As Good as Gone

“Justice? You get justice in the next world. In this world you have the law.” ~ William Gaddis

Donald Trump had run out of options. The first Monday in December was “Safe Harbor” day. All fifty states locked in their vote counts on that day. No more changes or challenges would be allowed. Those are the rules. All of Trump’s legal team’s fifty lawsuits challenging those vote counts, filed across six separate states, had failed. Actually, they’d been ridiculed, even by judges he had appointed. The one that reached the Supreme Court died on the court’s doorstep. It was absurd. They wouldn’t touch it. What would be the point? So, there would be no more of these odd and puzzling and evidence-free lawsuits. And on the second Monday in December the Electoral College would meet and vote, and this would be over. And he’d be as good as gone. He’d be gone on January 20 – or maybe not.

He was out of options, but a friend in Texas invented one for him:

The state of Texas filed an audacious lawsuit in the Supreme Court on Tuesday against four other states, asking the justices to extend the Dec. 14 deadline for certification of presidential electors.

The suit, filed by the state’s attorney general, Ken Paxton, said Georgia, Michigan, Pennsylvania and Wisconsin had engaged in election irregularities that require investigation, and it asked the court to “enjoin the use of unlawful election results without review and ratification by the defendant states’ legislatures.”

The ask was simple. Suspend everything indefinitely to allow the Republican state legislatures in Georgia, Michigan, Pennsylvania and Wisconsin enough time to decide how to award each of those state’s electoral votes, because the popular vote had been a joke, as everyone knew.

Everyone didn’t know:

Legal experts called the suit outlandish, and it comes at a time when Mr. Paxton is battling a scandal in his own state over whistle-blower allegations that he engaged in bribery and other wrongdoing to illegally help a wealthy Austin real estate developer and political donor.

“It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category,” Stephen I. Vladeck, a law professor at the University of Texas, wrote on Twitter.

And there was this:

In a blog post, Richard L. Hasen, a law professor at the University of California, Irvine, called the Texas filing a “press release masquerading as a lawsuit.”

He listed what he said were its shortcomings: “Texas doesn’t have standing to raise these claims as it has no say over how other states choose electors; it could raise these issues in other cases and does not need to go straight to the Supreme Court; it waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there’s no reason to believe the voting conducted in any of the states was done unconstitutionally; it’s too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).”

But there was this:

The office of Attorney General Chris Carr of Georgia, a Republican, pushed back against Mr. Paxton’s lawsuit with the Supreme Court. In a prepared statement on Tuesday, Katie Byrd, a spokeswoman for Mr. Carr, said that Mr. Paxton was “constitutionally, legally and factually wrong about Georgia.”

But the Republican caucus in the Georgia State Senate appeared to approve of the filing. In a news release Tuesday, the Republican state senators argued that calling a special session to overturn Mr. Biden’s election – as Mr. Trump has demanded – was legally and practically impossible. “However,” they said, “an avenue to move this matter even quicker than special session now exists and is pending before the United States Supreme Court.”

No, this was not pending before the United States Supreme Court. The court had not agreed to take up anything. And this was an absurd argument anyway, which now means it would live another day. The New York Times’ Jeremy Peters and Maggie Haberman take it from there:

Despite dozens of judges and courts rejecting challenges to the election, Republican attorneys general in 17 states on Wednesday backed President Trump in his increasingly desperate and audacious legal campaign to reverse the results.

The show of support, in a brief filed with the Supreme Court, represented the latest attempt by Trump loyalists to use the power of public office to come to his aid as he continues to deny the reality of his loss with baseless claims of voter fraud.

Mr. Trump has been holding out hope that the Supreme Court will hear the case and ultimately award him a second term. Legal experts are skeptical, however, and have largely dismissed it as a publicity stunt.

Even so, seventeen states joined the absurdity, which now had a designated spokesman:

Late Tuesday, the president asked Senator Ted Cruz of Texas, a Republican, if he would be willing to argue the case, according to a person familiar with their conversation. Mr. Cruz agreed, this person said. And the president has filed a motion with the court to intervene, which would make him a party to the case.

Everyone who’s anyone should be a party to the case:

The willingness of so many Republican politicians to publicly involve themselves in a legal campaign to invalidate the ballots of millions of Americans shows how singular a figure Mr. Trump remains in the GOP. That these political allies are also elected officials whose jobs involve enforcing laws, including voting rights, underscores the extraordinary nature of the brief to the court. Even in defeat – a reality that a significant number of Republicans refuse to accept, polls show – allegiance to Mr. Trump is viewed as the ticket to higher office.

In short, embrace the foolishness, to assure your climb to the top of the mountain. Everyone is doing it:

Mr. Cruz is only the latest possible Republican presidential candidate in 2024 to express support for Mr. Trump’s baseless allegations that the results of the election are tainted and fraudulent – a claim that the president’s lawyers have been unable yet to demonstrate in court. Indeed, in the president’s own motion in the Texas case his lawyer sidestepped the idea that fraud was rampant, writing that reporting in the media about the lack of proof “misses the point” because the larger issue is whether state officials loosened ballot safeguards “so that fraud becomes undetectable.”

Another Republican senator with presidential ambition, Josh Hawley of Missouri, praised the attorney general of his state on Wednesday, Eric Schmitt, after Mr. Schmitt declared on Twitter that “Missouri is in the fight” for Mr. Trump.

There was a lot of that going around, at least in these seventeen states:

Republicans familiar with the dynamics in these states – all of which Mr. Trump won – described calculations of ambition and political survival that many party officials are making as they choose to stand behind Mr. Trump. Some fear that if they don’t make it clear they are on the president’s side they could open themselves up to a primary challenge or end any hope for attaining higher office in the near future. Some like Ken Paxton, the Texas attorney general who filed the lawsuit, are considering a run for governor.

And this snowballed:

After Mr. Paxton filed, Republican attorneys general from across the country rushed to declare themselves on board, posting their support on social media and issuing statements that echoed the legally questionable claim in the Texas brief that its citizens are harmed if elections in other states are not conducted properly.

The 17 states behind the amicus brief represent a majority of the 25 Republican attorneys general across the country, and include Alabama, Florida, Kansas, Missouri, Louisiana and South Dakota. Notably, the two Republican attorneys general in the battleground states that Mr. Trump lost – Arizona and Georgia – are not part of the brief.

Not everyone is signing up for this:

Senator John Cornyn, a Texas Republican and former attorney general of the state, seemed baffled by the legal maneuver, calling it “extraordinary” and “unprecedented.”

“I’ve never seen something like this, so I don’t know what the Supreme Court’s going to do,” he said in Washington on Wednesday.

No one knew. But someone might know. That would be Steve Vladeck, that professor at the University of Texas School of Law, who offered this:

For all of the (many) lawsuits that President Donald Trump and his supporters have filed challenging the 2020 election results, the new winner for hubris and cynicism may be the action that the state of Texas filed directly in the Supreme Court late Monday night, asking the justices to throw out the results in four (but only four) battleground states: Georgia, Michigan, Pennsylvania and Wisconsin.

That can’t be done:

Texas is relying on an obscure source of the Supreme Court’s power – its ability to hear disputes between states immediately without having them go through lower courts, known as “original jurisdiction.” But the claim at the heart of the suit has nothing to do with interstate relations – like a border dispute or litigation over water rights. Nor does it have anything to do with fraud. Rather, Texas is arguing that coronavirus-related changes to election rules in each state violate the federal Constitution, never mind that most states (including Texas) made such changes this cycle.

So, forget about it:

It is lacking in actual evidence; it is deeply cynical; it evinces stunning disrespect for both the role of the courts in our constitutional system and of the states in our elections; and it is doomed to fail.

And that has to do with precedent, which requires a free mini-law-lecture:

When the drafters of the U.S. Constitution agreed to create a Supreme Court, one of the few points of consensus was that such a tribunal was necessary, at the very least, to resolve disputes between states. After all, neither North Carolina’s nor South Carolina’s state courts could be trusted to fairly resolve a dispute between those two states. And lower federal courts within those states, insofar as Congress chose to create them, might also be subject to localized biases. Thus, the Constitution not only gives the Supreme Court the power to hear interstate disputes; such disputes are one of only two classes of cases Congress can empower the Supreme Court to hear as an “original” matter – without any prior proceedings in a lower court.

But as the Supreme Court (and the U.S. legal system, more generally) has evolved, the role of these “original” cases has significantly receded. As the court explained in 2010, original suits between states “tax the limited resources of this Court by requiring us ‘awkwardly to play the role of factfinder’ and diverting our attention from our ‘primary responsibility as an appellate tribunal.’” Indeed, even though Congress has given the court exclusive jurisdiction in suits between two or more states (meaning that lower courts may not hear them), the justices still refuse to hear many such disputes, usually because the issues undergirding them can be resolved in other cases in the lower courts involving private parties.

To take one especially prominent example, when Nebraska and Oklahoma petitioned the court a few years ago to allow it to challenge Colorado’s legalization of marijuana, the court summarily denied its request. More generally, the court has heard arguments in only five such disputes in the last decade – averaging one every other term.

That’s the long way of saying this is going nowhere, but of course it shouldn’t go anywhere:

None of the claims Texas is pursuing are incapable of being addressed by the lower courts; they’ve just been rejected by those tribunals. None of the injuries Texas is invoking as justification would be unique to Texas. And the factual allegations Texas makes in its filings are both preposterous on their face and have been soundly discredited by every court that has considered similar allegations to date.

At a more fundamental level, the notion that it is appropriate for one state to sue another because of dissatisfaction with the results of the election in that state is not just offensive; it is belied by at least one prior case in which the court refused exactly that relief. And allowing Texas to bring a suit like this would inevitably open the floodgates – to California suing Texas over its environmental regulations; to New York suing Florida over its Covid-19 response; and so on.

All of this may help to explain why the Texas solicitor general – the state’s leading advocate before the Supreme Court – did not sign onto any of the filings in this new suit.

Vladeck, however, realizes that this may have nothing to do with the law:

The goal may not be success, but rather perpetuating the evidenceless narrative that the election was somehow “stolen” from Trump. In that respect, being able to point to irrelevant procedural minutiae as evidence of sympathy for the claim may be victory enough.

And that is why this case, like so many of the others, are so offensively cynical. Knowingly or not, willfully or not, the lawyers filing these actions are co-opting the courts – who have no obvious mechanism for pushing back besides dismissing the suits.

And that then ruins the courts:

When (not if) the Supreme Court slams the door on this Texas case, the president’s critics will (once again) claim victory, the president and his defenders will (once again) move the goal posts (to Congress, one suspects) and the collateral damage will be to the institutional reputation of the courts – and the idea that the courts are anything other than another lever to be pulled in partisan political squabbles.

Well, that is what they are now:

President Donald Trump went off in a 15-minute phone call Tuesday to Georgia Attorney General Chris Carr, telling him to stay away from opposing the Texas lawsuit against his state.

The Atlanta Journal-Constitution reported Wednesday evening that the call came shortly before Sens. Kelly Loeffler and David Perdue published a joint statement supporting Trump’s latest Hail Mary to the Supreme Court.

Trump likely saw Carr’s statements from earlier in the day calling Texas Attorney General Ken Paxton “constitutionally, legally and factually wrong.”

“The two men spoke at the urging of Perdue, who along with Loeffler also received calls from Trump about Carr’s opposition to the lawsuit, according to three Republican officials, two of whom described Trump as ‘furious’ in his call with Loeffler over the attorney general’s stance,” said the AJC.

Trump is working the phones. The Washington Post reports this:

The president has been calling Republicans, imploring them to keep fighting and more loudly proclaim the election was stolen while pressing them on what they plan to do. He spoke to Arizona GOP Party Chairwoman Kelli Ward and Rep. Mike Johnson (R-La.), head of the conservative Republican Study Committee, on Wednesday, and is expected to meet Thursday at the White House with several state attorneys general. Meanwhile, Rudolph W. Giuliani, Trump’s personal lawyer and point man in the legal fight, has been making similar calls from the hospital, where he is being treated for Covid-19.

But one guy is missing:

The president also has enlisted Vice President Pence to reach out to governors and other party leaders in key states to see what else can be done to help the president. A person familiar with the calls said Pence has not exerted pressure on lawmakers to take specific actions and sees them as “checking in.”

Pence is keeping his options open. When this nonsense collapses no one will be able to blame him for anything, but others were not as careful:

Trump’s conservative allies in the House have been privately buttonholing GOP senators, seeking to enlist one to join in objecting to slates of electors on Jan. 6, according to multiple people familiar with their effort who spoke on the condition of anonymity to discuss their plans.

On that day, Congress will meet in a joint session to count the electoral votes and declare Joe Biden as the 46th president – with Pence presiding. But if a member of the House and a member of the Senate challenge a state’s results, the whole Congress would vote – and the GOP plotting all but assures the routine process could take a dramatic turn, forcing Republicans to choose between accepting the election results or Trump’s bid to overturn the outcome.

Ah, so that’s the plan. Find just one holdout in each house and force a vote on accepting anything from the Electoral College at all. Congress will choose who won this election, not the people and not the state legislatures either. This might work:

Trump has called a number of informal, campaign and White House advisers and asked for help, according to three people who have spoken to him and discussed the calls on the condition of anonymity.

“The request is more: Can you feel people out to see if they think the election is a fraud, and are you willing to help us overturn it?” said one person familiar with Trump’s calls, who described it as a “last-ditch effort.”

That’s what this is:

Trump has turned it into something of a showdown at the Supreme Court, writing Wednesday on Twitter, “This is the big one. Our Country needs a victory!”

That may not be what this is:

If the whole Congress is forced to vote, it probably would fail in the Democratic-controlled House and face resistance in the Senate.

“It’s just simply madness,” Sen. Mitt Romney (R-Utah) said. “The idea of supplanting the vote of the people with partisan legislators, is, is so completely out of our national character that it’s simply mad. Of course, the president has the right to challenge results in court, to have recounts. But this effort to subvert the vote of the people is dangerous and destructive of the cause of democracy.”

It’s a little late to worry about that now. Anger might be appropriate now. Garret Epps, a professor of law emeritus at the University of Baltimore, has plenty of that:

What we are witnessing during this endless post-election period is a coordinated attempt to murder the American system of government. This crime is being carried out in public by lawyers who have taken an oath to uphold the Constitution they seek to destroy.

Spare me sophistry about “the better angels of our nature.” These chiseling shysters should face not just disbarment but monetary sanctions, and maybe jail.

And my lead nominee for disbarment, fines, and even prison is not the pathetic dotard Rudy Giuliani or the deranged Kraken keeper Sidney Powell; as of Tuesday, December 8, it is Texas Attorney General Ken Paxton…

Paxton may be on his way to jail anyway. He was indicted five years ago on state securities-fraud charges and is still awaiting trial; last month, eight of his own top aides told federal officials that they believed Paxton was guilty of abuse of office, improper influence, and bribery in a separate matter involving a wealthy campaign donor.

But mere garden-variety bribery and fraud pale in turpitude compared to a conscious, deliberate effort to destroy American democracy for political advantage.

And there is a way to do this:

Federal Rule of Civil Procedure 11 provides that an attorney’s signature on a pleading represents to the court that the material in it is supported by good-faith legal arguments and genuine evidence – and that it is not being “presented for any improper purpose” – including “unnecessary delay.” Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may not “make a false statement of material fact or law to a tribunal,” nor “offer or use evidence that the lawyer knows to be false.”

Paxton and the other signatories have flagrantly violated these rules. There is no proper purpose for this filing other than to prevent the electoral process from functioning. There is no serious legal claim to support the suit. There is no evidentiary support, or prospect of same, for their “factual” claims.

So, somehow, something must be done:

Monetary sanctions? Disbarment? Hardly enough. I can’t quite figure out the right charge to bring against a public official who seeks to prostitute the federal courts in order to destroy the nation. But by God, whatever we call it, prison seems a minor penalty for that offense.

This guy’s classes in law school must have been amazing. He lets it rip. But why not? Trump is (almost) as good as gone. But the damage is forever.