Trump lawyers suffer embarrassing rebukes from judges
over voter fraud claims
By
November 11, 2020 at 10:53 a.m. CST
By now,
it’s well-established that most of the arguments put forward by President
Trump’s reelection campaign in its challenge of the results of the 2020
election are baseless and highly speculative. Even
Trump allies, as The Washington Post reported late Tuesday, acknowledge the apparent futility of the effort.
Others have reasoned that there’s no harm in going through the motions, with
one anonymous GOP official asking, “What’s the downside for humoring him” for a
little while?
But as
scenes in courtrooms nationwide in recent days have shown, there is indeed a
downside for those tasked with pursuing these claims. Repeatedly now, they have
been rebuked by judges for how thin their arguments have been.
The
most famous scene came in Pennsylvania, where a Trump lawyer strained to avoid acknowledging that
their people were, in fact, allowed to observe the vote-counting process in
Philadelphia:
At the
city’s federal courthouse on Thursday evening, attorneys for Trump asked a
judge to issue an emergency order to stop the count, alleging that all
Republican observers had been barred.
Under
sharp questioning from Judge Paul S. Diamond, however, they conceded that Trump
in fact had “a nonzero number of people in the room,” leaving Diamond audibly
exasperated.
“I’m
sorry, then what’s your problem?” asked Diamond, who was appointed to the
federal bench by President George W. Bush. Denying Trump’s request, Diamond
struck a deal for 60 observers from each party to be allowed inside.
At one point on Friday
afternoon, 12 Republican observers and five Democrats were watching the count,
according to a ballot counter who was working.
After
that “nonzero” answer, Diamond pressed the Trump campaign lawyer to be more
explicit — and he suggestively invoked their standing with the bar: “I’m asking
you as a member of the bar of this court: Are people representing the
plaintiffs in the room?” The lawyer responded more directly: “Yes.” By the end
of the hearing, Diamond invoked his right to make sure lawyers in his courtroom acted in good faith.
Another
Trump lawyer, Jonathan S. Goldstein, was also grilled by a Pennsylvania judge
this week. Under questioning, he acknowledged that, contrary to Trump’s claims
about rampant voter fraud, he wasn’t alleging fraud in the 592 ballots
he sought to disqualify in Montgomery County, Pa.
Again,
Trump’s lawyer strained to avoid directly answering the question but was
ultimately forced to acknowledge it:
THE
COURT: In your petition, which is right before me — and I read it several times
— you don’t claim that any electors or the Board of the County were guilty of
fraud, correct? That’s correct?
GOLDSTEIN:
Your Honor, accusing people of fraud is a pretty big step. And it is rare that
I call somebody a liar, and I am not calling the Board of the [Democratic
National Committee] or anybody else involved in this a liar. Everybody is
coming to this with good faith. The DNC is coming with good faith. We’re all just
trying to get an election done. We think these were a mistake, but we think
they are a fatal mistake, and these ballots ought not be counted.
THE
COURT: I understand. I am asking you a specific question, and I am looking for
a specific answer. Are you claiming that there is any fraud in connection with
these 592 disputed ballots?
GOLDSTEIN:
To my knowledge at present, no.
THE
COURT: Are you claiming that there is any undue or improper influence upon the
elector with respect to these 592 ballots?
GOLDSTEIN: To my
knowledge at present, no.
The
Trump campaign also sought to temporarily stop counting some ballots in
Detroit. It cited a GOP poll watcher who had said she had been told by an
unidentified person that late mail ballots were being predated to before Election
Day, so they would be considered valid.
The
judge repeatedly asserted this was hearsay, but Trump campaign lawyer Thor
Hearne sought to argue that it wasn’t — despite it having been someone who said
they heard about something they weren’t personally involved in. He pointed to a
vague note the poll watcher produced — which said “entered receive date as
11/2/20 on 11/4/20” — as evidence:
STEPHENS:
So I want to make sure I understand you. The affiant is not the person who had
knowledge of this. Is that correct?
HEARNE:
The affiant had direct firsthand knowledge of the communication with the
elections inspector and the document they provided them.
STEPHENS:
Okay, which is generally known as hearsay, right?
HEARNE: I would not think
that’s hearsay, Your Honor. That’s firsthand personal knowledge by the affiant
of what she physically observed. And we included an exhibit which is a physical
copy of the note that she was provided.
The two
later returned to the point, after Stephens reviewed the note, and Stephens
echoed Judge Diamond’s exasperation:
STEPHENS:
I’m still trying to understand why this isn’t hearsay.
HEARNE:
Well, it’s, it, I –
STEPHENS:
I absolutely understand what the affiant says she heard someone say to her. But
the truth of the matter … that you’re going for was that there was an illegal
act occurring. Because other than that I don’t know what its relevancy is.
HEARNE:
Right. I would say, Your Honor, in terms of the hearsay point, this is a
firsthand factual statement made by Ms. Connarn, and she has made that
statement based on her own firsthand physical evidence and knowledge –
STEPHENS:
“I heard somebody else say something.” Tell me why that’s not hearsay. Come on,
now.
HEARNE:
Well it’s a firsthand statement of her physical –
STEPHENS: It’s an
out-of-court statement offered where the truth of the matter is [at-issue],
right?
In a
later written decision, Stephens slammed the argument as “inadmissible hearsay within hearsay.” And
after the campaign appealed, Stephens rebuked it Monday for not including
required documentation.
“I
regret to inform you that your submission is defective,” Stephens said.
Another
of the Trump team’s claims crumbled rather quickly in Georgia.
In
Chatham County, as in Michigan, the Trump campaign cited supposed evidence that
53 late ballots may have been predated so they could be counted. Except two
witnesses they called acknowledged under oath that they didn’t know whether the
ballots were received after the deadline. And two others for the local board of
elections testified that they were, in fact, received on time.
Judge
James Bass dismissed the case in a one-sentence, eight-word ruling,
saying, “I’m denying the request and dismissing the petition” and abruptly
adjourned the hearing. He then elaborated in a written opinion,
saying that “the Court finds that there is no evidence that the ballots
referenced in the petition were received after 7:00 p.m. on election day,
thereby making those ballots invalid. Additionally, there is no evidence that
the Chatham County Board of Elections or the Chatham County Board of Registrars
has failed to comply with the law.”
The
common thread running through all of these 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.