As of now, the Trump campaign has lost more than 30 lawsuits, and won two on minor technical grounds, with no impact on the number of votes either President Trump or President-elect Joe Biden won. Two doctrines in the law are at issue here. Both demonstrate that Trump attorneys, led now by his personal lawyer Rudy Giuliani, improperly and outrageously filed these dishonest actions in court.
First, the Federal Rules of Civil Procedure, specifically Rule 11, states that “an attorney certifies that to the best of the person’s knowledge, [a pleading] is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation … [and that] the factual contentions have evidentiary support.” The same principle holds true for lawyers submitting lawsuits in state courts. No Trump campaign attorney supplied any evidence of fraud, wrongdoing, or irregularities that could possibly change the fact that Biden will be inaugurated the 46th president on Jan. 20, 2021.
No one questions the right of the president or his campaign to sue if irregularities or fraud took place, or even to ask for election recounts or voter audits if there is proof of any of these defects. But now, state bar associations should investigate what the lawyers involved in these cases have done in violation of standard procedures, and either discipline or disbar them.
Second, in the law, there is a principle, which is admittedly difficult to prove, known as abuse of process. This is when lawyers improperly file civil or criminal cases, especially repeatedly, for malicious or perverse reasons. With no evidence to support their allegations, these lawyers should face sanctions by the courts and state bar associations.
The irony in all this litigation without evidence is that for decades, congressional Republicans have searched for ways to undertake litigation reform — to halt, in short, meaningless lawsuits. They have submitted bills designed to sanction not only attorneys but the parties they represent when they file baseless legal actions.
More than 40 of these lawsuits have been submitted in state and federal court, and more seem to be on the way. How this is not abuse of process is beyond me, which is why a few Republican senators and, remarkably, even Trump loyalist Tucker Carlson of Fox News, recently called out Sidney Powell, one of the Trump campaign lawyers who has since been disavowed, for having espoused charges of voter fraud but providing no evidence.
Powell not only claimed fraud but also “communist” infiltration from Venezuela, Cuba, and possibly China. As for Venezuela, she complained, somehow, that President Hugo Chavez was behind the scam, though Chavez died in 2013. She also blamed the always targeted George Soros, the wealthy supporter of progressive causes.
According to Carlson, “We invited Sidney Powell on the show. We would have given her the whole hour, but she never sent us any evidence, despite a lot of requests, polite requests. Not a page. When we kept pressing, she got angry and told us to stop contacting her. She never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.”
And now, the campaign has changed tactics to try to persuade Republican leaders of state Senates and Houses, at least in Michigan, to ignore the voters and bring the legislatures into play to select their own electors. This is a direct attack on the American republic and its democratic foundations. A few cracks have formed in the Trump assault, as Alaska Senator Lisa Murkowski and Nebraska Senator Ben Sasse have urged the president to accept his defeat.
Others will surely follow as the Trump campaign and the president himself ultimately realize his loss and continue to plan how either to make a comeback in 2024 or become a major Republican player leading the party in exile. Hopefully by the time you read this, this phase of the assault on American democracy will be over. And more important, the ineffectual lawyers who brought specious cases to the courts will face the consequences of violating well-established legal standards.
Jack Fruchtman, a resident of Aquinnah, taught constitutional law and politics for more than 40 years. He is currently updating his book, “American Constitutional History.”