Amicus With Dahlia Lithwick | "Empty Suits" — Episode Summary

Date: November 7, 2020
Host: Dahlia Lithwick
Guests: Rick Hasen (Election law professor, UC Irvine), James Zirin (former Assistant U.S. Attorney, author)

Episode Overview

This post-election episode examines President Donald Trump's legal maneuvering following the 2020 election, assessing both the health of America’s electoral and judicial institutions, and reflecting on Trump’s time-tested litigation strategies. Host Dahlia Lithwick first speaks with election law expert Rick Hasen, then with James Zirin, author of Plaintiff in Chief, to contextualize Trump’s flurry of lawsuits in the days after Election Day. The show discusses whether there are any credible legal pathways for Trump to contest the outcome, the performance of democratic institutions, the legacy of Roy Cohn on Trump’s approach to the law, and the risks and hopes for American democracy in the aftermath of the 2020 election.

Key Discussion Points & Insights

Post-Election Legal Pathways and Lawsuits

• Rick Hasen on Legal Avenues for Trump

  • There is "extremely unlikely" to be a viable litigation path to overturn the election result due to three main factors:
    1. Margins Too Large: The election does not hinge on a single state with razor-thin margins, making it different from Bush v. Gore.
    2. Lack of Legal Theory/Evidence: Even within contested states, there is no legal theory or evidence that could plausibly change the outcome. Cases about late-arriving ballots or recounts in states with large vote differences are unlikely to matter.
    3. Poorly Built Cases: Most legal challenges are poorly constructed and lacking substance or 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 a version, a 2020 version of the 2000 Bush vs Gore case." — Rick Hasen ([00:08])

• On Recounts:

  • Recounts are routine but historically do not change outcomes unless margins are extremely small (e.g., less than a few hundred votes).
  • "The average number of votes that change in a statewide recount is 282..." — Rick Hasen ([06:37])

• Quality of Trump's Post-Election Legal Team:

  • Unlike the elite legal team in Bush v. Gore, current Trump campaign lawsuits are being brought by less prestigious lawyers, with “rehashed vote fraud squad lawyers.”
  • "[T]his just is not the A team, right?...this feels like it's...some people who don't seem to know what they're doing." — Dahlia Lithwick ([08:17])
  • Most high-level conservative lawyers have stayed away due to the lack of plausible legal arguments.

Integrity of Legal Institutions

• The Role of Bill Barr and DOJ Silence

  • Despite previous rhetoric, Attorney General Barr has notably avoided intervening in the post-election legal wrangling.
  • "I think it shows that there’s a bottom even for Bill Barr, which is nice to see." — Rick Hasen ([13:33])

• Resilience (and Luck) of American Democracy

  • "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..." — Rick Hasen ([15:59])
  • Catastrophic scenarios (cyber attacks, violence, widespread voter suppression) did not materialize, but the avoidance of disaster does not mean the system is robust.

• Dangers of Trump’s Rhetoric

  • Trump’s continued unsubstantiated claims of fraud destabilize faith in the democratic process and pose lasting dangers.
  • "The two speeches Trump gave this week where he claimed election fraud were among the lowest moments in American democracy." — Rick Hasen ([15:59])
  • Lithwick notes the media toggling between portraying Trump as an omnipotent threat and as a farcical figure, warning that the threat to democracy is real and ongoing.

What Comes Next: Democracy, Reform, and the Courts

• Prospects for Election Reform

  • With a divided government, sweeping election reforms are unlikely. Hasen expresses concern about further erosion due to new gerrymandering and adverse Supreme Court rulings.
  • "Things can go very bad on a 6 to 3 Supreme Court when it comes to voting rights." — Rick Hasen ([24:53])

• Future Legal Challenges

  • There is a real risk the Supreme Court could embrace the "independent state legislature doctrine," further weakening checks on partisan electoral manipulation.
  • Key upcoming cases could have huge repercussions on voter access and redistricting.

• Grassroots Organizing as a Countervailing Force

  • State and local activism (e.g., in Georgia) remains a powerful way to safeguard democracy and broaden participation in the face of federal gridlock.
  • "[F]or our democracy, the more people who are voting and who are participating, the better..." — Rick Hasen ([27:47])

The Trump Litigation Playbook: Insights from James Zirin

Trump’s Legal Strategy: An Old Story

• Roots in Roy Cohn’s Mentorship

  • Trump’s legal philosophy stems from Roy Cohn, whose approach was to “beat the system,” counterattack and delay, and never admit defeat.
  • "His father said to him, there are only two types of people. There are killers and there are losers..." — James Zirin ([33:00])
  • "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?'..." — James Zirin ([33:18])

• The Lawsuit as Weapon and Delay Tactic

  • Throughout his career, Trump has used lawsuits to delay, harass, intimidate, and exhaust opponents rather than to win on legal substance.
  • Trump claims victory regardless of outcome—a tactic evident in both business and political spheres.

• Weakness of Current Legal Efforts

  • "You may have lawyers who are willing to take the case... 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." — James Zirin ([38:26])
  • The current post-election lawsuits are “small ball” and not backed by credible evidence or by heavyweight lawyers.

• Judicial Response

  • Judges are swiftly rejecting frivolous claims, underscoring that courts will not be repurposed as tools for Trump’s political ends.
  • "[I]f you go to court without evidence, you're going to be thrown out on your ear..." — James Zirin ([40:30])

The Erosion of Trump’s Legal Fortress

• Absence of Competent ‘Roy Cohns’ and Judicial Patience

  • Trump lacks serious legal advocates in this fight; even Bill Barr has receded from the spotlight.
  • The judiciary appears—thus far—unwilling to tolerate abuse of the legal process for purely political goals.

• Rudy Giuliani: From Prosecution Titan to Marginalized Advocate

  • Lithwick observes Giuliani has become part of a “clown car” of associates generating noise rather than fear.
  • Zirin laments: “…He’s been a prosecutor who doesn’t have the goods. And he really has failed to come up with evidence." — James Zirin ([42:25])

The Road Ahead: Trump’s Legal Exposure and Limits of Power

• Unresolved Legal Peril

  • Trump faces multiple lawsuits and investigations, particularly at the state level, beyond the reach of the presidential pardon.
  • "His pardon power only extends to federal crimes, does not extend to crimes he may have committed under the laws of New York State..." — James Zirin ([47:40])

• Inevitability of Democratic Process

  • Zirin emphasizes that the courts are holding firm, ensuring that “the people get a chance to choose...you’re seeing democracy at work in this election.” ([40:30])
  • Trump’s traditional tactics, while disruptive, ultimately failed to upend the process this time.

Notable Quotes and Moments

• "We got lucky. We didn’t get smart." — Rick Hasen ([15:59])
• “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.” — Rick Hasen ([13:33])
• "Sometimes you just cannot sue your way to victory, not in a democracy." — Dahlia Lithwick ([31:49])
• "Interestingly, not that many Republicans have stood by him in all this." — James Zirin ([45:05])
• “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.” — Rick Hasen ([29:32])

Timestamps for Major Segments

• [00:08] — Viability of legal strategy for Trump post-election (Hasen)
• [06:37] — Limits of recounts and historic perspective
• [08:17] — Discussion of lawsuit quality and legal teams
• [13:33] — Bill Barr and DOJ’s silence
• [15:59] — Health of democracy, luck vs. resilience
• [20:07] — Dangers of Trump’s ongoing influence and rhetoric
• [24:53] — Supreme Court threats to election reform
• [27:47] — State/local activism as hope for democracy
• [33:00] — Zirin on Trump’s legal philosophy and pattern
• [38:26] — Weakness of current fraud claims and Trump’s legal team
• [40:30] — Judges’ unwillingness to indulge frivolous claims
• [42:25] — Giuliani’s decline and role
• [47:40] — Trump's continuing legal jeopardy

Conclusion

"Empty Suits" is an episode defined by guarded relief and grave warnings. Lithwick and her guests agree that America avoided some worst-case scenarios in 2020, but only barely—and largely for reasons of luck and civic activism, not systemic strength. The judiciary, while showing integrity, cannot substitute for robust legal and electoral reforms. Trump’s penchant for legally bullying his way out of consequences faced stiffer headwinds this time, but the episode closes by underlining that the work of safeguarding democracy, and holding the powerful to account, is far from over.