Tag Archives: lawsuits

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.

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.

 

Fighting Back

You can file this under “thank goodness the news isn’t all bad”–or, if you are like the worry-wort who writes this blog, you can file it under “this is why the courts are so frigging important and we will lose the rule of law if Trump and McConnell and the GOP keep packing them with partisan ideologues.”

Timothy Egan recently had a column in the New York Times, titled “Revenge of the Coastal Elites.” In it, he celebrated the near-perfect “score” West Coast states have amassed in the numerous lawsuits they’ve brought against Trump and company.

Egan began with an “in your face” celebration in California.

LOS ANGELES — A big crowd showed up for the festive unveiling of President Barack Obama Boulevard here last weekend, at the intersection of “hope and resistance,” as one news outlet put it. Sure, it’s just a three-and-a-half-mile stretch of road, a living ex-president’s name added to streets honoring Jefferson and Washington.

But the ceremony also marked the latest, and one of the most joyous, of the not-so-subtle ways in which the West Coast continues to live free and prosper under a president doing everything he can to hurt the 51 million Americans in the three lower-48 states that hug the Pacific shore.

As Egan noted, Trump absolutely hates the West Coast, and it certainly looks as if the  states of Oregon, Washington and California return the sentiment.

His energy and environmental policies would hasten the collapse of some of nature’s finest handiwork, from a pristine coastline that he tried to open to oil drilling, to forests that will soon be aflame again because the president will not do anything to stall climate change.

His trade war is a bullet that could wound the nation’s most trade-dependent state, Washington, which produces apples and wine and software and coffee and jetliners and trucks andhealth care for the world.

To Trump, everything “Out West” is like occupied territory. Almost daily, he issues legal missives and executive orders intended in some way to make life worse on the West Coast.

But as Egan goes on to report, there’s “good news for E Pluribus Unum: He’s losing.” Consistently.

The West Coast is crushing it against Trump. Using the law to fight a bully, the Constitution to challenge an authoritarian, and facts against Fox News-driven fantasy, California, Oregon and Washington have stalled some of the most despicable of Trump’s retrograde policies.

California’s attorney general, Xavier Becerra, is currently leading an aggressive coalition to protect the Affordable Care Act, which allows 133 million Americans to keep their health insurance despite having pre-existing conditions. If that effort is as successful as previous ones, he’ll succeed.

Federal judges have repeatedly sided with California against Trump on air pollution, toxic pesticides and oil drilling. In April, the Interior Department was forced to suspend a plan to drill off the Pacific shore. Anda federal judge in Oregonhas so far backed a far-reaching attempt to hold Trump’s government responsible for averting climate change.

West Coast governors have defied Trump’s ban on transgenderAmericans serving in the military; they’ve opened their National Guard ranks to the people Trump is trying to shun from service.

Washington’s attorney general, Bob Ferguson, has filed 36 lawsuits against the Trump administration and has not lost a case. His first takedown of the tyrant halted, nationwide, the initial Muslim ban.

Egan ended his report by reminding the rest of America how economically successful those recalcitrant states on the West Coast have been, and comparing that success with Trump’s performance.

Under Trump’s guidance, the United States is running up debt faster than one of his bankrupt casinos. It’s what he does. By contrast, California, after raising taxes on the rich and wages for the poor, after extending family leave and health care, is projecting a $21 billion budget surplus for the coming fiscal year.

Talent and capital can go anywhere. It’s drawn to the West Coast, because creativity doesn’t grow well in nurseries of fear and tired thinking. Washington was named the best state for business in 2017, and the best place for workers in 2018.

We’ll soon look west for a replacement for Trump. By moving their presidential primaries up to March, California and Washington have assured that the one-in-seven Americans who live in those two states will have an early say. It’s only fitting, given how much they’ve contributed to the fight against the Trump blight on the Republic.

As wonderful as these successes have been, they highlight the critical importance of maintaining a competent, non-politicized judiciary. Without judges whose allegiance is to the Constitution and the rule of law, we have no checks and balances.