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The Week Ahead
November 13, 2022
Last week was all about the politics and in the week ahead, we’re likely to continue to work through the aftermath of the election.
There are a couple of legal threads to pull for the coming week, but, before we get there, let’s just bask for a moment in the glow of the midterm election results. We deserve it.
We’ve just been through what history will undoubtedly view as one of the most consequential elections this country has ever faced. That’s true even though it was “only” a midterm election.
It was the first major election following the insurrection. Many Republican candidates, the Big Lie faction of the party, had publicly proclaimed they would not abide by the results of the election if they lost. Results in at least one of those elections are still pending (looking at you, Kari Lake, although with Katie Hobbs narrowly in the lead, the election for Arizona’s governor could be called by the time you read this). We are not entirely out of the woods yet. But it was deeply reassuring as results came in to see Republicans conceding they had lost, in races where the votes went against them. It was a demonstration of the resiliency of the American process.
It was not a sure thing that it would happen that way. We know there are still elements in our society they’re focused on unlawfully seizing and maintaining power in defiance of the will of the voters. We know that in far too many elections, people who believe in Trump and the Big Lie were elected and that many of them will hold positions of power in future elections. Other races, including some of the ones we are now celebrating, were far too close for comfort and it’s difficult to understand how so many of our fellow citizens could be willing to vote for candidates who do not believe that every American’s vote should count.
Nonetheless, in this election, we saw something that should not be remarkable but absolutely was. We saw Republican candidates lose elections and concede defeat. That’s an awfully shocking thing to say. Before the 2020 election it would’ve been unthinkable that we would have held our collective breath to see whether losers would accept election outcomes, but here we are in 2022.
Did Ben Franklin think for a minute when he made his now famous comment, as he walked out of the Constitutional Convention, that they had created a republic “if you can keep it” that his words would become a hallmark of the 21st century? But we kept the republic. And that was due in large part to the focus that people who cared about democracy across the country maintained on it. It is proof that we still have what it takes. As I wrote to you, echoing Joe Biden’s sentiment the night before the election: never bet against America.
You registered voters, wrote postcards, shared information about candidates, took on positions as poll workers, helped people get identification, and so much more. And it might have seemed small at the time, it might’ve seemed like not enough, but it was. It was just enough. Although there are still races being decided and the outcome in the House is still in play, we know that it’s still possible in this country to insist on free and fair elections.
Our institutions feel a little bit less fragile than they did at this time last week. Of course, this one election was not the cure for all of the problems that we are facing. We will have to remain vigilant and continue to do this. But it is yet another step in the right direction.
For everyone who wants to write off American voters (I have been guilty of this on occasion) as having short attention spans, there’s this: Voters understood the connection between the Supreme Court’s decision to reverse Roe v. Wade in Dobbs and their vote in the midterm elections. They understood that we must give Democratic presidents the ability to put justices on the Supreme Court if we’re going to protect our rights. I was worried we wouldn’t get this right, but we did!
We can do more of it and ensure that we don’t slide backward and lose rights like marriage equality and contraception access, if we stay focused. All in all, it was a good election. But we have a lot of work ahead of us!
A few items of legal interest to focus on this week:
Trump is due to testify before the January 6 committee on Monday, November 14. Of course, despite some early bluster, he will not. Last week, he filed a lawsuit (not in D.C., where his subpoena to testify was issued, but in West Palm Beach—was he hoping for Judge Cannon again?) seeking a declaration that the subpoena wasn’t valid. The lawsuit is his excuse to be a no-show for testimony without ending up in outright contempt, like Steve Bannon and Peter Navarro, who were prosecuted for theirs. This should be a hot topic this week.
Speaking of Navarro, his scheduled trial on contempt of Congress charges is now delayed until January 11, over the government’s objection. DOJ has vowed to try the case, even now that it is set for a date after the session of Congress that issued the subpoena ends.
The reason for the delay is that the trial of members of the Oath Keepers, including its leader Stewart Rhodes, on seditious conspiracy charges is still ongoing in front of the same judge who has the Navarro case. So far, Rhodes has pointed the finger at everyone but himself from the witness stand in a manner that is unlikely to impress the jury. The government’s evidence here is strong, but juries can behave unpredictably. The jurors will have to work through questions regarding each defendant’s guilt on each charge, so don’t be surprised if it takes a while for them to return their verdicts.
Trump has a “major announcement” scheduled for Tuesday evening. I’m going to go out on a limb here and say that if he announces his candidacy for 2024, it will have no impact whatsoever on the cases DOJ has in progress. Attorney General Merrick Garland has said he evaluates cases for prosecution “without fear or favor” a number of times in public, and he seems to mean it. Permitting Trump to use a new candidacy to avoid accountability for his prior acts as president would be a death knell for the rule of law and that doesn’t seem to be Garland, the institutionalist’s, style.
On Friday, in a San Jose, California courtroom, the now-convicted and disgraced founder of Theranos, Elizabeth Holmes, will be sentenced. She was convicted on four counts of defrauding investors in January. The Stanford dropout became the youngest self-made female billionaire with her claims that she could revolutionize diagnostic medicine. In their sentencing memo, Prosecutors have asked the judge to sentence Holmes to 15 years in prison and to require payment of an $800 million fine. Holmes' attorneys have asked the judge to impose a far more lenient sentence of no more than 18 months. They argue her reputation has been permanently destroyed, turning her into a "caricature to be mocked and vilified." The judge controls sentencing, and while their are procedural requirements that must be followed, the amount of time Holmes will serve is within the judge’s discretion to select.
That’s the week ahead, at least so far. Like so many of you, I’ll be planning my Thanksgiving cooking and getting ready for kids to come home from college and out of town jobs. It’s my favorite holiday. I’m glad we’ll be able to head into it with the midterms behind us and a lot to be thankful for.
We’re in this together,
p.s. I take responsibility for all typos and grammatical errors, and appreciate your indulgence. Just so you know the type of horrible conditions I work under, I’ve spent the last hour trying to proofread this, with a Maine Coon Cat (Harry, age 18) aggressively blocking my monitor and demanding chin scratches.