Category: Elections

US Accessibility to WeChat and TikTok in Danger of Being Eliminated

Pursuant to Executive Orders 13942 and 13943, the US Department of Commerce (Commerce) published regulations identifying prohibited transactions related to TikTok and WeChat by any person, or with respect to any property, subject to the jurisdiction of the United States. Certain prohibitions take effect on September 20, 2020 and others take effect on November 12, 2020.

As of midnight on Sunday, September 20, both apps will cease to be available for download in the US, and future patches and updates will not be available. The existing WeChat functionality in the US will start to degrade starting Monday, September 21. The TikTok application will begin to degrade on November 12 (unless a deal is reached with ByteDance to divest the US TikTok business before then).

Although WeChat Pay is not currently available in the US, however, the current Commerce rule signals that no payments may be initiated in the US over WeChat today or in the future.

The exchange between or among TikTok and WeChat mobile application users of personal or business information using the TikTok or WeChat mobile applications, to include the transferring and receiving of funds over the WeChat application is not prohibited.

Specifically, Commerce announced the following:

As of September 20, 2020, the following transactions are prohibited:

  1. Any provision of service to distribute or maintain the WeChat or TikTok mobile applications, constituent code, or application updates through an online mobile application store in the US;
  2. Any provision of services through the WeChat mobile application for the purpose of transferring funds or processing payments within the US.

As of September 20, 2020, for WeChat, and as of November 12, 2020, for TikTok, the following transactions are prohibited:

  1. Any provision of internet hosting services enabling the functioning or optimization of the mobile application in the US;
  2. Any provision of content delivery network services enabling the functioning or optimization of the mobile application in the US;
  3. Any provision directly contracted or arranged internet transit or peering services enabling the function or optimization of the mobile application within the US;
  4. Any utilization of the mobile application’s constituent code, functions, or services in the functioning of software or services developed and/or accessible within the US.

Any other prohibitive transaction relating to WeChat or TikTok may be identified at a future date. Should the US government determine that WeChat’s or TikTok’s illicit behavior is being replicated by another app somehow outside the scope of these executive orders, the President has the authority to consider whether additional orders may be appropriate to address such activities. The President has provided until November 12 for the national security concerns posed by TikTok to be resolved. If they are, the prohibitions in this order may be lifted as to TikTok.

© Copyright 2020 Squire Patton Boggs (US) LLP
For more articles on TikTok, visit the National Law Review Communications, Media & Internet section.

Reactions to the U.S. Supreme Court’s Rulings in Trump v. Vance & Trump v. Mazars

In Trump v. Vance and Trump v. Mazars the Supreme Court issued opinions in two cases concerning the release of President Trump’s financial records.  Reactions to the July 9th rulings have varied, with opinions differing on whether or not Trump’s reputation and presidency will be significantly impacted by what his financial records may reveal.

Below, we outline the details of each case and the reactions to the Supreme Court’s decisions.

Background Trump v. Vance

In Trump v. Vance, the court stated that Trump had no absolute right to block the Manhattan District attorney’s access to Trump’s financial records for the purposes of a grand jury investigation. The court held in a 7-2 decision that “Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.” The court’s opinion was written by Chief Justice John Roberts for the majority including Justices Ginsburg, Breyer, Sotomayor and Kagan with Justice Kavanaugh filing a concurring opinion joined by Justice Gorsuch, and Justice Thomas and Justice Alito writing separate dissenting opinions.

Trump v. Vance involves a state criminal grand jury subpoena not served on President Trump, but on two banks and an accounting firm that were custodians of the records. The subpoenaed records are for eight years of Trump’s personal and business tax returns and other banking documents in the years leading up to the 2016 election served on behalf of New York District Attorney Cyrus Vance., Jr. Vance’s investigation centered around payments made to two women — Karen McDougal and Stormy Daniels — who alleged they had affairs with Trump before he entered office.

The Supreme Court considered state criminal subpoenas could threaten “the independence and effectiveness” of the president as well as undermining the president’s leadership and reputation, weighing Trump’s circumstances against those in Clinton v. Jones, the 1997 case where President Bill Clinton sought to have a civil suit filed against him by Paula Corbin Jones dismissed on the grounds of presidential immunity, and that the case would be a distraction to his presidency.

Trump argued that the burden state criminal subpoenas would put on his presidency would be even greater than in Clinton because “criminal litigation poses unique burdens on the President’s time and will generate a considerable if not overwhelming degree of mental preoccupation” and would make him a target for harassment.

The Court addressed Trump’s argument, stating that they “rejected a nearly identical argument in Clinton, concluding that the risk posed by harassing civil litigation was not ‘serious’ because federal courts have the tools to deter and dismiss vexatious lawsuits. Harassing state criminal subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. But here again the law already seeks to protect against such abuse … Grand juries are prohibited from engaging in ‘arbitrary fishing expeditions’ or initiating investigations ‘out of malice or an intent to harass.’”

The Court also considered that Vance is a case addressing state law issues where Clinton was a case addressing federal law issues. Trump argued that the Supremacy Clause gives a sitting president absolute immunity from state criminal proceedings because compliance with subpoenas would impair his performance of his Article II functions. Arguing on behalf of the United States, the Solicitor General claimed state grand jury subpoenas should fulfill a higher need standard.  In response, the Court ruled, “A state grand jury subpoena seeking a President’s private papers need not satisfy a heightened need standard … there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions.”

Notably, the Supreme Court decision does not allow for public access to Trump’s tax returns; they will be part of a Grand Jury investigation, which is confidential.  However, many took away the message that the majority’s decision–bolstered by Gorsuch and Kavanaugh, Trump appointees, who concurred–that the law applies to everyone.

Reactions to SCOTUS Decision from Jay Sekulow and Cyrus Vance, Jr.

Both Vance and Trump’s attorney Jay Sekulow expressed they were content with the Court’s ruling, albeit for different reasons.

“We are pleased that in the decisions issued today, the Supreme Court has temporarily blocked both Congress and New York prosecutors from obtaining the President’s financial records. We will now proceed to raise additional Constitutional and legal issues in the lower courts,” Sekulow tweeted.

“This is a tremendous victory for our nation’s system of justice and its founding principle that no one – not even a president – is above the law. Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury’s solemn obligation to follow the law and the facts, wherever they may lead,” Vance said in a statement.

Other Reactions to the Supreme Court’s Trump v. Vance Ruling

Following the Supreme Court’s arguments in Vance, lawyers and legal scholars commented about what the decision could mean for the presidency.

In a C-SPAN interview with National Constitution Center President and CEO Jeffrey Rosen, Columbia Law School Professor Gillian Metzger spoke about the issue of burden on the president in Vance, “A lot of what is being shown in these cases is who bears the burden when. Clinton v. Jones said that first, you have to show the burden on the presidency…already the Solicitor General is trying to move us beyond where we had been in Clinton vs. Jones. Among the justices on the court, my sense is that they are really trying to figure out what the standards should be…I didn’t get the sense of a stark ideological divide on this.”

In agreement with seeing the ruling as a victory for the rule of law, David Cole, the ACLU National Legal Director said: “The Supreme Court today confirmed that the president is not above the law. The court ruled that President Trump must follow the law, like the rest of us. And that includes responding to subpoenas for his tax records.”

Harvard Law professor Laurence Tribe, a frequent Trump critic, highlighted the victory on Twitter, saying: “No absolute immunity from state and local grand jury subpoenas for Trump’s financial records to investigate his crimes as a private citizen. Being president doesn’t confer the kind of categorical shield Trump claimed.”

Of a practical matter, though, Mark Zaid, the Washington attorney who represented the whistleblower who set the stage for Trump’s impeachment proceedings, tweeted:

 

“Even if Trump’s tax returns reveal fraud, I find it doubtful that this fact would finally be straw that broke his supporters’ back on election day.  But importance of ruling is that criminal investigation continues & will exist past expiration of Trump’s presidential immunity.” (Should we embed the tweet?)

Background for the Supreme Court’s Ruling in Trump v. Mazars

The Supreme Court remanded back to the lower courts the second case, Trump v. Mazars in a 7-2 decision. The Mazars case involved three committees of the U. S. House of Representatives attempting to secure Trump’s financial documents, and the financial documents of his children and affiliated businesses for investigative purposes. Each of the committees sought overlapping sets of financial documents, supplying different justifications for the requests, explaining that the information would help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections.

Additionally, the President in his personal capacity, along with his children and affiliated businesses—contested subpoenas issued by the House Financial Services and Intelligence Committees in the Southern District of New York.  Trump and the other petitioners argued in the United States Court of Appeals for the Second Circuit that the subpoenas violated separation of powers. The President did not, however, argue that any of the requested records were protected by executive privilege.  Justice Roberts wrote the majority opinion, with Thomas and Alito filing dissenting opinions.

In Mazars, the District Court for the District of Columbia upheld the Congressional subpoenas, indicating the investigations served a “legislative purpose” as they could provide insight on reforming presidential candidate’s financial disclosure requirements.  However, Roberts writes: “the courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information.”

In the opinion, Roberts sets out a list of items the lower courts need to consider involving Congress’s powers of investigation and subpoena, noting that previously these disagreements had been settled via arbitration, and not litigation.  Additionally, Roberts summarizes the argument before the court, drawing on the Watergate era Senate Select Committee D. C. Circuit  made by the President and the Solicitor General, saying the House must demonstrate the information sought is “demonstrably critical” to its legislative purpose did not apply here.  Roberts, stated that this standard applies to Executive privilege, which, while crucial, does not extend to “nonprivileged, private information.”  He writes: “We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.”

However, Roberts detailed that earlier legal analysis ignored the “significant separation of powers issues raised by congressional subpoenas” and that congressional subpoenas “for the President’s information unavoidably pit the political branches against one another.” With these constraints in mind, Roberts charged the lower court to consider the following in regards to congressional investigations and subpoenas:

  1. Does the legislative purpose warrant the involvement of the President and his papers?
  2. Is the subpoena appropriately narrow to accomplish the congressional objective?
  3. Does the evidence requested by Congress in the subpoena further a valid legislative aim?
  4. Is the burden on the president justified?

Reactions to Trump v. Mazars

Nikolas Bowie, an assistant Harvard Law Professor, turning to Robert’s analysis in the opinion on Congressional investigations opinion discussing Congressional investigations indicated the decision “introduces new limits on Congress’s power to obtain the information that it needs to legislate effectively on behalf of the American people . . . the Supreme Court authorized federal courts to block future subpoenas using a balancing test that weighs ‘the asserted legislative purpose’ of the subpoenas against amorphous burdens they might impose on the President.”

Additionally, Bowie points out, “it seems unlikely that the American people will see the information Congress requested until after the November election.”

Writing for the nonprofit public policy organization, The Brookings Institution, Richard Lempert, Eric Stein Distinguished University Professor of Law and Sociology Emeritus at the University of Michigan, concurs with Bowie’s point, writing that the Mazars decision may set a new standard for Congressional subpoenas moving forward:

“The genius of Robert’s opinion in Mazars is that while endorsing the longstanding precedent that congressional subpoenas must have a legislative purpose and without repudiating the notion that courts should not render judgments based on motives they impute to Congress, the opinion lays down principles which form a more or less objective test for determining whether material Congress seeks from a president is essential to a legislative task Congress is engaged in … Congress should be able to spell out in a subpoena why it needs the documents it seeks.”

Looking Ahead to What’s Next

There is a lot of information in these decisions to unpack, especially in relation to Congressional investigations and subpoenas.  Additionally, questions remain on how the lower courts may interpret Roberts’ directive to examine “congressional legislative purpose and whether it rises to the step of involving the President’s documents” and how Congress will “assess the burdens imposed on the President by a subpoena.”

 

Copyright ©2020 National Law Forum, LLC

 

ARTICLE BY Rachel Popa, Eilene Spear and Jennifer Schaller at The National Law Review / The National Law Forum LLC.

Review of Chiafalo and Baca: The “Faithless Electors” Supreme Court Cases

The role the Electoral College plays in American life has confused and confounded many, especially since the U.S. Presidential election of 2016, when the winner of the national popular vote, Hillary Clinton, actually lost the election to President Donald Trump by vote of State-appointed electors in the Electoral College.

The Electoral College was intended by the Founding Fathers to be a buffer between the passions of the masses and the rule by edict of only an elite few, but how much of a buffer and how autonomous the electors within the Electoral College actually are was never fully addressed by the Supreme Court until its decisions late this term in Chiafalo v. Washington, 19-465, (Decided July 6, 2020) and Colorado Dept. of State v. Baca, 18-1173 (Decided July 6, 2020). (The Supreme Court issued its full opinion in Chiafalo).

As a country, we have grown accustomed to watching the national news on election night as states are called for each candidate, and electoral vote tallies are updated to show to us who is “winning” the election when, in reality, all of this is a mere projection, as none of those “electoral votes” are assured, or even cast, until the electors actually cast those votes at a time and place long after November 4.

So who are these “electors” who vote in the Electoral College? Are they “rubber stamps” bound to follow the popular vote of the State who appointed them? Can the State require the electors to sign a pledge to vote consistent with their state’s popular vote winner? If so, can the State punish that elector, including removal as an elector if they violate that pledge and vote for someone else? Or is an elector more of a “free agent” in the vein of those elected as State representatives in Congress? Congressional representatives, of course, are not bound by the State or its citizens’ desires when casting a vote in Congress (though they are held to account for their votes in the next congressional election). If electors are not to use their own judgment, then why does the Constitution call them an “elector” (which connotes some amount of discretion) instead of a delegate, or a proxy, or any number of other terms that would signify a lack of individual authority? Or, more simply, why have electors at all?

In Chiafalo and Baca, electors in Washington and Colorado were appointed by their respective States and were required to make, and did make a pledge when they were appointed as electors to vote consistent with the popular vote of their states. Yet, when the time came to cast their vote in the Electoral College, they didn’t vote consistent with the winner of the State’s popular vote as they had pledged. They voted for another candidate instead, forever earning the moniker of “faithless electors”.  They weren’t the first electors ever to have done that. In fact, it has happened 180 times in our country’s history. The question presented to the Court then was – can they do that?

As it turns out the answer isn’t that simple. To understand how we got here, you need to go back to the Founding Fathers and the debates that forged the U.S. Constitution and the country itself. Let’s start with the misconception that the Constitution provides for a direct popular election of the President by the vote of its citizens.  It doesn’t. At the birth of our country, there was fierce debate over who would elect our President. One group argued for a free and democratic vote, where the (white) (male) citizens directly chose their nation’s leader based upon a direct popular vote. Another group, more skeptical about the passions (and frankly, the ability) of the masses, called instead for a group of wise men to be tasked with choosing the President.  This debate was resolved in an “eleventh hour” compromise at the close of the Constitutional Convention, which attempted to bridge the gap by expressly stating only:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States shall be appointed an Elector.

U.S. Constitution, Article II, §1, cl. 2.  Originally, the Article continued on to describe the process for the vote, but that process was quickly found unworkable and the States scrapped it.

Instead, in 1804, the States replaced the process the electors were to follow with the Twelfth Amendment:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President…, they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and the number of votes for each, which lists they shall sign and certify, and transmit sealed to [Congress, where] the votes shall then be counted.

Yet even after this amendment, the Constitution remained silent as to what the electors’ role beyond merely casting their vote was to be.

In Chiafalo, the “faithless electors” argued that electors could vote for whomever they wished, based on three main arguments: (1) a textual argument that focused heavily on the word “elector”; (2) a historical argument based upon the fact that from early on there were electors who voted contrary to their state’s popular vote; and (3) the “federal function” argument, that once they had been appointed by the State as an elector, that the State no longer had the power to control their vote since they were now engaged a “federal function” of electing the President and Vice President. Central to their arguments was the concept that the right to vote inherently includes the discretion to choose whom they will vote for. And more, that an elector should not be subject to punishment by the State based upon how they cast their vote. While a State can set requirements for electors, i.e. that they be state residents, etc., the electors argued that those requirements end when it comes to the electors’ exercise of their appointed function – the vote.  The faithless electors argued that electors were akin to legislators and that discretion by the voter was inherently part of the Electoral College process. Once the State appointed an elector, they argued, the State did not have the power to “stand over the shoulder” of the elector as they carried out their constitutional function of voting for President and Vice-President. Otherwise, why have electors?  Why not have the States simply report who they had voted for?

The States countered that, consistent with Supreme Court precedent, along with the express power to appoint the electors, came with it the reciprocal and concurrent power to also remove the electors, and therefore States could set conditions of removal on its electors, including punishments for the way in which they vote, such as a pledge that they vote as the state’s voters had in the popular election or suffer a $1,000 fine.  The States argued that this outcome was dictated by a plain textual reading that these powers had been delegated to the States, that the federal government has limited power and authority, and that any powers not expressly given to the federal government in the U.S. Constitution, remain forever within the States’ exclusive right to control.

The gravity of the question the Supreme Court faced in these cases was real. While the outcome of the 2016 election was not changed by these faithless electors’ actions, with our country so closely divided, it is quite possible that faithless electors could change the outcome of future elections.  If the Court had decided that electors were “free agents” who, once appointed, could vote (or not vote) as they wish, then not only could an elector or group of electors “switch sides” and change the winner of the Presidential election, but also, if they instead chose not to vote, they could deny both candidates the 270 votes necessary to win the election, and the matter would be sent to the House of Representatives for a “contingent election.” In a contingent election, each State must cast a single vote, and the victor of that vote becomes President regardless of who won the national popular vote or won States with more than 270 electoral votes combined.

As many publications recognized in advance of the Court’s ruling, this case legally presented a close call.  The Founding Fathers provided little help, as even they couldn’t agree on the best approach – hence the compromise – and essentially just “kicked the can down the road.” A dispositive purely textual analysis (which this Court in its current make-up is increasingly fond of) was unavailing.  The sole clear point is the unconditional power given to the States by the Constitution to choose the electors.

In deciding Chiafalo and Baca, the Supreme Court struck a pragmatic approach. Listening to the oral arguments, once could sense the concern with potential for “chaos” – the “chaos question” Justice Breyer called it – about the “chaos” that could ensue if the Supreme Court suddenly declared all electors to be “free agents” untethered from the will of the States and their citizens, to be instead courted and lobbied by nefarious actors from both home and abroad to vote for candidates regardless of who won the actual popular vote of each State’s elections. A fear that once may have seemed far-fetched, seems much more real today, after 2016, when foreign actors clearly engaged in attempts to manipulate the Presidential election. Consider, as the Court did, the risk of a foreign power hacking the computers of electors and blackmailing them to change their votes. Or the risk of a rich and elite few enticing electors to switch their votes for personal gain. It was these practical rather than legal concerns that seemed a loud and constant undercurrent of the entire debate.

In the end, the Justices, even the most fervent originalists among them, appeared to look more at how electors and the Electoral College is understood today than how the Founding Fathers had actually potentially intended it to work at the beginning.

Writing for the majority, Justice Elena Kagan quoted James Madison’s maxim that “a regular course of practice” can “liquidate & settle the meaning of” disputed or indeterminate “terms & phrases.”  She then reviewed that regardless of what may or may not have been envisioned as an elector’s role 200 years ago, the historical reality is that over time electors have evolved into merely a “rubber stamp” for the vote of the people within their States. (The faithless electors stressed that since the founding, electors have cast some 180 faithless votes for either President or Vice President without objection, but the Court shrugged off this inconvenient fact, concluding “that is 180 out of over 23,000” electoral votes cast).

For a Court that has tacked toward textualism and divining the original intent of the Founding Fathers, its decision as expressed in Chiafalo and Baca was instead a square and practical one. If a State holds an election for President, and the State declares “winner take all” for its electoral votes, then the State has the power to require the electors to vote as the States wants, including the power to condition their service and to mete out punishment on the electors if and when they do not comply. The country has evolved to a place where it is now assumed by the general public that their votes count, and that electors will simply carry out the proxy of the State who appoints them. To change that assumption now would not just upset the apple cart – but may well have destroyed it – disenfranchising millions of citizens and creating grave risks of political corruption that, in the Justices’ eyes, was too much to bear.

© The National Law Forum LLC
Article by David K. TeSelle Trial Lawyer at Burg Simpson and
The National Law Review’s Guest Contributor.
For more on the Electoral College see the National Law Review Election Law & Legislative News section.

Medicare and the 2020 Election

Now that the campaign for President appears to be down to two candidates, we need to address the health care questions that both will face. In this blog, we will talk about Medicare and in a later blog, we will talk about the public option.

A question which has faced not just these two individuals, President Trump and Presidential Candidate Biden, but has faced the country for the last 10-15 years, is the projected deficit in the Medicare program as it is now configured.  In an attempt to respond to and ameliorate this deficit, various steps have been taken in the past which have delayed the impact of the deficit but have not eliminated it.  Past steps that have been taken include the elimination of the cap on W-2 earnings for purposes of calculating the Medicare tax, the application of the Medicare tax to non-W-2 earnings for individuals whose taxable income is above a certain level, calculation of Medicare Part B monthly premiums based upon income (the higher the income, the higher the premium that needs to be paid by the beneficiary), and the attempt to both explicitly and implicitly limit the payments being made by the Medicare program for services provided to Medicare beneficiaries.  The explicit attempt was the development of the Sustainable Growth Rate (SGR), which was never effectively implemented and ultimately repealed.  The implicit attempt is ongoing and has resulted in the necessity for beneficiaries with private insurance to subsidize the care being provided to the Medicare (that’s correct, not Medicaid, but Medicare) beneficiaries.

This “subsidy” by private insurance to health care providers to cover the costs of providing care to the Medicare beneficiaries is slowly having an impact on the care delivery system. It has resulted in a few prior Medicare providers now refusing to render care to Medicare patients in the non-hospital setting.  It is also encouraging physicians only to take Medicare patients who have previously been their private patients when that individual had private insurance so that the continuity of care to those individuals is not being disrupted.

As this subsidy increases, it becomes more and more likely that fewer providers will be providing care to Medicare beneficiaries, to the extent that they can legally opt out.

The next issue raised in the campaign is the extension of the Medicare program proposed by Presidential Candidate Biden to individuals from the ages of 60-65. Unlike the Social Security program, which attempted to resolve its deficit problems by extending the retirement age from age 65 over a period of time to age 67, the proposal by Presidential Candidate Biden is the opposite and that is to reduce the eligibility age for Medicare from 65 to 60.

The questions that need to be answered are:

  1. How much is it going to cost?
  2. The proposal recognizes that the current Medicare program (currently facing a shortfall) cannot pay for the services provided to these new Medicare beneficiaries and proposes that the government pay the costs–which means the taxpayer. The question then is what changes will be made to the tax code and whose taxes will be increased–of course this raises the questions always associated with tax increases.
  3. It appears that all aspects of the Medicare program – Parts A, B, C, and D – will be available to the age cohort 60 to 65. Will the copays, deductibles and premiums, as applied to current Medicare beneficiaries, be applicable to this cohort?
  4. Will the same payments be made to the providers for care rendered to this cohort of new Medicare beneficiaries? Will this adversely impact the willingness of some providers to continue to participate in providing care to Medicare beneficiaries?

When answers to these questions become clear, to the extent that it does become clear, we will analyze these questions in a subsequent blog. Otherwise at this point in time, it is speculation as to the impact.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

We Put the “Ow!” in Iowa

I woke up this morning to a text from a close friend wondering how long it would take me to write about the fact that as of this writing, we still do not have results from the Iowa caucuses last night due to problems with its untried voting app.  I guess I’m firmly established on the “get off my lawn” beat.

The little-known corollary to the time-honored maxim “if it ain’t broke, don’t fix it” is “if it’s broke, don’t replace it with something worse.”    The list of potential problems with using mobile technology for something as important as voting is long.  Rule One might be “don’t hire a company named ‘Shadow, Inc.’ to build your app.”  A fellow Hoya, Matt Blaze, a professor of computer science and law at Georgetown, said that “any type of app or program that relies on using a cellphone network to deliver results is vulnerable to problems both on the app and on the phones being used to run it . . . and that “[t]he consensus . . . is unequivocal . . .[i]nternet and mobile voting should not be used at this time in civil elections.”

Any remote access application will add complexity to a task due to the need for identification, authentication, authorization, and security, of both the device and the person using it, as opposed to a simpler system based on paper or a single machine for each location where any caucus participant could authenticate herself in person. Multiple technology platforms simply increase complexity and likelihood of error. And, as I learned in the mobile payment world, if you are relying on good cell service or wifi availability for your app to do its work, you’re gonna have some unhappy end-users.

Add to these inherent problems that the app was reportedly only put together over the last two months and was inadequately tested.  (Apparently, it was the back-up plan; the original plan was to use the phone to call in votes.  “Hi, do you have Pete Buttigieg in a can?”)

Just because you can doesn’t mean you should.  I have been bringing a yellow legal pad and ballpoint (or “ink pen” down here) to meetings for years.  Clients and colleagues regularly smile indulgently, as if I had just set a butter churn down on the table.  My stock response might be appropriate for the beleaguered folks in Iowa and I offer it here for free:  Paper rarely goes down, never needs to be recharged, doesn’t need an adapter and, best of all: I know how it works.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.

Read this article on the Hey Data Data blog.
For more on election regulations, see the National Law Review Election Law & Legislative News section.

Executive Immunity and Impeachment: Any Precedent for President Trump’s Strategy?

With the fourth presidential impeachment hearings in our country’s history underway; the National Law Review thought it timely to look at some of the issues related to impeachment; specifically involving executive privilege and how the Trump administration’s invocation of executive privilege and how presidential immunity fits in historically with other impeachments in recent memory.

Sol Wisenberg, a Deputy Independent Counsel from the Starr Investigation, is a white-collar attorney who was written and spoken about the procedures surrounding impeachment and the constitutional law issues in play. He was generous with his time and spoke with the Lead Writer of the National Law Review, Eilene Spear, on executive privilege, recent litigation related to executive privilege, and the ever-present intersection of public opinion, constitutional law, and politics.  Below are excerpts of the conversation, featuring Mr. Wisenberg’s analysis and opinion on the proceedings at hand. This is the second article in this series, the first focusing on comparing and contrasting the Clinton impeachment with the impeachment investigation into President Trump.

ES:  Is it appropriate for Democrats to imply that if a witness in the impeachment investigation refuses to testify that they are trying to undermine the impeachment proceedings?

I mean, look, it’s their show, they are the majority in the House. Adam Schiff came out and said “if you do not appear, then we’ll infer that your testimony would have been favorable to our impeachment inquiry.” Those weren’t his exact words, but that was the essence. Is it appropriate? I would say that it depends on the circumstances. Charles M. Kupperman, President Trump’s former deputy national security adviser, was subpoenaed by House Democrats to testify, but the White House, prior to Mr. Kupperman’s House testimony, said that the President had invoked Presidential Immunity, leaving Mr. Kupperman uncertain about how to proceed.  Kupperman went to the federal district court and basically said: ‘Hey, I’ve got Congress issuing a subpoena and telling me I’m going to be in contempt if I don’t answer. But I also went to the White House Counsel and he’s sent me this letter here saying I’m absolutely forbidden to appear. I want to follow the law. Tell me what to do court.’ I believe he did exactly what you’re supposed to do in that situation. Kupperman’s lawsuit also raised questions about John Bolton’s possible future testimony, as Kupperman’s lawyer, Charles Cooper, also represents Bolton, President Trump’s former national security advisor.  According to CNN, while it remains to be seen if Kupperman or Bolton will ultimately end up testifying, their actions are widely viewed as intertwined, with one source telling CNN that the two men are “simpatico.”

As a purely legal proposition, Adam Schiff’s assertion about inferences to be drawn from refusing to testify or show up is preposterous in Kupperman’s case. The only time a trier of fact is allowed to make a negative inference from the invocation of a privilege is the Fifth Amendment privilege against self-incrimination, and even that is only in a civil proceeding. The Fifth Amendment gives a criminal defendant the right not to testify, and the judge and jurors are not permitted to take this refusal to testify into consideration when deciding whether he or she is guilty See Ohio v. Reiner 532 US 17 (2001).   The people who aren’t testifying or showing up at the House are not, so far, taking the Fifth. These are people saying, “I’ve got a constitutional argument or the President does, and that’s why I shouldn’t appear.” But keep in mind that impeachment is a political remedy. If a majority of the House wants to construe a refusal to appear or testify, even on Constitutional grounds, against the President, they are going to do it.

A Bit of Background:

Executive privilege has been asserted frequently by past presidents, though it’s not explicitly written into the Constitution.  George Mason University professor Mark Rozell explained in a 1999 law review article that executive privilege is “the right of the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” This power can be used in two circumstances, he continues: “(1) certain national security needs and (2) protecting the privacy of White House deliberations when it is in the public interest to do so.” It’s the second part that is especially valuable, as it allows presidential advisors to freely speak their minds without the threat of a subpoena. The problem is it’s not precisely clear who this privilege covers.

In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court addressed a subpoena duces tecum during the Nixon impeachment process to produce documents, including full copies of the Watergate tapes which contained meetings between President Nixon and others indicted in Watergate situation or had ties to the Nixon administration.  President Nixon did turn over edited transcripts of some of the conversations included in the subpoena. Before the Supreme Court, Nixon claimed he had an absolute executive privilege to protect communications between “high government officials and those who advise and assist them in carrying out their duties.” The Supreme Court held presidential privilege as to materials subpoenaed for use in a criminal trial did not override the needs of the judicial process on the grounds of a generalized interest in confidentiality.  The large difference is that the Nixon case involved the subpoena of documents, the Trump impeachment subpoenas addressed above involve subpoenas for live testimony only.

Also, in U.S. v. Nixon’s majority opinion, Chief Justice Burger stated, “[n]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” The immunity claimed by both President Trump and other presidents comes from the position of the executive branch as a co-equal branch alongside the judiciary and legislative branches.

ES:  What do Executive Privilege and Absolute Presidential Immunity cover and do they  apply to people other than the president?

Executive privilege is invoked in the name of the president, but it can cover any executive officer. It is a privilege recognized by the Supreme Court. Presidential immunity purports to cover anyone who works in the White House, or the Executive Office of the president. The theory is that Congress can no more summon a White House employee to appear than it could summon the president.  One reason officials like Kupperman are seeking clarification is that executive privilege and presidential immunity in impeachment proceedings are not open and shut issues. Every president at least since Nixon has claimed immunity–for himself and his key White House aides–from even having to show up in the House or Senate to answer questions, claiming that White House employees are in the same position as the president and are immune from having to appear. This doctrine makes me shake my head a little, and, as noted, is far from settled law in the courts.

No court has ever accepted the absolute immunity argument, to my knowledge. Only one court has ruled directly on it, and that was in the George W. Bush administration. Committee on Judiciary v. Miers 575 F. Supp. 2d 201 (D.D.C. 2008) addressed a House Judiciary Committee’s subpoena to Harriet Miers, former Counsel to President Bush, seeking to compel her to produce documents and to appear and testify about the forced resignation of  U.S Attorneys, and that court ruled against the White House. In the Harriet Miers case, federal district judge John Bates stated “there is no judicial support whatsoever” that a president’s advisers have absolute immunity from testimony, and that such a view “would eviscerate Congress’ historical oversight function.” But the case was settled and has no precedential value, except in Bates’ court. I think the opinion is of some significance, however, because Bates was a Bush appointee and in general a strong supporter of executive privilege.

ES:  Is there any type of immunity from testimony that may apply if executive privilege isn’t applicable? 

There are other forms of privilege that might come up.  I suppose somebody could take the Fifth, you can take the Fifth right in front of the House committee. So that’s always available. There’s attorney-client privilege. To be precise; this idea that if you work at the White House–and are therefore in the same shoes as the president–you don’t even have to show up, that’s technically not executive privilege. That is a presidential immunity argument based upon the separation of powers.  For example, you could put that to a judge and the judge could throw it out, say there is no such thing, and the court rejects that doctrine. Then the individual could go over to Congress and get asked a question, and he could claim executive privilege and he would be completely within his rights.

The Obama administration took the identical position with David Simas, an employee in the Obama White House, that President Trump did in the case of Kupperman and former White House Counsel Don McGahn.  Simas was head of the Office of Political Strategy and Outreach and was subpoenaed in relation to Congressional oversight of Hatch Act compliance. White House Counsel W. Neil Eggleston asserted executive immunity, defying a subpoena from House Oversight and Government Reform Chairman Darrell Issa.  His letter referenced the Office of Legal Counsel’s opinion, saying: “The Executive Branch’s longstanding position, reaffirmed by numerous Administrations of both political parties, is that the President’s immediate advisers are absolutely immune from the congressional testimonial process.” There are examples in every administration, and each party wants to find examples where the other party did the same or a more extreme version of what they are trying to do because people forget and people are partisan.

ES:  That said, how do politics impact the perception of a President’s claim of executive privilege?

Once again, it depends on the circumstances. In the context of an impeachment inquiry with an unpopular President and an opposing party in charge of one or both branches, politics can affect absolutist doctrines fairly quickly. Look at Nixon again.  In April 1973, before the Senate Watergate Committee hearings began, he vowed that his aides would not testify. Nixon’s Attorney General, Dick Kleindienst, told Senator Ed Muskie,  “You do not have the power to compel me to come up here if the President directs me not to, and even if you would attempt to compel me, I would not come here.” If the Senate didn’t like it, Kleindienst smirked to Senator Sam Ervin, “you have a remedy, all kinds of remedies: cut off appropriations, impeach the President.” That was in April. By May 22, with public opinion starting to move against him, Nixon completely capitulated. Ervin called Nixon’s bluff, referring to his broad claims of Executive privilege as“executive poppycock.” Nixon didn’t have Trump’s political power. He had short coattails and both houses of Congress were in Democratic hands. Trump is stronger with his House and Senatorial base, and his party in control of the Senate, so he can pull off that attitude for now. But again, attitudes and public opinion can change quickly, and we’ve already seen the needle move a little bit in terms of public opinion in the last week alone.

You also have the issue of aides, former aides, and Executive Branch officials who simply ignore Presidential directives not to appear or testify. This happened to Nixon, as people like John Dean and Jeb Magruder finally started telling the truth to DOJ Prosecutor Earl Silbert, and ultimately to Ervin’s Watergate Committee. It is happening to Trump now with some State Department and DOD officials–and at least one mid-level OMB employee–talking to the House. I believe this is how Madison and some of the other Framers expected things to play out. It is checks and balances at work. It is one thing to have a nice little formalistic theory of executive privilege or presidential immunity. It is quite another to try to enforce it in the real rough-and-tumble world of politics.

Many thanks again to Mr. Wisenberg for his time, insights and perspective.

Copyright ©2019 National Law Forum, LLC

Clinton’s Impeachment Compared to the Trump Proceedings: Conversation with Sol Wisenberg, former Deputy Independent Counsel during the Starr Investigation

With the Trump impeachment proceedings getting ready to start this week in the House of Representatives, we thought it would be interesting to take a look back at the Clinton Impeachment.  The catalyst for President Clinton’s impeachment was the Starr Report.  Independent Counsel Ken Starr presented to the House of Representatives a case for impeaching President Bill Clinton on 11 grounds, including perjury, obstruction of justice, witness-tampering and abuse of power.  The sexual relationship between the president and former White House intern Monica Lewinsky formed the basis of the lying under oath and obstruction of justice charges.  The lying under oath charge stemmed from the Clinton v. Jones civil lawsuit, which included President Clinton’s inaccurate grand jury testimony about a sexual relationship with Monica Lewinsky.

Solomon L. Wisenberg played a pivotal role in the Clinton Impeachment as a Deputy Independent Counsel during the Starr investigation. Mr. Wisenberg’s grand jury questioning of President Bill Clinton was submitted by independent counsel Kenneth Starr with his report to the House of Representatives as part of the Clinton impeachment proceedings.

Mr. Wisenberg has more than two decades of experience with complex federal white-collar crime investigations and jury trials and is currently the co-chair of Nelson Mullins White Collar Defense and Government Investigations practice.  He is a sought after analyst and routinely appears in a variety of media providing commentary and answering questions on federal white-collar investigations, impeachment, public corruption under the Hobbs Act, bribery and fraud, Foreign Corrupt Practice Act violations and other intricate legal issues.

Mr. Wisenberg was kind enough to take time out of his schedule to talk with the National Law Review on the upcoming Trump impeachment proceedings and how they are similar and different from the Clinton impeachment.

The Starr Report played a central role in the Clinton impeachment proceedings; producing the perjury and obstruction of justice charges stemming from the Clinton v. Jones civil action.

In the Clinton v. Jones sexual harassment lawsuit, Ms. Jones’ attorneys included questions about Monica Lewinsky and President Clinton’s behavior with other women to show a pattern of improper behavior with women by Clinton to bolster Ms. Jones’ sexual harassment claims.

Additionally, Ms. Jones’ attorneys sought to show a pattern concerning President Clinton’s actions in covering up various inappropriate interactions with women.

Do you think the impeachment prosecutors for President Trump will introduce elements from the Mueller report to show a pattern of behavior to bolster any criminal acts and any obstruction of justice case related to the withholding of aid to Ukraine?

Mr. Wisenberg: I think there’s no doubt that they will. I’ve heard some Democratic Congressmen talking about it and it’s very clear that they feel the obstruction portion of the Mueller report has not been given sufficient attention. So I’d be shocked if it does not constitute one of the articles of impeachment.

The Supreme Court in Clinton v. Jones held that a sitting president is subject to civil suits in federal court, this lead to President Clinton being deposed and perjuring himself and being impeached by the House of Representatives, on grounds of perjury to a grand jury and for obstruction of justice.

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If President Clinton was able to be deposed while in office, why are President Trump and other members of his administration, such as Mick Mulvaney, claiming immunity?

Mr. Wisenberg: Trump didn’t ever formally claim immunity, because Mueller never pressed the point. Keep in mind, Clinton vs Jones just said the president is not immune from suits while he is in office. Even President Clinton didn’t take the position that he could never be sued. President Clinton’s position was just that he didn’t have to answer lawsuits brought while he was the president, and the Supreme Court ended up saying yes you do, you don’t have that absolute immunity. But the Court also said that there needs to be respect and accommodations for the responsibilities of the office, for the president’s schedule, time, privacy, all of that kind of stuff.

However, in the Lewinsky criminal investigation where we sent President Clinton a grand jury subpoena after he ignored six of our requests to appear, we ended up withdrawing the subpoena. We did this because President Clinton’s attorney said if you withdraw the subpoena, he’ll sit for grand jury testimony. Clinton’s inquiry involved grand jury testimony, not just a deposition.  So the constitutional issue involving the President’s right to defy a grand jury subpoena for testimony alone was never tested there. I think it would’ve been an interesting issue, because Clinton did not want to be in a position where the president is being subpoenaed or responding to a subpoena, and he certainly didn’t want to be in a position of going to federal court to block the Lewinsky Grand Jury’s subpoena.

So that’s how it was worked out, and we don’t know what would have happened if he would have challenged our subpoena in court. There’s actually a case that came out in 1997. It’s the controlling law in the DC Circuit.  The Office of Independent Counsel that was investigating Agriculture Secretary Mike Espy wasn’t asking for testimony in that case. In the In Re Sealed Case, 121 F 3d 729 (1997). the issue was asking for documents and it’s actually a fairly high standard to be able to force the president to respond to a grand jury subpoena. I believe it’s quite possible that Mueller didn’t press the point because he might not have won under the test laid out for Mike Espy, even if he was just seeking testimony. Every case is dependent upon the particular facts.  And because Mueller already had been given a tremendous amount of relevant information, he may have not wanted to push it, as it’s not at all certain that he would’ve won. So not only would it have been a lengthy process that would have delayed the Mueller investigation, but Mueller may not have won on the issue. It’s not that President Trump was behaving inconsistently with the ruling in Clinton vs Jones. It’s that Mueller never forced Trump to make a choice.

Special Counsel Mueller declined to subpoena President Trump, as Mueller told the House Intelligence Committee that it looked highly unlikely that they would obtain an in-person interview with Trump and because of the perceived need to wrap up the investigation into Russian interference in the 2016 United States elections.

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Do you think Mr. Mueller’s strategy of not forcing President Trump to either testify, fight the subpoena in the courts or defy the subpoena will weaken the prosecutor’s ability to use the Mueller report in the impeachment process?

Mr. Wisenberg: Oh God, no. I mean, not at all. The report is what it is. The obstruction portion of the report (I should say alleged obstruction, because even Mueller doesn’t say that Trump criminally obstructed justice) is what it is. The obstruction portion of the Mueller report is based on witness testimony.  I don’t think there’s going to be much dispute about what happened. And apparently now the House of Representatives has the grand jury backup for the Mueller report’s witness testimony. President Trump has questioned some of Don McGahn’s factual statements, but McGahn was hardly alone in detailing the President’s efforts to stymie Mueller.

The dispute would be on the suggestion that the President criminally obstructed justice. I don’t think he did on the known facts, and the only episode that is even a close call on this was when President Trump allegedly asked Don McGahn to sign a document for the White House’s records denying he’d been told to fire Mueller. I think from the Democrats’ perspective they were waiting and waiting and waiting for the Mueller report and it was a dud. The Democrats blamed Bill Barr, I think, unfairly. The Democrats tried to hold testimony on the Mueller report and, it didn’t get anywhere, again, because of all of the claims of executive privilege and related doctrines. Now that they’ve got impeachment authority in Congress the Democrats are in a much stronger position.  They can say now, any area of inquiry is allowed under our Constitutional power to conduct an impeachment inquiry.

xxxx

Based on President Clinton’s conflicting testimony, Mr. Starr presented a case that President Clinton had committed perjury. Do you think President Trump’s frequent public statements, though not under oath about the Russian interference in the 2016 election and the alleged quid pro quo in the withholding of aid to Ukraine will be used in the impeachment proceedings?

Mr. Wisenberg:  The Democrats can use anything they want if they think it is valuable to them. The Democrats might say President Trump’s frequent commentaries can be construed as non-hearsay party admissions under the Federal Rules of Evidence in any proceeding brought against President Trump. Also, where somebody is accused of criminal wrongdoing and says something about the specific accusation that turns out to be false, this can be used against him as a false exculpatory statement.   So, I see no reason why they can’t consider anything they want to consider.

To answer your specific questions about President Clinton, President Clinton lied under oath in the Paula Jones civil rights lawsuit deposition thereby obstructing justice.  The federal district judge presiding held President Clinton in contempt of court. President Clinton is the only U.S president ever held in contempt by a federal judge. Additionally, President Clinton had his secretary retrieve and remove gifts Monika Lewinsky had in her possession, when the gifts were subpoenaed in the Jones civil suit. President Clinton used a White House employee, his secretary Betty Currie to obstruct justice in a civil rights lawsuit.

There are some people who say private conduct,  even if it’s criminal, should never be impeachable and that we should not be concerned with private conduct. And there is some historical support for this position in writings by the framers and stuff like that. But President Clinton did more than that. He used a White House employee in order to hide items under subpoena. That’s textbook obstruction.

xxxx

If President Trump’s impeachment prosecutors are able to demonstrate that alleged withholding of aid to Ukraine is a criminal act, do you think it will be easier to prove intent in an obstruction of justice case?

Mr. Wisenberg:  No, I don’t think so. I don’t think that helps them on obstruction of justice unless something new related to the Ukraine business comes out, but all he did was to say it’s a perfect call. Right? I think that if you were to somehow prove that this was a campaign finance violation or, or some kind of a crime, it might be a little bit easier to get a few more votes, but I don’t see anything yet that gets them the votes they need to convict President Trump in the Senate.  I understand some people believe that putting the phone call transcript on a separate server was obstruction, but that sounds weak to me.

GOP Senators will point out that President Trump was elected, and we’re a representative democracy. We’re going to hold an election in one year. They will say it’s not right to remove him because of Ukraine. Even if they think, as Senators, that it was a mistake.

I think it is going to take something really dramatic for there to be a shift. Either a dramatic shift in public opinion based on the live testimony or just something new coming out, some new scandal to move the needle on that.

To answer your question, if somebody were to somehow to prove without question that President Trump knew he was violating the law when he made the call, that may be meaningful. And that revelation again moves the needle maybe, but you can’t ignore the politics.

Take a look at the situation with President Clinton. There was no real question in anybody’s mind that he perjured himself and that he obstructed justice, but that didn’t all of a sudden make the Democrats in the Senate vote for removal. I don’t think any of them did. The Democrats during the Clinton impeachment and removal proceedings acted very similarly to how the Republicans are acting now.  You can’t ignore the politics.

Many thanks to Mr. Wisenberg for his time and answers to our questions.

Copyright ©2019 National Law Forum, LLC

Text Messages Inviting Independent Voters to Political Speeches by Former Presidential Hopeful Howard Schultz Were Not “Solicitations” For His Book Tour

The Western District of Washington recently held in Vallianos. v. Schultz, C19-0464-JCC, 2019 WL 4980649 (W.D. Wash. Oct. 8, 2019), that two text messages encouraging recipients to view a livestream of a political speech by the former chairman and CEO of Starbucks Howard Schultz did not amount to “solicitations” under the TCPA. While exploring a run for President, Schultz released a book, “From the Ground Up,” and went on a three-month long cross-country book tour. He also collected from voter records the phone numbers of individuals registered as having “No Party Affiliation” and sent them the text messages at issue. Named plaintiffs Cassandra Vallianos, Stacey Karney, and Mike Barker brought a putative TCPA class action against Schultz alleging that the text messages were sent to them without their consent after they had placed their cell phone numbers on the national Do Not Call Registry.

Specifically, plaintiffs made two claims: first, that Schultz sent the text messages using an auto-dialer and without the plaintiffs’ consent; second, that the calls were solicitations sent in violation of the TCPA’s Do Not Call restrictions. Plaintiffs’ claims were based on two separate text messages Schultz sent Plaintiffs. The first said “Howard Schultz will be speaking in Miami at 12:30! Watch live: https://hs.media.mi-a030[.]” The second said “Howard Schultz will be speaking about his vision for America in Miami at 12:30! Watch live: https://hs.media/mia030[.]” Plaintiffs argued that these text messages were “solicitations” under the TCPA because the text messages were sent with the goal of getting recipients to purchase Schultz’s book. Defendant Schultz moved to dismiss only the Do Not Call claim.

Acknowledging that messages that serve a “dual-purpose” by including both advertising and informational communications are solicitations for purposes of the TCPA, the court looked to the context of the messages to determine whether they constituted “solicitations” under the TCPA. The court reviewed the text messages, the webpage to which the text messages directed recipients, and the speech embedded in the website. The court found that the text messages did not facially discuss Schultz’s book. The court also found that the link in both text messages took Plaintiffs to the homepage of Schultz’s website, which included various video clips, including a livestream of Schultz’s speech and a link to a website where consumers could purchase his book. But the court held that the website was not transformed into a solicitation by the “mere inclusion of a link to a website on which a consumer can purchase a product.” The court found that the speech focused on Schultz’s political views and potential run for president, not his book. The court further found that the website was just a way to facilitate viewing of Schultz’s speech. Thus, the court ultimately determined that the messages did not constitute “telephone solicitations” under the TCPA.

With the seemingly never-ending national campaign season chugging along, we expect to see more such claims filter their way through the courts.

©2019 Drinker Biddle & Reath LLP. All Rights Reserved

For more on TCPA litigation, see the National Law Review Communications, Media & Internet Law page.

Brexit: Turkeys Voting for Christmas?

Brexit delayed again – now it’s off to the races in a General Election

Despite having finally achieved a Parliamentary majority in favour of a way of delivering Brexit, in the Second Reading of the Withdrawal Agreement Bill on 22nd October, Prime Minister Boris Johnson decided – in the face of Parliament’s refusal to allow him to put the Bill through very rapidly so as to meet the 31st October Brexit deadline – to pursue a General Election instead of pushing the Bill through.

After some “after you, Claude” to-ing and fro-ing, the EU agreed to the request to extend the Article 50 deadline of 31st October which the Prime Minister had been forced by Parliament to send. The EU did so under condition that there should be no re-opening of withdrawal negotiations, no disruption to EU business by the UK (including the UK appointing a member of the new European Commission), and that the UK could leave earlier if the ratification process completed earlier.

A delicate game ensued in Parliament about the basis for a decision to hold the election, with opposition parties wanting to remove the Prime Minister’s discretion over the date of the election, and to make it impossible for him to try again to push the Withdrawal Agreement Bill. On 28th October Parliament rejected the Prime Minister’s attempt to secure an election on 12th December. Parliament then decided on 29th October that the election should be held on 12th December. The difference between the first 12th December and the second 12th December would take too long to explain, and would anyway test the sanity of all but the most extreme political geek.

And so the unhappy child of Theresa May’s disastrous 2017 election fades into the twilight…

The election Bill still needs to go through the House of Lords (unlikely to be problematic) and receive Royal Assent, and the House of Commons needs to tidy up some necessary business. So on current plans Parliament will dissolve on Wednesday 6th November for MPs to campaign for the General Election on Thursday 12th December. The British electorate, used to voting at national level every five years, had a General Election in 2015, the Brexit referendum in 2016, a further General Election in 2017, and now a third General Election in 2019 (the Scots also had an independence referendum in 2014).

Was the 2017-2019 Parliament a travesty of democratic accountability, or a powerful example of representative democracy grappling with issues which had split the nation in two through a binary exercise in direct democracy? Historians will judge. It was certainly a tough one for individual MPs, who regularly found themselves objects of extremely hostile, sometimes violent, social media messaging. Parliament certainly seemed to reflect accurately the division in the electorate, which the polls show has not shifted significantly throughout the period since the 52:48 result of the 2016 Brexit referendum.

“Prediction is very difficult, especially if it’s about the future” – Nils Bohr

So what’s going to happen in the 12th December election? It will be the first December election for almost a century, and the hardest to predict for many decades. Will Boris Johnson scoop the Leave vote across the country, or will Nigel Farage’s Brexit Party damage the Conservatives by arguing that Johnson’s Brexit deal is not really Brexit? Will the clarity of the Liberal Democrats’ Remain position help them and weaken Labour, or will Labour be able to sit on the fence on Brexit and focus the campaign on Tory austerity and public services?

The next six weeks will be exhilarating, confusing and passionate. They will decide the future course of the nation. Nothing more will happen on Brexit until after the election. Whether the election provides a clear way forward will depend on whether a party achieves a clear majority or the election produces another hung Parliament. Watch this space…

© Copyright 2019 Squire Patton Boggs (US) LLP

Read more about Brexit on the Global Law page on the National Law Review.

Utah to Test Blockchain Voting Through Mobile Apps

As we head toward 2020, expect significant public debate relating to smartphone applications designed to increase turnout and participation in upcoming elections. The Democratic Party has dipped its toe in the water by announcing in July plans to allow telephone voting in lieu of appearing for neighborhood caucus meetings in the key early primary states of Iowa and Nevada.

Given concerns regarding security and reliability of submitting votes over the internet, jurisdictions around the country have begun to test solutions involving blockchain technology to allow absentee voters to submit voting ballots. Following initial pilot programs in Denver and West Virginia, Utah County, Utah will be the next jurisdiction to utilize a blockchain-based mobile in connection with its upcoming municipal primary and general elections.

The pilot program, which will utilize the mobile voting application “Voatz”, will allow active-duty military, their eligible dependents and overseas voters to cast absentee ballots. Eligible voters will need to apply for an absentee ballot with the county clerk and then download the mobile application. The ballot itself will be unlocked using the smartphone’s biometric data (i.e., a fingerprint or facial recognition) and then will be distributed into the blockchain framework for tabulation.

Copyright © 2019 Robinson & Cole LLP. All rights reserved.
This article was written by Benjamin C. Jensen of Robinson & Cole LLP.