My litigation status update: July is the month for...

 

Free sample of my members-only newsletters T.S. Eliot wrote that “April is the cruelest month.” Though a famed poet, Eliot clearly was not a lawyer watching the Supreme Court docket every day in June of an election year. While April may mark the end of nature’s dying season and the transition to spring, for lawyers trying to protect democracy, that takes place when the Supreme Court term concludes at the end of June. Or at least, it is supposed to conclude at the end of June. As June grinded by, lower courts continued to churn out mostly favorable decisions that will impact the way in which elections are conducted in November. But with each passing day, we watched to see what the Court would do in the high-profile cases piled up on its docket. Then in the final week, even as the Court issued a flurry of decisions that will reshape the law in a myriad of ways large and small, it became clear that the court would not finish. Most importantly, we learned that the Court would delay issuing a decision in its most watched and politically significant case, Trump v. United States. We end the month still not knowing if a president can assassinate his political opponent without legal consequence and if and when Trump will stand trial in his Washington, D.C. criminal case. With the justices set to leave town for the summer on junkets and donor paid vacations, our collective attention turns to a busy four months of politics and elections. As Eliot continued, in The Waste Land, “Summer surprised us.” And so, in this month’s Litigation Look Ahead, I try to anticipate the surprises in store for democracy in the month ahead. Let’s get started.

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My takeaways from last month Jan. 6 defendants in SCOTUS. Though we did not get a ruling in the Trump immunity case, the high court did hand a victory to him and hundreds of other Jan. 6 defendants when it limited the scope of a key law criminalizing the obstruction of official proceedings. Though it won’t significantly affect Trump’s legal woes, it will provide rhetorical fodder for the far-right in weaving their deep state conspiracy theories. Trump in Nevada. My advice to everyone covering the GOP’s stance on voting rights — ignore what they say in their press releases; pay attention to what their lawyers say in court. By that score, Nevada is very much in the center of the political map. The Trump campaign filed its second lawsuit of the election cycle, and like the first it was in Nevada. This is the surest sign that Trump is worried he is going to lose the Silver State. Everyone in Pennsylvania. There are now an astounding 16 voting and election cases pending in Pennsylvania. Almost half focus on the intricacies of how and whether mail in ballots are accepted or rejected. This may sound arcane, but these rulings could determine the outcome of a key battleground state this fall. Fringe theories are back. June saw a resurgence of fringe legal theories from the GOP and its allies. There are now two cases weaving their way towards the Supreme Court that seek to resurrect the rejected independent state legislature theory. What I’m watching for The Republican convention. Usually, I am glued to the courts, but in July I will also be closely watching the Republican National Convention. In addition to the usual fare, the GOP convention will offer scripted and unscripted versions of what the party plans for democracy this fall. I expect to see the usual election denialism and rants about the 2020 election. But I will also be watching to see if we get further hints about their election subversion plans for this November. Trump sentencing. With the New York criminal case the only one proceeding before Election Day, all eyes will turn to Judge Merchan’s courtroom on July 11, for Donald Trump’s criminal sentencing. Here are the open questions: Does Trump address the court directly? Does his contemptuous behavior factor into his sentence? Is he sentenced to any period of incarceration? I expect any sentence will be paused while the appeals proceed. Quick hearings and trials. There are a slew of cases with motions hearings and trials that could decide the outcome taking place next month. Here are the most important ones I am following…

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