, likely because residents have temporarily left the city due to Covid-19. Thomas Wolf looks at these numbers and describes why, especially now, an accurate census count is so important. // Read More
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Justice
Executions in Whose Name?
This morning, the U.S. government executed Daniel Lewis Lee, the first use of the federal death penalty in 17 years. With more executions planned, a grim reality check is in order. There’s simply no good reason the long-dormant “machinery of death” needed to be activated now. “The government had the moral burden here, if not the legal one, to justify why the middle of an out-of-control deadly pandemic is the right time to be killing in the name of the people,” writes Brennan Center Fellow Andrew Cohen. // Read More
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Roger Stone Leaped Over Thousands of Inmates Seeking Clemency
The headlines went wobbly when President Trump commuted Roger Stone’s prison sentence on Friday. He wasn’t Trump’s “ally” or “friend” — he was a self-declared go-between with Wikileaks, and thus with Russia’s interference in the 2016 election. When Trump acted, the White House’s statement noted that Stone “would be put at serious medical risk in prison.” But what about the medical risk that thousands of other federal prisoners face? That concern about the coronavirus doesn’t seem to apply to their health, says Lauren-Brooke Eisen. // Washington Post
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Constitution
How to Reform Police Monitoring of Social Media
Recent efforts to keep tabs on Black Lives Matter protests and demonstrations against family separation echo the infamous FBI program used to spy on civil rights leaders like Martin Luther King Jr. And today’s surveillance analysts have a new source of information: social media. In recent years, social media posts have landed people of color in overbroad and unreliable gang databases, and posts have even been used to justify keeping individuals imprisoned. For the Brookings Institution, Rachel Levinson-Waldman and Ángel Díaz write about the civil liberties and civil rights concerns that are currently going unaddressed. // Brookings
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When White Supremacists Infiltrate Law Enforcement
Brennan Center Fellow Michael German testified before the Oregon Legislative Assembly last week about the infiltration of law enforcement by white supremacists and far-right militias. While this only describes a tiny percentage of law enforcement officials, the public safety harms that police officers affiliated with violent white supremacist and far-right militant groups pose cannot be overstated. Governments have not responded appropriately to address this problem. // Read More
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News
Lauren-Brooke Eisen on police reform // ABC News
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Martha Kinsella and Daniel Weiner on the Supreme Court’s ruling in that the president can fire the head of the Consumer Financial Protection Bureau // Just Security
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Myrna Pérez on the coronavirus’s effect on the election // Pew Trusts
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Michael Waldman on making the 2020 election safe and secure // Solvable podcast
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Wendy Weiser on the need for more federal funding for elections // AP
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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.
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