Explain for us how the election is proceeding there right now.

Right.

It's a fascinating situation.

I think when we were talking about the Supreme Court case, Watson, at the end of the last term, no one anticipated that that case, which was about whether the Mississippi law that permits the state to count ballots that are postmarked by Election Day and received within the five following days might determine the outcome of this election.

But now, because the Supreme Court signed off on that law, it's both those late received mail-in ballots and the affidavit ballots, what we would call provisional ballots in most other states, ballots cast by people who maybe didn't have the appropriate identification with them when they voted.

So they were allowed to sign an affidavit saying that they were entitled to vote and then come back within five days.

That'll be through next Tuesday.

Would you would you project for that? It's most likely that the Democrat is going to maintain his lead.

But this legal situation is getting tricky.

It really is.

You know, and I'm with you on thinking that there was hope in Mississippi in advance of the election, because frankly, this was an immaculately run campaign for the Senate.

Now we deal with Mississippi law, which, as you say, does not allow for a recount.

So that's not what's happening here.

What's happening is counting of the affidavit or provisional ballots and also counting of the Mississippi mail-in ballots.

You'll recall this Supreme Court case last term where Mississippi was sued over this provision that let ballots postmarked by Election Day but received within five days be counted.

But it sounds to me like it's on the voter to go and sort that out.

No matter that the disposition of that investigation, former federal prosecutor Joyce Vance tells me, Team Trump has lost credibility with courts and judges, not just here in Washington.

This is a White House that has captured the Justice Department and is abusing it for political and I think for the president's personal purposes.

Talk to Joyce Vance about that as well.

As a prosecutor, you've got total control over what cases you take to the grand jury.

You don't take cases to the grand jury if you don't have sufficient evidence.

And as a prosecutor, you get that while the standard before the grand jury is only probable cause, you will face a judge and a jury.

You don't have proof beyond a reasonable doubt.

There's no point in going to the grand jury.

Unsavory? Maybe? Is it illegal? Illegal?

You know, this is a little bit late for the government to be raising this after the election is well underway.

And in fact, it was raised in court over the summer, and the Alaska Supreme Court had the opportunity to rule in this matter.

And they let both of the candidacies stand.

So that's the final word here.

DOJ doesn't really have a role to play.

And the fact that they're doing it after ballots are already being cast is what tells you that this is political gamesmanship, not legitimate Justice Department work.

Joyce, do you think this case is headed to the Supreme Court?

Shortly, Ilhan Omar is also dealing with, are we, I know the answer to the question, but are we dealing with a weaponized DOJ that is using the FBI to attack the president's potential political enemies? And can we getting to a point where the American people cannot trust the justice system because it is constantly being used in a weaponized way?

So I think that those are two different questions.

My answer to is the president using the FBI, which is part of the Justice Department, to go after his enemies and exact revenge? The answer is absolutely yes.

We've just seen Jim Comey charged for the third time.

You know, you guys can watch what's happening with Ilhan Omar.

the Minnesota Congresswoman like I can and appreciate that for what it is.

Can we trust the Justice Department is a much more sophisticated question.

the next group, should the next group prosecute this group for weaponizing, for misusing the DOJ?

Want to just explain how it was designed to work?

Yeah.

Every office has a day of election officer who's engaging with state and local officials in advance of the election.

So, for instance, in my office, I was text buddies with the Alabama secretary of state.

And every time there was an election, We would frequently be in touch, you know, was there bad weather that we had to worry about? We had a problem in my county with polling places where people in wheelchairs couldn't make it through metal detectors.

We had to deal with those situations.

Most of DOJ's role involves being alerted to problems with people trying to exercise their right to vote and coming up with workarounds.

And just maybe we can end with any thoughts you might have for just listeners, citizens, the kinds of people, the Gutierrez's of the world who might be worried, what you generally would counsel them to think about now that we are, wow, just two weeks out.

All right, Joyce, unpack this lawsuit for me.

Right.

So this is exactly the kind of lawsuit that you wanna see at this point in time.

Instead of sitting back and waiting for Trump to act, this lawsuit goes into court and says, "The administration is creating a climate of fear and intimidation around the election, and the courts need to put a stop to it because it's inconsistent with our legal tradition and with our rules around elections for a president to try to intervene in this, in this fashion." I think this is the sort of smart strategy that suggests Democrats are well prepared to protect the election.

If there are US citizens who are denied their right to vote because the Department of Justice put together some half-baked list and handed it to the state of California, what then is their legal recourse?

They have no recourse.

There are no do-overs when it comes to elections, so once you've lost your right to vote, that's it.

And the way that we know this lawsuit lacks any merit is its timing, the fact that it was brought after early voting was already underway.

This is about the First Amendment.

It really is.

Uh, put simply, Jonathan, this is a case about whether the press can criticize the president and criticize his administration.

The Constitution very clearly says yes, the White House has said no, and the courts will inevitably say that, that the journalists among us can do their jobs, that we're entitled to a free press.

But the issue is whether this will have some collusive force, whether other people in the press will feel intimidated, will try to pull their punches in order to maintain their access.

And so it's an important moment.

It's great that the three news entities have banded together to file this lawsuit quickly.

This is the kind of behavior that is, we are, associate with other countries, with authoritarian leaders, not a democracy, not these United States.

They're clearly not holding these folks back.

No, they're not holding them back.

They have no respect for the norms or for the justice manual, which says prosecutors within 60 days of an election shouldn't take these sorts of overt investigative acts that can influence, that have the potential to influence the outcome of elections.

Here it's even more serious than cases where some action is taken 45, 60 days out.

Here voting is already underway in Minnesota when this happens.

Now look, the Justice Department may have a case against the congresswoman.

We don't know.

Maybe, maybe I don't vote for her." I mean, that would seem like a type of DOJ-enabled meddling.

What should we take away from this new ruling from the federal judge?

Right.

There's so much here.

The real issue, Peter, just to be practical about it, is whether the judge's preliminary injunction can stand up on appeal, because Donald Trump will be headed straight to the appellate courts.

And this is a remarkably well-written decision.

The judge does something early on that I'm a big fan of.

He says Donald Trump might be right that the press is prejudiced against him or that parts of it are.

Does the president have any case to make when he says, nope, CNN, you're not allowed in, Breitbart, you are allowed in?

They're clearly not holding these folks back.

No, they're not holding them back.

They have no respect for the norms or for the justice manual, which says prosecutors within 60 days of an election shouldn't take these sorts of overt investigative acts that can influence...

That have the potential to influence the outcome of elections.

Here, it's even more serious than cases where some action is taken 45, 60 days out.

Here, voting is already underway in Minnesota when this happens.

Now look, the Justice Department may have a case against the congresswoman.

Maybe, maybe I don't vote for her"? I mean, that would seem like a type of DOJ-enabled meddling.

Should it be any surprise that these judges are absolutely furious?

Look, there's nothing difficult about this situation.

This is not an email.

This is a phone call.

You're in court.

Everyone knows that that's happening.

You pick up the phone as soon as the judge enters this order, and you tell everyone to stop running ads.

Given her frustration with the DOJ, could this post then become a part of the plaintiff's filings?

But is this committee your idea of due process? And should Lisa Cook's lawyers, if you were representing her, would you comply with this this three person panel that consists of Trump loyalists?

Yeah, well, let's start there.

I think that's exactly the right place, because if you're her lawyers and you commit to this process, then I think you put the process itself on trial.

She's prepared to go in and back up her claims that she did not commit mortgage fraud.

She's willing to participate in good faith.

The real issue here is what this process will look like, because as the lawyers have pointed out, once the president has already reached the conclusion that he's interested in firing Cook, he's litigated that all the way to the Supreme Court.

Bringing in his own people to prejudge her guilt looks a whole lot more like the Spanish Inquisition than it looks like a fair process.

that's the question.

Uh, your view of this news, uh, whether there is a precedent or validity to this, uh, and any concerns given, uh, the history of this, of this case.

This feels a lot more like the Spanish Inquisition than it feels like a legitimate governmental investigative exercise.

You know, Ari, you said it best, right? This is not something that presidents do.

This is, uh, just i- it's even beyond the realm of congressional oversight k- committees because that's Congress's job to engage in that endeavor.

Presidents simply don't convene star chambers, which is exactly what this looks like, a witch hunt, an effort to get one of his enemies after the Supreme Court, by the way, has already told him no.

Um, why is it then disfavored to have a committee that basically says they wanna find something on her, uh, not figure out whether there was something done?

You know, Donald Trump has already judged her.

He's already said he wants to fire her.

Your reaction as an attorney.

Well, like you say, the process is the punishment in, in a lot of ways.

Whether or not she's ultimately charged or convicted, the process itself is a significant punishment.

But it's very difficult to weigh in on a charge like this until you see the actual indictment, because false statement charges depend heavily on the question that's asked and the answer that's given.

And what the government has to be able to prove beyond a reasonable doubt to a jury is that there is a false statement, that it was knowingly made, and that it was material to the proceeding that was underway.

So Ken's done a great job of explaining why there might not be a false statement at all.

She may not have known if she was relating a story some- someone else told her.

Mm

What could be the most conseque- consequential case they're hearing?

Uh, you know, all of the above, right? I mean, the problem is the Supreme Court has a rich panoply of opportunity to undo, um, important American rights this term.

But I think for those of us who believe that, that we're a country that's always trying to be better than what we've been in the past, it's the immigration cases that stand out, and the ability of the United States, for instance, to deport people to third par- um, party countries that they have no ties to, even when those are countries like South Sudan that are war-torn and dangerous.

If the Supreme Court signs off on that, uh, it'll be difficult for Americans to appreciate who we've become as a country.

Uh, what did you make of that?

that?Well, look, I think we all know how Justice Alito interprets those comments, and he's certainly not talking about the President of the United States.

He's long had the view that the court in many ways is under siege, and I think that speaks more to the ivory tower that he lives in than the reality of American citizens who are deeply concerned with both the court's decisions and with its procedure.

And so they are speaking up, exercising their First Amendment rights to talk about the court.

Uh, given your extensive, uh, experience in criminal prosecution, um, how do you view the investigation itself, uh, and then where do we go from here?

Well, I think the reality is on the criminal side, we don't really know what happened, because we sort of have a he said, she said between Cornell and the district attorney.

A- and let's be clear, district attorneys who are involved in particularly large, influential college campuses, uh, may have a certain amount of, um, interest in making sure that the college is happy with how the DA treats situations and allows universities and colleges to handle these cases in-house, which is really inappropriate from a justice point of view.

So appointing Tish James as a special prosecutor here makes a lot of sense.

She'll look at the case with fresh eyes She'll be able to walk away from the he said, she said, and evaluate the evidence here.

And frankly, Ari, when you look at the evidence, two things stand out.

One is that this victim, like so many victims, initially experienced shame and feelings of humiliation, and only gradually developed an understanding that she was the victim of a crime.

Right, over text

well he's hoarding that um joyce i wonder if anything we are learning about how these ads were funded changes their legality

They're clearly illegal.

The question is whether there's an entity that can do anything about that, because most of the mechanisms rely on good government functioning.

So, for instance, the GAO will look at whether this violates the Anti-Deficiency Act, whether or not Congress had allocated this money.

Clearly, it had not done so.

And that could have implications down the road, by the way.

I mean, lurking at the very bottom of the Anti-Deficiency Act is a statute that can hold officials responsible for this criminally accountable, and the statute of limitations on that is five years.

I think this is also a story about the Supreme Court continuing to allow an expansion of executive authority.

And this is just exhibit A of that.

It really is, and let me tell you what should have happened.

As soon as this story came to light, not only should this gentleman have received medical treatment, and I was told this morning that he did not have any say-so in his own medical care.

ICE spoke with the doctor.

ICE got him released something like four hours after he was shot.

He goes back to a cell.

There's not a bed for him.

They're going after folks who are just doing the kinds of jobs that a lot of Americans, frankly, don't want to do.

So he's basically conceding and admitting every element of the claim, is he not? Do you even need anything other than the president's own statements to make out the claim?

You really don't.

And not only is he conceding the claim, and I think it's worth noting, by the way, that this complaint is done in what I think is a clever fashion.

There are two First Amendment claims.

One is for retaliation against the plaintiffs for their reporting, and Trump makes that case on himself.

And then the other is for viewpoint discrimination.

Again, Trump makes that case easy.

You can't just do it on a whim, as the complaint points out.

Wow.

That ICE spoke with the doctor, ICE got him released something like four hours after he was shot.

He goes back to a cell, there's not a bed for him, and it's only because LULAC, the nation's oldest, um, Hispanic civil rights organization, helps to coordinate a fuss about that that he's ultimately receiving more medical care.

So as a sitting United States attorney, if that had happened in my district, I would have had a civil rights investigation opened in about five seconds.

I think that speaks to the dysfunction that's going on here.

Y- you know, in a, in a vibrant democracy, people are not treated like this.

This is the kind of behavior that you associate with secret police, with Gestapo-like entities.

Hmm.

That includes a sharp rebuke of Todd Blanche, both in his former role as acting attorney general and since his contentious confirmation earlier this summer as the nation's chief law officer.

Todd Blanch has been willing to do, in essence, the president's bidding, bringing cases that belong on Trump's revenge portfolio, cases that often can't get past a grand jury or don't survive early motions if they do.

but also willing to show favoritism towards the president's allies, either by not moving forward with investigations or, as in the case of Trump versus IRS, with this absolutely incredible creation of a slush fund that the president would have been able to use to pay off, to reward his political supporters from January 6th, there's a really frightening dimension to that, that it could have been perceived as payment towards future services.

It could have been seen as, I will always have your back no matter what crimes you commit to support me.

So I think that's very dangerous.

And then the idea that Trump essentially got a get-out-of-jail-free card in an addendum personally signed off on by Blanche would have given Trump forgiveness for unpaid taxes and freedom from future investigation.

So there's that level of, I'm just going to say, co-option, corruption that sits on top of the work that the career people at DOJ continue to try to do, protecting the American people.

So Campaign Legal Center took legal action in the Maureen Comey case, filing an amicus brief on behalf of Justice Connection and Michael Feinberg, who you heard at the top of this episode, to underline that such firings are unlawful political retribution that violate the First Amendment rights of civil servants.

This is about the first amendment.

It really is.

Put simply, Jonathan, this is a case about whether the press can criticize the president and criticize his administration.

The Constitution very clearly says yes.

The White House has said no.

And the courts will inevitably say that the journalists among us can do their jobs, that we're entitled to a free press.

But the issue is whether this will have some collusive force, whether other people in the press will feel intimidated, will try to pull their punches in order to maintain their access.

This is the kind of behavior that we associate with other countries, with authoritarian leaders, not a democracy, not these United States.

I don't want them to come into my office.

Exactly.

And that's an argument that the court, at least the Court of Appeals, has already disallowed.

The Supreme Court has never ruled.

It seems very unlikely that they'd reach a contrary result because once you've opened up the premises to some people in the press, it's viewpoint discrimination, particularly when Trump, you know, it's the same thing that you and Barb were just discussing.

He always says the quiet part out loud.

Here he said he doesn't want MSNOW.

You want to hazard a prediction?

What are you going to be watching for?

Right.

And I think that's exactly the problem.

People like Mark have to be on watch for everything because this could crop up any place.

You know, we have 50 state elections.

The downside to that is we have to be prepared for shenanigans to emerge in any of those states.

and then be ready and willing to go to court to put an end to them.

Does the VRA still offer those protections or has this Supreme Court basically relegated it to Hatch Act status if there is administration that is not interested in enforcing it?