Thursday, November 05, 2020

A-HEM!

“I’ll add this about the recounts,” Wallace began, “I just hung up with a Trump adviser who says that these legal efforts do not really have the imprimatur of the late Warren Christopher and the James Baker sort of statesmen arriving on the ground in Florida the morning after the election there. That these do not seem like the kinds of legal fights that are attracting talent beyond people with the last name Trump and one Rudy Giuliani, who showed up in the state of Pennsylvania. So, just a little bit of evidence about the view even from inside Trump’s side about the caliber of legal talent and legal arguments being made in lawsuits that were described to me as very much driven by the client himself without a lot of basis in any sort of consistent legal philosophy or argument at this point.”

As I was saying....

"Legal philosophy or argument" is lay speak for "legal reasoning," as in what you hire lawyers to provide. I haven't read too many of Trump's pleadings, but I've read about them and it's clear to me they are basically Trump's tweets in a Plaintiff's Original Petition form; which makes them garbage.  You may not like lawyers but one of the skills they are supposed to have (if they are litigators) is to be able to draft pleadings that state a cause of action.  "Cause of action" is a term of art meaning, roughly, recognized legal grounds upon which the court can grant relief (why they are called "pleadings" and the document that starts the lawsuit is a "petition.")  Without that you are basically acting pro se, which Trump and the RNC don't have to do; but I suspect they are anyway; effectively, at least.  It's a bit more complex than this, but this is a good summation of what should be present:

“I asked a lawyer associated with us here at MSNBC today, not an on-air person but some who works off-air, to have a look at the complaint the Trump campaign filed in Michigan to try to stop the vote in Michigan. And that lawyer described it as something that looked like it was written by an elementary school student and something that did not actually have any of the predicates of a basic legal document, including the who, what, where, why, when of what they were alleging was the reason the court should step in and do something.”

I've read pro se pleadings I wouldn't characterize that way. 

“It also makes me wonder if Republicans are so confident now — that there are so many conservative judges now that they have done such a good job in the federal courts stacking it with ideological, very right-wing, in some cases very young partisan-minded federal judges, that they’ve got a path even if what they’re filing is just trash,” Maddow questioned.

Wallace agreed that the question was an interesting one, noting that it’s a conversation that should be had after the election. She wondered the degree to which “the courts are so contaminated by what Trump has said out loud he wants them to do” that they can’t make a legally sound ruling.

“Trump said last night he’s waiting to get this to the United States Supreme Court,” Wallace continued. “No matter what they do, I think they are forever tainted by the notion that Donald Trump, who picked three of them, believes that they are sitting there waiting until one of these ludicrous, as you said, juvenile lawsuits makes its way to them. Whether they act on that or not doesn’t matter. That is how Donald Trump described them, not just to his supporters but to the world. That is how he sees the United States Supreme Court.”

I would hesitate to say "all Republicans" are "so confident," because I think the only ones confident work in the White House or are getting paid to be confident.  Any further that way lies conspiracy theories.  I'm sure many of the judges McConnell has appointed are ideological to a fault, but I think the confidence comes from ignorance at the top, not knowledge in the trenches.  And yes, Trump has contaminated the Court.  What the Court does with that is chiefly (sorry!) up to John Roberts.  And frankly, he may do nothing at all.  An impressive Chief Justice he isn't.  Then again, we haven't had one of those since Earl Warren.  I think in our history they are as rare as hen's teeth.

She explained that it remains clear that Trump’s own legal team can’t come up with a legal theory as to why the vote-counting should stop in states like Arizona, much less what Trump wants to happen in Michigan and Wisconsin. The president simply wants counting to stop.

“So, there isn’t a legal argument,” Wallace said. “There isn’t a legal through-line. So, even if you were sort of at the ready for Trump, a willing appointee waiting to do his political bidding, which I think is a reach even for the kinds of folks that he’s put on the court, it’s not clear what the philosophical, legal case is that’s being made in the courts.”

That's the fundamental bottom line:  there isn't a legal argument.  The court can't act because Trump doesn't want to lose the election.  It can only act on a legal argument, a stated cause of action for which relief can be granted.  That's part of the reason for standing, which has gotten a few of these cases tossed lately.  The court can't grant relief generally, it can only do so for the parties before it.  If the parties before it can't be granted the relief, they don't have standing to ask for it.  Case closed; or tossed, actually.  So without a legal argument, the courts can't assuage Trump's temper tantrum.

And that doesn't even touch on the hilarity of Trump trying to stop the counting in Michigan where he's losing. 

I say we should laugh at Trump's failure to understand stopping a vote count that he's losing is a hilarious self-own, but I think George Conway has figured out Trump's reasoning:
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