PDS

Brant: this is distressing. Do you have any new information on George’s situation?

I am assuming that Rudy G is NOT committing malpractice. This is the way lawyers talk: i.e., you presume the strategy employed by a fellow lawyer does NOT include malpractice. Here, I am assuming that, instead, Rudy’s team cannot meet the evidentiary standards for fraud. Thus the two if’s used in my formulation. Let’s not get personal, MSK. No need to call me names, and no need to speculate about my motives for making statements here on OL. I might turn out to be wrong in places, but you can at least presume good faith. I’m not interested wasting my own or anybody else’s time. By the way, there is no such thing as an “informal” legal team as you suggest above. I am pretty certain that the fraud claims have not been “farmed out” to Sydney Powell’s team by the Trump legal team. There would be no attorney-client protections under such an arrangement, and any communications between the respective legal teams would be subject to discovery. That’s not a plausible arrangement in this context, and I just can’t imagine the Trump legal team being sanguine about another law firm addressing those issues in a manner that adequately protect’s Trump’s legal interests.

“And, of course, get rid of the bad actors.” How many Justices of the Supreme Court would this include? 7, 9, or just the 3-4 liberals?

You may be right about the strategy you outline above, Ellen. [Good to talk to you, by the way]. That would be a very high-risk, high-reward strategy, and there really is no downside to including the fraud claim in the original pleading or complaint, so I tend to doubt this is what the thinking was. In complex civil litigation, there are usually an abundance of causes of action plead, and when it looks like one or two don’t pan out, those claims can then be voluntarily dismissed. There’s almost no risk to that. There’s a ton of risk to your suggestion, because once the underlying case is dismissed with prejudice (as several of them have been), there is almost no chance that a separate, independent claim for fraud would then successfully be filed. Such a second lawsuit would generally be barred by the doctrine of res judicata. Not to mention that the time constraints that the Trump team is working under would tend to not favor holding anything back in the first instance. Believe it or not, I’m really not trying to Monday-Morning-Quarterback Trump’s lawyers. I’m just trying to make sense of a legal strategy that intimates to the public that there are massive amounts of “election fraud” issues while at the same time failing to take the opportunity to actually litigate those very issues. Something doesn’t add up here.

“There’s a ton load of stuff like that.” This comment proves my point. If so, then why haven’t Trump’s lawyers made fraud allegations? I jumped in above after you posted the video about “election fraud” from EconomicWarRoom. If there is so much “election fraud”, and if it so easily demonstrable, then Trump’s lawyers have committed malpractice by not pleading it. I’m not criticizing the Trump lawyers’ win loss record—which isn’t exactly pretty—I’m criticizing their failure to plead the very cause of action that so many Trump supporters have been led to believe is the cornerstone of stolen election claim itself. If you have the goods, and you have less than 45 days to make your claim stick before the other guy is inaugurated, you don’t forget to plead the fraud claim.

Sometimes a cigar is just a cigar. Fraud allegations can be added to civil proceedings as a separate (Civil) cause of action. The allegations need only be proven by a preponderance of evidence. There is no reason for the Trump lawyers NOT to include fraud allegations in their swing states’ lawsuits—assuming they have the goods. There is a logical and likely reason the lawyers haven’t specifically asserted fraud allegations in Trump’s swing states’ lawsuits—at least the ones I have reviewed. The reason? They don’t feel comfortable making that statement without facts, or admissible evidence. The Trump lawyers could be sanctioned for doing so. Unlike the purely legal arguments such as Equal Protection that are being dismissed by the courts pretty consistently, a fraud allegation requires facts to be pleaded—within the complaint itself—“with particularity”. Has anybody seen the Trump lawyers do this? In any of their lawsuits? Why bring this up? Very simply, I just think it’s worth bearing in mind that Trump’s lawyers have by and large avoided making fraud claims. Those are their actions, not their words. It is tempting to blank out on this, and just keep focusing on general “fraud” theories that come up on the Internet, but those various fraud theories clearly aren’t going anywhere in the Trump War Room. If I have learned one thing from MSK over the years while reading OL—I’m being 100% genuine about this—it’s that a good rule of thumb is to watch someone’s actions, not their words, when assessing a situation. That would seem to be especially important now. And here.

Is there a state court lawsuit in which Trump’s lawyers (as opposed to Lin Wood or somebody) are alleging election fraud? It looks like Trump’s lawyers have actually disavowed any fraud claims in Pennsylvania, Arizona, and Nevada. This is pretty important, no? [Edit: I just read the Wisconsin lawsuit filed by Trump on December 1, 2020, and there is no allegation of fraud.]

Andrew McCarthy at National Review has a pretty blistering piece up about the merits of the State of Texas lawsuit. He claims that the project is doomed to fail because the States lack standing, and that they also may have waited too long (which is undoubtedly true; whether that matters or not in the litigation is a separate question). In 2019, McCarthy wrote a pretty pro Trump book about the D playbook in creating the Russian collusion narrative. He is generally pretty solid on legal issues, imo. Probably worth bearing in mind before labeling McCarthy just another Republican Squish. That said, I just don’t see the point of legal commentators who feel the need to offer a “hot take” in the manner McCarthy did today at NR. He really goes after the AG’s in terms of the motives as well as the merits of their lawsuit, and never once addresses the novel notion that maybe the AG’s are filing suit or joining in the suit because they genuinely believe the relief they are asking for is warranted. Way too much speculation about the motives for the lawsuits, something about which McCarthy has no personal knowledge. The Supremes are going to do something big tomorrow or Friday, or maybe as late as early next week. I’m pretty sure they will schedule an oral argument on whatever motion they take up. When that gets specifically scheduled, then the case is off to the races. I wouldn’t read too much into random, generic docketing notices that do not contain specific dates, times, or descriptions of the nature of the hearing. Up above, MSK asked what the term “intervene” means in this context. It’s basically the same as joining the lawsuit as a plaintiff or defendant, and there must be an interest to be protected that would be left unprotected with allowing such intervention.

The other states having joined the Texas lawsuit makes this a true heavyweight fight.

Powell’s work on behalf of General Flynn was some of the best I have ever seen. In fact, that work convinced me to contribute to Flynn’s legal defense fund. On the other hand, she hasn’t exactly set the world on fire as of yet in any of her Trump cases. Election law is pretty nuanced, and it is a basic fact that every lawyer wants to win at the trial court level because that has a crucial effect upon the standard for appeal. Losing is not a strategy to get to the Supreme Court, in other words. As with chess, a beginning loss can have a decisive effect upon the middle and end proceedings. There is an old cliche about the two most important rules for winning an appeal: (1) first win below, and (2) don’t forget to wear your tie to the oral argument. Does this mean she can’t win in front of the Supremes? Obviously not. Maybe her Biblical Kraken bravado was well-planned 3 level chess, and not simple hubris—something, by the way, great lawyers are highly, highly vulnerable to developing. We shall see very soon.

MSK: This one could be a Big Cut. I read their motion. I’m pretty sure the Supremes will have to decide their motion to stay sometime this week. Be on the lookout today or tomorrow for the subject states—and other Red states—to join in this lawsuit. If that happens (not sure about the procedural hurdles to that In MIchigan, Wisconsin, Pennsylvania or Georgia—especially if a state’s governor does not consent) then most of the key issues look like they will be teed up for an overarching Supreme Court ruling. Unlike other Kraken-type lawsuits, this one is brought by the Texas Attorney General. That’s huge in my opinion. There’s no crackpot component to this lawsuit, in other words. I suspect you will be disappointed in the ultimate Supreme Court ruling. I suspect it will be very lawyerly and narrowly decided against Trump. Probably 5-4 with a very unexpected crossover vote, plus Roberts trying to be a hero. Just my intuition. I wonder why this wasn’t filed a month ago. I’m afraid that might bite them.

Ellen: I’m not a mind reader, but I highly doubt a 69-70 year old man—who last served as state court judge 20+ years prior to the Gorsuch or Kavanaugh appointments, realistically expected a Supreme Court appointment. The “bench” for potential all-star Supreme Court judges—both then and now, in conservative legal circles—is quite deep, something he undoubtedly knew. I can’t even remember when an active state court trial judge, let alone a retired one, was appointed to the Supreme Court. There is always the possibility that Napolitano is simply voicing his honest opinion, i.e., no secondary motives. That would be my default position, mainly because I don’t view reality as one big Soprano’s episode.

Peter: I have taken a look at your website, which is fascinating. Thank you for putting these materials in the public domain. I just read your translation of E's Letter to Menoikos and enjoyed it greatly. Very interesting how much it reminded me of some Seneca's letter's (On the Shortness of Life?), at least in tone if not also in substance. Thanks again. PDS

Couldn't Roark have done a podcast or something instead?

Michael: I’m looking forward to this project of yours. Cool stuff.