Trump's Legal Strategy is to Sue First and Ask Questions Later. That's Dangerous.
Caplin & Drysdale’s Matt Sanderson authored the November 13, 2020 op-ed “Trump’s legal strategy is to sue first and ask questions later. That’s dangerous.” for The Washington Post. Below is the full op-ed, and please visit this link to view the op-ed as it appears in The Washington Post.
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Republicans should be trumpeting their victories in Senate, House and state legislative races across the country after the 2020 general election. Instead, we’ve spent this past week excusing President Trump’s predictable failure at the top of our ticket and indulging in a legal and rhetorical assault on his behalf against the same American election system that yielded our many successes.
Trump’s explanation for coming up short in his race is that thousands of American citizens engaged in an unprecedented conspiracy to commit fraud. He and his allies promise proof right around the corner, if only we wait for it. That is backward. It is also pointless: Based on Trump’s record of challenging past election results, his strategy will fail, has no chance of affecting the outcome, does damage to the country and won’t, in the end, satisfy or change him.
The president’s impulse is to shout first and ask questions later. A credible inquiry, though, starts with evidence and moves toward a conclusion, not the other way around. Normal protocol, at least for all the Republican candidates I have advised, would be for legal counsel to carefully review and filter out bogus voter-fraud claims before they are made public. But the Trump campaign has rashly promoted accounts from unreliable and unvetted witnesses, including a convicted sex offender, a Pennsylvania postal worker who quickly recanted his initial sworn statement and an elderly Nevada voter whose claim that someone stole her ballot fell apart once the county clerk revealed that the ballot bore her signature. The campaign has also hastily assembled affidavits that show no voter fraud, published a directory of “dead” Michigan voters who are either still alive or did not vote, and referred for criminal prosecution a list of Nevadans that included members of the U.S. military who voted lawfully while out of state.
Again and again, grandiose allegations have devolved into shifting anecdotes and faulty documentation unable to withstand even the lightest scrutiny. As of now, the only evidence Trump has for what would perhaps be the most significant organized crime in American history is an election result he does not like and a chain of falsehoods unveiled in parking lot news conferences. Anyone who compares an election held in the United States to the type of rigged contests staged by Russia and Iran bears a burden of proof. No serious person believes that such proof is in the offing.
Still, Trump wants us to wait even though his prior claims of voter fraud have never panned out. Following a loss in the 2016 Iowa caucuses, he baselessly accused a Republican rival, Sen. Ted Cruz of Texas, of committing fraud and demanded that “either a new election should take place or Cruz results nullified.” He later impaneled a special national commission to investigate voter fraud that he blamed for his loss in the 2016 general election popular vote, but the commission ultimately disbanded without issuing a single finding. And he declared in 2018 that Democrats were “trying to STEAL” two high-profile Florida elections, only to have that claim subsequently debunked by an 18-month investigation conducted by the state. The president’s track record on voter fraud accusations entitles him to no benefit of the doubt and to no public patience here.
Trump wants us to wait despite the fact that his machinations have no prospect of reversing his loss. President-elect Joe Biden’s narrow but clear leads in Arizona, Georgia, Nevada, Pennsylvania and Wisconsin give him a projected 306 electoral college votes — 36 more than the number required to win. The most successful post-election litigation and recount effort in modern American history flipped a lead of only a few hundred votes in a single state. The president would need to overturn a Biden advantage that is several orders of magnitude greater than that, after a post-election week when his lawsuits have mostly fallen flat, and somehow manage to do it in at least three separate states to prevail. He can accomplish that only if courts toss out tens of thousands of votes in multiple states. That won’t happen.
Trump wants us to wait while his rhetoric is injuring the country. He is not simply availing himself of the regular litigation and recount processes; he is using this time to launch repeated attacks on the election system and on the thousands of dedicated Americans who administrate it. This undermines our general welfare. A cornerstone of our republic is Americans’ collective faith that election results accurately reflect their will. Everyone should be troubled, then, that only 3 in 10 Republicans now believe that our elections are free and fair, just one week after what was widely considered to be a well-run election. This damage becomes more difficult to repair the longer the president’s post-election outbursts go.
We in the Republican Party can no longer wait on Trump, even if he wants us to, because waiting won’t fix him. We should acknowledge the reality that Republican statements and lawsuits these past few days have little to do with exposing voter fraud, or winning the 2020 presidential race, or furthering Republican ideals, or serving any long-term Republican interests. We are instead a political party that is fully engaged in a kind of performative grief counseling to an emotionally fragile president who somehow can’t quite come to terms with an obvious loss. Republican aspirants are scrambling onto television to shift blame from our fallen standard-bearer over to our election system, with each new appearance serving as an over-the-air comfort session for the president. GOP lawyers are filing a scattershot of legal complaints that are either too limited or too devoid of merit to succeed, with each additional lawsuit that slings mud at election administrators a bit of balm for a bruised presidential ego. This is a bottomless pit.
Republicans should move forward. We would be better served steering our full fundraising capacity toward our two Senate candidates in the upcoming Georgia runoffs rather than vacuuming up money for the president’s new leadership PAC. We should be touting the party’s forward-looking agenda rather than chasing ghosts in an election that already happened. We should turn the page now after a successful 2020 election and move into a challenging but promising future. We can’t do any of that as long as we continue to wait.