News Roundup: Behind the Trump Administration’s Supreme Court Nominations

The Big Story

It’s hard to overstate just how grave the current political situation is. The decision by Sen. Mitch McConnell and his Republican majority to double down on hypocrisy, rushing ahead with a yet-to-be-announced nominee to fill Justice Ruth Bader Ginsburg’s seat, doesn’t just have serious implications for everything from voting rights to reproductive freedom to the health care of millions of Americans. It has also precipitated a dangerous escalation of the president’s alarming position on the peaceful transferral of power.

On Wednesday, President Donald Trump was asked whether he would commit to a peaceful administration change should he lose the November election — a commitment central to democracy. Trump replied, “We’re going to have to see what happens.” According to Barton Gellman in the Atlantic, his reelection campaign is even seriously considering plans to bypass popular vote tallies in swing states where Republicans control the legislature, by having lawmakers appoint Electoral College electors loyal to the president.

With the Justice Department, Attorney General William Barr, state “voter fraud” task forces, and Trump himself continuing to sow distrust over the safety of voting by mail, and with Trump predicting that the election will “end up” in a Supreme Court that will need to have nine justices, it’s not hard to surmise what the campaign’s playbook is. To put it simply, it is a plan to thwart democracy, should voter-suppression tactics not do the job. To put it even more simply, you could use the president’s own words, referring to supposedly fraudulent absentee ballots: “Get rid of the ballots and … there won’t be a transfer frankly, there’ll be a continuation.”

Scrutiny over the Supreme Court nomination process is therefore all the more vital. A list of Trump’s potential nominees began re-circulating in the hours after Ginsburg’s passing last Friday night; among the reported current finalists are conservative federal judges who were appointed by Trump as well as a White House deputy counsel. In the days that followed, American Oversight filed a number of public records requests for information that could shed light on the backgrounds and legal perspectives of those potential nominees. Read more about those requests here.

• We’ve also been investigating the influential people and groups responsible for advancing many of the president’s judicial nominations. One of them is Leonard Leo, the co-chairman of the conservative legal group the Federalist Society. His position at the center of an extensive network of groups dedicated to shifting courts to the right is well known, with the Washington Post writing last year that “few people outside government have more influence over judicial appointments now than Leo.” We recently obtained records that illustrate the powerful role he’s played in the nominations process — read more here.

The Federalist Society was heavily involved in pushing Justice Brett Kavanaugh’s nomination in 2018, for the seat vacated by Justice Anthony Kennedy’s resignation. News reports indicated that Kennedy had also provided Trump with his own recommendations for his replacement (Kavanaugh clerked for Kennedy), which may raise questions about whether Kennedy had a conflict of interest in trying to influence the nomination while also ruling on issues involving the Trump administration.

• On Thursday, American Oversight sued the Justice Department for records related to Kennedy’s preferences for his replacement. The department had previously said it located some records, then determined they weren’t responsive to our Freedom of Information Act request. We filed a request for the records it did find, but the department has failed to produce the documents, leading to Thursday’s lawsuit.
• We also filed a lawsuit in Kentucky for records related to that state’s Ballot Integrity Task Force, one of those “voter fraud” task forces that have the potential to dissuade voters from participating in democracy. More about that lawsuit here.

Officials Warned — and Judge Rules — Against Cutting Census Short

Late on Thursday, a federal judge in California ruled that the census count must continue through the end of October, blocking the Trump administration’s attempt to end the data collection on Sept. 30.

• Earlier this week, NPR’s Hansi Lo Wang reported that career officials at the Census Bureau had warned against the administration’s decision. One official wrote that it was “ludicrous to think we can complete 100% of the nation’s data collection earlier than 10/31.” 
• Meanwhile, the administration has asked that the Supreme Court take up whether it can exclude undocumented immigrants from the census count used to determine congressional apportionment, an action that a lower court recently blocked. And of course, the White House is certainly hoping a Trump-appointed ninth justice will be hearing that case.

John Durham’s Politically Charged Investigation

Reporting by the New York Times revealed that U.S. Attorney John Durham, who was tapped by Barr to examine the origins of the Russia investigation, has also been looking into how officials handled an investigation into the Clinton Foundation. 

• Not only does this make Durham’s investigation appear even more political in nature, it also is outside the scope of what Attorney General William Barr tasked Durham with investigating. We know because we obtained Barr’s letter appointing Durham.
• It’s dated Feb. 6 of this year — more than nine months after Durham reportedly began investigating, and a day after the Justice Department told us it had no such directives — and instructs Durham to “conduct a review into certain activities involving the campaigns in the 2016 U.S. presidential election and certain related matters.”
• Here’s a good thread on how we got that letter, and on the improper politicization of Durham’s probe.

Johnson and Grassley’s Politically Charged Investigation

On Wednesday, Sens. Ron Johnson and Chuck Grassley released a report on their investigation into a conspiracy theory that contends that Joe Biden, while vice president, pushed for the firing of Ukraine’s notoriously corrupt prosecutor general to protect his son Hunter, who was on the board of the Ukrainian energy company Burisma.

• The report found that Hunter’s position on the board was a conflict of interest, but noticeably didn’t find much else — namely, evidence that the alleged conflict had any effect on U.S. policy toward Ukraine. To date, no evidence of such corruption has been found.
• According to Sen. Ron Wyden, however, lawmakers did come across evidence that former Energy Secretary Rick Perry “inappropriately pressured the Ukrainian government” to put Houston businessman Robert Bensh on the board of Naftogaz, the Ukrainian state-owned energy company.
• Read ProPublica and Time’s story on Perry’s efforts to secure major Ukrainian gas deals for his friends to learn more about his business connection to Bensh.

Headlines You Might Have Missed

• • “DOJ says it won’t send officials to testify because Democrats were ‘scolding and insulting’ to Barr.” CNN
    • The Justice Department’s refusal to send senior officials to testify at the request of the House Judiciary Committee is the latest stunning example of the attorney general and the president’s obstruction of Congress’s constitutional oversight powers.
    • American Oversight’s chief oversight counsel, Molly Claflin, explains over at Slate why the “only possible proportionate response” is for William Barr to be impeached.
    • In response to our FOIA request, the DOJ released Barr’s visitor logs. On the list are meetings with Leonard Leo, Laura Ingraham, and more.

• “Taxpayers dropped another $5,700 at Trump properties per new Justice Department documents.” 1100 Pennsylvania

• • • The latest news about taxpayer money going to the president’s business was revealed in records we obtained through FOIA, reported on by Zach Everson.

• “Scoop: Meadows puts agencies on notice about staff shake-up.” Axios

• • • White House Chief of Staff Mark Meadows has asked John McEntee, the director of the Presidential Personnel Office who has been spearheading many of the Trump administration’s loyalty purges, to look into replacing White House liaisons at agencies across the government.

• “Pompeo stumps for Trump, and looks past him.” Politico

• • • “Pompeo is … throwing himself headlong into a heated presidential campaign like no other secretary of state in memory.”

• “Pentagon used taxpayer money meant for masks and swabs to make jet engine parts and body armor.” The Washington Post

• “Trump Uses E.P.A. Office to Widen ‘Anarchist’ War vs. New York.” New York Times

• “DHS awarded $6 million in contracts to firm where Acting Secretary Wolf’s wife is executive.” NBC News

And a Reminder…

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