Your weekly source for analysis and insight from experts at the Brennan Center for Justice

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The Briefing

We always knew that the myth of voter fraud was dangerous. Now we know: it’s deadly.

Like you, I watched in horror last week as a white supremacist mob mounted a violent insurrection against the seat of government to disrupt the counting of the people’s votes. Directed by Donald Trump, they broke into the Capitol, waving Confederate flags and killing a police officer. We’re lucky the result wasn’t worse.

This was, quite literally, an attack on our democracy.

Some are calling for unity — but those calls cannot be heard until there is accountability. There must be consequences for those who are culpable, not just those who stormed the Capitol. Many bear direct responsibility for the bloodshed. The white nationalist mob that assaulted the Capitol and desecrated its halls. Trump, of course, who egged them on. Rep. Kevin McCarthy, Sens. Ted Cruz and Josh Hawley, and their Republican enablers. There is wide and growing public support to punish those responsible.

But let’s never forget: those who committed last week’s attack were motivated by the same lie the Brennan Center has been fighting for years — that votes by Black and brown people and equal access to the ballot amount to stolen elections. This was the lie that drove Trump’s fruitless attempts

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to overturn a free and fair election and erase the votes of millions. It’s the Big Lie.

It is this same lie that will lead to massive voter suppression across America for the next 10 years if it is not stamped out. I talked about this with NBC News

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and my colleague Wendy Weiser discussed it with CNN

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Make no mistake: going forward, those who spew lies about the vote stand with the Proud Boys, not our democracy.

How do we fight an attack on democracy? We build the vibrant, multiracial democracy that most Americans want. We enact automatic voter registration, stop racist voter suppression, end partisan gerrymandering, and adopt small donor public financing, so that all voices are heard. We also shore up the protective guardrails — including ending self-pardons and curbing politicization of law enforcement — so this can never, ever happen again. The For the People Act (H.R. 1), the John Lewis Voting Rights Act, and the Protecting Our Democracy Act are good places to start.

Wednesday was one of the darkest days in the history of our republic. But in the end, our institutions held. Congress reconvened and confirmed Joe Biden as our 46th president and Kamala Harris as vice president. American democracy is resilient — and now, we have an opportunity to repair and revitalize it. The stakes could not be higher. Let’s right these wrongs and make the next four years a period of accountability and long overdue reform.

Democracy

The State of Census Lawsuits

The 2020 Census count is over, but legal efforts continue in order to ensure that its results are full, fair, and accurate. The power and wellbeing of communities of color — who stand to be undercounted if the Trump administration’s plans come to fruition — are hanging in the balance. Madiba Dennie and Thomas Wolf explain where census litigation stands in the run-up to the apportionment of congressional seats among the states. // Read More

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Justice

Presidential Pardon Power Explained

Never has the president’s pardon power been more abused than under Trump, who has used it to grant clemency to people convicted of crimes relating to his presidential campaign. Now, he is reportedly considering trying to pardon himself for a variety of crimes, including inciting the deadly Capitol insurrection and illegal election interference. Lauren-Brooke Eisen, Hernandez Stroud, and Josh Bell consider whether a presidential self-pardon is constitutional, how it could affect state prosecutions, and more. // Read More

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Merrick Garland: The Man (Again) Meets the Moment

Twenty-five years ago, Merrick Garland coordinated the government’s prosecution against Timothy McVeigh and Terry Nichols for the Oklahoma City bombing, which killed 168 people. Now, the trumpet summons Garland again in circumstances remarkably similar to those he faced a generation ago. “Garland will make an excellent attorney general,” writes Brennan Center Fellow Andrew Cohen. “Garland is the perfect candidate to take on the current right-wing extremist threat roiled to deadly action by the seditionist Donald Trump on his way out of office.” // Read More

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‘The Most Broken of the Broken’

Lisa Montgomery is set to be the first woman in 67 years to be executed by the federal government, and the 10th person in the Trump administration’s accelerated execution spree. Her execution wouldn’t just be unusual because of her gender — it’s legally and morally questionable because of her extensive history of trauma, abuse, and mental illness, and she should be spared. “Lisa’s parents failed to care for her, the state failed to intervene in an abused child’s life, and she has been plagued with severe mental illness for most of her life,” writes Jackie Fielding. // Read More

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Constitution

How Police Mishandled the Capitol Riot

The federal government has not taken seriously enough the dangers posed by violent white supremacists and far-right militants. “Obviously, there is some sympathy for these far-right militants and the conspiracies they promote within law enforcement,” Brennan Center Fellow and former FBI agent Michael German told the Daily Beast. “It will require a national initiative to determine how these attitudes are influencing the lack of response to violence and how to root it out.” // Daily Beast

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Why DC’s Mayor Should Have Authority Over the DC National Guard

The former chief of U.S. Capitol Police has said that his early requests to place the D.C. National Guard on standby for last Wednesday were denied. Of the 54 National Guard organizations in the United States, only the D.C. National Guard is never under local control. Instead, it is under the president’s authority. Elizabeth Goitein and Joseph Nunn explain why this needs to change. // Read More

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Coming Up

VIRTUAL EVENT: The Rise and Fall of the Death Penalty

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Thursday, January 14 | 12:00 p.m.–12:45 p.m. ET

With every passing year, the United States’ continuing practice of capital punishment leaves the country more and more of an outlier on the world stage. Join Taryn Merkl (Brennan Center) and Maurice Chammah (Marshall Project) for a conversation about his new book, Let the Lord Sort Them: The Rise and Fall of the Death Penalty, which takes a close look at the constellation of people involved in capital punishment in Texas and how it related to mass incarceration. RSVP today

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This event is produced in partnership with New York University’s John Brademas Center.

VIRTUAL EVENT: Crisis: Harrowing Presidential Transitions from Lincoln to Biden

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Friday, January 15 | 12:00 p.m.–1:00 p.m. ET

The chaos at the Capitol only added to an already rocky presidential transition. While the current circumstances are unique, the nation has experienced fraught transitions before — none more so than when Southern states met Abraham Lincoln’s election with secession. Join Jonathan Alter (author of The Defining Moment: FDR’s Hundred Days and the Triumph of Hope), Hon. Donna F. Edwards (Washington Post columnist and former member of Congress), Ted Widmer (author of Lincoln on the Verge: Thirteen Days to Washington), and Michael Waldman (Brennan Center) for a discussion on why the transition period is so crucial and what Biden can learn from history. RSVP today

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This event is produced in partnership with the Center for Brooklyn History at Brooklyn Public Library and New York University’s John Brademas Center.

News

Ángel Díaz on surveillance after the Trump insurrection // National Journal

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Lauren-Brooke Eisen on how the Biden administration can end mass incarceration // Washington Post

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Michael German on the lack of attention paid to white supremacists // New York Magazine

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Sean Morales-Doyle on historic disenfranchisement of Black men // Capitol Tonight

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Gowri Ramachandran on election security in Georgia // Fulcrum

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Michael Waldman on the Trump and presidential pardons // CBS

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Thomas Wolf on the lawsuit against the Trump administration’s shift of the census count deadline // Washington Post

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Have an issue you'd like us to cover? Feedback on this newsletter? Email us at [email protected]

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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.

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750

New York, NY 10271

T 646 292 8310

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