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News Brief: Voting Irregularities, Esper Fired, Obamacare Court Challenge

DAVID GREENE, HOST:

And I'm going to say this again - whatever President Trump may say, we have seen no evidence of widespread fraud in the presidential election, and yet the attorney general, William Barr, has now authorized federal prosecutors to investigate, quote, "substantial allegations" of voting irregularities.

NOEL KING, HOST:

But the thing is, Barr didn't suggest there's any evidence that would change the outcome of the presidential race. He says that prosecutors can investigate if they find any. Now, his authorization goes against DOJ policy. The presidential race hasn't been certified yet, but Joe Biden has been declared president-elect, and he's moving ahead with his transition into the White House.

GREENE: I want to bring in NPR White House correspondent Tamara Keith this morning. Good morning, Tam.

TAMARA KEITH, BYLINE: Good morning.

GREENE: Well, let's start with this authorization from the attorney general. What more can you tell us about it?

KEITH: Yeah. So last night, he said that he has authorized a probe of substantial allegations of voting irregularities if they would change the outcome of the election. But he directly said that that didn't mean that the Justice Department had found any. And he said frivolous or minor allegations would not be investigated before the certification of results. Barr's decision prompted the director of the department's election crimes branch to resign from his post. He sent an email to colleagues saying Barr's memo abrogates a 40-year-old policy, and having familiarized himself with the new policy and its ramifications, he felt he had to step aside. You know, this comes as the Trump campaign filed yet another lawsuit in Pennsylvania trying to change the election results in the president's favor. But it's not clear that that one will fare any better than the others.

And notably, while the president and his allies are claiming fraud, this suit doesn't actually allege that. There have been many lawsuits from the Trump team in the past week, and most have not survived even the first contact with the legal system. I should add that there have been numerous fundraising solicitations from the Trump campaign and Republican Party over this time. But the fine print says much of the money will go to retiring campaign debt, not this legal fight.

GREENE: All right. Well, we have a presidential transition to cover. It's been three days since the race was called for Joe Biden. Regardless of these challenges, the president-elect is moving forward. He has made clear the pandemic is going to be his first priority. And he's expected to speak today, right?

KEITH: Yeah. Today, he's expected to make a statement about the Affordable Care Act, which, of course, was a signature achievement of the Obama administration. Yesterday, Biden announced his COVID-19 Transition Advisory Board, 13 people, including a former surgeon general, former FDA commissioner and several others who've served in public health positions in the federal government. And he delivered a message that we can expect to hear from him a lot in the weeks to come. It was something of an effort to depoliticize the response to COVID because polarization over the coronavirus may just be one of the biggest obstacles he will face.

(SOUNDBITE OF ARCHIVED RECORDING)

JOE BIDEN: It doesn't matter your party, your point of view. We could save tens of thousands of lives if everyone would just wear a mask for the next few months - not Democrat or Republican lives, American lives.

KEITH: And Biden repeatedly pleaded with people to wear masks and take other precautions to slow the spread.

GREENE: So could the legal challenges and what we're hearing from the president actually get in the way of Biden's transition?

KEITH: You know, he is facing at least one roadblock so far. A Trump appointee at the General Services Administration has not signed off on the transition. That signoff unlocks things like office space and money to begin hiring people, classified briefing, State Department resources. So the Biden people are eager to get on with this.

GREENE: NPR White House correspondent Tamara Keith. Tam, thanks.

KEITH: You're welcome.

(SOUNDBITE OF MUSIC)

GREENE: You know, presidential transition can be a fraught time. It is a massive process. It's a complex process.

KING: And through it all, the daily work of government goes on. People have to keep doing their jobs, but not Defense Secretary Mark Esper. Yesterday, President Trump fired him on Twitter, and that could have serious implications for this country's national security.

GREENE: Yeah. Let's talk about what might happen and what the impact of this might be with NPR's Greg Myre. Good morning, Greg.

GREG MYRE, BYLINE: Good morning, David.

GREENE: So what does the firing of the top official at the Pentagon mean for the military over the final - what? - 70 days or so in the Trump administration?

MYRE: Well, this certainly adds another element of uncertainty about what kind of actions Trump might take in the final days. It goes against this long-standing tradition of leaving key people in place. This will now be Trump's fourth defense secretary or actually even the fifth if you count someone who was just there for eight days. And this latest firing dates back to the summer when there were protests and unrest in several cities, Trump wanted to call up active duty troops for use. Esper publicly opposed this and angered the president. And then on Monday, when he dismissed Esper by tweet, just minutes later, the new acting defense secretary, Chris Miller, who was a director at the National Counterterrorism Center, showed up at the steps of the Pentagon and took over.

GREENE: Wow. Well, talk more broadly about the national security community, their priorities right now and how this really could reverberate.

MYRE: Well, it makes clear that Trump is intent on taking disruptive actions in his final days. It raises the prospect he could fire other top officials. We'll certainly be watching Chris Wray at the FBI, Gina Haspel at the CIA. And the world doesn't take a timeout during a U.S. transition like this. The U.S. is trying to negotiate with the Taliban on a peace deal in Afghanistan. And the Trump administration has been sending confusing signals about troop levels. The U.S. has troops still active in Iraq and Syria. So all this is very confusing to U.S. allies and perhaps an opportunity for U.S. adversaries.

GREENE: I mean, you said it. There can't be a timeout in national security during a presidential transition. So this is these moments always raise a lot of questions. But what would normally be taking place when it comes to national security through a period like this?

MYRE: The aim is to have a smooth transition because you have all sorts of top officials coming and going at these huge bureaucracies. There's 17 separate U.S. intelligence agencies, for example. Now, one key part of this is for the intelligence agencies to provide the same daily briefing to the president-elect that they're giving to the president. This is known as the president's daily brief or the PDB. Now, I spoke about this with David Priess. He's a former CIA officer who wrote a book on presidential briefings called "The President's Book Of Secrets."

DAVID PRIESS: We've had the solid tradition since the 1960s, when the president's daily brief was first created, that the sitting president, who is still receiving the PDB as the commander in chief through the transition, has offered it to the incoming president.

MYRE: Now, these briefings haven't started yet for President-elect Biden, and this is part of a larger issue with the transition. Biden's team hasn't yet been authorized to receive government resources, and this includes the intelligence briefings.

GREENE: NPR's Greg Myre. Greg, thank you so much.

MYRE: My pleasure.

(SOUNDBITE OF MUSIC)

GREENE: All right, this will sound familiar. Today, the U.S. Supreme Court is going to hear a challenge, another challenge, to the Affordable Care Act.

KING: Yeah, but a few things have changed since the last time the high court considered the law. First, there is, of course, a pandemic. And then there are three new justices that President Trump has appointed - Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Here's Barrett talking about the ACA at her confirmation last month.

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AMY CONEY BARRETT: And I have not made any commitments or deals or anything like that. I'm not here on a mission to destroy the Affordable Care Act. I'm just here to apply the law and adhere to the rule of law.

GREENE: Let's bring in NPR national justice correspondent Carrie Johnson. Carrie, good morning.

CARRIE JOHNSON, BYLINE: Good morning, David.

GREENE: So a little bit of deja vu here. We have been here before with the Supreme Court and Obamacare, right?

JOHNSON: Indeed. Back in 2012, the Supreme Court took a look at a part of the law called the individual mandate. That's the requirement that people pay a financial penalty if they don't have insurance. And back then, the justices, a divided court, said the mandate was valid because it was a tax under Congress's taxing power. Well, since that time, Congress zeroed out the financial penalty. People don't have to pay it anymore. And that prompted states led by Republican attorneys general to bring this new case. It's called Texas v. California, red states versus blue ones. The Trump administration is backing Texas and the Democratic-led U.S. House is backing California.

GREENE: Wow. OK, so red versus blue. What exactly are the key issues in this case?

JOHNSON: There are three. First, whether Texas and these Republican-led states have the right to sue - whether they and other plaintiffs actually suffered an injury, which they would need to demonstrate in order to go to court in the first place. The second issue is if they do have that legal standing, is that individual mandate still constitutional, even though people don't have to pay a financial penalty anymore? And if the Supreme Court majority says that part of the law is unconstitutional, David, then we get to the big megillah, the most important issue in this case. If one part of the law goes down, does it bring the rest of the law down with it, like pulling out a card in a house of cards or a block in a game of Jenga?

GREENE: Well, I mean, Noel mentioned we have new justices, I mean, since the last time this was reviewed. And a lot of people are wondering about both Justice Kavanaugh, Justice Barrett in particular, and what their records might say about where this could go.

JOHNSON: We have some clues. Brett Kavanaugh has considered some of these Affordable Care Act issues from his time on the D.C. Circuit Court. And Amy Coney Barrett as a law professor wrote some very critical things about the Supreme Court's reasoning in an earlier decision to uphold the ACA. But on that central issue, that big megillah, whether the bulk of the law can survive, even if one part gets thrown out, there's some reason for blue states to have some hope, some supporters of the ACA. Brett Kavanaugh, in some cases last term, talked about his preference for severing the bad parts of the law from the good parts rather than what he called a wholesale destruction. And as for Amy Coney Barrett, she talked about the doctrine of severability at her confirmation hearing last month. She suggested under questioning from Republicans she might endorse that theory, that even if part of the law goes down, the rest of the law can be saved, if it gets that far.

GREENE: Well - and, Carrie, one last question. I mean, if the Supreme Court does strike down Obamacare, what's next?

JOHNSON: It could have huge consequences. One trade group says it would wreak havoc on the health care system. It could cost more than 20 million Americans their insurance in the middle of a pandemic. Now, the administration of President-elect Joe Biden might try to get Congress to save the law by passing a nominal financial penalty for not having insurance, like a dollar. But that might not happen for a while, and it would leave millions of people feeling very uneasy.

GREENE: All right. So many questions about what this new court will do and what these new members will mean. And we're getting a big moment here as they consider the ACA again. NPR's Carrie Johnson. Carrie, thank you, as always.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.