We all have heard of “the Statute of Limitations.” (Actually, we attorneys and law professors signal our insider status by referring to the “Limitations statutes.”) The theory of limitations statutes is that there has to be an outside limit on how long a plaintiff has to bring a legal action for redress. As time marches on, witnesses move, get hard to find, even die. Over time, documentary evidence gets destroyed, even accidentally, gets lost, gets eaten by the dog. And human memories fade. Side by side with those concerns, there is a public policy that even wrongdoers at some point have a right of repose. That is, it is plain wrong to allow a prospective plaintiff to hold something over a pending defendant’s head for years, even decades: “One of these days I will sue you for all you’ve got, but I first want you to suffer for years and years, always worrying about when the lawsuit will come.” So we push plaintiffs: bring your case with some promptness, or lose your claim.
The reality is that no one can just walk into a courtroom a week or two after a massive fraud has taken place and just lay all the fraud on the table. It takes weeks, months, and years to unpack this stuff.
On the other hand, though, the law recognizes that a case takes some time to put together. The more complicated the facts and complex the law, the more challenging it will be to uncover all the evidence and make a case stick. We all know that lawsuits typically take a year or more to resolve themselves. Two years is not unusual, nor even are three years. If you ever have had a simple car accident case, you know that it can take a year or more to go to trial or to reach settlement. The sands of the law grind slowly.
And investigations. Ask yourself: How long does a serious fact investigation take to uncover shenanigans? Well, think to the Mueller Investigation. Here was a Special Counsel with an unlimited budget and a legal team as numerous as a football squad, and they still needed two years to get to the bottom of … nothing. So Roger Stone got woken up in the middle of the night by a fully outfitted SWAT team, in cahoots with CNN, because he was more dangerous than the Black Lives Matter thugs who threaten restaurant patrons or Antifa goons who burn down stores, neither of whom merit such law enforcement. But besides getting Stone and Lt. Col. Michael Flynn, who also did nothing wrong, and some Russians who still are in Russia and are not rushin’ to come here, Mueller needed two years to investigate.
Likewise, look at the Durham Investigation (assuming there really is such an investigation going on or, for that matter, that there really is a living guy named Durham). He was launched in May 2019. It now is a year and a half later. Nice.
So we see that:
Now let’s get back to limitations statutes. Under our system of federalism, each state sets its own statutory limits for bringing actions. That is, federal law sets limitations periods for federal crimes and actions, but most tort, property, and contract claims are governed by state law. Most states have somewhat similar limitations periods. Here in California, you get one year to sue for defamation. The thinking is that, by that time, you know whether the publication harmed you, and the writer or speaker deserves repose if you have not sued within 12 months. For a classic personal injury tort, you have two years to bring your action. Similar theories: evidence eventually disappears, memories fade, you know what happened and whether you were injured, and prospective defendants deserve repose at some point. On the other hand, you have four years to sue for breach of a written contract because, after all, the contract is written, so you have pertinent documentation that will not fade as quickly. On the other hand, you have only two years to sue for breach of an oral contract because, as you now would expect, there is no contractual documentation, memories fade, evidence disappears, and people deserve repose if the potential plaintiff dallies.
Which brings us to the limitations period for claims of fraud. And that is particularly pertinent as we enter the season of voter fraud and ballot fraud.
The limitations period for the tort of fraud is different from all the others because something unique inheres in fraud: the tortfeasor (i.e., the Bad Guy) goes to great efforts to mask, hide, and cover up the wrongdoing. In the other above situations, a contract is in the open, defamation is public (or who cares?), and a slip and fall is plain and simple. But fraud is, by the very nature of the beast, surreptitious and hidden. Therefore, first of all, the law calls for a “Discovery Rule” — the limitations period does not even start running or tolling until a victim knows or should have known that he or she was defrauded. And once that realization unfolds, the limitations period is three years — more than for defamation, personal injury and other such unintentional torts, and oral contracts. Three whole years — because it takes more time to dig up and uncover evidence of fraud than it does to discover facts in other disputes.
With the ever-unfolding evidence of voter and election fraud in states ranging from Arizona to Michigan to Wisconsin to Pennsylvania to Georgia, there is something particularly pernicious when the Democrat-Media-Left Alliance join to demand of the Trump team: “Well, where is your evidence of fraud?” Unlike experienced quality attorneys, most of these party hacks, politicians, and media types have no real experience in actual sophisticated litigation. Even among the politicians who do have law degrees and even among those who practiced law, with all due respect (and little respect is due) most are not legal geniuses but instead are the sort who would advertise their legal services on cable television somewhere between 2:00 a.m. and 4:00 a.m. on the Cooking Channel. Rather than reflecting the jurisprudential wisdom of the late Supreme Court Justice Felix Frankfurter, they simply are media hot dogs. And the one guy whom CNN had who was supposedly their hands-on legal genius turned out to be a guy who masturbates in front of his Zoom camera when there is a five-minute break. ’Nuff said about that.
But for those who have actual real-life professional high-stakes litigation experience, people like Rudy Giuliani and those of us who know what’s what, the reality is that no one can just walk into a courtroom a week or two after a massive fraud has taken place and just lay all the fraud on the table. It takes weeks, months, and years to unpack this stuff. No experienced attorney can just show up with all the evidence in a week or two. For example, who among us, even a week ago, had ever heard of “Dominion Voting Systems”? In only a matter of days, we now know not only of them but of their software and that they donated to the Clinton Foundation. And, oh by the way, their equipment was used in the election by North Carolina, Nevada, Georgia, Michigan, Arizona, and Pennsylvania — comprising 84 electoral college votes in six of the tightest battleground states. On the other hand, Texas rejected using them:
The examiner reports identified multiple hardware and software issues that preclude the Office of the Texas Secretary of State from determining that the Democracy Suite 5.5-A system satisfies each of the voting-system requirements set forth in the Texas Election Code. Specifically, the examiner reports raise concerns about whether the Democracy Suite 5.5-A system is suitable for its intended purpose; operates efficiently and accurately; and is safe from fraudulent or unauthorized manipulation. Therefore, the Democracy Suite 5.5-A system and corresponding hardware devices do not meet the standards for certification prescribed by Section 122.001 of the Texas Election Code.
Or take the dead voters. (Please.) Or the harvested and dumped ballots. Was it legal in the respective state to harvest the votes? If so, were the votes harvested by legally authorized harvesters — or by unauthorized out-of-state college kids who had nothing to do once it got too cold to march with Black Lives Matters thugs and threaten octogenarians at restaurants? It takes times — weeks, months — to unpeel that onion. And, again, what about the dead voters? It takes time to go through the voters’ rolls and to compare them with the rolls of the living.
And signatures. It is commonplace in litigations that, when disputes arise over signatures, handwriting experts are called in. One place to find handwriting experts is at a website called — take a seat for this one — www.handwritingexperts.com. But that is the point. When the stakes are high, you can’t just have volunteer housewives and househusbands comparing signatures. Not only valleys forge but people do, too. Could there be stakes greater than whether we have four more years of a Trump presidency or an alternative quadrennium of a Harris and Biden White House? Who is comparing the signatures on the mail-in envelopes with the actual signatures on registration rolls? How is it done? How carefully? How expertly?
It is wrong, unfair, and preposterous for media, including Fox News, regularly to parrot the Democrats and say that the Republicans so far do not have buckets and suitcases full of vote-fraud evidence. This kind of evidence — fraud — is the hardest to uncover and the hardest to gather. Mueller took two years. Durham, assuming there is such a person, already has been at it for a year and a half. States allow three years for claims of fraud. Usually, it takes document demands, demands for computer discs and drives, interrogatories, and depositions to root out the fraud and corruption. That is how long it takes. I know: I personally did this stuff for 10 years in matters entailing multi-million-dollar complex business disputes. Those of us who actually know the practice of law, not from Ally McBeal and from the 45 cable stations that simultaneously televise Law and Order reruns but from real life, know that the Trump team cannot possibly have all its evidence at hand yet. In the meantime, they indeed are compiling anecdotal evidence, testimony of poll watchers who saw abuses and were kept away from monitoring ballot counting. The Trump team is gathering sworn affidavits, a recognized form of admissible evidence, and they are going as fast as they can. They report that they already have 234 sworn affidavits. Steve Cortes has published a wonderful piece raising four examples of circumstantial evidence arising from logical improbabilities:
1. Incomprehensibly high turnout in Wisconsin. For example, Milwaukee ended up with an 84 percent turnout, while a nearby Midwest city with a comparable demographic, Cleveland, had a 51 percent turnout. In all, Wisconsin reported voting by 90 percent of their registered voters. Numbers like that are off the charts. Biden inched ahead of Trump in Wisconsin by under 1 percent. By contrast, Trump’s lead in Ohio was too large to overcome with shenanigans.
2. The improbability of a lethargic Biden scoring significantly stronger voter turnouts than did an energetic Obama in certain battleground Obama districts.
3. The quirk of over 450,000 Biden-only ballots, on which the submitted ballots showed a vote for Biden but no one else at all, even in states where there were tight congressional and Senate contests down-ticket. That of course is technically possible, and certainly some such ballots could be expected. Curiously, Biden-only ballots were predominantly prevalent in battleground states like Georgia. By contrast, there were only 725 such ballots in Wyoming, which was a Trump–Republican blowout. For comparison, there was only a fraction of Trump-only ballots in Georgia.
4. The virtual absence of mail-in vetting. In New York, which tried large-scale mail-in balloting for the first time last June, the natural process of vetting saw 21 percent of ballots disqualified. Likewise, it is common that, among people mailing in ballots for the first time in their lives, usually some 3 percent get disqualified. That simply is the human nature of some who forget to sign, forget to date the ballot, fill it in wrong, and otherwise mess up. That’s people. Yet, in Pennsylvania only 0.03 percent of such ballots were rejected, 10 times fewer than all experience would have anticipated.
Circumstantial evidence matters and carries serious evidentiary weight. Murderers have been sentenced to death based solely on circumstantial evidence. Honest, reasonable minds cannot expect all evidence of fraud to be at hand only 10 days or even a month or two after the election has ended. Democrats had half a year and more to plan strategies for aspects of their fraud and ways to cover it up. If given enough time, enough production demands for computer drives and discs, enough time to read secret and deleted emails, the Trump team would have an opportunity to say “We have the evidence” or to present as Mueller did after his two-year investigation. Any shorter time frame is unrealistic.
We all saw this coming weeks ahead and months ahead. We saw the computer-software mess the Democrats made of their own Iowa state caucuses a year ago. America was not ready for a massive mail-in balloting election of this dimension, never before having done a mail-in national election of this scope. When a chef devises a new recipe, he or she first tries it out on family or friends before putting it on the restaurant menu. America ran right into a mess for which it never before had tested in the way needed to assure a fair outcome. Unless a fair and extended opportunity is given to get to the bottom of the mess, with the same kind of fraud discovery timetables that any other fraud situation entails, the 2020 elections never will be deemed legitimate. And for good reason.
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