Not only has Nancy Pelosi crowned Joe Biden “president-elect,” but so has Fox News. (The other “news” outlets had been crowning him for weeks.) The other night several Fox News reporters started using that term. But of course the election is not over. Rather, it is in litigation. Time has stopped. That is how the law works. Or, in the tritest of Yogi Berra’s memes, it ain’t over till it’s over.
Seriously, imagine Joe owes Don $10,000 under the terms of a contract. Don comes to collect. But Joe proactively files a lawsuit seeking equitable relief, claiming that he does not owe the money, that the underlying contract was invalid because of the Statute of Frauds or a lack of consideration or mistake or fraud or whatever other legal basis can nullify a contract. Well, it goes into litigation, and no one owes the money until the litigation plays out. The November 3 presidential election now is in litigation. Once a complex matter goes into litigation, one never knows what may emerge. Ultimate outcomes often differ from initial expectations.
I began my own litigation practice at Jones Day in 1994. I was new to the field after 10 years practicing as a congregational rabbi, teacher of Talmud and Biblical studies, a hospital and police department chaplain, and an organizational executive. Early on in that new litigation career, I was handed a terribly difficult case to defend. It was quite a bit of responsibility dumped onto my shoulders, being asked to defend an ostensibly indefensible case. My client was one of the three main national credit reporting companies. According to the complaint, our credit reporting failures had caused the plaintiff to lose her six-figure salary, relegating her to a life of misery and poverty, forcing her to move from her big home in a big city to a different kind of home in a smaller city in a lower-cost state. I read the complaint, and it seemed we had caused terrible misery. We had no chance. All the facts seemingly were against us. Hopeless.
A year later I had won that case. Disregarding her assertions in her court papers, I conducted my own research. It turned out that this terminated employee previously had sued and had won a boatload of money, claiming that the reason she had lost that same job had been sexual harassment at a sexually hostile work environment. Uh huh. So she had convinced a jury in another city within the state that the reason she had lost her job had been the sexual stuff. Then, having collected one bonanza, she turned around and sued in another city within the same state, now claiming that her termination instead had been because of the credit-reporting mistakes. Along the way of uncovering the true facts, it also turned out that the reason she had moved from the big city to the new state and smaller city had nothing to do with anything in the lawsuit. Rather, after having collected mega bucks on her prior sexual harassment claim, she had decided she now was rich enough to leave the work force for life, and she proceeded to marry a multi-millionaire who owned a factory in an out-of-state small town, so moved there. Interesting what some fact investigations turn up.
One other lawsuit seems apt here. Seven years later I now was at another powerhouse national litigation law firm, Akin Gump, and our Los Angeles office was handed a case from a major partner based in our Texas office. He insisted that the firm take the case, and the lawsuit involved claims by a client against a California-based corporation. So it came to our office, and none of the litigation partners wanted to touch the case. One told me, “Dov, this case is a piece of – – – -.” It was a loser. No chance. The case arose in an industry that was foreign to most of us urban big-city litigators, entailed some pretty hard-to-believe allegations, and just was too dubious for any major litigator to want to touch. So they handed the case to me because I then was a senior litigation associate, experienced and successful enough by then to handle any case that might come our way, but just a notch low enough on the totem pole to have no choice to avoid being assigned the crummy cases partners did not want.
So I was stuck with this horrible case. In this one, we were the plaintiffs, and the claims seemed weird. The whole case just did not grab me, was outside my comfort zone. But I had to handle it, so I reluctantly made the best of a bad situation. I tried to be encouraging and spirited while simultaneously making clear to the clients that they should not get their hopes too high. It was very awkward. Two years later, the case came to an end. We settled. But get this: The other side paid my clients $8 million. It was the biggest win I ever had. Interesting what some fact investigations turn up once a litigation begins and fact investigations get rolling.
What I learned from those two cases — one an impossible defense, the other an impossible series of claims — is that it isn’t over until it’s over, and no experienced attorney can or should blow off others’ claims too quickly. Lots of impossible-to-believe claims prove to be bogus. And lots of others prove to be incredibly true. You just have to follow the evidence, and see where the facts lead. It often is interesting what some fact investigations turn up. If I had told you a few weeks ago what the former CNN chief legal analyst does at his Zoom desktop computer during a five-minute break, who would have believed it?
So don’t be intimidated by cable news panel discussions when a CNN master baiter or mass debater tells Americans that a fact investigation needs to be stopped “for the good of the country” because “all suspicions are as yet unproven.” If there is nothing to fear from the investigation, welcome it. Otherwise, buckle up for the ride.
In a related vein before I embarked on my law career, my first 10 years of rabbinic training and experience left me with two contradictory insights into truth and human behavior. As a young rabbi I was naïve and an idealist who believed that everyone is inherently good, at least when dealing directly face-to-face with a member of clergy. People are not going to lie to the rabbi or pastor or priest, right? So I believed all people and all narratives. But, in time, I also learned something else: because people confide in a rabbi under a variation on the clergy–penitent privilege, the real true story is not always the story that people publicly narrate to others. For example, a person publicly brags about his or her wealth or about his or her brilliantly successfully children. OK, Mazal Tov. Then the rabbi meets with the person privately and confidentially, soliciting a donation for the ubiquitous Building Fund, and the same boastful rich person starts telling tales of financial woe, bemoaning all fate. All the wealth — a mirage. And what about those fabulously successful sons, the entrepreneurs who started a business and now are making millions? “Well, to tell you the truth, rabbi, they have not generated a nickel’s profit in the three years since they went into business, and if we did not support them night-and-day they both would be out on the streets.”
Uh huh. If life teaches anything as we now enter the phase of electoral litigation, it is that figures don’t lie, but liars can figure. And that is exactly why this fighting president should continue litigating in the new legal battleground of the battleground states.
All this is why I have been so appalled listening to the Chris Christies questioning the viability of the Trump team’s litigation efforts now to get to the bottom of the election results. None of us knows yet what facts will turn up or what the courts will decide. We know already that 6,000 votes switched between Republican and Democrat in one single Michigan county because of a computer software “glitch.” We know that the same software program was used in 47 different Michigan counties for this election. We know that the same software was used in several other states. That alone justifies further scrutiny.
The Left Media are in a rush to crown Biden “president-elect.” You can’t blame them. That speed makes sense. Their hope is to steamroll a fait accompli that runs roughshod over the Trump team’s litigation efforts before they gain traction. The added Left Media hope is that a national outcry can be generated to stop the litigation, a public shaming under the rubric of “Please don’t do this. You are hurting the country. Now is the time to heal.”
Actually, the time to heal was in 2016 when the Obama Wasted Decade ended. Instead, a president who came to Washington from outside the Political Class intent on being the Great Dealmaker ran right into the Resistance. He could not get a break. There was no effort then to put hostilities aside “for the good of the country” and to “heal.” Rather, there were lies about Russian collusion, character assassination, even treason. The Deep State set about to reverse a legitimate election. It never ended.
It is not clear where the Trump team’s litigation effort will lead, nor what will turn up. By contrast, it is crystal clear that the Democrat-Media-Left Alliance do not want to wait to find out. Their frantic race now is to replicate the Mayor Daley 1960 swipe of Nixon, the Al Franken swipe of Norm Coleman’s U.S. Senate seat in Minnesota 2008, the 2008 Alaska Democrat swipe of Ted Stevens’s U.S. Senate seat, and so many other successful Democrat election steals over the decades, as laid out in this recent article.
Has an American election ever before been overturned? Sure. Plenty of them. In August 2020, a City Council race in Paterson, New Jersey, was overturned. A 1997 mayoral election in Miami, Florida, was overturned. Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, lays out a laundry list of them: the North Carolina Ninth Congressional District in 2018; a City Council election in Kaufman, Texas; a 2016 Democrat primary election in St. Louis; a 2018 mayoral race in Mission, Texas; and others. Beyond that, von Spakovsky writes elsewhere:
Mail-in elections and absentee ballots also subject the election process and the votes of the public to the problem of ballots being misdirected or not delivered by the Postal Service. According to a Public Interest Legal Foundation analysis of reports filed by the U.S. Election Assistance Commission (EAC) on the 2012, 2014, 2016, and 2018 elections, more than 28 million mail-in ballots effectively disappeared — their fate is listed as “unknown” by the EAC based on survey data sent to the EAC by state election officials….
States, such as Washington and Oregon, that have mail-only elections have similar problems. According to the EAC reports on the past four federal elections, Oregon listed more than 170,000 ballots as “undeliverable,” almost 29,000 ballots as “rejected,” and 871,737 ballots as “unknown.” Furthermore, in a survey of voters in just one Oregon county by an assistant professor at Portland State University, 5 percent of voters admitted that “other people marked their ballots, and 2.4% said other people signed their ballot envelopes.” The professor suspected that “the real number is higher, because people are reluctant to admit being party to a crime,” but if that percentage held for the rest of the state, it would mean tens of thousands of illegal ballots. The professor told the Los Angeles Times that she did not have much faith in the process since she is able to forge her husband’s signature perfectly.
Imagine that — 28 million mail-in ballots disappeared during the past four election cycles, and none had the stakes of a presidential vote. Significant legal and other problems with tens of thousands more.
And how long ago was it that the Democrat National Committee had to throw out the results of its Iowa Caucuses — also because of software “glitches”? Seems like only yesterday.
There is too much at stake in the 2020 presidential election, and a strong enough personality in Donald Trump at the helm of the Republican challenge, to be cowed by media efforts to intimidate or shame the Trump team’s litigation efforts. Historically the media have succeeded in shaming the 1960 Richard Nixons and 2008 Norm Colemans into backing down “for the good of the country.” It reeks of Dick Durbin urging Judge Brett Kavanaugh to step aside for a while “for the good of the country” to allow the FBI to conduct longer and slower investigations of every defamation against him to slow down the Supreme Court confirmation process. The thing is, we now know — as we always have known but never more clearly — that the Left Media are corrupt and are not themselves driven by “the good of the country” nor by “healing.” Rather, they grab at power at all costs. With the Democrat-Media-Left Alliance having proven wrong so often on so many other Trump matters during these past four years of the Resistance, there is no reason to allow their perspective to influence Trump team litigation strategy. There was no Russian collusion. There was no Zelensky quid pro quo. And there is no reason to back down now while the Trump team pursues America’s first and long-overdue intensive post-election fact investigation arising from a tight mass-mailing electoral showdown.
It often is interesting what some fact investigations turn up. Let’s see.