Trump’s Frivolous Litigation

Not long after we were married, my husband–who was active in the state chapter of the American Institute of Architects– took me to an AIA-sponsored cocktail party. A somewhat inebriated attendee who had heard that I was a lawyer cornered me and wanted to know why the profession couldn’t keep lawyers from filing so many frivolous lawsuits. 

It turned out that he defined a frivolous suit as one that the plaintiff lost. (I hasten to report that most architects I know are considerably brighter than that particular specimen.)

I thought about that long-ago conversation as I listened to media reports about Trump lawyers filing multiple challenges to the election results. Thus far, those challenges have been overwhelmingly unsuccessful, and in this particular case, those losses–and the reason for them– are evidence of their frivolity. 

Wikipedia addresses the confusion between a claim that is ultimately unsuccessful and one that is frivolous.

Frivolous litigation is the use of legal processes with apparent disregard for the merit of one’s own arguments. It includes presenting an argument with reason to know that it would certainly fail, or acting without a basic level of diligence in researching the relevant law and facts. The fact that a claim is lost does not imply that it was frivolous.

The entry goes on to explain that a frivolous claim may be one that is based on an “absurd” legal theory, or it may involve repeated, duplicative motions or lawsuits–basically, it’s a lawsuit that lacks a genuine, underlying justification in fact, or because existing laws or legal judgments unequivocally prohibit the claim.

The federal courts, and most states, do provide remedies when a lawsuit has been deemed to be frivolous. Most allow the judge to award court costs and attorneys’ fees to the targeted person or company. In several states, lawyers who bring civil actions without probable cause will be liable to the prevailing party for double or even triple damages if the court determines that the action was brought “with malice to vex and trouble.”

The prevailing party may also file a grievance against the attorney who filed the suit for violating the Rules of Professional Conduct, which clearly prohibit an ethical lawyer from engaging in such behavior.

Thus far, to the best of my knowledge, only one lawsuit filed by the Trump campaign achieved anything. That was a Pennsylvania case that succeeded in moving the Republican observers of the count–who were already in the room–six feet closer to the people who were actually doing the counting. Every other suit has been summarily dismissed for lack of any evidence of fraud or wrongdoing.

In an earlier post, I quoted Justin Levitt’s observation that–in the absence of facts sufficient to show a legal violation– these lawsuits were simply “tweets with filing fees.”  They aren’t intended to change an election result; they are intended to support the narrative  being conveyed to Trump’s credulous and angry base.

Every lawyer with whom I’ve discussed this PR tactic–including longtime Republicans–has dismissed the flurry of lawsuits as a delaying gimmick, a way to forestall an admission that  Trump lost. 

The Trump Campaign has nevertheless begun fundraising to cover its legal costs (although apparently, the “fine print” notes that monies raised will mostly go to pay off campaign debt). If I were a Biden lawyer defending against one of these petulant exercises masquerading as a lawsuits, I’d ask for whatever damages for frivolous lawsuits are available in that state–and I’d file a grievance with the state’s Disciplinary Commission. 

Evidently, the Lincoln Project intends to publicize the appalling lack of legal ethics being displayed by the lawyers willing to subvert the rule of law for monetary and partisan ends.There are also reports that a few principled lawyers have resigned from the firms that have agreed to handle these cases.

When this bratty tantrum concludes, its inexcusable assault on legal principle will be added to the very long list of norms attacked and weakened by this pathetic excuse for a human and his enablers. 

No one who has lived through the last four years could reasonably expect anything better from Trump–but the lawyers who are facilitating this travesty know better. They should be held to account.

And Bill Barr should be disbarred.


  1. Trump’s “lawyers” are just doing what the raging psychopath has directed them to do. They’re gladly taking the taxpayer’s money and laughing all the way to the bank. That brings into question their ethics. Maybe these are the “lawyers” who your drunken architect was referring to.

    Then there is the concern that Trump will participate in espionage to sell his secrets to anyone he can find so that he’ll be able to pay his legal bills from the criminal actions that be draped around his ample neck when he is perp-walked out of the Oval Office. Since Trump has NO morals, NO ethics and NO conscience, he will happily divulge national secrets and put our intelligence people at great risk around the world.

    As Sheila notes: “When this bratty tantrum concludes, its inexcusable assault on legal principle will be added to the very long list of norms attacked and weakened by this pathetic excuse for a human and his enablers.” Sadly, the “brat” might take the country down with him. It’s what psychopaths do.

  2. Bob Barr? Or did I miss a reference to another Barr in Trump’s system of legal protection from Congressional action?

    During the 1980’s the Indiana prison system became inundated with frivolous law suits filed by prisoners; every law suit was required to have a court hearing. Finally a panel of judges was formed to weed out the real from the unreal demands by prisoners with nothing better to do with their time. The only two I remember were the man with back pain who, when the doctor said soaking in a hot tub would give the greatest relief (what was wrong with the doctor?), the prisoner filed a suit to have a hot tub installed in his cell. The second case involved a nearby ice cream manufacturer who donated a large batch of fudge ripple ice cream to the prison which had lesser amount of fudge than required. One prisoner actually filed a law suit due to the lack of fudge in his fudge ripple ice cream.

    Trump’s cases reminded me of these cases as they have as much validity as the lack of a hot tub in a prisoner’s cell and not enough fudge in his fudge ripple ice cream. Dare we hope Trump at long last is sentenced to prison where his personal attorneys can file such law suits for him?

  3. Billy Bob Barr has no ethics. He and Donald ordered the assassination of Antifa member Michael Reinoehl in Washington and then bragged about in press statements and during a rally. The US Marshals carried out the hit, which has been under wraps since it occurred in mid-October.

    And yes, Trump was a useful idiot for many an oligarch and also for some bad people. He has over $400 million due in loans and will be leaving WH’s protection in late January. If you thought Epstein was a problem once contained. Has anyone heard from Ms. Maxwell?

    As for unscrupulous lawyers, there are many books written about them. I am sure there are plenty more which could be written about them. They are included in many jokes for a good reason.

    When I see an incredible amount of surface noise like what we’ve seen the past several days, a red flag goes off internally, indicating a magician’s sleight of hand is occurring. We are being distracted.

    From what do you suppose?

  4. I share Todd’s anxiety. Trump is feverishly replacing key people in the military and security sector. WHAT is behind that? Something very sinister I fear. They may have a big move yet to play. Hang on tight. This is not over just yet.

  5. Right now, it seems the RNC is footing the bill for these lawsuits, but the taxpayers of each state are paying to defend against them. At the moment 45 and his crime family are taking over the RNC to provide a source of income for after the White House years. Remember he owes $400 million which comes due before he leaves DC, so he needs to pillage something and the RNC seems to be a perfect, perfidious fit.

    Once he leaves office, there won’t be anybody to pay his lawyers. IMHO the ABA should send a notification of this fact to all of its members, together with a list of members who have already been stiffed by our orange menace.

    Meanwhile, top civilian posts at the Pentagon are being filled by incompetents, who also happen to have a screw or two loose. Two of them worked for Devin Nunes, who as we all remember, sued a make believe cow. It seems likely that their purposes might be to find things that are exculpatory of 45 in the Russia scandal or to ferret out secrets that might be traded to pay off that aforementioned $400 million. If I had any money, I’d bet on both.

    I’ve thought for some time that Atty. General William Barr should be disbarred.
    He has so subverted his position and the D.O.J. in its’ Constitutional function.
    I’m privately hoping that Biden appoints Sally Yates as his new Attorney General.
    I also think that a lot of lawyers who’ve served the Trump Administration should have their credentials reviewed by the appropriate branches of the American Bar Association.

  7. Carl Sandburg said it well: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”

    This Sandburg quote accurately describes The Trumpet and GOP’s strategy.
    Pounding the table includes false statements on social media, which the Kool-Aid drinking Trump Cult eagerly imbibe.

    From the Guardian:
    Twitter took more than an hour to flag a highly misleading video shared by Donald Trump, which baselessly pushed claims of ballot fraud and was retweeted more than 70,000 times before the platform took action.

    The president, who lost the US election to Joe Biden last week, shared a video of election workers in Los Angeles collecting valid, mail-in ballots that were posted on or before election day from a ballot drop box. The video, which has been shared thousands of times in recent days, falsely suggested something unusual was under way and has been repeatedly debunked.

    An hour after it was posted, the tweet still had not been removed or flagged by Twitter, despite the company’s policies on misinformation. The platform has flagged more than 40 tweets and retweets on Trump’s profile for misinformation in the days since the election. When a tweet is flagged, it cannot be retweeted, limiting the ability of the misinformation to spread.

    But as of Wednesday afternoon, Trump’s tweet containing misinformation had been retweeted 71,000 times and favorited more than 183,000 times before it was flagged by Twitter.

    Corona is not only spreading so is the mis-information and lies of The Trump Regime. The Trump Cult is eager to prove their loyalty by spreading Corona and the lies.

  8. I’ve been very unhappy with the willingness of federal courts to tolerate meritless litigation and motions solely intended to delay justice, filed by the Trump administration/campaign/family business. There is no excuse for federal courts, for example, to go months before issuing rulings upholding congressional subpoenas of the executive branch. Contrary to common assumption, courts can act quickly when they make certain cases a PRIORITY. This is even more so when it becomes apparent that the Trump was filing BS litigation solely for the purpose of running out the clock. Federal courts need to do some serious introspection in light of their performance in the Trump era.

  9. Oh, and Amen to Bill Barr being disbarred. Of all the members of the Trump administration, including Trump himself, Barr is the most awful. Utterly corrupt to the core.

  10. I am afraid that Trump’s silence with public speeches could be the “calm before the storm.” Maybe he is just too humiliated to show his face in public.

    Wouldn’t it be great if the judges dismissing these cases started charging for these frivolous law suits to the RNC or whoever is responsible for them?

    I fear that he will create much more damage to the democratic institutions of our country before he is forced to leave as POTUS. And I look forward to Biden’s inauguration. I’m guessing he will have an audience greater than Trump’s and that almost all of them if not all of them will wear masks.

    And in the meantime, I am sheltering in place not only because of COVID but because I fear that the MAGA cult might engage in violent protests or just violence. Law and order? NOT!!

  11. Barr needs to be sent to the corner, with a dunce cap on his head, then dis-bared!
    Trump is unable to accept much of what most other people see as reality, never had any “Big boy pants,” which someone suggested he “pull up.”
    Loosing, and so publicly, is a form of “psychic death” as per Dr. Brandy Lee, and he can not tolerate same. I think that that is why he’s, I’ll say “posturing” about running in 2024.
    At the same time, as you point out in the “small print,” he is still grifting!
    Trump’s lawyers, especially Rudy, need to be taken to the wood shed and spanked!

  12. Todd,
    “Billy Bob Barr has no ethics. He and Donald ordered the assassination of Antifa member Michael Reinoehl in Washington and then bragged about in press statements and during a rally. The US Marshals carried out the hit, which has been under wraps since it occurred in mid-October.”

    Talk about frivolous accusations!

  13. Sally Yates. Of course! An obvious choice.

    “(although apparently, the “fine print” notes that monies raised will mostly go to pay off campaign debt)”: The Post and Courier suggested this morning that the money Trump is soliciting from his patsies will be used for campaign debts, RNC debts (he will need the RNC in 2024) and to fatten the family’s bank accounts. Except for the priorities, that sounds about right.

    “The price of liberty is eternal vigilance” – If Trump retains his popularity among America’s least informed/least patriotic voters, he may exert considerable control over the Senate for the next four years. The only priority of the Republican caucus is reelection. If he is seen as having influence over that, they may continue their present level of subservience. We need term limits. And we need to recruit the Lincoln Project to undermine Trump’s influence. Democrats are reluctant to get their hands dirty over these kinds of necessities, so we must ally with less squeamish actors. They’ve proven their mettle.

    And if we don’t start campaigning on January 21 for the 2022 election, we will stand guilty of an inability to focus on the most important priorities. There is little hope for a bipartisan kumbaya in America’s immediate future.

  14. Yates is my choice, too, and as to frivolous lawsuits and ethics, I have won ’em and I have lost ’em. I have won ’em in suits against General Motors and Otis Elevator and have lost ’em in civil suits for assault, as tax attorney for the government, and as prosecutor and defense counsel in my younger days, which brings to the fore the old saying that “You win some, you lose some.” I have never represented a client in court where I did not believe there was a reasonable chance of prevailing, and if not, well, there’s always settlement where you negotiate the best deal you can on behalf of your client(s).

    I want to present another look at winning and losing here. Sometimes it’s neither. For instance, Grand Jury deputies often over-indict with the expectation that defense counsel will go along with a plea to a lesser included offense and thus avoid trial (a result trial judges with their crowded dockets applaud). I once represented a woman who stabbed her boy friend three times in his heart while (per her story) he was fumbling in her purse to get a gun while telling her he was going to kill her. (He was a convicted felon and could not be in possession of a firearm, so she carried it for him.) The grand jury deputy called me and said the grand jury had returned a first degree murder charge against my client. After laughing and telling the deputy he would be lucky to get manslaughter, we went to trial and the jury returned an involuntary manslaughter finding. She did eleven months, called me upon her return to town, a call in which I told her never to pull another trick like that again.

    So did I win or lose this case? The answer seems to be both and neither, and I found out in post-trial polling of the jury that we had almost hung the jury. Almost. From an ethical point of view I believed we had a self defense argument and that the jury probably bought into some of it, which accounted for a negotiated finding of a lesser included offense.

    Courts are too busy to entertain frivolous lawsuits, and certainly such meritless suits as those filed by Trump, and ethical counsel should refuse to be party to such abuse of the system.

  15. If only you could have asked why the profession couldn’t prevent architects from producing such terrible building designs.

  16. I like the idea of Sally Yates, but I would also like Chuck Rosenberg. Whoever it is needs to be principled and have a calm demeanor.

  17. What stops the American People from filing negligence, mal-practice suits against DJT. There’s plenty of evidence that he willfully interfered with effective methods to curtail the pandemic. OLC has a rule? Shouldn’t that be challenged?!

  18. Pam W. flaying works for me as well. I was just trying to be less incendiary than my feelings would have allowed! (wink)

  19. Axios’ Jonathan Swan (sp?) wrote about the refusal to concede as the last “hail-Mary” that Trump has, which is to delay conceding the election long enough so that he can put pressure on governors in friendly states to appoint electors who will give him their electoral votes. In other words a coup. It is distraction, and we should take it as a serious threat to our democracy.

  20. Thank you for a readable article that this normal mortal can understand. I agree with your thought about the norms that are being broken.

  21. Great ideas about Sally Yates and Chuck Rosenberg. Each has a calm demeanor and a keen sense of right and wrong. I try never to miss their commentary.

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