← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Empty Suits
00:51:32
Do Trump’s lawyers have the goods?
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- [00:00]
A
This ad free podcast is part of your Slate plus membership.
- [00:09]
B
It really doesn't seem that there is a viable legal strategy to get a case to the courts that could plausibly serve as like a version, a 2020 version of the 2000 Bush vs Gore case.
- [00:22]
C
You may have lawyers who are willing to take the case. I mean, Trump throughout his career found lawyers who were willing to take these cases. He found Michael Cohen who was willing to threaten people with lawsuits or bring lawsuits in order to shut them up. And that's the way he always operated.
- [00:48]
A
Hi, and welcome to Anarchist. This is Slate's podcast about the courts and the law and the Supreme Court. And I think at least for the last nine or so months, it's been about voting and elections, law, kind of relentlessly. I'm Dahlia Lithwick. I cover those things horsely. As of this taping on Friday, the 2020 election is just creeping up to the brink of being called for. Joe Biden has not yet happened. Numbers coming in from the remaining states that are in play are, I think, going to serve to establish with certainty that he has won the election. Although to be sure, Donald Trump is continuing to say that he has prevailed in this contest. Later on in this show, we're going to talk to James Zirin. His book Plaintiff in A Portrait of Donald Trump in 3,500 lawsuits, sort of set forth the playbook that you're seeing in Donald Trump and his campaign's litigation efforts. All this week, Slate plus members are also going to get to hear from the wonderful, wonderful Mark Joseph Stern about a vitally important case argued at the Supreme Court this week pitting the rights of LGBTQ foster parents in Philadelphia against the religious liberties of foster agencies. To become a Slate plus member, go to slate.com amicusplus plus members get access to bonus ad free content from Slate podcasts. They never hit a paywall@slate.com and, and most importantly, Slate+ members support the journalism we do here at Slate, where we are very tired. Thank you so much, plus members for your support this week and always. We could not do this without you, so we wanted to start this week with our friend Rick Hassan. He teaches election law at UC Irvine. His book Election Meltdown became our playbook on this show as we crafted the series last winter, Election Meltdown, trying to probe well in advance what could go wrong in a 2020 contest with fake news, mistrust in systems and institutions, dangerous escalating nihilist rhetoric, and vote suppression, among the other things that Rick had warned us about in his book. I think it's fair to say that Rick laid the table in advance for us at Amicus and our listeners and also later for much of the country on how to think about election reform going forward and also how to worry about the election that has just come. And so it seems that there's nobody we would rather usher in the end, hopefully of this election season than our dear friend and contributor, Rick Hassan. So, Rick, I know you are crazy tired. Welcome back to the podcast.
- [04:00]
B
Great to be back with you.
- [04:03]
A
You are very tired. I know. And I think probably America is very, very tired. As of this taping Friday morning, it looks as though Biden has locked up the votes. It has not been called yet. Are there any pathways left that you can see for Trump to take the Electoral College?
- [04:24]
B
Well, I'm not someone who counts votes, so I'm going to have to rely on others who will say when it's safe to call Pennsylvania, probably by the time listeners hear this, it will have been called. But to the extent Trump is looking for a litigation path to try to reverse the outcome of the election, it's extremely unlikely. And I think that's true for three reasons. First, if it doesn't come down to a single state, even if there were a problem in a state, say Georgia goes to a recount, since that looks very close as of now, that wouldn't be decisive for the outcome. It's not a one state margin. The second is even within a state, if it came down to a particular state, you'd have to have some theory as to why the election might be overturned. So if, for example, In Pennsylvania it's 80,000 votes, even if there's a dispute about the late arriving ballots, which was an issue that went to the Supreme Court a couple of times before the election, those ballots, if they're not decisive, that's not going to change the election outcome. Which brings me to the third point, which is that Trump, so far his legal team has come up with basically nothing of substance. Most of the cases are about we want observers a little closer in the rooms where they're counting the votes or we think that some illegal votes were counted and we've got a bunch of cases of fraud, so far in those cases, they've produced no evidence of that. There was a case in Georgia where the judge rejected it. There's a case now filed in Nevada where the complaint provided no evidence. It really doesn't seem that there is a viable legal strategy to get a case to the courts that could plausibly serve as like Bush versus Gore in Florida, where it was so close that there was the potential for the election results to flip.
- [06:11]
A
Can you just unpack briefly the recounts, because some of these states have margins within which a recount is mandatory. I gather the Trump campaign has asked for a recount already in Wisconsin. All of that is in one sense perfectly normal. This is the system working. Is there anything to watch for in the states that are going to start to engage in recounts?
- [06:37]
B
I don't think they've actually asked for the recount in Wisconsin formally because you can't request it until the votes are certified, which hasn't happened yet. There's about a 20,000 vote margin right now in Wisconsin, and we've never seen a statewide recount that's flipped anywhere near that number of votes. Statewide recounts generally fail. The average number of votes that change in a statewide recount is 282, according to a study looking at this over, I think a couple of decades by fair vote, you're not going to change an election outcome that's 20,000 votes apart. Absent finding some massive problem how the election was conducted. And there's been no evidence of any problem in how Wisconsin or any of the states have run their elections, you'll find a small problem here or there. But to overturn election, you'd have to have some kind of massive failure. And fortunately we didn't have that. Some of the nightmare scenarios that we talked about, like a cyber attack that knocks out the power in a city in a swing state, it didn't happen. And so fortunately the election went off much better than it could have in a pandemic. And so trying to use a recount or something to attack a clean election is unlikely to succeed unless we have a situation like Georgia where as of the time that we're taping, the candidates were separated by fewer than 2,000 votes there. There's at least the potential that something could change.
- [07:58]
A
But Georgia won't matter if Pennsylvania is culled. So even that goes back into your world of it won't make a difference in that one state.
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B
That's right. If the votes hold, as they might, we'd have Biden at I think 306 electoral college votes. And that gives him some cushion because he needs only 270.
- [08:17]
A
Rick, you talked at the very top about these lawsuits that are being filed seemingly kind of willy nilly, there's a way in which I guess in Michigan they actually filed in the wrong court. In one of the Pennsylvania suits this week, the judge wasn't even clear what the relief was that they were seeking. I mean, this just is not the A team, right? This is not James Baker and Ben Ginsburg. And you know, sir, election lawyers going in. This feels like it's, as you noted, I think on Twitter, some of the rehashed vote fraud squad lawyers we haven't seen since Bush v. Gore and some people who don't seem to know what they're doing. And it all seems to be masterminded by what Pam Bondi and Rudy Giuliani. I think when you and I have been talking the last few weeks about the possibility that this ends in the courts and this ends at the Supreme Court, we anticipated that this would be done. If it were to be done by serious lawyers bringing serious claims, what does it signal that the conservative legal establishment has just utterly washed their hands of this enterprise?
- [09:29]
B
Well, I think it's worth contrasting what is happening with the suit that went to the Supreme Court twice already on the late arriving ballots with all of.
- [09:39]
A
These other lawsuits in Pennsylvania.
- [09:41]
B
Yes. So there was an effort before the election to try to roll back a change that the Pennsylvania Supreme Court ordered which extended the deadline for the receipt of ballots by mail in Pennsylvania from election day at 8pm to 5pm on November 6, a three day extension. There was an argument, and we can talk about the details of it, but it was an argument about this potentially being the state Supreme Court taking power away from the state legislature to set the deadlines. And that case was seriously litigated. Supreme Court weighed in on it twice. You had serious lawyers on those sides. And if in fact Pennsylvania came down to those votes, I think, you know, we could imagine a world in which the A team would come out and would litigate that stuff. But all of the other lawsuits that we've seen so far, you don't have the Paul Clements coming out. You don't have the Ted Olson's, the top drawer former solicitors general who bring these suits and bring a kind of gravitas. Instead you have these small suits. And the reason I think that these lawyers are not getting involved is because these are not cases that could potentially lead to a difference in the outcome. Some of these cases are premised on faulty factual assertions. So for example, there was a case in Georgia the other day where the claim was that some votes that arrived after election day were being counted and it was based on the affidavit of a single election observer who didn't really observe anything and the judge just threw it out. There was another case brought in federal court in Pennsylvania involving how many observers could be back in the rooms where they're counting the ballots. And the federal judge was exasperated because he said, you know, you're making it sound like there are no people in there. Are there any people? And the Trump lawyer said, there's a non zero number of observers. And, I mean, it was just litigated so poorly. You're right. It wasn't clear what the relief was. This seemed to be really about one or two things. One possibility, this is an attempt to delay the certification of the votes in states so that Trump could continue to search for a path to overturn the election. That is, there's nothing plausible yet, but maybe something will turn up. The other possibility is that this is an attempt to humor the boss. Dan Dresner has this book, Toddler in Chief, and this seems like maybe you're trying to please Trump by giving him what he wants. And he said he wants to litigate the hell out of this. And already before the election said, we're bringing in the lawyers. And so they brought in the lawyers. They just brought in lawyers to file. I don't want to call them necessarily frivolous suits, but really small bore lawsuits that are not going to really make a difference in election outcomes.
- [12:38]
A
And maybe that leads inevitably to the question that's been on my mind all week, which is, where is Bill Barr? You and I, I think within 24 hours of each other, wrote pieces this summer sounding the alarm about Bill Barr echoing this rhetoric about, you know, mail in ballots in foreign countries, stealing ballots and the, you know, tampering with the votes. And Bill Barr went to the mat on these claims about the inherent fraud of mailing in ballots. He has been silent, if I'm not mistaken, other than one little throat clearing this week about allowing folks into polling places. But does it signal something that listeners don't understand, that Barr has gone utterly, utterly silent? As Trump rages about the things that Barr seemingly agreed with last summer, I.
- [13:34]
B
Think it shows that there's a bottom even for Bill Barr, which is nice to see. We're not in full banana republic mode where you have the government making completely unsupported factual claims about an election being stolen. I was very concerned in seeing the report that DOJ had changed its rules so that it could send armed officers to seize ballots in the case of a potential election investig. None of that has materialized. The DOJ silence, I'm sure, is something that is really bothering the President. He's called on the Department of Justice to get involved. But if you're thinking about this as Bill Barr and you're imagining a post Trump world. If you're trying to salvage any semblance of your credibility, you're not going to do something that's going to further undermine that credibility to no political end. Because these things are not going to going to lead to a difference. Because at the end of the day, the norms that we have that have been so pressured seem to be holding at the moment that we need them to. I mean, we're recording this again Friday morning. We don't know exactly what things are going to look like. But I come in optimistic that we're going to make it through this moment.
- [14:46]
A
And that raises the one big existential question I wanted to ask you, Rick, which is you and I spent a lot of months worrying about institutions and systems not holding and, you know, decentralized, rickety way that ballots are counted and just the possibilities. I mean, I was thinking through all the conversations we had about what could go wrong. Polling place violence didn't happen. As you said, Massive hack into the power grid in Detroit didn't happen. Deepfakes that change voter behavior didn't happen. Do you walk away from this election assuming, as you say, it's over and maybe it's not sanguine that like, ha, the system worked, the system really worked, or do you feel, holy cow, we clawed back catastrophe, but that doesn't mean the system works? In other words, maybe it's too soon to ask that question, but given how panicky both you and I were about whether institutions would hold, do you feel that maybe the framers got it more right than wrong here?
- [15:59]
B
So I think that this election does not show that we are in a healthy democracy. It shows that we were able to survive because we got a little bit lucky. If the election had been just a little bit closer. I think the kinds of throwing this to the courts and potential violence and protests and counter protests and all of that really could have come to fruition. I mean, think of what Trump is building right now. He, and he's getting some echoes from people like Lindsey Graham and Ted Cruz and Josh Hawley is saying that the election was stolen. The Biden presidency is going to start out with a fairly significant portion of Trump's base believing that massive Democratic voter fraud stole this election from Donald Trump, a claim that is utterly belied by the evidence. So all of the pathologies that I described in election meltdown just seem to be still right there. And we got lucky. We didn't get smart. Now, election administrators worked really hard. And they made this election not be a failure in terms of enfranchisement. And despite the fact that Republicans, I think I counted in at least 17 different ways, I mean that literally at least 70 different ways tried to make it harder for people to vote in the middle of the pandemic. We still had record turnout. All of that is great. But if you go back to election meltdown and you look at the four reasons I say that Americans trust in the legitimacy of elections is declining, you see that those are the same things that played out here. It was voter suppression, pockets of election administrator incompetence that are turned around and portrayed as fraud by members of the fraudulent fraud squad. Dirty tricks in elections, including this hare brain scheme now where Wisconsin Republicans are trying to get Pennsylvania Republicans to send in late ballots illegally to try and show that the election was rife with fraud. Incendiary rhetoric about rigged or stolen elections. The two speeches that Trump gave this week where he claimed election fraud were, were among the lowest moments in American democracy. And so those four problems only got worse. This time. We dodged a bullet. We're in deep trouble. And with a Democratic president and a Republican Senate, I don't see that we're going to get the kind of fundamental election reform that we need to avoid these problems. And so we're going to be doing this podcast again in early 2024. Hopefully by then I won't have to wear a mask when I see you. But I am not at all confident that we are somehow out of the woods when it comes to running our elections in a way that people will accept as legitimate.
- [18:41]
A
I have been thinking a lot about this problem of Donald Trump going from this super powerful, unbeatable, nothing touches him force of nature to kind of crazy uncle MSNBC cutting away the speeches are nuts. Everybody laughing into their sleeves. And I think we toggle back and forth, even in the media between those two realities. You know, that he is all powerful and that he is absurd. But I think you're saying something really important. And I just feel that it's worth emphasizing those two speeches. He's given the statement that the White House put out on Friday morning about stolen elections, about how this, his entire thing is a sham. That's profoundly dangerous. It's easy to say it's also Saturday Night Live for tonight, but it's also deeply destabilizing for a lot of people, millions of people who take him at his word. And so I think there's a way in which some of the giddiness of watching this King Lear performance elides this much, much terrif, much more, I think in some way terrifying problem of what it is that he is going to do on the way out.
- [20:08]
B
Well, there's the what does he do between now and January 20, which is concerning because he still has the power of the presidency. He still has a lot of levers that he could use. But I'm even more worried about the post presidency because, you know, whether he sets up his perch at Trump TV or, or he announces that he's running for president in 2024 and starts his rallies back up and his super spreading events and all of that, he's going to be someone who is just going to continue to egg on millions of followers who believe whatever he says, even when it is completely unsupported by the evidence, even when Fox News comes out and says the president has not put forward evidence to support his claims. And so, yeah, I mean, we can celebrate that. We're, it appears, going to have a relatively peaceful transition of power. But that doesn't mean that we're out of the woods in the short to medium term in terms of the American civil life and what it means to be a gracious loser. What defines a democracy is that you hold a free and fair election and that the losers, although quite disappointed, accept the election results as legitimate and agree to fight another day under the rules that we have. The best case scenario is that Trump leaves office grumbling about voter fraud and we don't hear a lot more about it. But I don't think that's the way things are going to go.
- [21:35]
A
Rick, I want to ask you one last slightly wonky question that I think belongs at the center of this conversation, which is you've already said it's unlikely we're going to see serious bipartisan election reform, the kinds of things you've been advocating for as long as I've known you going into the next couple of years. But I think there's another problem, which is we're going to see redistricting, we're going to see this census being deployed. We're going to see more gerrymandering. In other words, I don't think this is a net neutral coming out of this election. I think we are going to see in some sense a lot of structural changes that are going to mean even less democracy next time you and I do this show in four years. Can you talk a little bit about what that looks like? Because I think, as I said, it's not getting enough attention this week.
- [22:25]
B
I mentioned earlier this lawsuit that Trump brought about the postal ballots that are coming in late in Pennsylvania. And although I don't think that's going to end up leading to anything here, what the pre election fights over that case and related cases revealed in is a Supreme Court that is curious about the idea that only state legislatures have the power to set election rules and that state courts and state agencies don't have the power to do so. This could set up a scenario where the supreme court reverses a 2015 case, the Arizona Independent Redistricting Commission versus Arizona Legislature. And in that case, on a 5 to 4 vote, the Supreme Court said essentially that you can have redistricting reform done by voter initiative without violating the rights of state legislatures to set the rules for elections. It was a five to four decision. It was the four liberals on the court. Then with Justice Kennedy, Chief Justice Roberts wrote a really impassioned dissent. If we're outside the realm of deciding a presidential election and these issues come back, it's quite possible that we're going to see the Supreme Court say that in federal elections, voters can't pass initiatives to make voting reforms, that state courts can't rely on state constitutions to protect voting rights. These would be profoundly terrible changes, and it would make the Supreme Court really the biggest impediment to election reform. Forget the fact that Mitch McConnell is not going to pass a Biden bill to establish election standards across the country or something like that. You can imagine a situation where, for example, the North Carolina General assembly, their legislature passes a gerrymandering plan. There are a bunch of Republicans there and they've been engaged in some very tough gerrymanders in the past and say the state Supreme Court, which is Democratic dominated, strikes it down as violating the state constitution. The U.S. supreme Court could come in in that case and say, you know what? State Supreme Court can't do that. State legislature is supreme gerrymandering back on the boards. Or you think about all the election reforms in the western states, especially that have been passed by voters through voter initiatives, establishing redistricting commissions, establishing open primaries, requiring that there be automatic voter registration, all kinds of things passed by initiative, all of those are potentially under threat over the next few years if the Supreme Court comes in and adopts this very muscular independent state legislature doctrine. So I'm worried about the courts on that sense. I'm worried about the courts also in terms of allowing more voter suppression and eviscerating the remaining parts of the Voting Rights act with a 6 to 3 Supreme Court. And now, you know, two weeks ago the conversation was about court packing. Now the conversation is about whether Justice Thomas or Alito will retire during the lame duck so that there could be a 40 year old Trumpy judge put on the Supreme Court. Things can go very bad on a 6 to 3 Supreme Court when it comes to voting rights. There's a voting rights case out of Arizona the Supreme Court's going to hear later this term. And the case we talked about on one of the earlier episodes of election meltdown involving Kansas, the Fish versus Kobach case, this was the case about show me your papers before you can register to vote, show me a birth certificate or naturalization certificate. That case, the cert petition has been filed. That case is going up to the Supreme Court and they're going to decide probably early 2021 whether or not they're going to hear that case. I'm really worried about what's going to happen with voting rights and election reform over the next few years. Have I cheered you up yet?
- [26:10]
A
Everybody is going to get into their beds and put their pillows over their heads. I want to end on one happy note. I don't disagree with anything you're saying, and I think that Donald Trump's judiciary didn't have a chance in this election to really flex its muscle. But it's, it's going to. And I think we forget that at our peril. I want to end with one slightly optimistic note, which is in some sense, despite everything, people voted, people voted despite Covid, they organized, people knocked on doors, they, I mean, Stacey Abrams changes the shape of the race in Georgia. I wonder if part of the problem on this show is that we talk about systems, we talk about courts, we talk about what's gonna happen in the House, what's gonna happen in the Senate. But despite everything, despite the rug of despair that has rolled us all the way from our election meltdown finale till today, somehow people voted and overmastered all of it. And I wonder if maybe you could suggest for folks who were counting on court reform, who were counting on massive, massive HR1 style voting reforms, what's the work? What's the work for people who've been organized and activated and want to claw back for democracy in the coming years.
- [27:47]
B
A lot of that work is going to be on the state and local level. And we see Georgia is a great example that grassroots organizing and political activism can make a difference. Voter turnout was way up. In some places that benefited Biden, in some places that benefited Trump. But for our democracy, the more people who are voting and who are participating, the better we're going to be getting state legislatures to make changes like automatic voter registration, which turn out to be so important in Georgia. Georgia is a Republican state and they made it easier for people to register to vote. They've done other things that are terrible. We've talked about it on the show, but they did make it easier for people to register to vote. I mean, there are lots of things that can be done. I just posted on my blog the fact that according to a study by the Civic center, there will be 23,000 more young people who will be able to vote in the Georgia runoffs than there were for the election in November. That is, there are 23,000 more Georgians who will be 18 by the time we get to the next election. These runoffs that will happen and those people can be mobilized and those people will become registered because of Georgia system. So these things can make a difference.
- [29:01]
A
Rick Hassan teaches election law at UC Irvine. His book Election Meltdown, not just was our playbook on this show and on our series of the same name, but I think has really become the blueprint for what needs to happen going forward. Captain, my captain, there's no one I wanted to talk to more than you today. Thank you. I know it's been a long, long week, but we so are so, so, so grateful to have you on the show this week.
- [29:33]
B
I really appreciated your support for delving deep down into voting rights and election law because this is so important for our democracy. People have to understand the rules and they have to know that we don't have to take the rules as given and we can fight for rules that make it easier and fairer for everyone to participate.
- [30:01]
A
So over the past few weeks, one person has been in my mind almost every day, and that is Jim Zirin. He was a guest on this show last year and he described for us Donald Trump and the thousands of lawsuits in which he was either a plaintiff or a defendant. When he was a plaintiff, these were frivolous suits. When he was a defendant, he just ran out the clock. But in the aggregate, these lawsuits tell a story of how Donald Trump managed to delay, harass, bankrupt, distract anybody who tried to use the courts to bring him to justice. Now, this week, I have to tell you, we saw that exact pattern playing out. Trump campaign filing really preposterously silly suits, trying literally to stop counting ballots that had been cast well in advance of the election, calling press conferences to announce that victory had happened in the courts, other press conferences to announce that the election had been stolen I guess I figured I wanted to end the Trump presidency on this note. Sometimes you just cannot sue your way to victory, not in a democracy. So I'm delighted to welcome back James Zirin. He is a former assistant U.S. attorney for the Southern District of New York, where he served in the Criminal division under the legendary Robert Morgenthau. Jim's writing has appeared in major periodicals, From Forbes, the LA Times, to the London Times, the Nation, the Hill, Time.com and the New York Law Journal. He's also a member of the Council on Foreign Relations. And his book, Plaintiff in A Portrait of Donald Trump in 3,500 lawsuits, really did help me understand this entire year, including the impeachment, through the lens of Donald Trump and how he uses the law. So, Jim, welcome back to the show. I know it's been a long week for you, too, and we are delighted to have you back.
- [32:16]
C
Well, I'm delighted to be here.
- [32:17]
A
And I wonder if you can talk about just through that lens of your book and these thousands of lawsuits that you looked at over Donald Trump's career, starting from the very early days in real estate land, to really, up to this minute, when we look at suits involving Eugene Carroll, what the pattern is and how that pattern has played out this past week in Michigan, in Pennsylvania, in Georgia. What are we seeing and why is it so resonant for those of us who remember, you warned us of this less than a year ago?
- [33:01]
C
First, it starts with the father. Most things start with the father. And his father said to him, there are only two types of people. There are killers and there are losers. You've got to decide what you want to be. And the one thing that psychologically he can't bear to be is a loser. And then you move on in his career, and he meets the legendary, or I should say, the infamous Roy Cohn in a bar. And Roy Cohn was a lawyer who had contempt for the law. Eventually, he was disbarred. He used to say to his colleagues all the time, f the law, who's the judge? And the idea was that there is no rule of law. The idea is that it's just another political process to be maneuvered. And Roy Cohn had a number of precepts which appeared to endear him to Donald Trump. The first was that beat the system. Roy Cohn was someone who had beaten the system. He was indicted three times. He was acquitted three times. And his adversary was none other than the man whom you call the legendary Robert M. Morgenthau, who was my boss, the Second thing is, whenever you're attacked, counterattack. And that played itself out in the first lawsuit where Cohen represented him, where the government sued Trump and his father for discrimination in housing in 1973. And they immediately. Cohn was a lawyer, and Cohn and Trump launched a counterclaim against the government, the United States of America, for $100 million, and called a press conference to announce it. Well, that was dismissed about two weeks later as being frivolous. But the whole idea was to set the government back on its heels to make the Nixon's Department of Justice, as it was at the time, have second thoughts about whether they should have brought the suit in the first place. Well, of course, the suit was ultimately settled. The next precept is a lie. So he did that in the discrimination case. He said we weren't discriminating against blacks. We were discriminating only against welfare recipients, because if they moved in that the other tenants would be dissatisfied and they'd want to move out. Well, the fact of the matter is the FBI sent testers to Trump Properties, both blacks and whites, and the black testers were told there were no apartments available. White testers were told that there were apartments available available. The next principle is that no matter what happens, you claim victory and go home. So we see that playing out in the election. So he's done all of these things. He's, he. I mean, what seemed to be particularly frivolous is that he's been claiming this election was a fraud since July. Now, why didn't he bring lawsuits then? Why didn't he point to instances where the election was a fraud or states where the election was a fraud? He kind of zeroed in as time went on on mail in voting, which is a time honored practice in many states. Some states only have mail in voting. If there was fraud, you'd expect that he'd come up with evidence. Now, I'm sure there are isolated instances of fraud. They're not widespread instances that anyone's been able to point to that dead people voted on election Day, they certainly didn't go to the polls and vote. If dead people received ballots and somebody got the ballot, signed the name of the dead person and sent it in, those instances are few and far between and they don't meet the test, which is applied by every court that's considered considered election cases, which is, would there be a substantial likelihood of its changing the outcome?
- [37:14]
A
You said the secret sauce all those years ago was his. Roy Cohn. And we have seen throughout four years of this administration, someone or other, whether it was Rudy Giuliani or Mark kasowitz.
- [37:34]
C
Or.
- [37:38]
A
Don McGahn or Bill Barr willing to be his Roy Cohn. And I can't help but wonder how central is the fact that his Roy Cones are just gone. There is nobody filing these very small ball suits in Michigan, in Pennsylvania, in Georgia. These suits are not being brought by powerhouse lawyers of whom the courts are terrified. They kind of seem to be brought by whatever the Bad News Bears equivalent of the American legal bar is. Is that what's fallen out at center is he just doesn't have the legal infrastructure he's had for decades to kind of wreak terror.
- [38:27]
C
Most reputable lawyers understand that they have to represent to the court that they think this is good ground for a lawsuit. And with all the charges of fraud, it's so easy to holler fraud. But with all the charges of fraud, I haven't seen any specific allegations of fraud which have proven, which would have changed the outcome of the election. And most election lawyers, most litigators would insist that there be such evidence before they'd go to court. Otherwise the judge would cut the them off at the knees. So you may have lawyers are willing to take the case. I mean, Trump throughout his career found lawyers who were willing to take these cases. He found Michael Cohen who was willing to threaten people with lawsuits or bring lawsuits in order to shut them up. And he. And that's the way he always operated. I'm not surprised that you haven't had Ted Olson's bringing lawsuits on behalf of Trump anywhere in the country. You've had lawyers whose names would not be familiar, either to you or to me.
- [39:35]
A
And in addition to that, I think we have judges who, at least in these, again, small ball lawsuits we've seen all week, not having a lot of time or patience for the idea that we'll use this lawsuit to run out the clock or to distract any of the other tricks that you described up top. We have judges just summarily saying, that's hearsay. Go away. You have no evidence. Go away. I don't even understand what relief you're seeking. Go away. So in some sense, there feels like if you don't have a judge who is willing to let this pattern that's been playing out, as you say, for thousands of lawsuits, judges who are just not willing to let their courtrooms be repurposed as Trump machines, that too, is a piece of what's changed in the last week.
- [40:30]
C
Yes, I think judges, most judges want to apply the law. They don't want to politicize the judicial process. And if you go to court without evidence, you're going to be thrown out on your ear, number one. Number two, what is basic to our democracy is that the people get a chance to choose. They have a chance to express what we call the will of the people. The Constitution starts out we the people. And you were seeing democracy at work in this election. It's a close election, no question about it. And in a close election, there will always be claims that there was some kind of dark presence practice going on. But if you can't back that up with proof that that would have changed the outcome of the election, you're going to be thrown out of court.
- [41:24]
A
I want you to talk for a minute about Rudy Giuliani, if you would, because in some sense, legendary prosecutor, legendary mayor, legendary in good and bad ways. And suddenly, a little bit this week feels like he's in this clown car with Pam Bondi and Corey Lewandowski and Eric Trump and Jared Kushner, driving around to make really bogus claims, as you said, of fraud, to make grandiose claims of victory in very trivial lawsuits. What? I don't even know quite what my question is, Jim, but it's clear now, particularly in the wake of the really fanciful attempts to use Hunter Biden's laptop to create another iteration of but her emails. Rudy Giuliani is just clearly not Donald Trump's.
- [42:25]
C
No, I don't think he is. And I've known him for many years. He was certainly a moderate Republican when he was mayor of New York City. He was tough. He was great at 9, 11. And he was known as, after that, as the people's mayor. I think he was sold a bill of goods on Ukraine, and his dealings with Ukraine are the subject of investigation and will be the subject of further inquiry. So I don't know where he went off the rails or why he went off the rail. The rails. He's been a vocal advocate for Trump, but he's been a prosecutor who doesn't have the goods. And he really has failed to come up with evidence. And the rant he gave, well, first place, he appeared on Russian television, which was amazing, in which he talked about the election and the rant he gave about about Hunter Biden and all the evidence against Hunter Biden. He was talking so fast, no one could even follow what he was talking about. So I don't know where he went off the rails, but somehow or other along the line he did.
- [43:36]
A
Last time you and I spoke, you had just published this book, gone through as we said these thousands of lawsuits that Trump, when he was on the receiving end, certainly, as you say, there could be real consequences. But so much of his lawsuits were these transactional efforts to terrorize, you know, people into silence, to draw out and chill litigation, to essentially use either money or the power of the courts to beat away, beat away, beat away at the justice system until frequently people on the other side were either bankrupt or exhausted or terrified. And failing all that, as you said, then just declare victory. As you look at that through the rear view mirror this week, and the attempt to fight the election on those terms and the ways in which I think it's fair to say there is this kind of funny, sad King Lear quality, none of these systems are supporting him. There is no lawyer, serious, consequential lawyers supporting him. Bill Barr has disappeared from the scene. Is there a way in which you can make any sort of big claim about how Donald Trump, at the end of the day, couldn't just sue his way out of democracy?
- [45:05]
C
Well, I think he would like to. He feels this result was terribly unfair to him. He feels the media have been terribly unfair to him. He feels that the facts are irrelevant. He called the press the enemy of the people we've been living in. Four years of truth decay. I don't quite know what the total is of lies he's told in office, the lies he told in his speech from the east wing of the White House, considered the most, most dishonest address he gave during his presidency. But, you know, he's angry. It's true. He doesn't like to lose. No one likes to lose. People are angry when they lose. He likes to hold grudges and he likes to make allegations. And that's the way he has thrived in business, and that's the way he thrived as president. He terrified all of his Republican enablers that they would have to suffer the consequences if they crossed him. Indeed, he was able to keep them in line. Interestingly, not that many Republicans have stood by him in all this. But you do have Ted Cruz. Lindsey Graham first stood by him and then seemed to dial back from it. But that's what Lindsey Graham likes to do. McConnell hasn't said very much except that every legal vote must be counted. I mean, all these people are in the same business as Joe Biden. And they got there by counting votes and by taking their case to the voters. And then somebody counted the votes. And to try to undermine that system is undermining the means whereby they got into office. And they're not about to do that.
- [46:50]
A
Jim, what about the fact that Donald Trump is still, even if he leaves the Oval Office in January, as we think he will, he's still the name defendant in a lawsuit from E. Jean Carroll. He's still on the hook for his financial documents. Those suits are not going away. There's lots of talk right now about a raft of pardons that are going to explode out of this administration in the coming weeks. But do you have some sense of, given that I think we could stipulate Donald Trump is in a lot of legal peril in a lot of different contexts if he's going to be able to run the old playbook that you described to escape any kind of liability once he's out of office.
- [47:41]
C
Well, the first question is one of criminal liability. Now, most constitutional law experts, including some whom you've had on your program, do not believe he can pardon himself. It is possible that he'll resign. He'll just say the hell with you, and Mike Pence will become the president and Mike Pence will pardon him. He may pardon members of his family. Who knows who else he might pardon? He might pardon some of the witnesses against him. But of course, his pardon power only extends to federal crimes, does not extend to crimes he may have committed under the laws of New York State, which are being elaborated now by Cy Vance. And I think after the election results, you might see some action from Cy Vance. You have these civil suits, like E. Jean Carroll, where the Justice Department tried to intervene on his behalf. Extraordinary argument that when Trump Trump libeled E. Jean Carroll, and you had to assume that he did for purposes of the discussion, that was in the course of his duties as president of the United States. And when he said, she's not my type and I never met her, and she claims all that was false and defamatory. If that suit continues, there's a question of whether she might be able to establish damages, whether she may be able to establish through DNA evidence, her story of rape and the dressing room of Bergdorf Goodman really happen. So that suit is a dangerous suit for him. And there's so many other suits. I mean, the New York Times indicated that he owes about $400 million that he can't pay, which is due and this is personal debt, which is due within the next six months. How does he hope to confront that he may be left without much in the way of resources by the time his creditors and various plaintiffs that have brought actions against them are finished?
- [49:35]
A
James D. Zirin is a former assistant U.S. attorney for the Southern District of New York. His writing has appeared in major periodicals from Forbes, the LA Times, the London Times, the Washington Times, the Nation, the New York Law Journal. He's a member of the Council on Foreign Relations. And his book, Plaintiff in A Portrait of Donald Trump in 3,500 lawsuits is without a doubt, I think, the single most clarifying document of the past year in terms of understanding what it is that Donald Trump did in the courts throughout his career and certainly what we're seeing this week in the courts. Jim, thank you very, very much for your time this week.
- [50:20]
C
Thank you very much, Dalia. It's always a pleasure to talk with you.
- [50:26]
A
And that is a wrap for this 2020 presidential election episode of Amicus. Thank you so, so much for listening in. Thank you for your letters and your questions and your feedback. We really appreciate hearing from you now more than ever. You can always keep in touch@amicuslate.com or you can find us@facebook.com Amicus Podcast. Our show today was produced by Sarah Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcasts. We're gonna be back with you with another episode of Amicus in Wait for It Two Shots Short Weeks. Thank you for listening in. Take good, good care of yourself and your loved ones. Thank you for listening.