A Hard Look at Those Post-Election Legal Efforts

Poll workers process absentee ballots to be counted on election day at the TCF Center in Detroit, Mich., November 2, 2020 (Rebecca Cook/Reuters)

On the menu today: Michigan certifies its vote totals; the General Services Administration starts the transition; and it’s time for a hard, unflinching look at the president’s post-election legal efforts.

What Did the President Get from His Legal Team?

Michigan and Georgia have certified their election results, showing Joe Biden the winner. They, along with other states that are not contested, put Biden over 270 electoral votes.

General Services Administration chief Emily Murphy declared Monday night that her office would cooperate with the standard steps involving the transition to a new administration. President Trump declared, via Twitter at 6:16 p.m. Eastern last night, “In the best interest of our Country, I am recommending that Emily and her team do what needs to be done with regard to initial protocols and have told my team to do the same.” He emphasized that this was not a concession, and a few hours later he added, “What does GSA being allowed to preliminarily work with the Dems have to do with continuing to pursue our various cases on what will go down as the most corrupt election in American political history? We are moving full speed ahead. Will never concede to fake ballots & ‘Dominion’.”

The change from one presidency to the other does not legally or constitutionally require any concession from the losing candidate.

The president and his legal team can continue with their legal efforts. They will have a hard time finding a judge who will order the decertification of votes and the alteration of vote totals, but they are entitled to try.

The president and his team would need, at minimum, a way to discount or add votes that would erase a Biden lead of 12,670 votes in Georgia, 81,020 votes in Pennsylvania, and 20,565 votes in Wisconsin — 114,255 votes across three states. (Biden’s margin in Nevada is 33,596 and his margin in Michigan is 154,188, but you need at least three of those five states to reverse their results in favor of the president for Trump to reach 270 electoral votes.)

So far, no judge has deemed any vote cast in the 2020 election fraudulent. Trump legal team adviser Jenna Ellis is quick to insist that the Trump campaign itself is not responsible for every lawsuit challenging the results of the 2020 elections, but the others are filed by like-minded Trump-supportive lawyers or the state Republican parties. They have collectively lost more than 30 cases. “Of the 19 lawsuits the Trump legal team has brought across five states, 17 of the cases have been denied, dismissed or withdrawn.” (NBC News collects them all in a list here.) They have won a handful of cases regarding access to watching the vote-counting process. In many cases, the judges’ rulings have been scathing in their assessment of the legal team’s arguments and evidence, or lack thereof.

Day after day, the president and his lawyers have gone on social media or friendly television programs and made sweeping claims of tens of thousands of fraudulent votes, and then gone into court and attempted to dispute the legality of a few hundred votes here and a few dozen there. And then they have lost. They promise bombshell, irrefutable evidence and then offer affidavits that the judges conclude amounts to inadmissible hearsay. “‘I heard someone else say something.’ Tell me why that’s not hearsay. Come on, now,” Judge Cynthia Stevens scoffed in a November 5 hearing in Michigan.

What’s more, the claims of widespread fraud are often in conflict with the assessments of Republican officials who oversee elections on the ground in those communities.

Forget judges, Trump and his team can’t even convince local Republican officials that there was widespread vote fraud in their states.

For those who insist that the coverage in this newsletter has been excessively negative . . . recent weeks have demonstrated Giuliani and the rest of the legal team are a bunch of clowns disconnected from reality who will make any claim if they think it will spur more donations or ingratiate themselves with the president. The Trump team’s lawyers aren’t making these arguments in court because either they know they can’t prove what they’re claiming outside the courtroom, or they know their press conference allegations and conspiracy theories are not true. The country’s been through three weeks of needless drama driven by a president who cannot emotionally cope with the fact that he lost, and a bunch of staffers and lawyers who enabled his denial of the cold, hard facts.

The country and the long-term health of our constitutional republic are hurt by paranoid nonsensical arguments that our elections are rigged by a vast conspiracy of voting machines, clerks, volunteers, both Democratic and GOP elected officials, Venezuelans, China, the CIA, Department of Defense, Bernie Sanders, AOC, and God knows who else. While you’re at it, just throw in the lizard people, too. Because the country is not run by powerful, shadowy figures meeting with the Cigarette-Smoking Man in dark room. (Look around you, does this look like a country where anybody is effectively managing and controlling anything behind the scenes?) And the more time and energy you spend chasing ghosts and feverishly tracking down rumors of the powerful, shadowy figures meeting in a dark room to determine the fate of the country, the less time and energy you’re spending dealing with real-life indisputable problems.

Sidney Powell may be the worst of them, but she’s not significantly different from the rest of them. When Powell claimed last Thursday that “Republican or Democratic candidates across the country paid to have the system rigged to work for them,” I didn’t see a single Trump team lawyer object or ask for evidence to prove such an accusation. Until Sunday’s terse statement declaring that Powell was not part of the president’s team, no one on Trump’s team or anyone in the White House indicated that they didn’t believe that lawmakers in both parties pay Dominion to ensure election victories.

Right about now, some Trump fans will defend his lawyers by insisting, “At least they’re fighting!” But by any conceivable measurement, can anyone argue that they’re fighting effectively? Legitimate concerns about access to watch the voting process, watching the voting tabulation process, or accepting absentee ballots without a postmark get seriously undermined when public statements of the president’s lawyers are indistinguishable from the Alex Jones’s show. When the loudest arguments about the risk of fraud or other election problems sound like an Oliver Stone fever dream, it makes it much easier for the relatively apolitical public to shrug and ignore any arguments about any problems in our election process as sore-loser paranoid nonsense.

This morning, the president of the United States retweeted actor Randy Quaid’s utterly bizarre rants.

ADDENDUM: A fascinating facet of the incoming Biden administration: While it’s still early, the old Obama team that didn’t put a lot of effort into helping Biden get elected is getting better jobs than the Biden team that did get him elected.

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