Trump's legal gambit fizzles — but it's still dangerous

Photo by BRENDAN SMIALOWSKI/AFP via Getty Images

The Trump campaign continues to send dozens of fundraising emails every day. As Popular Information reported this week, these emails purport to seek cash to support Trump's legal efforts to challenge the election. But the money actually goes to pay down Trump's campaign debt and to the Republican National Committee's general operating account. 

But whoever is writing these emails for Trump doesn't seem to have their heart in it anymore. Here's an excerpt from an email sent on Wednesday morning:

I had such a big lead in all of these key battleground states late into Election night, only to see the leads miraculously disappear as the days went by. Perhaps these leads will return as our legal proceedings move forward, but only if we have the resources to KEEP FIGHTING!

This is a campaign known for its bluster and bravado. Now, the strongest statement it can muster is "perhaps these leads will return." What happened?

Trump has suffered a series of humiliating defeats in court. And the campaign's various allegations of fraud have rapidly fallen apart. His lawyers have largely stopped trying to prove fraud and instead are asking courts to prevent states from certifying results — and then hope the state legislatures in multiple states simply declare Trump the winner.

The fact that Trump is trying to convince the courts to declare him the winner of an election he lost is a direct attack on the foundation of American democracy. And the willingness of Republican elected officials to go along with it makes it worse. 

Fraudulent fraud allegations

Trump's core claim is that he lost several key states as a result of widespread election fraud. Since Trump trails by tens of thousands of votes in states like Pennsylvania, Wisconsin, and Michigan, the scale of the alleged fraud would have to be massive. 

Yet, when Trump's lawyers appear in court — even to contest a small number of ballots — they've been forced to acknowledge they have no evidence of fraud. For example, an attorney representing the Trump campaign appeared in court to contest about 600 ballots in Pennsylvania. Under questioning from the judge, he admitted that he had no evidence that any of the ballots were fraudulent. 

THE COURT: I understand. I am asking you a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 disputed ballots?

MR. GOLDSTEIN: To my knowledge at present, no.

THE COURT: Are you claiming that there is any undue or improper influence upon the elector to these 592 ballots?

MR. GOLDSTEIN: To my knowledge at present. no.

The main "deficiency" of these ballots is that the voter did not handwrite their address  on the return envelope or wrote the address in the wrong location.

Under further questioning by the judge, the Trump campaign lawyer admitted that the 592 ballots in question had been "segregated" and not yet included in any count. Trump trails in Pennsylvania by nearly 50,000 votes. The existence of this litigation allows the Trump campaign to say it is pursuing litigation. But this case has no chance of impacting the results in Pennsylvania.

In Michigan, the Trump campaign filed suit claiming that late-arriving ballots had been fraudulently backdated. But the Trump campaign lawyer had no admissible evidence to support that claim. Rather, a poll watcher for Trump, Jessica Connarn, said that an unknown person told her that another person had said. In a scathing opinion, the judge dismissed the Trump campaign's case.

The assertion that Connarn was informed by an unknown individual what ‘other hired poll workers at her table’ had been told is inadmissible hearsay within hearsay, and plaintiffs have provided no hearsay exception...that would warrant consideration of the evidence

Trump trails in Michigan by 146,000 votes. 

In Georgia, the Trump campaign challenged 53 ballots based on the claim from another poll watcher, Sean Pumphrey, who said they arrived late. But in court, Pumphrey and another witness "admitted under oath that they did not know whether the challenged ballots were received on time." Meanwhile, an official for the local election board "affirmed that the ballots were on time." The judge quickly dismissed the Trump campaign's case, saying there was "no evidence" to support it. Trump trails in Georgia by more than 14,000 votes.

The Hail Mary

Unable to prove fraud, the Trump campaign has shifted its legal strategy. In Michigan, the campaign filed suit on Wednesday asking the court to enjoin the Michigan Board of State

Canvassers from certifying the results. 

The case is based on anecdotes to affidavits the Trump campaign collected from 100 people. In the affidavits, "poll challengers say they were denied access to portions of the vote counting, their challenges were not taken seriously or that several different types of ballot processing errors occurred." But, they "do not show proof of widespread fraud or egregious misconduct." 

Several of the afflidavits include allegations that have already been rejected in other cases, including the claim that ballots were backdated. Other poll watchers claimed bias without explaining how that would impact the vote count:

Several Republican challengers at TCF complained about people inside the counting room wearing “Black Lives Matter” shirts. One Republican challenger complained she was called “Karen,” and told to go “back to the suburbs.” The moniker “Karen” has been applied to white women who make false and racially motivated allegations against Black people.

In other words, instead of going through the cumbersome process of proving massive fraud, the Trump campaign is alleging the atmosphere created the possibility of fraud. On that basis, the campaign is asking to prevent the certification of the results. 

It goes unstated, but the theory is if the Trump campaign can prevent certification "state legislatures in Republican states could simply appoint a Republican slate of electors for Trump." This theory is also false. While the "Constitution does give state legislatures the right to set the manner for choosing presidential electors" states have "already set the manner: the use of popular election to assign Electoral College votes on a winner-take-all basis in every state but Nebraska and Maine."

Nevertheless, the Trump campaign is seemingly embracing this strategy, filing a similar suit to prevent certification in Pennsylvania. Republican officials know that these suits will almost certainly fail. But at the moment they are "humoring" Trump. It's a very dangerous game. 

The legal effort has already provided a pretext to deny Biden resources intended to provide a smooth transition in the midst of a deadly pandemic. And if the Trump campaign can find a judge — and a state legislature — to entertain its radical theories, it could create a genuine crisis. 

---