Media Mentions

The Presidency of Donald Trump has been unlike any other in America’s history. While many of his core promises remain unfulfilled, he managed to reshape our politics in just four years. On the cusp of the 2020 election, David Remnick assesses the Trump Administration’s impact on immigration policy, the climate, white identity politics, and the judiciary. He’s joined by Jeannie Suk Gersen, Jonathan Blitzer, Bill McKibben, Keeanga-Yamahtta Taylor, and Andrew Marantz.

In 2018, Wells Fargo & Co. sent its high-powered attorney, Eugene Scalia, then a partner at corporate law firm Gibson, Dunn + Crutcher, on a mission to San Francisco to make a U.S. Labor Department investigation go away...Two years later, Scalia’s primary objective as U.S. Labor Secretary has been to solidify an enforcement philosophy at DOL that’s predictable for employers. Businesses had railed against the Obama administration for what they viewed as its overly punitive, “gotcha"-style tactics. Their frustration mounted when President Donald Trump‘s first labor secretary, Alexander Acosta, was slow to rebalance the enforcement landscape. Scalia, who took office Sept. 30, 2019, has worked to centralize decision-making; shift power away from career investigators and attorneys; emphasize providing employers with fair notice of pending actions; and ensure consistency across DOL’s vast bureaucracy of enforcement offices, according to interviews with two dozen current and former DOL officials and outside lawyers...Yet organized labor, Democrats, and workers’ rights attorneys view Scalia’s quest as a naked, corporate-friendly agenda that undermines the agency’s mission to safeguard employees. The pandemic has heightened this criticism...DOL’s Occupational Safety and Health Administration has spent the past month promoting citations levied against companies for coronavirus-related violations. But those fines have averaged $14,000 per employer, prompting greater outcry that weak enforcement is endangering worker safety. “No one wants unfair enforcement. But this is the wrong focus at this particular moment,” said Terri Gerstein, director of the State and Local Enforcement Project at Harvard University’s Labor and Worklife Program. “In the midst of these multiple crises, the sole, burning focus of the Labor Department should be on protecting workers from danger and destitution.”

An 0p-ed by Noah Feldman: After four years of President Donald Trump’s assault on the Constitution, it comes down to this. The courts have done what they could to limit the damage; the House impeached him; and the Senate let him get away with it. Now all that remains is the final check provided by the Constitution: a vote of the people. James Madison would have seen this coming. While the Constitution was being ratified, he argued that its checks and balances would preserve the liberty that the document was supposed to enshrine. “Ambition must be made to counteract ambition,” he wrote in the most famous of the Federalist Papers. Yet within a few years, Madison had come to believe that the system he did so much to design was vulnerable to subversion. The checks and balances written into the Constitution were not enough to withstand a powerful president like George Washington if he was backed by an organized political party with a monarchic ideology. The only possible check on partisan power, Madison came to believe, was the people, voting en masse to restore their liberties. With Thomas Jefferson, he formed the first Republican Party (sometimes called the Democratic-Republicans) to fight the Federalists of Washington and Alexander Hamilton. In 1800, when the Republicans won, Madison and Jefferson saw it as a moment of salvation. The people had restored the constitutional balance when the Constitution itself could not. The first lesson for 2020 is obvious: The only way Trump’s constant attacks on the Constitution can now be repudiated is by voting him out. The people can do what the courts and Congress could not or would not. They alone can send the message that Trump’s sustained and systematic attack on our institutions is dangerous, wrong and anathema to small-r republicanism. It’s not inevitable that the people will save the Republic. Madison understood that a republic could only survive if the people possess political virtue.

A podcast by Noah Feldman: Over the past few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this fifth and final installment of Deep Bench, how this summer the Supreme Court's rulings revealed ideological rifts within the Federalist Society, rifts that could be large enough to eventually cause the organization to break apart.

President Trump has spent the run-up to next week’s election touting himself as the finest steward of the nation’s air and water in generations. “Who would have thought,” he boasted during one stop in Florida, “Trump is the great environmentalist?” But over the course of nearly four years, his administration has steadily loosened oversight of polluting industries, eroded protections for endangered wildlife and stymied Obama-era efforts to address the globe’s most daunting environmental threat: climate change. A Washington Post analysis has found that as Trump’s first term winds to a close, he has weakened or wiped out more than 125 rules and policies aimed at protecting the nation’s air, water and land, with 40 more rollbacks underway...Democrats are already planning how they would revive environmental regulation if they win the White House. Biden has pledged to take executive action to block projects such as the Keystone XL oil pipeline and Alaska’s controversial Pebble Mine, and to rejoin the Paris climate accord to help combat global warming. But overhauling many of the rules altered under Trump would take years, and clawing back oil and gas leases would be nearly impossible. If Trump wins reelection, however, he and his deputies will probably try to shrink the federal government’s environmental role further, cement policy changes into law and finalize dozens of rollbacks they are working on now, said Caitlin McCoy, a staff attorney at the Harvard Law School Environmental and Energy Law Program. “Given the opportunity for a second term, they will initiate and detonate everything they’ve set up,” she said. “We will see even more dramatic action now that all the groundwork is set.”

An op-ed by Nicholas Stephanopoulos: Over the past few months, election lawyers who litigate in the Supreme Court have hit the jackpot. The court has decided one election-related case after another — more than a dozen, in total, since the pandemic began. Among other things, the court barred Wisconsin from counting mail-in ballots postmarked after April’s primary Election Day, required Alabamians and South Carolinians to find witnesses for their mail-in ballots, and stopped Idaho from accepting digital signatures for ballot initiatives. Just this past week, the court also held that Wisconsin can’t tally mail-in ballots returned after the general election on Tuesday, while North Carolina and Pennsylvania can (for now). But the court didn’t have to resolve any of these voting disputes. And it shouldn’t have resolved them. By intervening so often, the Supreme Court has become a body that corrects perceived lower-court errors, not one that decides major legal issues. By stepping in without explaining its actions, it has tarnished its institutional legitimacy. And by proceeding in haste, the court has made factual and legal mistakes — bad, not just unnecessary, law. All the recent electoral cases have deviated from the court’s normal procedure, the one used for its regular “merits” docket. Ordinarily, after a lower court (generally a federal appeals court or a state supreme court) has reached a final judgment, the losing party may file a certiorari petition asking the Supreme Court to hear the case. The court grants only about 1 percent of these requests. When it does, written briefing unfolds over several months, followed by an oral argument. After the argument, the court usually takes several more months to announce its decision, which is signed and reasoned, often at great length. In contrast, the cases about the 2020 election have been part of the court’s “shadow” docket. They haven’t arrived at the Supreme Court through cert petitions. Instead, their vehicles have been emergency applications filed with the court before lower-court proceedings have even finished.

There’s a media phenomenon the old-time blogger Mickey Kaus calls “overism”: articles in the week before the election whose premise is that even before the votes are counted, we know the winner — in this case, Joe Biden. I plead guilty to writing a column with that tacit premise. I spent last week asking leading figures in media to indulge in the accursed practice of speculating about the consequences of an election that isn’t over yet. They all read the same polls as you do and think that President Trump will probably lose. But many leaders in news and media have been holding their breaths for the election — and planning everything from retirements to significant shifts in strategy for the months to come, whoever wins. President Trump, after all, succeeded in making the old media great again, in part through his obsession with it. His riveting show allowed much of the television news business, in particular, to put off reckoning with the technological shifts — toward mobile devices and on-demand consumption —  that have changed all of our lives. But now, change is in the air across a news landscape that has revolved around the president... The battles over speech and censorship, the sociologist Zeynep Tufekci tweeted recently, are becoming “attention wars.” As recently as last week, senators were dragging in tech executives to complain about individual tweets, but the arguments are about to turn more consequential. The platforms are increasingly being pushed to disclose how content travels and why — not just what they leave up and what they take down. “We’re in this brave new world of content moderation that’s outside the take-down/leave-up false binary,” said Evelyn Douek, an expert on the subject and a lecturer at Harvard Law School. In practice, Twitter, Facebook and the other big platforms are facing two sources of pressure.

An op-ed by Laurence H. Tribe and Steven V. Mazie: After handing down orders in a spate of challenges to states' efforts to make voting easier during the coronavirus pandemic, the Supreme Court is catching its breath. But the pause may be short-lived. In several opinions that conservative justices have issued over the past week, a radical idea is rising from the ashes, resurrecting language from one of the most fraught decisions in the court’s history. Four justices — Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas — have resuscitated a half-baked theory three justices espoused in Bush v. Gore to let Republicans trash ballots after Election Day. Chief Justice John Roberts has not joined his four colleagues in this misadventure. But if the recently seated Justice Amy Coney Barrett sides with the quartet, America could be in for a battle that makes Bush v. Gore look tame. By shutting down a recount in Florida that could have put Al Gore over the top in the 2000 election, the Supreme Court effectively handed George W. Bush the keys to the White House. The majority reasoned that disparate methods for interpreting the infamous “hanging chads” on Florida’s punch-ballots denied the state’s voters the equal protection of the laws, violating the 14th Amendment. But then-Chief Justice William Rehnquist, joined only by Scalia and Thomas, would have gone further. In a concurring opinion, he scolded Florida’s Supreme Court for misapplying the state’s election law. He leaned on the electors clause of the Constitution, which says “each State shall appoint” its slate of presidential electors “in such manner as the legislature thereof may direct.” By meddling with what Florida’s legislature had done, Rehnquist concluded, its highest court had violated the Constitution.

Biden's stance on fracking has been all over the news; that the Democratic presidential candidate would prohibit the practice on federal land, while allowing current permits to continue. The presidential election is also expected to impact U.S. coal markets - either way it breaks. Wyoming Public Radio's Cooper McKim spoke with Caitlin McCoy, a staff attorney at Harvard Law School's environmental and energy law program, about what that might look like. Caitlin McCoy: “It's almost hard to describe what the potential impact of a Biden administration is without the contrast, I think of a potential Trump administration, because I think... I don't want to sound insensitive, because I know that people's jobs and livelihoods are at stake. And it's really easy for people who don't live in communities that currently depend on coal mining, to just say, ‘for the sake of climate, we have to stop using coal.’ And that said, the writing is on the wall and it has been for a while now. And the market forces that we've seen at play under the Trump administration have been really powerful despite what the Trump administration has done to try to preserve demand for coal. So, I really think the big difference in a potential Biden administration and a second term Trump administration comes in this, in this sort of sense that, I think Trump would essentially leave the industry to just kind of wither on its own, which is somewhat what he's done over the last four years. Yes, there have been actions that have lowered compliance costs and loosened requirements a little bit. But there hasn't really been any big action by the Trump administration to revive demand for coal or to actively support coal mining. And so I think really, the big difference is that a Biden administration will seek to, as Biden has said, accelerate the transition away from coal.”

Colorado will send roughly 435,000 people a one-time stimulus payment of $375 as a way to help them weather the effects of the coronavirus crisis in lieu of additional federal aid. In all, more than $163 million is expected to be distributed by the state...The money will be sent out in early December, according to the governor’s office. Polis signed an executive order making the payments possible and announced the action on Wednesday afternoon, less than a week before Election Day. Coloradans eligible for the payments include anyone who received at least $1 in unemployment compensation between March 15 and Oct. 24 and were eligible for a weekly jobless benefit between $25 and $500 during that period. The Colorado Department of Labor and Employment estimates that 65% of all unemployment claimants since March 15 will receive the payments. The aid is only expected to be given to people who are or were earning less than $52,000 a year...Last month, the state’s unemployment rate was 6.4%. Housing advocates celebrated the news on Wednesday. “For people who are struggling to pay their rent and put food on the table, cash assistance is essential and incredibly helpful,” said Sam Gilman ‘22, cofounder of the COVID-19 Eviction Defense Project, which has provided assistance and legal advice to tenants facing evictions in Colorado since March. “We need consistent cash assistance and perhaps only the federal government can provide that. But it’s important and I appreciate seeing the state do what it can at this moment.”

An op-ed by Gladden Pappin and Adrian Vermeule: It’s the last full week of presidential campaigning, so Americans might be excused for having missed news that the Vatican renewed its preliminary agreement with China over the appointment of bishops. The agreement has drawn the ire of many American conservatives, not least Secretary of State Mike Pompeo, who charges that a compromise with Beijing erodes Rome’s moral witness. Pompeo’s concerns deserve to be taken seriously. They reflect not only the view of the Trump administration, but that of many Catholics, including Cardinal Joseph Zen, the former bishop of Hong Kong, and other senior churchmen. There is no denying that in Beijing, Rome faces an authoritarian regime that has persecuted people of faith, Catholics especially, from its founding. Yet Americans should also consider what the church sees when she looks to China with eyes ultimately fixed on transcendent, theological horizons. The key here is that the agreement is sharply limited in scope. It primarily addresses the appointment of bishops, the very composition of the church herself. For the church, what matters above all is the mystical embodiment of Christ in the structure of pope, bishops and laity. By giving priority to the question of bishops in the preliminary agreement, the Holy See merely follows the proper sequence of events from the church’s standpoint: First, the lines of authority have to be made clear; then, in subsequent talks, other aspects of the relationship may be clarified. Critics go wrong assuming the agreement is some sort of general charter governing relations between Beijing and the Roman church. The agreement isn’t a concordat. A concordat involves the establishment of official diplomatic relations. The Holy See, which still recognizes Taiwan, is the most important sovereign entity not to have diplomatic relations with China, and that remains true under this agreement.

Justice Brett M. Kavanaugh on Wednesday corrected an error in an opinion issued as part of a Supreme Court ruling that barred Wisconsin from counting mail-in ballots that arrive after Election Day. Though not unheard-of, such revisions are rare, experts said, adding that Justice Kavanaugh’s change highlighted the court’s fast pace in handling recent challenges to voting rules. In the opinion, which was issued on Monday and alarmed Democrats worried about mail ballots being counted, Justice Kavanaugh wrote that while some states had changed their rules around voting in response to the pandemic, others had not. “States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots,” he wrote in his original concurring opinion, which was attached to the 5-to-3 ruling against the deadline extension in Wisconsin. The decision, issued just over a week before the presidential election, immediately drew intense scrutiny, and Justice Kavanaugh’s opinion prompted a complaint from Vermont’s secretary of state, Jim Condos. He pointed out that the state had, in fact, changed its rules to accommodate voters worried about showing up to polling stations during the pandemic...The Supreme Court began noting corrections and changes in opinions following a 2014 study that showed how, for years and without public notice, it had been altering its decisions long after they were issued, said Richard Lazarus, a law professor at Harvard University and the study’s author. During the 2019-20 session, the court noted it had changed errors or typos in written decisions about half a dozen times, he said. The court typically issues several dozen decisions each term. In this case, Professor Lazarus said, Justice Kavanaugh’s error was troubling because it revealed the rapid-fire pace with which the court, days before a presidential election, is making decisions that have enormous implications for the country. “The mistake he made is not of an earth-shattering, catastrophic nature but it does underscore the risk of writing quickly, not writing more deliberately and not taking time,” he said...When the justices do not have time to send opinions back and forth to one another and deliberate together, “they’re more likely to make mistakes,” Professor Lazarus said.

Before dawn on January 23, 2019, Mark McConnell arrived at the Key West headquarters of the military and civilian task force that monitors drugs headed to the United States from the Southern Hemisphere...On a computer approved for the handling of classified information, he loaded a series of screenshots he had taken, showing entries in a database called Helios, which federal law enforcement uses to track drug smugglers. McConnell e-mailed the images to a classified government hotline for whistle-blowers. Then he printed backup copies and, following government procedures for handling classified information, sealed them in an envelope that he placed in another envelope, marked “secret.” He hid the material behind a piece of furniture. McConnell had uncovered what he described as a “criminal conspiracy” perpetrated by the C.I.A. and the F.B.I. Every year, entries in the Helios database lead to hundreds of drug busts, which lead to prosecutions in American courts. The entries are typically submitted to Helios by the Drug Enforcement Administration, the F.B.I., and a division of the Department of Homeland Security. But McConnell had learned that more than a hundred entries in the database that were labelled as originating from F.B.I. investigations were actually from a secret C.I.A. surveillance program. He realized that C.I.A. officers and F.B.I. agents, in violation of federal law and Department of Justice guidelines, had concealed the information’s origins from federal prosecutors, leaving judges and defense lawyers in the dark. Critics call such concealment “intelligence laundering.” In the nineteen-seventies, after C.I.A. agents were found to have performed experiments with LSD on unwitting Americans and investigated Vietnam War protesters, restrictions were imposed that bar the agency from being involved in domestic law-enforcement activities. Since the country’s founding, judges, jurors, and defendants have generally had the right to know how evidence used in a trial was gathered. “This was undisclosed information, from an agency working internationally with different rules and standards,” Nancy Gertner, a retired federal district judge and a senior lecturer at Harvard Law School, told me. “This should worry Trump voters who talk about a ‘deep state.’ This is the quintessential deep state. This is activities beyond your view, fundamentally affecting what happens in American courts.”

Promising to “drain the swamp” was a popular line in 2016. Four years on some Republicans still cheer, pointing out admiringly that President Donald Trump forgoes his $400,000 salary. Even critics concede that America continues to support sanctions on corrupt foreigners. And despite Mr Trump’s widely reported wish to scrap the Foreign Corrupt Practices Act, his government still energetically applies the law against paying bribes overseas. Yet concerns about what swamp-draining really meant surfaced early in Mr Trump’s presidency. Federal prosecutors looked into questionable spending around his inauguration. Among his first acts was to scrap a rule requiring oil and other firms to say what they paid foreigners. As for those swamp-dwelling lobbyists, he drained several directly into his cabinet. Mr. Trump’s reluctance to cut ties to his business interests, or to reveal what they were, was unlike anything seen for over a century. He concedes he owes hundreds of millions of dollars, but will not name his creditors...Worse than the venality has been the weakening of institutions meant to keep corruption in check. Take three examples. The first relates to indictments of men—Michael Cohen, Michael Flynn, Rick Gates, Paul Manafort, Roger Stone—who hung close to Mr. Trump. All were convicted of crimes. Steve Bannon, another close adviser, was charged with fraud in August. Scandal has embroiled various cabinet officials. A culture of rule-breaking is encouraged by the boss: in July he commuted the sentence of Mr. Stone, convicted of seven felonies. Next are efforts to break those who would resist, such as the whistle-blowers, professional civil servants, who testified against Mr Trump in his impeachment trial. An executive order he signed in mid-October grants him the power to fire such officials. Matthew Stephenson of Harvard Law School says this “threatens to subvert one of the most important bulwarks against corruption in all of us law”.

We know that elections have consequences, but we are often reminded that ideas do, too. That link between abstract ideas and real-world results could prove especially fateful on the day after the presidential election. At stake is the idea of judicial originalism, which holds, in the words of the late Justice Antonin Scalia, that the U.S. Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” While this assertion has a seductive simplicity, it’s worth noting that this is simply one theory of how the courts should function...Many conservatives have argued that originalism is the only way to ensure that judges stay restrained and modest, not imposing their views on a society that did not elect them. (Chief Justice John G. Roberts Jr. refers to this as calling “balls and strikes.”) And perhaps the self-styled originalists would accomplish their goal if they actually practiced what they preach. But in fact, the new breed of judicial activists seems to be abandoning the restraint that Roberts prizes and is simply seeking conservative outcomes, using whatever means necessary...In a brilliant podcast, “Deep Background,” Harvard Law School professor Noah Feldman outlines this hypocrisy to Jeffrey Sutton, a federal appeals court judge who sees himself as a conservative originalist. Sutton’s response — to my ear — was that he believed Bush v. Gore had been wrongly decided...Feldman’s podcast series — which is well worth listening to — highlights a growing divide between conservatives who viewed originalism as part of a philosophy of modesty and restraint and new activists who are untroubled by the hypocrisy and simply seek conservative outcomes. It is these activists who have been able to weaken Obamacare (clearly violating the original intent of the legislature that passed it) and invent new rights for corporations that had never before been found in the Constitution (as they did in the notorious Citizens United case).

President Trump has spent the run-up to next week’s election touting himself as the finest steward of the nation’s air and water in generations. “Who would have thought,” he boasted during one stop in Florida, “Trump is the great environmentalist?” But over the course of nearly four years, his administration has steadily loosened oversight of polluting industries, eroded protections for endangered wildlife and stymied Obama-era efforts to address the globe’s most daunting environmental threat: climate change. A Washington Post analysis has found that as Trump’s first term winds to a close, he has weakened or wiped out more than 125 rules and policies aimed at protecting the nation’s air, water and land, with nearly 40 more rollbacks underway...Democrats are already planning how they would revive environmental regulation if they win the White House. Biden has pledged to take executive action to block projects such as the Keystone XL oil pipeline and Alaska’s controversial Pebble Mine, and to rejoin the Paris climate accord to help combat global warming. But overhauling many of the rules altered under Trump would take years, and clawing back oil and gas leases would be nearly impossible. If Trump wins reelection, however, he and his deputies will probably try to shrink the federal government’s environmental role further, cement policy changes into law and finalize dozens of rollbacks they are working on now, said Caitlin McCoy, a staff attorney at the Harvard Law School Environmental and Energy Law Program. “Given the opportunity for a second term, they will initiate and detonate everything they’ve set up,” she said. “We will see even more dramatic action now that all the groundwork is set.”

An op-ed by Cass Sunstein: For decades, U.S. government civil servants have had a degree of job security, in the sense that the president, and his political appointees, could not fire them merely because they were not sufficiently “loyal.” That would change under an executive order issued by President Donald Trump that is aimed at undermining the legal protection long given to many thousands of these career employees. On Jan. 19, 2021, they will apparently become closer to “at will” employees. If the president, or political appointees, want to fire them, they can. This is a horrible idea — more horrible even than it seems. A relatively independent civil service, protected against “at will” discharge, serves the national interest. I saw this close-up in 2009, when I joined the Barack Obama administration as administrator of the Office of Information and Regulatory Affairs, which oversees federal regulation in diverse areas that include clean air, clean water, food safety, homeland security, tobacco, health care, occupational safety, disability rights and transportation. OIRA has a staff of about 45 people, all civil servants. All of them had worked for George W. Bush until Jan. 21, 2009. In the blink of an eye, they were supposed to work for a new administration, with very different values and priorities and with a desire, in many cases, to reverse course as quickly as possible. I am sure that some of them thought that, in important areas, the Bush administration had it right, and that the newcomers were quite wrong. Who cared? Nothing got in the way of their professionalism, expertise, commitment to their jobs, and willingness to raise legitimate objections and concerns. In some cases, Cabinet heads were in a hurry to issue a new regulation — involving, say, air pollution, road safety or visas. Career staff knew that was probably not allowed under the law — and they were entirely unafraid to point that out.

Nine months ago, a group of law students invaded a fancy dinner in Cambridge, Massachusetts, to publicly shame Paul Weiss, a corporate law firm, into dropping one of its wealthiest and most powerful clients. Paul Weiss had long enjoyed a reputation as among the most progressive of the white-shoe corporate firms. But more recently, it had begun representing Exxon, the largest oil and gas company in the world. For decades, Exxon’s scientists and managers have known about the fossil fuel industry’s role in perpetuating global warming, and they have done nothing except spread misinformation. To a group of Harvard law students, this was a bridge too far. They decided to infiltrate Paul Weiss’s recruitment dinner, holding a banner reading, “Drop Exxon,” disrupting the chit chat, and chanting their demands. “We have just a few years left to address the climate crisis,” one first-year law student said at the protest. “That means stopping corporate polluters from continuing to block climate action and evading accountability for their malfeasance. And what is the most critical tool these corporations use to get away with climate murder? It’s this right here.” Right here: the legal industry. And in particular, the kinds of corporate firms that take on the richest and most powerful clients—including the big oil, gas, coal, mining, and fracking companies. While many prominent institutions are facing an overdue reckoning with the global impacts of fossil fuels, the legal profession has largely escaped scrutiny. But lawyers play a central role in the transactions that finance fossil fuels, the litigation that prevents climate accountability in the courts, and the lobbying that preserves the destructive status quo in Congress.

Iranian government-backed hackers last week pulled off a feat few were expecting. They became the first foreign adversary to interfere in the 2020 election by sending threatening emails to voters. But that action — so far the only confirmed intelligence operation by a foreign government that directly targeted specific voters in this election — had far less impact than Moscow’s hacking and leaking of Democratic emails four years ago. Officials and disinformation experts warn that overestimating the threat posed by foreign spies and hackers plays into their narrative that they have the power to sow chaos, and undermines the ability to fashion the most effective and proportionate response...Much of the disinformation circulating today is driven by domestic actors, including the White House, said Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at HarvardUniversity. Occasionally the Russians may have amplified some of President Trump’s false claims that mail-in ballots are insecure or the pandemic has been stanched, he said. “But I haven’t seen anything meaningful.” To overstate the effect of Russian efforts, he said, is to enable their success. If policymakers respond out of fear or anger, they risk compounding the problem, he said. A number of researchers have concluded that the effects of Russian efforts on social media in 2016 likely were overstated, and that by contrast, the Russian hack and subsequent leak of emails from the Democratic National Committee and John Podesta in 2016 arguably had an impact. The leaks led to the resignation of the DNC leadership and disrupted the Democratic convention, and also shaped the media and debate narratives in ways that undermined Democratic nominee Hillary Clinton.

An op-ed by Noah Feldman: There has been much worried Democratic speculation about how the Supreme Court might intervene to hand the election to President Donald Trump. Many scenarios are possible, but one is much more probable than the others. After Monday’s Supreme Court ruling blocking late-arriving mail-in ballots from being counted in Wisconsin, we can now say very concretely what the Bush v. Gore redux scenario looks like. The scenario would arise in Pennsylvania. And the decisive vote would likely be cast by Justice Amy Coney Barrett. That’s because of Pennsylvania’s distinctive legal dispute about whether to count mail-in ballots received after 8 p.m. on Election Day. First, it’s important to understand that a Supreme Court decision about Pennsylvania will only truly determine the outcome of the election if the electoral vote is close enough to make Pennsylvania decisive. If either candidate can win without Pennsylvania, this scenario wouldn’t decide the presidency. But if the electoral tally is close, and late-arriving ballots in Pennsylvania could provide the margin of victory, we could be in for a legal nightmare. As I explained in an earlier column, Pennsylvania state law says that ballots can’t be counted if they are received after the polls close on Election Day. But the Pennsylvania Supreme Court, relying on the Pennsylvania Constitution, ruled that under current conditions created by the combination of Covid-19 and U.S. mail delays, the state must count ballots received for three days after the statutory deadline.

A too-close-to-call election night. A supreme court and a legislature at odds with each other. A pivotal swing state with a large number of electoral votes up for grabs. A challenge over which ballots should be counted. A barrage of lawsuits. Sound familiar? Two decades ago, all eyes were on Florida as Election Day came to a close and the fate of the presidency rested in the hands of the Sunshine State. What followed was weeks of litigation over a recount of 537 votes, and an election ultimately decided by the U.S. Supreme Court in Bush v. Gore. In 2020, Pennsylvania has been called the “tipping-point” state— the state that could give either Democratic presidential candidate Joe Biden or Republican candidate Donald Trump the edge to capture enough electoral votes to be declared the winner... This combination of factors — the litigation, the misinformation, and the likely delay in getting millions of mail ballots counted, thus delaying final results — could give Pennsylvania the spotlight on Election Day and beyond, much like Florida received in 2000...Mark Tushnet, a professor of constitutional law at Harvard Law School, said looking at the presidential election one week out, he’s not sure whether the race is going to be close anywhere. But if it were to come down to Pennsylvania, the days following the election would be similar to Florida in 2000, where the state Supreme Court would be the initial actor on a lot of litigation. “At the outset, everything is going to be up for grabs,” he said. “The challengers will use every available challenge to get the initial vote to change in a way favorable to them.”