Week In a Nutshell, 10/9/20

October 9, 2020 | Updated Feb 22 2023

Week In a Nutshell, 10/9/20

Sen. Kamala Harris (D-Calif.) and Vice President Mike Pence participate in the vice-presidential debate. (Photo by Melina Mara/The Washington Post via Getty Images)

By Jake Kaplan

Here are some of the legal news stories making headlines this week:

— On Wednesday, Vice President Mike Pence and Senator Kamala Harris squared off in the only vice presidential debate of the 2020 election. The candidates wrangled over issues including COVID-19, racial injustice, and the Supreme Court — while sitting 13 feet apart and separated by plexiglass barriers. In a memorable moment, Harris said the Trump administration’s management of COVID-19 was “the greatest failure of any presidential administration in the history of our country.” Moderator Susan Page has been criticized for permitting the candidates, especially Vice President Pence — to dodge the substance of her questions, and for failing to ask follow-up questions. Meanwhile, the fate of next week’s second presidential debate is in limbo due to President Trump’s COVID-19 diagnosis. On Thursday, the Commission on Presidential Debates announced that next week’s debate would be virtual. The Biden camp immediately agreed to participate in the virtual debate, but the Trump campaign did not. “I am not going to waste my time on a virtual debate,” said Trump.

— On Tuesday, the New York Times reported that former Attorney General Jeff Sessions and former Deputy Attorney General Rod Rosenstein were a “driving force” behind the Trump administration’s family separation policy at the US-Mexico border. According to a draft inspector general report that has yet to be made public, Sessions told prosecutors that “we need to take away children,” without considering the ages of the immigrants’ young children. “The department’s single-minded focus on increasing prosecutions came at the expense of careful and effective implementation of the policy, especially with regard to prosecution of family-unit adults and the resulting child separations,” the inspector general wrote. The draft report contained interviews with more than 45 DOJ officials, including a border patrol officer who said, “It is the hope that this separation will act as a deterrent to parents bringing their children into the harsh circumstances that are present when trying to enter the United States illegally.”

— On Monday, the Supreme Court started a new term. The Court has a busy schedule in the coming weeks and will hear several high-profile cases concerning the Affordable Care Act and LGBTQ rights. Meanwhile, Senate Majority Leader Mitch McConnell plans to push ahead with the confirmation process for Supreme Court nominee Amy Coney Barrett despite the COVID-19 outbreak among GOP Senators. The Court’s ascendant conservative majority wasted no time in asserting themselves in the new term. Justices Clarence Thomas and Samuel Alito attacked Obergefell v. Hodges, the landmark 2015 case that extended the constitutional right to marriage to same-sex couples. Thomas wrote that the Court chose a “novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” which many interpret as a call to overturn the decision. The Court also sided with South Carolina Republicans in a contentious voting rights battle by reinstating the state’s witness requirement for absentee ballots. Justice Kavanaugh reasoned that “federal courts … should not alter state election rules in the period close to an election.”

What else?

On Thursday, prosecutors brought terrorism and conspiracy charges against 6 men for plotting to kidnap Michigan Governor Gretchen Whitmer and incite a civil war. According to the criminal complaint, “In early 2020, the FBI became aware through social media that a group of individuals were discussing the violent overthrow of certain government and law-enforcement components.”
Also on Thursday, the Justice Department charged top Trump and GOP fundraiser Elliott Broidy with one count of Conspiracy to Serve an Unregistered Agent of a Foreign Principal under the Foreign Agents Registration Act (“FARA”). Broidy allegedly failed to disclose his lobbying efforts on behalf of a foreign national — described as “a wealthy businessperson living in East Asia” — who sought a favorable resolution of an investigation involving the embezzlement of billions of dollars from a Malaysian state investment fund.
On Wednesday, a panel of the Second Circuit Court of Appeals ruled that Manhattan District Attorney Cy Vance can subpoena President Trump for his tax returns. Vance is waiting on enforcing the subpoena pending President Trump’s second appeal to the Supreme Court.
ProPublica reports that the DOJ has created a broad exception to its long-standing policy prohibiting prosecutors from taking steps on voting-related crimes until after an election — so as to not interfere in the election. Now, public investigative steps can be taken when “the integrity of any component of the federal government is implicated by election offenses within the scope of the policy including but not limited to misconduct by federal officials or employees administering an aspect of the voting process through the United States Postal Service, the Department of Defense or any other federal department or agency.”