“Watching the clown car level
of face-palm incompetence here is embarrassing for the participants,” said
Justin Levitt, a law professor at Loyola Law School in Los Angeles. He went on
to describe the Trump legal team as “keystone cops” whose arguments have been
“slapstick stupid.”
Trump’s Legal Team Sets a Precedent for Lowering the
Bar
President
Trump and his lawyers are engaged in a spectacle that would be funny if it
weren’t so dangerous, and if the stakes weren’t so high.
- Nov. 20, 2020
WASHINGTON — President Trump, who said
there would be so much winning in his White House that Americans would grow
tired of it, is of a different mind-set these days. He is not, apparently,
tired of losing.
Which is what he and his allies keep
doing in their desperate efforts to overturn an election that Mr. Trump did not win.
The president’s win-loss record in
court cases alleging election fraud or other irregularities now stands at 2 to
32, according to a tally maintained
by Marc Elias, a Democratic election lawyer. Mr. Elias updated his score on
Friday afternoon after a court in Nevada rejected a Republican effort to
request a new election. Nevada went for Joseph R. Biden Jr.
On Thursday, the
president had claimed on Twitter that
he had “a very clear and viable path to victory” and that “pieces are very
nicely falling into place” for his re-election.
Nobody who has been paying attention to
the evidence believed this.
“Working as an engineer throughout my
life, I live by the motto that numbers don’t lie,” said Georgia’s secretary of
state, Brad Raffensperger, a Republican, at a news conference on Friday. He
reiterated this while confirming Mr. Biden’s victory in the state after a hand
recount of ballots.
It was merely the latest setback for
Mr. Trump, whose helter-skelter effort to reverse Mr. Biden’s victory keeps
smashing into the brick walls of ballot math and election law.
“Trump’s legal strategy seems like the
product of the same mind that gave us hydroxychloroquine as a Covid cure,” said
Ben Ginsberg, the Republican election lawyer who represented George W. Bush in
2000 in his Florida recount dispute with Vice President Al Gore.
Beyond the hard numbers is the scope of the president’s
legal debacle and the daily indignities that have been heaped upon his lawyers
— or, more accurately, that they have visited upon themselves. On Friday, the
conservative website Power Line reported that the president’s lawyers filed
documents claiming fraud in Michigan — and then cited townships in Minnesota.
Mr. Trump’s campaign
keeps getting routed in case after case. Challenges keep getting tossed out by
exasperated judges. Entire legal teams have quit en masse. Claims better suited
to random Twitter feeds (or the president’s) have been laughed out of court
after court.
One Michigan judge, Cynthia Stephens of
the Court of Claims, mocked the Trump campaign’s entire argument this way: “I
heard someone else say something,” adding, “Tell me how that is not hearsay.”
Similar episodes have played out across
several states and jurisdictions. In a Pennsylvania courtroom on Tuesday, the
president’s lead lawyer, Rudolph W. Giuliani, made his first appearance as a
lawyer before a federal judge in nearly three decades. The time off showed.
Mr. Giuliani demanded that the judge
invalidate nearly seven million votes cast in the state because of what he
called “widespread, nationwide voter fraud.” Later, after being pressed for
evidence, Mr. Giuliani pivoted rather dramatically: “This is not a fraud case,”
he said.
The former New York City mayor took
over Mr. Trump’s legal team in part because nearly every other lawyer on the
case had either quit or been ignored by the client. It was the latest proof
that Mr. Giuliani is willing to do and say pretty much anything on behalf of
his client, although not cheaply. He is seeking $20,000 a day from the president’s
campaign for his services, multiple people briefed on the matter said. (Mr.
Giuliani denied that he had sought the money and added that whoever said he had
made the $20,000-a-day request was “a liar, a complete liar.”)
Either way, the lawsuits have kept Mr.
Giuliani in his role as a central actor of some of the more farcical episodes
of the Trump years, especially in recent days.
At a news conference on Thursday at the
Republican National Committee headquarters, Mr. Giuliani unleashed a fire hose
of conspiracy theories, false claims and unfounded fraud charges. As he spoke,
a dark liquid (seemingly hair dye) streamed down
both sides of Mr. Giuliani’s face — a strangely mesmerizing sight that conveyed
an impression of a diminished figure melting in plain view.
In a federal
courtroom on Tuesday in Williamsport, Pa., Mr. Giuliani asserted that the
president had won Pennsylvania’s 20 electoral votes, except that they had been
stolen by a “mafia” of Democratic leaders across the state. “The ballots might
have been from Mickey Mouse,” he added.
“I have to say, it’s
been strange,” said Mark Aronchick, a veteran Philadelphia lawyer who is representing
four Pennsylvania counties against the Trump campaign’s challenge. “We have a
robust legal system where we’re trained to focus on evidence and precedent. And
then you go into a court of law and suddenly Rudy Giuliani is talking like he’s
in the driveway of Four Seasons Total Landscaping.” (Four Seasons was the site
of a Giuliani news conference on Nov. 7 in
Philadelphia, between a crematory and an adult book shop, where the former
mayor announced that Mr. Trump would not concede.)
Like Mr. Aronchick, a bipartisan array
of lawyers, judges and constitutional scholars have observed this spectacle
with a mix of horror and some amusement. “Watching the clown car level of
face-palm incompetence here is embarrassing for the participants,” said Justin
Levitt, a law professor at Loyola Law School in Los Angeles. He went on to
describe the Trump legal team as “keystone cops” whose arguments have been
“slapstick stupid.”
His tone was more in sorrow than in
anger.
“I’ve had law students that I’ve given
a D to in constitutional law that would do a better job in court than Rudy
Giuliani,” Mr. Levitt said. “This would all be very funny if it wasn’t so
serious.”
Even so, this is, maybe, just a little
bit funny. Mr. Ginsberg likened Mr. Trump’s behavior to that of a third-party
candidate whose conspiracy theories have zero chance of prevailing in court.
“That Donald Trump would end up auditioning to be the Jill Stein of the 2020
cycle,” Mr. Ginsberg said, “with Rudy Giuliani as his apprentice is, I think,
quite amusing.”
The gallery of critics has not been
confined to legal scholars or the president’s opponents. Mick Mulvaney, one of
three former Trump White House chiefs of staff, said in a Fox Business
interview that he was “a little concerned about the use of Rudy Giuliani” in
the election case. He noted that this was a legal proceeding, not
entertainment.
“It strikes me that
this is the most important lawsuit in the history of the country, and they’re
not using the most well-noted election lawyers,” Mr. Mulvaney said. “This is
not a television program.”
In some ways it is, though, at least in
the client’s worldview. As has been said on many occasions, Mr. Trump has
treated his entire public life — certainly his presidency — as a chaotic and
unfolding reality show, and this postelection period has been no different.
He would appear to have no concern for
the solemn legal, civic and political leaders who have bemoaned his conduct.
“It’s concerning to see not just the president but a lot of other elected
officials treating democracy so cavalierly,” said Benjamin Geffen, a staff
lawyer at the Public Interest Law Center, who is also involved in the
continuing Pennsylvania case against the Trump campaign.
For as much as Mr. Trump has any grand
strategy, Mr. Levitt said, it appears less geared to litigation than to public
relations. The president’s overriding goal seems to be to simply throw out as
many claims as possible, no matter how outlandish or baseless, in an effort to
sow public doubt about Mr. Biden’s victory.
Even if this might fail to convince
judges or persuade some unlikely amalgam of Republican officials, legislatures
and electors to take extraordinary measures on the president’s behalf, it would
at least propel a narrative that Mr. Trump has been denied a rightful win.
One of Mr. Trump’s lawyers, Sidney
Powell, went so far as to claim this week that the president had in fact won
the election “not just by hundreds of thousands of votes, but by millions of
votes.” However, she added, votes that were cast for Mr. Trump had been
nefariously shifted to Mr. Biden by a software program “designed expressly for
that purpose.”
Ms. Powell also said that the C.I.A.
had previously ignored complaints about the software. She urged the president
to fire Gina Haspel, the C.I.A. director.
As the past four
years have shown, Mr. Trump’s say-anything style has been mimicked by his
minions, like Ms. Powell, and can prove brutally effective in certain political
and media settings. But it has limits in more rigorous and rule-oriented
places, like court.
“You’re alleging that the two
individual plaintiffs were denied the right to vote,” Judge Matthew W. Brann of
the United States District Court for the Middle District of Pennsylvania said
Tuesday in Williamsport, addressing Mr. Giuliani. “But at bottom, you’re asking
this court to invalidate more than 6.8 million votes, thereby disenfranchising every
single voter in the commonwealth. Can you tell me how this result can possibly
be justified?”
Mr. Giuliani did not immediately
answer. The judge appeared to be losing his patience.
