Lawyers mobilize for an all-out battle over America’s election

Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.

If you’re expecting the 2020 election to result in another Bush v. Gore Supreme Court resolution – or, perhaps, in a nightmare scenario, multiples of that – well, that certainly could happen after November 3. Nobody wants a repeat of the controversial 2000 Supreme Court decision that ended a re-count of votes cast in Florida, effectively awarding Florida’s electoral votes, and the election as a whole, to George W. Bush.

But even now, months before Election Day, around the country we are seeing court cases about whether or not millions of people will be able to vote safely by mail as the coronavirus crisis rages on. These cases ultimately could determine the outcome of the 2020 race for the White House.

Over the past few months, President Donald Trump has made his stance clear, launching increasingly frantic – and wildly inaccurate, almost hallucinogenic – pre-emptive attacks on mail-in voting. He has declared that the 2020 election will be “the most INACCURATE & FRAUDULENT” in history due to mail-in ballot fraud; that we could see “20% fraudulent ballots”; that mail-in ballots are safe and secure in Florida (which, as Trump noted, has a Republican governor) but not in Nevada or elsewhere; and that “kids go and they raid the mailboxes” to steal ballots (who among us hasn’t had a crazy night of high school revelry where we pilfered mail-in ballots from the neighbors?).

But Trump’s got a problem here. The president has virtually no legal authority over when and how we vote. The Constitution specifically grants Congress the power to set a uniform nationwide general election date (so don’t take too seriously Trump’s public musings on possibly delaying the election; that would require majority votes from both the Republican-controlled Senate and the Democratic-controlled House, which is extraordinarily unlikely). And the states hold the power to determine time, place, and manner of Congressional elections (subject to being overridden by act of Congress). States also control the balloting process itself; for instance, each state has its own rules about who can vote by mail, and under what circumstances.

But while Trump lacks legal authority to unilaterally determine when or how we vote – by executive order, by tweet, or by any other means – that doesn’t mean he will go without a fight. Trump’s tweet barrage at mail-in ballots seems designed to do two things: 1) undermine public confidence in the election, giving him an excuse if he loses or a premise on which to challenge the election after the fact, and 2) broadcasting his marching orders to loyal political lieutenants. As to the latter, we can already see: message received.

Always the reliable sycophant, Attorney General William Barr has fallen right in line, declaring in an interview with NPR that mail-in voting presents “so many occasions for fraud there that cannot be policed. I think it would be very bad,” and raising “the possibility of counterfeiting.” When pressed on whether he had evidence to support these claims, Barr offered none but retorted, “No, it’s obvious.” Ok, so: it’s “obvious,” but he has zero evidence. (Barr wouldn’t have made a very good prosecutor.)

Trump’s political apparatus also has picked up his entirely non-encrypted messaging, taking the challenge directly to the states that have taken steps to permit and facilitate widespread mail-in voting. The Trump campaign filed a lawsuit in Nevada, seeking to block state efforts to send mail-in ballots to all registered voters. The Republican National Committee has asked the Supreme Court to intervene in a dispute over whether Rhode Island can suspend its requirement that two witnesses or a notary certify any absentee ballot. Political advocacy groups also have filed lawsuits in Pennsylvania, North Carolina, and Michigan, alleging that state officials have not properly purged ineligible individuals from voter rolls.

Republicans and Democrats alike recognize the stakes in these cases and are braced for war. Both parties have hired teams of election law specialists and have set aside tens of millions of dollars to finance legal battles unfolding around the country.

So yes, we still could see a Bush v. Gore scenario (or, heaven help us, scenarios, plural) unfold in the days and weeks after Election Day, contesting the final ballot counts. But courts around the country, right now, are making decisions that will determine who even gets to cast those ballots in the first place.

Now, your questions:

Paul (California): Can a state-level prosecutor, like the Manhattan District Attorney, file an indictment against a sitting president?

We don’t know for sure. At the federal level, longstanding Justice Department policy counsels against indicting a sitting president. But that is merely the Justice Department’s own internal policy; we do not know conclusively whether a federal criminal charge would stand because there is no specific statute on the matter, and the courts never have considered such a case.

A state-level prosecutor would not be bound by the federal Justice Department’s policy, so there is no administrative obstacle to a state-level criminal indictment of a sitting president. But the question is whether such an indictment would stand in the courts. A sitting president likely would adopt the same rationale articulated in the Justice Department policy: that such an indictment would effectively cripple the Executive Branch, posing a danger to the nation’s security and to Constitutional balance of powers.

This much is certain: a president can be indicted, at either the federal or state level, after leaving office. The Justice Department policy memo itself confirms this, and there is no compelling argument that indictment of a former president would unduly interfere with the government’s core functioning.

Sean (Maryland): Has William Barr violated Justice Department policy or the law by commenting publicly about the ongoing investigation by US Attorney John Durham of the origins of the Russia investigation?

Barr’s public comments about the Durham investigation do not violate any law, but they flagrantly violate longstanding Justice Department policy.

The Justice Manual – which sets forth policy for the entire Justice Department, from the attorney general down through line-level prosecutors – explicitly prohibits public comment on “the existence of an ongoing investigation or … its nature or progress before charges are publicly filed.” This practice is designed both to protect the integrity and secrecy of ongoing investigations and to guard the rights of people who are under investigation but have not yet been formally charged.

Yet Barr openly declared in April to Fox News that “My own view is that the evidence shows that we are not dealing with just mistakes or sloppiness. There was something far more troubling here.” And last month during his House testimony, Barr sent another unmistakable message about the Durham investigation when he decried the “bogus ‘Russiagate’ scandal” By these comments, not only did Barr confirm the existence of a politically-charged probe, he openly broadcasted his views about how it should or will come out. If any Justice Department prosecutor made a public comment like that on a pending investigation, he’d face discipline and potential termination for violating Justice Manual policy.

Elektra (Delaware): What’s the difference between a pardon and commutation, and does it impact further proceedings involving Roger Stone?

A pardon essentially wipes out both a conviction and a sentence, whereas a commutation eliminates only the sentence but leaves the conviction in place.

So, as a result of his commutation, Stone does not have to serve any of his 40-month prison sentence. But his case remains alive in the courts. Stone has appealed his conviction, and the Court of Appeals will eventually rule on whether Stone’s conviction will be affirmed (upheld) or reversed. This decision will be largely – though not entirely – symbolic. For example, if the Court of Appeals upholds Stone’s conviction, then the conviction will remain on Stone’s criminal record. And Stone, like any federal felon, will lose certain collateral rights including the right to possess firearms, vote, and serve on a jury.

Three questions to watch: