1.7 President Trump Had His Day in Court

1.7 President Trump Had His Day in Court

¶“We’ve proven” the election was stolen, but “no judge, including the Supreme Court of the United States, has had the courage to allow it to be heard.”¹¹²¹¹² Factba.se, “Interview: Brian Kilmeade of Fox News Interviews Donald Trump - December 13, 2020,” Vimeo, at 7:47, Dec. 13, 2020, available at https://vimeo.com/490517184. That was how President Trump described efforts to overturn the election in court one day before the electoral college met on December 14, 2020. That was false.

¶Judges across the nation did evaluate President Trump’s claims that the election was stolen. As longtime Republican election attorney Benjamin Ginsberg testified before the Select Committee, the President’s camp “did have their day in court,” it’s just that “in no instance did a court find that the charges of fraud were real.”¹¹³¹¹³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 13, 2022), available at https://www.govinfo.gov/committee/house-january6th. In total, the Trump Campaign and allies of President Trump filed 62 separate lawsuits between November 4, 2020, and January 6, 2021, calling into question or seeking to overturn the election results.¹¹⁴¹¹⁴ Select Committee staff analyzed the lawsuits. See also, Brendan Williams, Did President Trump’s 2020 Election Litigation Kill Rule11?, 30 Pub. Interest L. J. 181, 189 (2021), available at https://www.bu.edu/pilj/files/2021/06/Williams.pdf. Out of 62 cases, only one case resulted in a victory for the President Trump or his allies, which affected relatively few votes, did not vindicate any underlying claims of fraud, and would not have changed the outcome in Pennsylvania.¹¹⁵¹¹⁵ The only case that involved a victory for the campaign was the Pennsylvania case of Trump v. Boockvar. In that case, the court found that the Pennsylvania Secretary of State could not extend the deadline for voters to cure their failure to provide proper identification for absentee ballots. This decision affected just a few thousand votes, which were not included in any tallies. Trump v. Boockvar, No. 602 MD 2020 (Pa. Commw. Ct. Nov. 12, 2020), available at https://www.democracydocket.com/wp-content/uploads/2020/11/602-MD-201.pdf.Show full note Thirty of the cases were dismissed by a judge after a hearing on the merits.¹¹⁶¹¹⁶ See John Danforth, Benjamin Ginsberg, Thomas B. Griffith, et al., Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election, (July 2022), p. 3, available at https://lostnotstolen.org/download/378/.

¶In every State in which claims were brought, one or more judges specifically explained as part of their dismissal orders that they had evaluated the plaintiffs’ allegations or supposed proof of widespread election fraud or other irregularities, and found the claims to be entirely unconvincing. In Arizona, for example, the plaintiffs in Bowyer v. Ducey alleged that the election was tainted by the introduction of “hundreds of thousands of illegal, ineligible, duplicate or purely fictitious ballots.”¹¹⁷¹¹⁷ Complaint at 2, Bowyer v. Ducey, 506 F. Supp. 3d 699 (D. Ariz. Dec. 2, 2020) (No. 2:20-cv-02321), ECF No. 1. A Federal judge dismissed their suit, finding it “void of plausible allegations” and “sorely wanting of relevant or reliable evidence.”¹¹⁸¹¹⁸ Bowyer v. Ducey, 506 F. Supp. 3d 699, 706, 723 (D. Ariz. 2020). Likewise, in Ward v. Jackson, an Arizona State-court judge dismissed a lawsuit by the State GOP chair following a two-day trial, finding no evidence of misconduct, fraud, or illegal votes.¹¹⁹¹¹⁹ Minute Entry and Order at 6-9, Ward v. Jackson, No. CV2020-015285 (Az. Sup. Ct. Dec. 4, 2020). This ruling was unanimously upheld by the State supreme court, where all seven justices were appointed by GOP governors.¹²⁰¹²⁰ See Ward v. Jackson, No. CV-20-0343-AP, 2020 Ariz. LEXIS 313, at *6 (Ariz. 2020), also available at https://www.clerkofcourt.maricopa.gov/home/showpublisheddocument/1984/637437053596970000; Howard Fischer, “State Supreme Court rejects GOP bid to void election,” Arizona Capitol Times, (Dec. 8, 2020), available at https://azcapitoltimes.com/news/2020/12/08/federal-judge-hears-arguments-in-election-challenge/; “Meet the Justices,” Arizona Judicial Branch, (Dec. 8, 2020), available at http://web.archive.org/web/20201208032900/https://www.azcourts.gov/meetthejustices/ (archived); “Brutinel Elected as Next Arizona Supreme Court Chief Justice,” Associated Press, (Nov. 20, 2018), available at https://apnews.com/article/27b725d44d384e2cb7a0e491ac82fe7f; Bob Christie, “Ducey Names 2 to New Arizona Supreme Court Seats,” Associated Press, (Nov. 28, 2016), available at https://apnews.com/article/26fc7f154b0e4b4fb358987941ded8d0; “Arizona Governor Appoints New Supreme Court Justice,” Associated Press, (Apr. 26, 2019), available at https://apnews.com/article/4ce4bf1d79724c03b1d4cf36f4b97cf1; Jonathan J. Cooper, “Ducey Appoints Montgomery to Arizona Supreme Court,” Associated Press, (Sep. 4, 2019), available at https://apnews.com/article/bac43d42185c4b8bb9e8c465a59792c8.Show full note

¶In Georgia, a State court dismissed Boland v. Raffensperger, which alleged that tens of thousands of illegal ballots were cast by out-of-State voters or with invalid signature matches.¹²¹¹²¹ Complaint at 1-2, Boland v. Raffensperger, No. 2020CV343018 (Ga. Super. Ct. Nov. 30, 2020), available at https://electioncases.osu.edu/wp-content/uploads/2020/11/Boland-v-Raffensperger-Complaint.pdf. The judge found that “the Complaint’s factual allegations . . . rest on speculation rather than duly pled facts” and “do not support . . . a conclusion that sufficient illegal votes were cast to change or place in doubt the result of the election.”¹²²¹²² Final Order at 5-6, Boland v. Raffensperger, No. No. 2020CV343018 (Ga. Super. Ct. Dec. 8, 2020), available at https://electioncases.osu.edu/wp-content/uploads/2020/11/Boland-v-Raffensperger-Order-Dismissing-Complaint.pdf. The judge who issued this decision had been appointed by a Republican governor, as had seven of the eight justices of the State supreme court who upheld her ruling.¹²³¹²³ Order Denying Appeal, Boland v. Raffensperger, No. S21M0565 (Ga. Dec. 14, 2020), available at https://electioncases.osu.edu/wp-content/uploads/2020/11/Boland-v-Raffensperger-GA-SC-Order-Denying-Appeal.pdf; Jonathan Ringel, “Deal Picks Krause, Richardson for Fulton Superior,” Law.com, (Dec. 28, 2018), available at https://www.law.com/dailyreportonline/2018/12/28/deal-picks-krause-richardson-for-fulton-superior/; “Chief Justice Harold D. Melton,” Supreme Court of Georgia, (Oct. 16, 2020), available at http://web.archive.org/web/20201016174745/https://www.gasupreme.us/court-information/biographies/justice-harold-d-melton/ (archived); “Presiding Justice David E. Nahmias,” Supreme Court of Georgia, (Nov. 20, 2020), available at http://web.archive.org/web/20201120204518/https://www.gasupreme.us/court-information/biographies/justice-david-e-nahmias/ (archived); “Chief Justice Michael P. Boggs,” Supreme Court of Georgia, (last accessed Dec. 3, 2022), available at https://www.gasupreme.us/court-information/biographies/justice-michael-p-boggs/; “Presiding Justice Nels S.D. Peterson,” Supreme Court of Georgia, (last accessed Dec. 3, 2022), available at https://www.gasupreme.us/court-information/biographies/justice-nels-s-d-peterson/; “Justice Sarah Hawkins Warren,” Supreme Court of Georgia, (last accessed Dec. 3, 2022), available at https://www.gasupreme.us/court-information/biographies/justice-sarah-hawkins-warren/; “Justice Charles J. Bethel,” Supreme Court of Georgia, (last accessed Dec. 3, 2022), available at https://www.gasupreme.us/court-information/biographies/justice-charles-j-bethel/; “Justice Carla Wong McMillian,” Supreme Court of Georgia, (last accessed Dec. 3, 2022), available at https://www.gasupreme.us/court-information/biographies/justice-carla-wong-mcmillian/.Show full note Likewise, a Federal judge denied relief to the plaintiff in Wood v. Raffensperger, which alleged that new procedures for checking absentee ballot signatures spoiled the result by making it harder to reject illegal ballots, finding “no basis in fact or law to grant him the relief he seeks.”¹²⁴¹²⁴ Wood v. Raffensperger, 501 F. Supp. 3d 1310, 1317, 1327, 1331 (N.D. Ga. 2020). The judge wrote that “[t]his argument is belied by the record” because absentee ballots were actually rejected for signature issues at the same rate as in 2018.¹²⁵¹²⁵ Wood v. Raffensperger, 501 F. Supp. 3d 1310, 1327 (N.D. Ga. 2020).

¶In Michigan, a Federal judge found in King v. Whitmer that the plaintiffs’ claims of “massive election fraud” were based on “nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden. . . .”¹²⁶¹²⁶ Complaint for Declaratory, Emergency, and Permanent Injunctive Relief, King v. Whitmer, Case No. 2:20-cv-13134-LVP-RSW,(E.D. Mich. Nov. 25, 2020), ECF No. 1; King v. Whitmer, 505 F. Supp. 3d 720, 738 (E.D. Mich. 2020). In a subsequent decision, the judge called the case “a historic and profound abuse of the judicial process” and sanctioned the attorneys who filed the lawsuit King v. Whitmer, 556 F. Supp. 3d 680, 688-89 (E.D. Mich. 2021).Show full note Similarly, a State-court judge rejected plaintiffs’ claims in two cases brought against Detroit and the surrounding county that accused them of systematic fraud in how absentee ballots were counted; the judge found that one group of plaintiffs “. . . offered no evidence to support their assertions,”¹²⁷¹²⁷ Opinion and Order at 1, 4, Stoddard v. City Election Commission, No. 20-014604-CZ, (Mich. Cty. Cir. Ct. Nov. 6, 2020), available at https://www.michigan.gov/-/media/Project/Websites/AG/releases/2020/november/Stoddard_et_al_v_City_Election_Commission_et_al_-_11-06-2020.pdf?rev=2fa32f93caa94365a1ee8c1c492a4e75. and that the other group’s “interpretation of events is incorrect” and “decidedly contradicted” by “highly-respected” election experts.¹²⁸¹²⁸ Opinion and Order at 12-13, Costantino v. Detroit, No. 20-014780-AW, (Mich. Cty. Cir. Ct. Nov. 13, 2020), available at https://electioncases.osu.edu/wp-content/uploads/2020/11/Costantino-v-Detroit-Opinion-and-Order.pdf.

¶In Nevada, a State-court judge rejected a litany of claims of systematic election fraud in Law v. Whitmer, ruling that plaintiffs “did not prove under any standard of proof that illegal votes were cast and counted, or legal votes were not counted at all, due to voter fraud” or “for any other improper or illegal reason.”¹²⁹¹²⁹ Law v. Whitmer, No. 10 OC 00163 1B, 2020 Nev. Unpub. LEXIS 1160, at *1, 29-31, 33, 48-49, 52, 54 (Nev. Dec. 8, 2020), available at https://casetext.com/case/law-v-whitmer-1 (attaching and affirming lower court decision). The ruling was unanimously upheld by the Nevada Supreme Court.¹³⁰¹³⁰ Law v. Whitmer, No. 10 OC 00163 1B, 2020 Nev. Unpub. LEXIS 1160, at *3-4 (Nev. Dec. 8, 2020), available at https://casetext.com/case/law-v-whitmer-1 (attaching and affirming lower court decision).

¶In Pennsylvania, a Federal judge dismissed Donald Trump for President v. Boockvar, finding that the Trump Campaign had presented nothing but “strained legal arguments without merit and speculative accusations unpled in the operative complaint and unsupported by evidence.”¹³¹¹³¹ Donald J. Trump for President v. Boockvar, 502 F. Supp. 3d 899, 906 (M.D. Pa. 2020). The dismissal was upheld by the United States Court of Appeals for the Third Circuit, which held: “[C]alling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”¹³²¹³² Donald J. Trump for President v. Boockvar, 803 Fed. App'x. 377, 381 (M.D. Pa. 2020). That opinion was authored by another Trump appointee.¹³³¹³³ “Eleven Nominations Sent to the Senate Today,” Trump White House Archives, (June 19, 2017), available at https://trumpwhitehouse.archives.gov/presidential-actions/eleven-nominations-sent-senate-today-3/.

¶Lastly, in Wisconsin, another judge dismissed a lawsuit accusing the Wisconsin Elections Commission of “constitutional violations” that “likely tainted more than 50,000 ballots.”¹³⁴¹³⁴ Complaint at 72, Trump v. Wisconsin Election Commission, 506 F. Supp. 3d 620 (E.D. Wis. 2020) (No. 2:20-cv-01785), ECF No. 1; Trump v. Wisconsin Election Commission, 506 F. Supp. 3d 620, 625 (E.D. Wis. 2020) (dismissing case with prejudice). The judge ruled: “This Court has allowed plaintiff the chance to make his case and he has lost on the merits,” failing to show that the outcome was affected by Commission rules about drop boxes, ballot addresses, or individuals who claimed “indefinitely confined” status to vote from home.¹³⁵¹³⁵ Trump v. Wisconsin Election Commission, 506 F. Supp. 3d 620, 637-39 (E.D. Wis. 2020). The ruling was upheld by a three-judge panel of the United States Court of Appeals for the Seventh Circuit, all of whom were Republican appointees, including one appointed by President Trump himself.¹³⁶¹³⁶ Trump v. Wisconsin Election Commission, 983 F.3d 919, 922 (7th Cir. 2020); Bill Glauber, “Federal Appeals Court Turns Down Donald Trump Push to Overturn Election Results in Wisconsin,” Milwaukee Journal Sentinel, (Dec. 24, 2020), available at https://www.jsonline.com/story/news/politics/elections/2020/12/24/federal-appeals-court-rejects-trump-bid-overturn-wisconsin-results/4043650001/.

¶In all, the judges who heard these post-election cases included 22 Federal judges appointed by Republican presidents.¹³⁷¹³⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th.

¶President Trump and his lawyers were well-aware that courts were consistently rejecting his claims. During a December 18th meeting in the Oval Office with President Trump, Sidney Powell and others, White House Senior Advisor Eric Herschmann pointed out that President Trump’s lawyers had their opportunity to prove their case in court, and failed. Powell fired back that “the judges are corrupt.” Herschmann responded: “Every one? Every single case that you’ve done in the country you guys lost, every one of them is corrupt, even the ones we appointed?”¹³⁸¹³⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), pp. 170-71.

¶President Trump was faced with another choice after having his day in court. He could accept that there was no real evidence of voter fraud, or he could continue to amplify conspiracy theories and lies. He chose the latter.