There Aren’t Serious Enough Consequences for Those Trying to Break American Democracy

by | Nov 30, 2020 | The Atlantic

Donald Trump will not serve a second term. The litigation launched by his campaign and the Republican Party to overturn the election results has no chance of preventing Joe Biden from swearing the oath of office on January 20—as Trump himself seemed to haltingly recognize last week after his administration finally allowed the presidential transition to begin. But even though the worst has not come to pass, Trump and his team are doing lasting damage to American democracy as the president struggles to come to grips with the reality of his loss. And yet, these lawyers and officials will likely face no real consequences for their actions—and if they do, those repercussions will not be enough to address the scale of the problem.

The odds that Trump would accept an election loss were always slim. In 2016, he promised to accept the election results only “if I win.” He showed no sign of changing his tune in the run-up to the 2020 election. “We’re going to have to see what happens,” he told a reporter in September when asked if he would commit to a peaceful transfer of power. As Election Day drew nearer, he hinted repeatedly that he expected to take the vote’s results to the Supreme Court. If the vote had been closer, Trump’s efforts might have been enough to throw its results into doubt—a function, in part, of the rickety Electoral College system, which gives outsize importance to a handful of small-margin states. The country is exceedingly lucky that Biden won so definitively.

Trump and his legal team’s various efforts are an affront to democracy, the most essential principle of which is that losers at the ballot box accept their defeat. And judges have not been gentle with Trump and his allies in court. “Come on, now!” a Michigan judge admonished the Trump campaign over a sloppy effort to stop votes from being counted. In a crucial decision that denied an effort to halt certification of Pennsylvania’s vote, Judge Matthew Brann wrote that the Trump campaign had presented the court with “strained legal arguments without merit and speculative accusations … unsupported by evidence.” The judge went on, “Our people, laws, and institutions demand more.”

The question is whether, having demanded more and received a pittance, laws and institutions will respond. When Trump first launched his postelection blitz, it seemed possible that some of the state officials tangled up in the president’s flailing might face criminal liability. The Washington Post reported that, following Trump’s call to a Michigan state official tasked with counting votes, and an invitation to the White House for two Michigan Republican legislators, the state’s attorney general is examining whether these officials might have broken the law—though the legislators later released a statement announcing their intent to “follow the law and follow the normal process regarding Michigan’s electors.” Writing in the Detroit Free Press, the voting-rights scholars Samuel Bagenstos and Justin Levitt raised the possibility that a groundless refusal by Michigan officials to certify the state’s vote could run afoul of federal law under the Voting Rights Act, which criminalizes the willful failure or refusal to “tabulate, count and report” votes. Notably, Norman Shinkle—the one Michigan Republican who, in the end, refused to certify the vote—did not actually vote against certification but instead abstained.

So perhaps the threat of criminal sanction has prevented Trump’s strategy from becoming even wilder than it already is. Also crucial, though, has been the integrity under pressure of a small but consequential number of state and local officials who have refused to kneel before Trump—like Aaron Van Langevelde, who sits alongside Shinkle on Michigan’s board of state canvassers and chose to certify the state’s vote despite hostility from the Michigan GOP.

Such moments of grace have been unfortunately lacking when it comes to the lawyers behind Trump’s push in the courts. Given the sheer absurdity of this effort, lawyers and commentators have raised the question of whether the legal teams seeking to upend the election result might face professional consequences. Lawyers have a duty not to lie to the court. They also have a duty to avoid making arguments without legal or evidentiary support. These restrictions may be responsible for the decision by the Trump campaign and some pro-Trump lawyers to drop some lawsuits shortly after filing them: When push came to shove, perhaps substantiating some of the wilder claims proved impossible. The fear of repercussions may also be behind prominent law firms’ choice to abruptly abandon this litigation.

Similarly, the rules governing lawyers’ professional behavior have created an odd split screen in the Trump campaign’s postelection work. Trump’s lawyers spin outlandish theories about massive election fraud at press conferences and on television, but make far more limited claims in court. “This is not a fraud case,” Rudy Giuliani acknowledged to Judge Brann during a hearing in the Pennsylvania certification case—only to then hold a press conference two days later in which he continued to peddle baseless claims of fraud alongside fellow Trump attorney Sidney Powell. (The campaign later announced that it had cut ties with Powell, who has claimed—without evidence, it should go without saying—that Georgia Governor Brian Kemp was bribed to rig his state’s vote as part of a conspiracy involving the CIA and the deceased Venezuelan President Hugo Chávez.)

Jeffrey Parness, who has written extensively on the rules governing attorney misconduct, suggested to me that judges could still take action against Trump’s lawyers if any of the remaining lawsuits step over the line. Judges will not want to be viewed “as someone who’s not concerned” by lawyers filing frivolous suits, Parness said. Most relevant to the current litigation may be Rule 11 of the Federal Rules of Civil Procedure, under which judges can sanction attorneys who make legally or factually meritless claims in court. Judges could order lawyers to pay fines to the court or to take legal-education classes, or even refer them to state bar associations for discipline. In the view of some experts, it’s past time for courts to take such actions: Writing in Slate last week, four legal-ethics experts argued that “the disciplinary case against certain of Trump’s lawyers is strong.”

But the road toward this kind of sanction is typically a long one, with discipline meted out toward the end of a case—if at all. “I do not expect to see state bars be first movers on these issues,” Carissa Byrne Hessick, a law professor at the University of North Carolina, told me. “They generally avoid taking actions that can be seen as political.” Courts may be hesitant as well. “Judges are extremely reticent to sanction lawyers in election-law cases, because they don’t want to look political,” said Leah Litman, who teaches law at the University of Michigan and has argued that elite lawyers have proved unwilling to hold their colleagues accountable for “facilitating the breakdown of norms that are integral to our constitutional system.” If courts do nothing, Litman told me, they are “enabling these gross excesses and abuse of our political processes.”

At this point, though, even if judges or state bar associations do hand down sanctions against lawyers involved in these cases, those repercussions will be too little, too late. The president is busy creating a parallel world for his supporters in which he never lost the election and Joe Biden is not the rightful leader of the United States—what Vox’s Ezra Klein termed “an autocracy-in-exile.” Already, far-right news networks such as One America News and Newsmax are profiting from this effort, siphoning viewers away from Fox News by enthusiastically embracing Trump’s claims of voter fraud. Half of Republicans already believe that Trump triumphed over Biden. “That press conference was the most dangerous 1hr 45 minutes of television in American history,” Chris Krebs, the former cybersecurity official fired by Trump for refusing to lie about the 2020 election’s integrity, tweeted of Giuliani and Powell’s appearance last week.

There is value to preserving the courtroom as a space where lies deflate. As Dahlia Lithwick writes in Slate, the “dull workaday evaluation of the difference between facts and falsehoods is still usually the best cure for the madness of this current moment.” And perhaps courts and state bars will decide that sanctions are needed to reaffirm their commitment to evaluating that difference. Yet despite how swiftly Trump’s legal effort has collapsed under judicial scrutiny, Giuliani and Powell are onto something. You don’t actually need to win in court if your main goal is to sow doubt and make headlines.

Consider, for example, the case of former Kansas Secretary of State Kris Kobach, who signed on to Trump’s doomed voter fraud commission after the 2016 election. The commission fell apart and failed to produce any evidence of fraud. In 2018, a federal judge struck down a Kansas law championed by Kobach that required people to provide proof of citizenship in order to vote—and sanctioned Kobach for his poor behavior at trial, ordering him to take additional hours of continuing legal education. Kobach was also fined for misleading the court. Where is he today? Representing a Michigan official who has cast doubt on the integrity of the state’s vote and spreading falsehoods about voter fraud on Sean Hannity’s radio show. Kobach’s citizenship law was struck down for the good of Kansas, but right-wing media are all too eager to pick up on even spurious claims of fraud. As the election-law scholar Richard Hasen points out, the bogus arguments tossed around by Trump’s legal team “will make things worse when it comes to voting rights” by giving Republicans fuel for future restrictive voting laws, whether or not courts take those arguments seriously.

Even criminal sanctions are not enough to protect against the gravitational pull of disinformation. If prosecutions arise out of Trump’s postelection scramble, the unlucky defendants would likely become right-wing stars, feted on Fox News for their persecution by the “deep state.” Powell’s recent legal representation of Michael Flynn, Trump’s former national security advisor, is an argument against discounting the power that a pro-Trump defendant can have in right-wing media. Flynn, Powell’s highest-profile client, received a presidential pardon on November 26, three years after pleading guilty to lying to FBI agents—and has been busy burnishing his credentials as a popular figure among Trump supporters and QAnon conspiracy theorists. After Powell was booted from Trump’s legal team, he tweeted that she “is staying the course to prove … massive deliberate election fraud.” Trump’s parallel world can provide well for those who remain loyal.

So far, the Biden team’s approach seems to be to project calm and reassure Americans that the president-elect will take office as planned, the current chaos be damned—a continuation of sorts of Biden’s debate strategy of turning away from a bloviating Trump to calmly address the audience. This strategy has real merits as a means of denying disinformation the attention it needs to grow. But, as president, Biden will have to grapple with a Republican Party that has created a world for itself in which the Democratic Party and its voters, particularly Black voters, are not legitimate participants in democracy. The ultimate problem, as it has been for the past four years, is a political problem posed by the Republican Party’s racism and authoritarianism. And the political problem, unlike Trump’s lawsuits, is not going away.

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