Dear Reader,

There is a tradition in the SDNY, and I imagine in other prosecutors’ offices too, which is this: supervisors try to find an opportunity to give positive feedback to Assistant U.S. Attorneys trying a case, but before the verdict is known: “You worked hard, tried an excellent case, whatever happens, you should know I’m proud of you.” The point is to praise the effort, if deserved, rather than the outcome. Justice is less about results than about a fair and fair-minded process. Positive outcomes sometimes overstate the quality of the effort, and adverse outcomes can wrongly obscure it.

In my book, Doing Justice, I compare the uncertainty of jury verdicts to the uncertainty of election outcomes, based on a 2016 quote from chess Grandmaster (and this week’s Stay Tuned guest) Garry Kasparov. As Kasparov noted on the eve of the election that year, “That nervous feeling you have about tomorrow, Americans? That’s democracy working. Unpredictable elections, what a luxury!”

The same is true as a jury verdict looms, as I wrote: “That nervous feeling you have when the jury comes out, prosecutors? That is justice working. Unpredictable verdicts, what a luxury.”

I don’t know what will happen next week. The jury is out, as they say. But if I might extend the trial analogy, before the results cloud the quality of many people’s patriotic actions, it is worth reflecting on those efforts before we know how the vote goes, before the celebrations or recriminations begin, as the case may be.

How has the case against Donald Trump been prosecuted? There have been stumbles and setbacks, but in the main, I believe the case has been made with vigor and passion and ineluctable logic.

Joe Biden was not every Democrat’s first choice, but I am proud of how he has methodically exposed Trumpism for its emptiness, incompetence, and heartlessness. He and Kamala Harris have done it with class and with grace; they have managed to go high and assemble a broad coalition who desperately want their country back.

I am proud of every voter who has stood in line for hours or driven long distances, in the face of an unchecked pandemic and massive voter suppression, to do their most patriotic duty: cast their ballots. We will have the greatest turnout in more than a century, as each separate, quiet voice combines, at the end, in a rousing chorus.

I am proud of the public servants who resisted abandoning their principles, who kept their loyalty to country not cult, and bravely accepted the consequences of doing the right thing. So many people come to mind, including Lt. Colonel Alexander Vindman and Ambassador Marie Yovanovitch.

I am proud also of the dedicated professionals who investigated, and sought to hold accountable, an out-of-control president. Robert Mueller was met with vitriolic attack, endless second-guessing, and sometimes deep disappointment, but he took on a thankless job because he is a patriot and I will always be grateful to him for it. Adam Schiff, among others, took on what may in hindsight appear to have been an uphill, even Quixotic, task to remove a sitting president for his abuse of power. Trump may have been acquitted, but everyone who aided in that effort helped to make the case that will be decided soon by the rest of us.

Some may express their dubiousness, but I am proud of all the erstwhile Republicans who are trying to rid the republic of the most unfit leader in its history. Some of them may have historical debts to pay and any alliance may fracture over policy preferences in the future, but I welcome my patriotic allies in this singular cause. And when the pandemic has run its course, I will proudly shake their hands.

I am proud of all the journalists and ordinary citizens who pushed back mercilessly against the President’s most disgusting policies and pronouncements – those who protested the Muslim ban and intentional child separations at the border. Tuesday’s judgment will rest in no small part on these issues, championed by outraged citizens.

Above all, I am proud of every young person in America who organized, marched, petitioned, spoke up, and raised awareness about gun violence, about racial justice, about women’s rights. Nothing moves me more than a movement carried along by young people. Trump is bad for the country on all those issues, and so those causes have helped make the case against him too.

I believe a reckoning is coming, but I can’t be sure. What I can be sure of is how proud I am of the millions of people in this country who stand for what is good and right and just, who believe in decency and love, who believe our strength lies in our diversity, who make an effort to fight for those things, and who will never stop fighting for them, no matter what the election result.

I may not be proud of my president or his policies, but I have never been more proud to be an American in service to the ideals that brought my parents here a half century ago.

My best,

Preet

In Body Image

Election Policy: Who’s in Charge?
By Sam Ozer-Staton

On the very same day that the United States Senate confirmed Judge Amy Coney Barrett to the Supreme Court, the Court refused to reinstate a lower court ruling that would have extended Wisconsin’s deadline for receiving absentee ballots to six days after the election.

Monday’s decision alarmed Democrats, who began to raise the specter of another Bush v. Gore: a close presidential election effectively decided by a conservative-leaning Supreme Court.

Justice Brett Kavanaugh stoked Democrats’ fears in a concurring opinion where he wrote that legitimate, postmarked ballots could “flip the results of an election”:

Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.

Kavanaugh also specifically invoked Bush v. Gore in a citation buried within a footnote of his opinion. In referencing Bush v. Gore, Kavanaugh became the first-ever Supreme Court justice to cite the case as precedent, and only the second (after Justice Clarence Thomas) to mention the case at all. All the more unusual, Kavanaugh treated Rehnquist’s concurrence as precedent. In fact, the per curiam decision in Bush v. Gore specifically stated: “Our consideration is limited to the present circumstances.”

But the Wisconsin decision was surprising for another reason: it appeared to contradict a slew of recent Supreme Court decisions that swung in favor of voting rights advocates.

Last week, the Court deadlocked on whether a state court could nullify rules set by the state legislature, effectively temporarily leaving in place a ruling by the Pennsylvania Supreme Court that allowed for ballots postmarked by Election Day but received three days later to be counted.

And yesterday, the Court delivered two victories to Democrats in key swing states: it refused the Republicans’ request to fast-track the usual appeal process in the Pennsylvania case, and it let stand lower court rulings that allowed North Carolina’s Board of Elections to extend their ballot counting deadline to nine days after Election Day.

So what accounts for the difference between the Wisconsin decision and the others?

The Court’s conservatives have sought to avoid, as Chief Justice Roberts wrote in the Wisconsin decision, “federal intrusion in state lawmaking processes.” In that case, a federal judge had stepped in to authorize Democrats’ petition to count absentee ballots postmarked by Election Day but received up to six days later.

“It is one thing for state legislatures to alter their own election rules in the late innings and to bear the responsibility for any unintended consequences,” Justice Kavanaugh wrote in his concurrence, “It is quite another thing for a federal district court to swoop in and alter carefully considered and democratically enacted state election rules when an election is imminent.”

As Justice Elena Kagan pointed out in her dissent, the district court had determined that the surge in demand for absentee ballots, coupled with “unusual postal delays,” meant that many voters would not receive their ballots by Election Day, let alone be able to return them. All told, Kagan wrote, as many as 100,000 Wisconsin voters could be disenfranchised without the six-day extension.

According to former U.S. Attorney Joyce Vance, “Kavanaugh’s view likely represents where the Supreme Court is headed, not because it is right, but because it is where the votes are on the court.”

That view, of broad deference to state legislatures and an aversion to federal courts, seemed to animate the majority’s view in the Pennsylvania and North Carolina decisions — though in both cases, the Court’s orders were unsigned and without explanation. In Pennsylvania, it was the state Supreme Court that decided to allow an extension on the absentee voting deadline, not a federal court. And in North Carolina, the state legislature granted the State Board of Elections authority to change election rules.

Do you take comfort in the Supreme Court’s deference to state legislatures and not federal courts? Or should federal courts be able to step in and rule on the merits of a case when it comes to something as important as the right to vote?

Write to us at [email protected] with your thoughts or reply to this email.

FOLLOW

Kristen Welker is NBC News’ White House Correspondent. She’s been lauded for her performance moderating the second and final presidential debate. With just days left until November 3rd, Welker continues to provide breaking news and insightful political analysis. Follow her @kwelkernbc

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To listen to Insider content on your favorite podcast app, follow these instructions.

— Listen to this week’s episode of Stay Tuned, “Our Next Move,” Preet is joined by chess Grandmaster and human rights activist Garry Kasparov. They discuss the impending presidential election, President Trump’s relationship with Vladimir Putin, and Kasparov’s efforts at fighting for democracy around the world.

— Listen to this week’s episode of CAFE Insider, “What to Expect When You’re Electing,” where Preet and Anne break down Russian and Iranian efforts to influence the election, President Trump’s threats to deploy troops to poll sites, and the Supreme Court decision regarding absentee ballots in Wisconsin.

— Look out for Friday’s new episode of United Security, where co-hosts Lisa Monaco and Ken Wainstein discuss the ongoing threat of foreign interference in our elections, the recent actions taken by DNI John Ratcliffe to selectively declassify intelligence, and the DOJ’s announcement of criminal charges against six Russian intelligence officers in connection with some of the world’s most high-profile cyberattacks.


That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Adam Waller, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Calvin Lord, David Tatasciore, Matthew Billy, and Nat Weiner