Madcap election litigation spree
Republican lawyers wreaking damage to the legal profession and rule of law ... President Trump and the violation of federal laws on electoral interference and extortion ... Late impeachment in the wind ... Rioters seeking martydom ... Whither the republic? ... Roger Fitch reports from a wounded Washington
"Plaintiffs' aims in this election challenge are bold indeed: they ask this Court to declare unconstitutional several decades-old federal statutes governing the appointment of electors and the counting of electoral votes for President of the United States; to invalidate multiple state statutes regulating the certification of Presidential votes; to ignore certain Supreme Court decisions; and, the coup de grace, to enjoin the U.S. Congress from counting the electoral votes on January 6, 2021, and declaring Joseph R. Biden the next President ... In addition to being filed on behalf of Plaintiffs without standing and (at least as to the state Defendants) in the wrong court ... the suit rests on a fundamental and obvious misreading of the Constitution. It would be risible were its target not so grave: the undermining of a democratic election for President of the United States. The Court will deny the Motion." - District Judge James E Boasberg.
"Unlike the [French] National Assembly circa 1789, Trump's bogus electors are not even the rump of a lawful body. The Trump electors are more like the 'soviets' - workers' councils that played a role in the 1905 and 1917 Russian Revolutions despite initially having no legal claim to political power ... Will the Trump soviets succeed? That is likely a bridge too far even for the majority of House Republicans who signed an amicus brief to the Supreme Court in last week's preposterous original jurisdiction case." - Michael Dorf, underestimating the treachery of the Republican representatives in congress.
"You have sat too long for any good you have been doing lately ... Depart, I say; and let us have done with you. In the name of God, go!" - Oliver Cromwell.
Oliver Cromwell broke-up a refractory parliament personally; Donald Trump used surrogates to break-in.
On January 6th, the 117th Congress was meeting to count the votes cast in the election. The president couldn't allow that: he'd lost. With his prompting and encouragement, an unruly mob of Trumpenvolk (some armed) attacked Capitol Hill.
Overwhelming a sometimes sympathetic capitol police, they climbed the barriers and broke into the building, swarming through congressional halls and into the very chambers where the hated electoral count was occurring. Witnessed live on television, the attack was quickly condemned as a riot and a Putsch. Five people died, including a policeman.
The capitol police were unprepared, yet such violence was predictable: in 1954, Puerto Rico nationalists opened fire in the house, injuring five representatives.
The president may have already violated federal statutes on election interference and extortion, and state laws for which he cannot be pardoned; he's now added sedition. "Late impeachment" and disqualification from office under the 14th amendment "insurrection clause" are possibilities.
• • •
Pursuant to the Constitution's Article II, Section 1, the new congress was meeting, as it has done every four years since the 18th century, to count and certify electoral votes for president and vice president previously certified by the states. It's usually straightforward, but the Electoral Count Act of 1887 offered the 2020 losers a chance to challenge electors from selected states.
A dirty dozen of Republican senators were set to oppose electors, but following the riot, the revolutionary gang lost strength; only six opposed Arizona's electors and seven, Pennsylvania's. In the house, 121 (of 211) opposed Arizona's electors; 138 opposed Pennsylvania's, where the state's highest court had confirmed the result.
Altogether, 147 Republicans voted to overturn the election results, which were successfully affirmed.
Happily, the Democrats still have a majority in the house, and on the eve of the break-in they gained a senate majority through a Georgia special election for two senators. It wasn't cheap; it cost over $800 million to elect the new senators, Raphael Warnock, and the half-Australian Jon Ossoff.
• • •
Trump: mentally unmoored
America has had many bad presidents, even corrupt and evil ones, yet surely, Donald Trump is the first one undeniably mentally-unstable. Thus there was a certain symmetry when, during his last two weeks as president, as in his first week, his removal from office under the 25th Amendment was discussed.
Unlike Richard Nixon, this disgraced president doesn't drink, but his unpredictable behaviour remains a concern in his remaining weeks in office: House Speaker Nancy Pelosi worries about nuclear codes, and all ten former Secretaries of Defence have warned him off involving the military in any election dispute.
• • •
As America prepares to inaugurate a lawyer president, it's time to reflect on the 32 lawyers - all men - among the shameful cohort of 126 House Republicans who supported the Texas Attorney General Ken Paxton (under indictment himself) in his failed attempt to overthrow the election in the supreme court.
The AGs of the four defendant states, all with Republican legislatures, forcefully responded to the disgraceful supreme court litigation brought by the attorneys general in 18 other Republican states.
Above the Law catalogued the craziest things in the Texas AG's nutty lawsuit, where even fake states filed a brief. All the motions from 26 other parties were dismissed as moot when the Texas motion was denied. The Post identified the various villains who pleaded.
Ultimately, nearly 90 judges rejected the claims of election fraud brought by Trump and his followers. Nevertheless, the litigation strategies and public statements of Trump's lawyers exposed the collateral damage his refusal to acknowledge the rule of law has caused to the legal profession itself.
In many of the federal cases (certainly, the supreme court stunt), Republican lawyers may have violated Rule 11, Federal Rules of Civil Procedure. That's the rule that forbids frivolous proceedings and requires attorneys to shun litigation without legal foundation or valid evidence.
The fact that the chief legal officers of 18 states were prepared to risk violating Rule 11 is a professional scandal. Sanctions and even disbarment should be an option.
Civilian lawyers behind the Republicans' spurious and bad-faith court actions in multiple jurisdictions should also face disciplinary action. One such action was a last-hour lawsuit against the Vice President in his capacity of Senate President.
Gohmert: among the dimmest of Republican representatives
It was brought by Representative Louis Gohmert, who's often described as "the most offensive and ignorant person in congress". The case was speedily dismissed by a Trump-appointed judge.
Finally, Trump voters in Wisconsin, Pennsylvania, Georgia, Michigan, and Arizona sued Vice President Pence; both houses of Congress; and even the Electoral College itself, seeking to preliminarily enjoin the counting of electors certified by their states. Their motion was denied in scathing terms by the DC judge, who added:
"… at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs' counsel."
