Public Policy and Governance – Page 112

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.

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Covid Covid Covid…

Hopes are high that we will see a COVID-19 vaccine soon. But it will be a long time before America recovers from the Trump administration’s monumental mismanagement of the pandemic, and its efforts to evade responsibility for that mismanagement.

Those efforts included Trump’s attacks on the news media leading up to the election and his bizarre (and patently unconstitutional) insistence that there should be a law to keep the media from focusing on the COVID pandemic.

It is certainly true that stories about the pandemic have occupied significant space in the national conversation, but despite general condemnation of the administration’s lack of leadership, I’ve seen few detailed explanations of the mechanics of that mismanagement.

It can be hard to help the public understand how obscure bureaucratic decisions have undermined the national response. One of the many such moves was described by Heather Cox Richardson in one of her Letters from an American:

The administration’s changes to the reporting system for coronavirus have hampered our ability to combat it. In July, the administration shifted the way hospital data is collected, taking the project away from the Centers for Disease Control and Prevention and giving it to a private contractor. CDC experts no longer check and analyze the data. Information on hospitalizations is no longer publicly available, so states cannot see what is happening elsewhere. This hides the picture of what is happening nationally, making it impossible for public health officials to plan for spikes.

Multiply this sort of thing by dozens if not hundreds of difficult-to-detect decisions, and then add the utter lack of visible national leadership, the administration’s repeated assertions that a national–nay, international–pandemic was somehow a state-level problem that they couldn’t be bothered addressing, and you have…Covid, Covid, Covid, and thousands of unnecessary deaths.

Many of those deaths could have been avoided, had Trump just not turned mask-wearing into a political litmus test.

And of course, there were the dangerous quack “cures” Trump promoted. Bleach. Hydroxychloroquine.

The White House decision to set aside the mandatory safety controls put in place by the Food and Drug Administration fueled one of the most disputed initiatives in the administration’s response to the pandemic: the distribution of millions of ineffective, potentially dangerous pills from a federally controlled cache of drugs called the Strategic National Stockpile.

The House of Representatives recently issued a blistering report on the administrative failures involved, labeling them “among the worst failures of leadership in American history” and an “American fiasco.”

The report, by the House select subcommittee on the coronavirus crisis, says the administration has consistently misled the country about the severity of the pandemic and that its lack of a national plan has hampered the ability to track, test for, treat and contain the virus. Efforts to provide economic support to Americans have been stymied by a lack of safeguards and policies that favored corporations over small business owners and failed to ensure that workers kept their jobs, the report says.

“President Trump’s decision to mislead the public about the severity of the crisis, his failure to listen to scientists about how to keep Americans healthy, and his refusal to implement a coordinated national plan to stop the coronavirus have all contributed to devastating results: more than 227,000 Americans dead, more than 8.8 million Americans infected, and a dangerous virus that continues to spread out of control nine months after it reached our nation’s shores,” the report’s introduction reads.

If we have learned anything over the past four horrible years, it is that national leadership matters. Expertise matters. Experience in and understanding of the government you are elected to administer matters. And needless to say, character, honesty, mental health and intellectual capacity matter.

That said, on November 4th, we learned that to a shocking number of Americans, none of those things matter as much as their animus to minorities and their desire to “own the libs.”

And as for their fury over the duty to don a mask to protect others–well, I couldn’t say it better than this…

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Can We Grow Up?

I wrote my most recent IBJ column the weekend before the election, not knowing the results, or the sorts of national policies likely to be pursued over the next four years. I addressed the looming crises of state and local government funding.

Having relied upon the polling, I was significantly more optimistic than I have been since. But even assuming the restoration of more traditional and far less corrupt approaches to governance, the victors—at all levels–will be constrained by the prevailing, dishonest political culture.

At the state level, there’s quite a bit of variance in those cultures; nationally, and no matter which party has been in charge, it has been characterized by an immature focus on immediate gratification. Members of Congress have been fixated on policies that will be perceived as positive by their bases in the “here and now”—policies that will benefit them personally when the next election rolls around. When Republicans are in control, we can see the result in such things as huge subsidies for fossil fuels (despite their environmental impact); and so far, no matter who is in charge, there has been unforgivable neglect of infrastructure (let the next guy worry about the highways, bridges and national electrical grid).

Long term, as the political saying goes, is until the next election.The pandemic presents officials with an urgent challenge to this national disinclination to connect the dots, to recognize that enlightened self-interest must be both informed and defined long-term.

Nowhere is this challenge more dire than in America’s cities and states, where tax revenues are in the toilet.

Local governments depend heavily on sales taxes, but Americans aren’t spending as usual—which means they aren’t generating sales taxes. (Transit authorities are facing similar problems.) Businesses are hurting badly, translating into lower income taxes in jurisdictions that impose them. Dramatically declining income is forcing local governments to curtail vital services, lay off employees and postpone critical infrastructure repairs.

As Ryan Cooper pointed out in a recent article in The Week, the federal government could rescue states, cities and transit authorities with only a small fraction of the money that has been spent on rescuing businesses and individuals so far. That would help the national economy by keeping public employees in their jobs, and by maintaining those “socialist” public services that everyone relies on to some degree. As Cooper says, when local governments have to gut their budgets, potholes proliferate, garbage piles up, water mains break, already inadequate transit becomes worse. When state and city workers are laid off, they become part of the unprecedented burden being placed on our already insufficient social safety nets.

Despite the Child-in-Chief’s sneering disinclination to help “mismanaged blue cities,” the current crisis is a result of the pandemic, not incompetent governance. And as Cooper points out, this crisis isn’t limited to Democratic jurisdictions. Wyoming is evidently facing a budget deficit of a quarter-billion dollars, even after making severe cuts to public services. State governments in general are facing budgetary woes that are worse than at any time since the Great Depression.

If the federal government fails to help, we will see the effects for a generation or more. Three hundred and fifty thousand teachers were laid off in September alone. Bus drivers, sanitation workers, DMV clerks, road repair crews, public health nurses, food safety inspectors and thousands of others are truly essential workers; they make the country function.

Liberal and conservative economists alike confirm that austerity during a depression is the definition of insanity. Failure to shore up city and state finances, like failure to pass another pandemic relief bill, will be far more costly long-term.

To pursue austerity now would be childish– the epitome of penny wise and pound foolish. But don’t count on Republicans in the Senate to understand that–or to act on it if they do.

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And (Most of) The Children Will Lead Us….

As Americans were hanging on every update of the vote counting, Inside Higher Education posted a fascinating–and overall encouraging–graphic.

The embedded image shows the election results we would have gotten had we counted only the votes cast by those under 30. In a real sense, it also is a snapshot of each state’s “political future.” Overall, the map is comforting–results range from light to dark blue in large areas of the country, confirming my often-stated belief that the younger generation overall is more inclusive, more community-minded and “with it” than my own.

Voters under age 30 leaned heavily Democratic, favoring Joe Biden over President Donald Trump by a wide margin (61 versus 36 percent) in the recently-called presidential election, but there were key differences among young voters across gender, racial and state lines, according to an analysis of exit polling data from the Center for Information and Research on Civic Learning and Engagement (CIRCLE) at Tufts University in Massachusetts

That said, there are some disappointing elements to the analysis. For one thing, young white men supported Trump by a six-point margin (51 versus 45 percent).( I am happy to report that young white women favored former vice president Biden by 13 percentage points (55 to 42 percent)).

Even more disquieting for my family of Hoosiers, Indiana remained red amid the varying shades of blue. Young people in Indiana will evidently carry on the state’s tradition of minimal, largely ineffective government and widespread racial antagonism. As my son recently pointed out, higher-education levels are low in the state, and young Hoosiers who graduate from college leave Indiana at a high rate.

Other states show evidence of evolution, albeit with that same disquieting racial breakdown:

In Georgia and North Carolina, 90 percent or more of young Black voters chose Biden, while more than half of young white voters (54 percent in North Carolina and 63 percent in Georgia) favored Trump.

In Texas, Latinx voters supported Biden over Trump by a nearly 50-percentage-point margin (73 versus 25 percent), while a majority of young white voters preferred Trump (51 versus 45 percent for Biden).

My son pointed to the analysis as justification for his advice to his teenage children–“find a better place to live; don’t come back to Indiana; we’ll follow you.” That advice was more anecdotal evidence supporting Bill Bishop’s Big Sort assertion that Americans are voting with our feet, and “sorting” geographically into locations where our neighbors share our political convictions.

None of this bodes well for Indiana. The past couple of decades have seen small towns continue to empty out. Children born in those towns, and the rural areas that surround them, have migrated either to metropolitan areas within the state, or left Indiana entirely. The super-majority of Republicans dominating our state’s legislature has waged war on public education, creating a voucher program that sends already scarce education dollars to (almost always religious) private schools, several of which teach creationism in lieu of science.

Indiana’s legislature has also defunded higher education, resulting in Indiana’s finest colleges admitting ever more out-of-state students who tend to leave after graduation.

The low levels of education and the relatively low levels of diversity around the state contribute to a situation that’s exacerbated by the “winner take all” law that is the worst aspect of the Electoral College. Even if 49.5% of Hoosiers somehow voted for a Democrat, the state’s Eleven Electoral Votes would be awarded to a Republican who received 50.5%, a situation that encourages the legislature to ignore dissenting voices. That’s not a situation likely to bring talented people to Indiana, or to keep those we manage to raise.

People move to livable communities. Strike one against Indiana’s creation of such communities is our neglect of infrastructure. Strike two is inadequate funding of education. Strike three, as displayed on the embedded map, is the fact that Indiana voters — today and evidently into the future — can be counted on to support know-nothings and White Supremacists up and down the ballot.

Indiana–the Mississippi of the North….

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Tweets With Filing Fees

The Trump Campaign is filing a veritable blizzard of lawsuits in an effort to cling to power–or at least, convince Trump’s base that the election has been “stolen” from him. As one observer has characterized those lawsuits,

Trump is dealing with state election officials the same way he deals with contractors he’s stiffed. Just scream BS accusations at them and sue the hell out of them and hope they relent. It’s not gonna work in this context [of state election law].

As a number of legal observers have pointed out, there is no discernible legal strategy to these suits, which range from fabricated to weird to just plain silly, as a description of one such suit illustrates:

The campaign alleged that a poll watcher saw 53 ballots separated out from a bin of other ballots and so that must have meant that they weren’t delivered on time to be counted by 7 PM Tuesday. But asked if he had any evidence—at all—that they weren’t delivered on time, he said he didn’t know. The campaign put up another poll watcher who said he had “questions” about the chain of custody of those 53 ballots. Did he have any evidence they arrived late? Nope. An elections official then testifiedthat those 53 ballots “were, in fact, received by GA’s Election Day deadline, saying they were handled separately because they didn’t show up on a manifest of absentee voters so they had to be checked.” And the case was dismissed after having wasted a lot of people’s time, including an election official in a state that right now has both a presidential and Senate race down to the wire.

ProPublica had a similar take–and also, the best comment on the “strategy.”

“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee,” said Justin Levitt, a professor at Loyola Law School in Los Angeles.

Levitt said judges by and large have ignored the noise of the race and the bluster of President Donald Trump’s Twitter feed. “They’ve actually demanded facts and haven’t been ruling on all-caps claims of fraud or suppression,” Levitt said. “They haven’t confused public relations with the predicate for litigation, and I would expect that to continue.”

One of my Facebook friends–a former reporter (from back in the days when our local pretend-newspaper had such things)–posted a really good summary as the counting continued on Friday morning:

Trump supporters and other Republicans, this is the time to show exactly how patriotic you are.

If the vote counting trends continue, Trump is going to lose.

There has been no real evidence of fraud. In fact, the same ballots with Biden votes showed votes for other Republicans down the ballot, for the House and Senate, where the GOP made gains. Republicans have watched every count. Republicans lead many of the vote counting operations and the states with close votes.
Evidence matters. And there’s none to indicate fraud. If some turns up, the courts will sort it out.

In the end, you have to accept the results as the will of the people. It’s democracy working. You don’t have to like the outcome. You can bitch and moan and complain about Biden for the next four years. That’s what I’ve been doing the last four. That, too, is democracy.

But a peaceful transition is one of the great hallmarks of our country. If we can’t do that, we’re nothing better than a banana republic.

Patriotism isn’t just about the Pledge of Allegiance or the national anthem. Patriotism isn’t just flag waving in the sun. It’s also about accepting that, in a democracy, sometimes the other side wins.

My only quibble with this excellent comment is that we really aren’t a democracy. Hillary Clinton won the 2016 popular vote by just under 3 million votes; as I type this, Joe Biden has garnered over four million more votes than Trump. In order to be a democracy or a democratic Republic, we really, really need to get rid of the Electoral College.

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