The Trump team started out in the Nevada hearing today with a loss. The court barred a witness declaration as submitted too late under the discovery order. It is now proceeding with the evidence submitted before the Nov. 25th deadline.

Jesse Binnall is arguing for the Trump campaign. The threshold issue is the burden of proof. The state is pushing for the higher "clear and convincing" standard as opposed to the standard civil "preponderance of the evidence."

What is fascinating is that this very basic question is not answered in the statute or case law in Nevada. Kevin Hamilton representing the Democrats is arguing for the higher standard in the hearing. I am rather surprised by the lack of controlling authority on this key standard

NY Solicitor General Underwood is struggling in oral argument in the census case after conceding that there would be no problem with government submitting two sets of figures "in separate envelopes." Some justices are slamming what they view as a "meaningless" distinction.

...Justice Sotomayor came to the rescue by saying that the Court could decide whether the Secretary should be barred from submitting "illegal information" to the President, including figures excluding "illegal aliens."

The justices are discussing a possible off-ramp based on the view that this is premature since no action has occurred. This raises a serious standing issue. It is ironic that the liberal justices voted that the New York challenge over Cuomo's pandemic order was premature.

Pres. Trump just suggested that he may still be considering the type of "Death Star" strategy discussed earlier over contested electoral votes. jonathanturley.org/2020/11/23/the…

...Trump is arguing that there was rampant fraud and that, without these six targeted states, he has more electoral votes. Trump just added that the DOJ is "missing in action" and asked "Where is Durham? jonathanturley.org/2020/11/15/dur…

...Trump just said that he will consider the appointment of a "special counsel" to look into what occurred in the 2016 election. He would need the cooperation of AG Barr on that appointment. The DOJ has had the investigation into the 2016 issues through the IG but also Durham.

This is truly painful to watch. The Trump campaign just declared that Sidney Powell (who was featured by the Trump campaign a few days ago) is not representing the campaign. reuters.com/article/us-usa…

Here is the statement about the person just featured in the campaign presser: "Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

If B.F. Skinner was right that "chaos breeds geniuses," the Trump legal team will soon be given Mensa status.

Here is tonight's Pennsylvania decision dismissing the Trump curing challenge. The court found that the voters had an injury in fact but blasted other aspects of the case, including the relief... courtlistener.com/recap/gov.usco…

...The court did not contest the voters were treated unequally but noted that the redress in such a case should be to "level up" to be sure that these votes are counted rather than "level down" to invalidate millions of other votes...

...Thus, the different curing standards do present an injury but not the basis for such sweeping relief as to deny certification. The court also hit the Trump team on standing and the chosen county defendants.

Giuliani is raising the "curing" issue and the Equal Protection claim. The challenge is with the number of affected "cured" ballots and the tendency of courts to use the mootness doctrine to dismiss such challenges if insufficient to change the outcome. jonathanturley.org/2020/11/18/is-…

Giuliani is quoting My Cousin Vinny on the inability of observers to observe from the required areas of separation. He is citing 60 affidavits. However, this claim has not been successful in the state courts.

...CNN is not showing the press conference on the Trump claims of voter fraud.

The Pennsylvania Supreme Court rejected one of the main arguments raised by the Trump campaign on observers. The Court found that officials are only required to be in the room not necessarily close to observe details. It deferred to the officials...

...This is a matter of state law and the Court ruled that the legislature did not specify a distance and it would not judicially add one as a matter of interpretation. That is a fairly textual approach that many conservative jurists would find compelling.

As I stated last week, observer and sharpie challenges are not going to do much for challenging these results. The Trump team has to produce systemic problems with authentication or tabulation. In the interim, the GSA needs to "ascertain" this election to allow for a transition.

Martha Raddatz is exploring the continued failure to officially start the transition briefings for Biden-something many of us have called for. Since the tabulation period is now effectively over, I fail to see the basis for the GSA not "ascertaining" a Biden victory...

... My equal concern is the lack of Covid briefings with the task force. Trump can continue to litigate these challenges, but many of us said that this week would be critical to seeing any evidence of systemic problems or fraud. That has not emerged in these cases.

...Ascertainment under the federal law is not calling any election or certifying results. It is merely an administrative decision that sufficient evidence supports releasing transitions funds and resources. That should have been done last week.

My agreement with some of Alito's points does not alter the concerns over the messenger rather than the message. I still maintain that justices should speak primarily, if not exclusively, through their opinions. jonathanturley.org/2020/11/13/unf…

...All of those issues have been and will again be before the Court. Indeed, as Alito was making these ill-considered comments, the Catholic Church was coming before his Court in these very issues.

...It is also worth noting that many liberals are objecting to Alito’s speech despite celebrating even more alarming public speeches by Justice Ginsburg during his life. Indeed, these public controversies highlight the glaring contradiction in the use of the “Ginsburg Rule.”

Busy day. Over at the Senate, Lindsey Graham is drilling Andrew McCabe on the strange contrast in the FBI pouring in resources into investigating the Trump associates on a lead from an English bar but not a CIA referral of a Hillary Clinton/Russia allegation.

McCabe seems bizarrely unaware of any evidence that undermined the investigation including the CIA information the FBI that Carter Page was a CIA operative. As with Comey and Yates, no one will admit knowledge or responsibility. It is as if the FBI was left on auto-pilot.

McCabe just joined Comey, Rosenstein, Yates and others saying that he would never have signed off on the surveillance if he knew then what he knows today. That seems to make it unanimous on both the abusive surveillance and unanimous on the denial of personal responsibility.

Chief Justice Roberts just asked House Counsel Verilli about how "eight years ago" the individual mandate in the ACA was vital. Roberts asked "Why the bait and switch?" He then asked if they were "talking about broccoli for nothing?"

In truth it was a bait and switch and Roberts fell for it. Verrilli insisted that we are allowed to "learn from our mistakes." In other words, you can ignore everything we said before.jonathanturley.org/2010/03/31/is-…

Thomas is asking a question! He is also raising whether the Court was played by the Obama Administration in claiming that the individual mandate was the ACA's "the heart and soul." It used that argument to secure the ruling of constitutionality but it is now shrugging it off.

Rep. Alexandria Ocasio-Cortez has demanded whether "anyone [is] archiving these Trump sycophants for when they try to downplay or deny their complicity in the future? I foresee decent probability of many deleted Tweets, writings, photos in the future." jonathanturley.org/2020/06/05/mea…

...It may be a "probability" but there is nothing "decent" about it. Those who sought desperately to align themselves with the cancel movement may find that the status of being a revolutionary or a reactionary can be fleeting. jonathanturley.org/2020/08/31/how…

...On Fox, Sanders surrogate Nomiki Konst clarified that when AOC was calling for a black list of people to be canceled she was specifically referring to people in the Lincoln Project as the "perfect examples" of people to be cancelled despite their work against Trump.

I am still unclear on the insistence to end any challenges before we actually see the extent of alleged irregularities. I have expressed skepticism on past claims, but we now have sworn allegations of fraud. Why not look at the evidence? jonathanturley.org/2020/11/08/pul…

Again, we would not know if we have systemic rather than episodic problems until we look at this evidence. It is not about sharpies or poll watchers. It is about possible problems in software and authentication systems. What is the harm in allowing courts to review such claims?

...The demand for clear evidence of systemic violations during the tabulation stage is bizarre. We would not necessarily have such evidence, which is largely held by election officials. As expected, we have a series of localized affidavits and allegations of intentional fraud...

Pelosi put on a bizarrely gleeful press conference to a largely supportive press corp, even claiming “I think Joe Biden has . . . a bigger mandate than John F. Kennedy.” Where is Senator Lloyd Benson when we need him?jonathanturley.org/2020/11/07/pel…

Pelosi’s comments would ordinarily be viewed as delusional. But this is Washington. They were not delusional; just dishonest. That is never a problem in D.C. These elections are not about the voters or even the party. It is about power and who can use it and who can keep it.

...Pelosi can engage in utter fantasies about “tremendous mandates” to dupe voters while offering juicy committee assignments and campaign donations to entice members. Washington will soon be back to normal with a "tremendous mandate" for the resilience of the establishment.

The litigation ramped up today in Nevada with an emergency appeal to the state Supreme Court to order Clark County to stop processing mail ballots. The issue is the use of an automatic signature verification machine and “duplication” of mail ballots thehill.com/opinion/judici…

USPS just told the federal court in DC that it will not meet the court order to sweep mail processing facilities for delayed election ballots in parts of Georgia, Pennsylvania, New England, South Carolina, Florida, Colorado, Arizona, Alabama and Wyoming, Texas, and Michigan.

...The judge in that case is U.S. District Judge Emmet Sullivan who has been criticized for bias against the Trump Administration and Michael Flynn. That could be an explosive combination in an election dispute. jonathanturley.org/2020/06/28/mak…

Breaking tonight: The Hunter Biden laptop was reportedly part of a money laundering investigation. foxnews.com/politics/lapto… That would seem to support that this was Biden's laptop and the emails were viewed as likely authentic. jonathanturley.org/2020/10/20/the…

...It would also explain why the Biden camp has not claimed that the laptop and emails were fabricated. If they are authentic, there are troubling emails referring to meetings with Joe Biden and even a reference to a possible future payment to the former Vice President.

...While virtually every news outlet has refused to investigate these emails, they were apparently viewed sufficiently important to be seized as part of a criminal investigation. That does not mean that there is a proven crime, but that there is ample reason for media scrutiny.

Sen. Coons again hit Barrett on her willingness to revisit precedent. It is an incomprehensible position and Barrett hit Coons effectively on cases like Lawrence.  jonathanturley.org/2020/10/14/bar…

...Coons said those were "grievously wrong cases." He then said she should look at precedent through a "Ginsburg lens" rather than a Scalia lens." That sounds not as much as a defense of precedence but precedence that he or Justice Ginsburg would like to preserve.

...The standard of only overturning "grievously wrong cases" is code for overturning cases like Heller but promising not to touch other cases like Roe.

Durbin just expressed confusion on "where does this notion that you would violate your oath come from?" He then pulled out another giant photo and possible victims of her voting against the ACA. jonathanturley.org/2020/10/13/the…

...The clear message is that her expected vote in the case is the key issue for confirmation. It is entirely inappropriate for Senators like Booker to say that they will vote against her on the basis of her expected vote in the case -- absent an assurance of a contrary vote.

Durbin just set up a question that resulted in one of the best moments for Barrett. Asked about what she felt in watching the George Floyd video, Barrett said it had a huge impact on her as the mother to two black children. She said that she wept with her children over the video.

Feinstein noted that Ginsburg stated that the Constitution supports abortion in her hearing. That is a good set up for the question since it negates the impact of the "Ginsburg Rule."  However, Barrett pivoted to cite Kagan instead.jonathanturley.org/2020/10/13/the…

...Kagan refused to answer the same question saying that she would not give “a thumbs up or thumbs down” on abortion questions. The Democrats supported her in refusing to answer the questions.

Sen. Leahy is actually questioning Barrett on whether she knows the cost of insulin and then added "I would not expect you to." Precisely. She is not the nominee for the Secretary of Health and Human Services.

Sen. Feinstein's opening sounds more like a legislative markup hearing for the ACA. She is detailing the benefits under the ACA to a nominee who is not supposed to legislate from the bench. The best way to emphasize apolitical judging is not to try to sell a nominee on a policy.

...How Barrett feels about the ACA is not relevant to how she must review the constitutionality of the statute. Justice Oliver Wendell Holmes made this clear when he wrote: "I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job."

...Now Sen. Leahy is explaining the value of the ACA to Barrett. Is this the type of argument that Democratic members want to sway jurists? If so, jurists would become super legislators. Moreover, there is no reason to believe that Barrett would vote against severance on the ACA.

This hearing already has a different feel from Barrett's appellate confirmation. That hearing likely makes the Democratic members a bit more cautious. Barrett proved to be the Rocky Balboa of nominees. The members pummeled her with everything that they had sort of a chair...

...she did not falter throughout the assault. They are less likely to get within her reach with another faith-based attack. Indeed, the talking points seem directed more at the election than the nomination by emphasizing the ACA case. That case however has been misrepresented.

...The ACA is not likely to be struck down entirely. Roberts and Kavanaugh could well vote with the more liberal members on the issue of severing the individual mandate provision from the rest of the Act. Opposing a nominee due to her expected vote on a pending case is wrong...