By Dr. Ken Broda Bahm:
Earlier this week, I wrote about winning and losing with dignity. For this post, I want to take a closer look at the potential flip side of that. In the days since the close state elections reached an apparently clear result for Joe Biden as the new President-Elect, the Trump campaign has offered at least thirty lawsuits seeking to disqualify or to recount the votes. Eighteen of these suits have already been denied or dismissed. Legal experts across the country have commented on the shotgun approach, and even long-time Republican election lawyers have cast doubt on the suits’ merit. Certainly, it is possible that there is evidence as yet unseen of sufficient systemic fraud to potentially change Saturday’s call on the election. But until then, observers have to wonder if these filings pass the “straight face test.”
At a certain level, it is always an act of faith to bring something to the courts. You won’t always be sure you have the better position, and you won’t often be guaranteed a victory. But in every case, an advocate should be able to look at the law and the facts and say, “There is a reasonable case to be made here, and I can support that with a straight face.” Given what we know so far about the blizzard of Trump campaign filings, it seems possible that the lawsuits do not meet that test and are being filed for other reasons. Based on the national reporting so far, the litigation strategy raises some important questions about the underlying motivations and the responsibilities placed on the lawyers pursuing those suits.
What Are the Real Motivations for the Post-Election Legal Strategy?
In a recent article in The Recorder, Benjamin Ginsberg, a longtime Republican election lawyer, provides a summary of all the President’s lawsuits: “So there may be a lot of noise and a lot of statements about how there are illegalities. But so far, the really difficult job of amassing proof that will stand up in court, they have not made public or evident, and so far does not exist.”
One example may be found in one of the few filings that the Trump team has touted as a victory. Last Friday, Supreme Court Justice Alito ordered Pennsylvania election officials to sequester the late-arriving ballots in that state. However, that is also what the Pennsylvania Secretary of State had already ordered, and what the election workers were already doing. That, combined with the small number of ballots in that category, led six attorneys at the law firm that brought that suit to complain to the New York Times that “the main goal of the litigation seemed to be to erode public confidence in the election results.”
Many of the lawsuits, including ones in Michigan, Georgia, Pennsylvania, Arizona, and Nevada, have been quickly dismissed. But some commentators have observed that the strategy does not seem to be aimed at winning, at least not in the sense of changing enough votes that could make the difference in the election. Quoted in the Recorder article, Kendall Coffey, an attorney with Coffey Burlington, and veteran of the 2000 recount wars, noted, “I think the Trump campaign is prepared to file some losing lawsuits, but hoping that they strike gold in some places.” However, the goal seems to be to “create a narrative that there are just too many questionable vote counting with these mail-in ballots to trust them and to award the presidency based on the counting of mail-in ballots.”
This suggests the possibility that the true motivation for the lawsuits is one of three things, none of them amounting to a legal strategy. The first possibility is that the goal is to create a momentary opportunity for Mr. Trump to look like a “fighter” to his base, which may make it easier for him to leave office, or perhaps easier for the Republican party to retain the Trump base after he goes.
The second, more cynical possibility is that the lawsuits provide an opportunity to raise money from the President’s supporters. It is noteworthy that the fine print in recent fund-raising pitches reveals that a majority of funds donated to Trump’s “election defense” fund will be dedicated to relieving current campaign debt.
The final, even more cynical possibility, is that the lawsuits are designed simply to further the cloud of doubt over the election results, which then sets the stage for something more draconian, such as state legislatures or the House of Representatives deciding the election in a way that is guided by something other than each state’s popular vote totals.
What Is an Ethical Attorney to Do?
The situation raises the important question of what a responsible advocate should do if they believe that their client wants to pursue a lawsuit based on something other than its legal merits. Apart from the ethical dimension, there is also the more practical issue of the law firm’s reputation. The latter is a particular concern as many of these suits are suffering some public and embarrassing defeats.
A piece by Aaron Blake in The Washington Post shares several examples of attorneys being pressed by judges regarding the lack of clear and non-hearsay evidence to support the filings. “The common thread running through all of these,” Blake writes, “is that Trump’s lawyers are regularly offering a significantly more watered-down version of Trump’s claims about rampant voter fraud — because they, unlike Trump, have to substantiate their claims. And as these exchanges show, it’s a rather thankless task that can quickly land them on a judge’s bad side.”
At least some of the firms involved are starting to question whether they want to be in that position at all. A recent New York Times piece, for example, details the ways several of the “Big Law” firms representing the GOP and the Trump campaign are taking a hard look at their roles and responsibilities, as management starts to worry that the cases are being pushed based on something other than their legal merit.
In any case, for the next few weeks, legal observers should keep an eye on what develops. While it is certainly possible that the national media, along with the unaffiliated election lawyers they are talking with, are missing the real story. At present, it certainly seems that we could be heading into a broad and nationwide failure of the straight face test.
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Other Posts on Arguments to the Judge:
- Don’t Get Spanked (By Your Judge…If You Can Avoid It)
- Prepare for Your Zoom Hearing
- Let the Judges Judge (and Not Settle Cases)
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