In a February 1, 2017 Mindsetter™ published by GoLocalProv, I wrote:
If the banality of Donald Trump continues unabated, morphing into a new normal, where traditional American values as justice, fairness, and the rule of law are mere conveniences, then we are in serious trouble. These past ten days (as of this writing) has had me recall the following quote from Robert Kennedy:
The glory of justice and the majesty of law are created not just by the Constitution - nor by the courts - nor by the officers of the law - nor by the lawyers - but by the men and women who constitute our society - who are the protectors of the law as they are themselves protected by the law.
Given the events from that time to the day of this writing, we have gone way past “serious trouble” and are going headlong toward total catastrophe. After four years of this lawless president, one who either ignored the law or used the Department of Justice as his personal attorneys, or his presidential powers either to aid his personal friends or attack his political opponents, he has nearly destroyed all semblance of commonly held values and savaged the rule of law.
But it’s his latest gambit that is most concerning. Because Trump has created this new normal where facts no longer exist, where fantasy is reality, and elections are fair only if he wins, Trump is attacking the very foundations of our democratic republic.
This is written nearly three weeks after the election – an election that Trump lost. Let me repeat this: Trump lost. His democratic opponent, Joe Biden, won. This is not supposition, this is math. But then a man who has waged a four-year war against science should not have any qualms about warring against math.
Since the early morning hours of November 4 to this day, Trump has consistently declared two things: 1) he won, and 2) the election was rigged in states where he lost. He has promoted a narrative that democrats, through unseen acts by evildoers, corrupted the vote counts in no less than six states.
I subscribe to Will Rogers’ comment made more than 80 years ago: "I belong to no organized political party, I’m a democrat." I’ll concede the remote possibility that a political organization could cook the count in one state, but six? Please, there’s too many safeguards and too much transparency for this to happen. But then a person as narcissistic as Trump can’t fathom a reality where he loses a fair and open election.
This would be silly if people didn’t believe his election fantasies, but some do. In one recent survey, 84% of republican voters and over 40% of all voters believe Joe Biden won because he cheated.
It’s not just Trump's narcissism driving his narrative but more disturbing is his craven action to hang on to power. To do that, he’ll need to destroy any remaining vestiges of the rule of law and democratic norms that he hasn’t destroyed over the past four years. And to that end, he needs to turn to the courts.
As of this writing, his legal teams have won just one case (an inconsequential action in Pennsylvania) and lost at least 30 cases everywhere. Given the complete lack of evidence of systematic election fraud, the high-powered legitimate law firms have bailed on him as of last week. That left us with Rudy Giuliani, Sidney Powell, and Jeana Ellis, a team I like to call “Rudy and the Not So Super Dupers.”
Rudy and the Not So Super Dupers are not the “A” legal team. Rather, they’re what you get when every reputable attorney/law firm either won’t touch this matter, or after having started this case and finding it devoid of any rational basis in law or fact, ran away from it. While nobody has really said so, the reason that no reputable attorney would take Trump’s case is because there’s no credible evidence of voter fraud or systemic irregularities. Attorneys get in big trouble bringing baseless legal claims to courts. And this brings us to Rudy and Federal District Court Judge Brann.
Rudy subscribes to the legal strategy of “if you can’t befuddle them with brilliance, baffle them with bull…” Well you get the idea. But Rudy might be the sane one of the three. While he was sweating profusely with hair dye running down his face, riffing “My Cousin Vinny” at a press conference last week, Sidney Powell talked about an international conspiracy involving Hugo Chavez (dead since 2013) and other Venezuelans in concert with George Soros, manipulating voting machines and software to preprogram results favorable to Biden. To her ever-lasting credit, Attorney Ellis spoke about thousands of depositions offered as evidence, but she couldn’t show them or file them without a court seal in order to avoid repercussions against the deponents. Or the pages were blank, one of the two.
As it turns out, Powell was kicked to the curb by the so-called "Elite Strike Force," leaving only Rudy and Jenna to carry the load. And what a load it is. I leave it to you to determine "load of ****."
Not to be daunted, Powell promised to release the "Kraken" in filing an epic action in Georgia which will seek to overturn the votes for Biden, name Trump the rightful victor of the election, and oh yeah, accuse Georgia governor Brian Kemp (a republican) with getting paid to throw the election for Biden (a democrat). She promised to file this action this week! I can't wait for this filing, and if she does file it electronically on Thursday we can all have a turkey.
The antics of this Insane Clown Posse legal team would be funny if the legal matters weren’t so serious. What is at stake is the sanctity of the vote, the legitimacy of our elections, and the preservation of our democracy. And like any decent lawyer, I have a theory of the case and its overall strategy that I’d like to share:
Rudy and the Not So Super Dupers know they have no case because they have no evidence. How do I know this? Simple, because they have not asserted any tangible or credible evidence extant to support their case. If they go all Insane Clown Posse in a court like they do at a press conference then they will likely be hit with sanctions, and they don’t want that. As it is, by filing what they’ve filed, I think they’re close enough to Rule 11 sanctions as it is.
This brings me to Judge Brann. On Saturday evening, he dismissed “with prejudice” Giuliani’s complaint that would have essentially disenfranchised all Pennsylvania voters. Judge Brann stated that there was no evidence sufficient to disenfranchise one voter, let alone about 7 million voters. In fact, Judge Brann stated that the complaint contained only unsupported allegations and assertions. But perhaps the unkindest cut of all was when he wrote that the complaint was based on disparate legal theories, stitched together resembling the literary monster Frankenstein.
I hope the reports are true that Rudy’s charging $20,000/day for his work. He may need that money.
If it’s not to win, then what’s the objective? The objective is to create as much chaos, legal and political, as possible in order to delay the certification of the elections in at least three states. The theory is that if they create enough chaos, if the vote isn’t certified by deadline, then the state legislatures will then step in and take it upon themselves to exercise their Article II powers and select and certify electors whose votes would be counted in mid-December. And since these legislatures are controlled by republicans, they are assumed to appoint Trump electors.
This is an elegant, strategic plan. It’s nonsense but that’s beside the point. It is elegant.
Why is it nonsense? There is a legal adage that if the facts aren’t on your side, scream Law! If the Law is not on your side, scream Facts! And if neither are on your side, pound the table and scream Justice! Sad for Trump, he loses on the law.
The basis of Trump’s elegant legal strategy is found in the 2000 Supreme Court case Bush v. Gore, where the Court references a legislature’s power under Article II to select the manner of appointing electors, citing an 1892 Court case McPherson v. Blacker. This would be impressive if Bush were about appointing electors, or if McPherson changed the manner of the appointment after the popular election of electors.
But sad to say, neither is true. McPherson changed the manner of appointment a year prior to an election, and Bush didn’t concern appointment of electors but rather focused on the equal protection of the votes cast for those electors.
To put any question to rest, it’s the next line in Bush, after referring to McPherson, that blows this strategy up:
When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental…
The right is protected by pre-existing statute at the state level. The right of the people to vote is indeed fundamental and any legislature willing to disqualify that vote is likely to meet its match in the Supreme Court.
Having failed to file one credible complaint in the courts, Trump moves on to sow chaos in the certification process in the various states hoping to create sufficient uncertainty about the presidential election. For reasons stated above, I think his efforts are doomed. Trump cannot accept that he lost. He’s marshalling a group of sycophants who are willing to commit any personal and professional debasement in service to his sole goal of retaining power. I am unconcerned about the outcome of the election, but I am frightfully concerned about what is left of democratic values and principles and the rule of law after Trump shuffles off to the pages of history.
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