Tag Archives: Trump

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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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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The Crowding-Out Effect

Tomorrow is the most important Election Day in my lifetime. Among other things, the results will tell me whether my longtime faith in the common sense and goodwill of my fellow Americans has been justified or misplaced.

Hopefully, after tomorrow, this blog can return to discussions of rational, albeit debatable, policy proposals, commentary on interesting research results, and occasional forays into legal disputes and political philosophy. Hopefully too, we will have occasion to use a phrase introduced by Gerald Ford: “our long national nightmare is over.”

One aspect of that “long national nightmare,” of course, is the incredible amount of destruction it will leave in its wake–regulations that must be reinstated, laws that must once again be enforced, corrupt people who must be held accountable, and a return to public health directed by medical scientists rather than politicians, among many other things.

The opposite of “nightmare” is a good night’s sleep, and if all goes well, we can once again look forward to days when we haven’t had to think about the President of the United States, followed by nights when we can once again sleep soundly because–whether we agree with administration policies or not– a sane and honorable person is in charge.

If there is one word I have heard over and over during this political season, it is “exhaustion.” Trump’s desperate need for constant attention, his bizarre tweet-storms, insults and various insanities have sucked the oxygen out of our public life. He has been in our faces, on our television screens, Facebook feeds and comedy routines. As several columnists have recently noted, he has crowded out so many activities that we would otherwise enjoy–books of fiction, works of art and music, conversations with friends that didn’t give rise to disappointment when we discovered their willingness to look the other way so long as their 401K stayed healthy…

Last Thursday, at the New York Times, Michelle Goldberg wrote about all the things we’ve lost.

After listing the “big” things–the lives lost to COVID, the children whose parents can’t be located, the people whose livelihoods have disappeared, and after acknowledging the greater significance of those losses, she speaks for so many of us:

When I think back, from my obviously privileged position, on the texture of daily life during the past four years, all the attention sucked up by this black hole of a president has been its own sort of loss. Every moment spent thinking about Trump is a moment that could have been spent contemplating, creating or appreciating something else. Trump is a narcissistic philistine, and he bent American culture toward him.

I’ve no doubt that great work was created over the past four years, but I missed much of it, because I was too busy staring in incredulous horror at my phone….

Conservatives love to jeer Democrats for being obsessed with Trump, for letting him live, as many put it, rent-free in our heads. It’s a cruel accusation, like setting someone’s house on fire and then laughing at them for staring at the flames. The outrage Trump sparks leaves less room for many other things — joy, creativity, reflection — but every bit of it is warranted. The problem is the president, not how his victims respond to him.

If the polls are right, if Biden wins convincingly, Americans will nevertheless be on pins and needles until January 20th. We won’t be out of the woods until this blot on our nation and our history is gone–and even then, we will be left with the alt-right haters and know-nothings who have spent the campaign brandishing guns, refusing to wear masks and cheering ugly pronouncements at Trump rallies– voters motivated by fear and grievance who want only to “own the libs.”

Buckle up. We’re about to see how this horror show ends.

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Omens…

Our ancestors looked for omens in animal entrails. My nerves–already stressed to the breaking point as we approach Tuesday’s election–sent me on a somewhat more modern search, which may or may not be more accurate.

The polls, of course, are comforting–except when they aren’t. I compulsively visit FiveThirtyEight.com. daily, where the odds, at least, strongly favor Biden. But then I remember how strongly they favored Hillary…

I look at the unprecedented number of Republican defectors: not just the Lincoln Project and Republicans for Biden, and the other groups out there doing television ads, but the 20  Republican  former U.S. Attorneys who warned last week that Trump endangers the rule of law, the 600 prominent Republicans (including numerous former office-holders) who’ve endorsed Biden, the 700+ Intelligence and national security officers who signed the letter I posted last week, warning that Trump is a threat to America’s security and place in the world…and numerous others.

Then there are those “never before” newspaper endorsements.

The conventional wisdom is that newspaper endorsements have little to no effect on voters in big national races, but Democratic presidential nominee Joe Biden has racked up a string of first-ever endorsements from a wide array of publications, including Nature, Scientific American, The New England Journal of Medicine, the Puerto Rican daily El Nuevo Día, and Surfer. On Tuesday, Biden got another one, from USA Today, one of the largest U.S. newspapers by circulation.

USA Today (or “McPaper” as we detractors call it) has an ideologically diverse editorial board, but the board has unanimously endorsed Biden.

“If this were a choice between two capable major party nominees who happened to have opposing ideas, we wouldn’t choose sides,” USA Today’s editorial board said. “But this is not a normal election, and these are not normal times. This year, character, competence, and credibility are on the ballot. Given Trump’s refusal to guarantee a peaceful transfer of power if he loses, so, too, is the future of America’s democracy.”

As of last week, at least 119 daily and weekly newspaper editorial boards had formally backed Biden. Probably the most surprising was The New Hampshire Union Leader, which hadn’t backed a Democrat in over a century.

Culture change is harder to quantify, but public opinion seems to favor progressive positions. Seventy percent of Americans now support same-sex marriage while only 28 percent oppose it, according to a poll conducted by the Public Religion Research Institute. That’s the highest level of support the institute has ever recorded for same-sex marriage. The percentage of Americans who support a woman’s right to control her own reproduction is up, too (Pew says it’s 61%), as is the percentage supporting Black Lives Matter.

The fact that nearly 80 million people have already cast a ballot is an even harder sign to decipher–yet I look at the long lines, many if not all clearly representative of American diversity, and the unprecedented number of young voters, and I have trouble believing that they demonstrate an outpouring of support for Trump. I look, too, at the  GOP’s rush to confirm a rigidly ideological judge before the election as evidence of their desperation and their own clear belief that they’re losing…..

All of this should comfort me. It doesn’t. 

For one thing, there are columns like this one.

And even if Biden wins, who knows what this lunatic and his corrupt and thuggish enablers will do if the results aren’t overwhelmingly clear on Tuesday? What additional harm can he do between the election and January 21st, even if he accepts a loss? We’ve seen the brutishness, brazen criminality and irrational behavior of his supporters, egged on and encouraged by this embodiment of their rage and grievance. Will they take to the streets?

The only thing I’m sure of is that I am too old and way too tired for this. Maybe I should look for some animal entrails…

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