NR PLUS Law & the Courts

Donald Trump Is the Client from Hell

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President Donald Trump arrives to speak about the presidential election results in the Brady Press Briefing Room at the White House in Washington, D.C., November 5, 2020. (Carlos Barria/Reuters)

Whatever the political merits of Trump’s approach, it does not stand up in court.

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How the president’s post-election legal tactics are working against him and his lawyers.

E very lawyer has horror stories about terrible clients, especially those you have to represent in court cases. There are clients who lie to you and make you take the fall when you have to change their story in court; clients who have unreasonable expectations of success; clients who tell you to do something and then get mad once you’ve done it; clients who won’t stop running their mouths when you tell them to let the lawyers do the talking; clients who constantly change lawyers when they get advice or outcomes they don’t want to hear; and — of course — clients who don’t pay the bills.

The Trump campaign’s challenges to the 2020 election vote counts make clearer than ever something we have known for some time: Donald Trump is the client from hell. His words and actions constantly undermine his chances of success in court, and have contributed to the nasty, public harassment campaigns against his own lawyers. Over and over, Trump has spoken out in irresponsible and reckless ways about the election. He has created false expectations about what his legal team could prove in court, poured gasoline on combustible fears about election fraud, and peddled outright lies and conspiracy theories.

These are not just toxic things for American democracy (although they are that); they are also bad for Trump’s lawyers. It is hard to convince courts to take your claims seriously when your client is out in public using the world’s largest megaphone to retail obvious whoppers. The pressure to be aggressive in places such as Michigan, where the election was decided by over 146,000 votes, makes it harder to act strategically. And then, of course, it’s challenging when Trump changes horses midstream to send in Rudy Giuliani, who had not argued a case in court in 28 years and was clearly unfamiliar with the legal standards.

Consider just a sampling of Trump’s more overheated tweets since the election, attacking its legitimacy and baldly claiming a rigged, stolen election:

 


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Many of Trump’s tweets have specific problems with the facts.

Tucker Carlson had his facts wrong about this case and publicly apologized — before Trump tweeted this.

 

Yes, Trump has repeatedly pushed the insane “Dominion voting machines rigged the election” theory, which is based entirely on one human-error problem in one county in Michigan that was discovered immediately and a minor snafu in Georgia, and which relies on false claims of the company’s ties to Democrats.

This is not true. Wayne County, Mich., (which includes the city of Detroit) has 1.75 million people, of whom 672,000 live in Detroit. It has 1,212,910 active registered voters. Joe Biden got 587,000 votes in Wayne County. And as I have noted, Trump actually got the highest percentage of the vote in Wayne County for a Republican since 1988.

More votes than people who voted? How even would that work? There has been no evidence of people voting more than once — or dead or nonexistent people voting — in any significant numbers.

No lawsuit has provided anything remotely resembling evidence of 10,000 dead people voting in Michigan. The actual affidavits submitted in the Michigan lawsuit were more modest in their claims.

And then, there’s the president turning his fire on the Republican-led election administration in Georgia:

 

This drumbeat about a consent decree preventing signatures from being verified is wrong, as Georgia’s Republican secretary of state has explained:

For the first time, Georgia verified signatures for absentee ballot applications, not just the ballots, which is a step beyond what Georgia law requires. The applications were matched with both the voter’s driver’s license and their voter registration card. Applications that were submitted through the Secretary of State’s online portal required a driver’s license number and the ballot was mailed to the address on the driver’s license. When ballots were returned, the signatures were cross-referenced to the absentee ballot application (if the application wasn’t done through the online portal), driver’s license, and voter registration card. The law only requires matching one, but the Secretary of State’s office made sure all three were matched and no ballot could be rejected by a single person.

It’s true that the ballot signatures cannot be rechecked later against the outside envelopes, because the two are separated to preserve the secrecy of the ballot. This is, however, a problem inherent to mail-in voting, and cannot be fixed without compromising the secret ballot. And as Jim Geraghty has explained, while Trump’s lawyers are challenging the consent decree that Trump has complained about, its actual effect is much more modest than what Trump describes, and does not prevent the checking of signatures that did, in fact, take place:

The consent decree signed earlier this year requires election officials to consult with their peers on mismatching signatures, to ensure one official isn’t making subjective assessments of a signature match. “A mail-in absentee ballot shall not be rejected unless a majority of the registrars, deputy registrars, or absentee ballot clerks reviewing the signature agree that the signature does not match any of the voter’s signatures on file in eNet or on the absentee ballot application.” If the absentee ballot is rejected, officials are required to notify the voter within three days with an “opportunity to cure” — that is, sort out whether they really are who they say they are, and work out whatever problem led to the rejection of the ballot.

There’s a whole bunch of Trump tweets, such as this one, complaining about poll watchers not having access to the vote-counting rooms. The Trump campaign’s lawsuits have generally made more modest claims about obstruction of view in particular locations. These have been regularly rejected by the courts, often on grounds that the people making allegations had not understood the social-distancing protocols or limits on the number of poll-watchers at each station. Trump’s exaggerations have not aided the lawyers’ cause in identifying particular problems.

Whatever the political merits of Trump’s approach, it does not stand up in court. Lawyers have to be careful about facts because courts deal in evidence, not political rhetoric. In a fast-moving field such as election litigation, some allegations are bound to be made that do not pan out. In these instances, lawyers need the flexibility to maneuver away from such claims in order to retain their credibility with the court and keep the court’s eyes focused on the lawyer’s strongest arguments. What Trump keeps doing is the opposite of that approach.

As I have noted previously, it is a good thing for the country that there are ways to put Trump’s claims to the test in court, precisely because it allows for an evidence-based process that screens out the most extreme claims and gets behind the rhetoric to look at the facts. But judges are also human. Any lawyer can tell you that the worst thing you can do for your case is lose credibility — that of the lawyer, or that of the client — in the eyes of the judge. Trump’s conduct in wasting the credibility of both has undoubtedly contributed to why he has now lost, by some counts, 27 out of 28 court decisions since the election.

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