The vast majority of Americans now recognize that Joe Biden will be our nation’s next president. Nonetheless, only moments after all the major networks called the election for Biden, Donald Trump issued a defiant statement promising to “prosecute our case in court” and arguing that Biden has been “falsely” declared the winner. It’s not exactly clear what Trump’s legal objection is, but it appears he’ll be arguing that some unspecified number of “illegal” ballots were counted, and also that there’s been a media and pollster conspiracy to mislead the public.
Being a sore loser disgraces the office of the president, but acting disgracefully is not illegal. After all, the president and the few remaining pundits who repeat his totally unsupported ideas can’t easily be punished for lying to the American people. But his lawyers in these promised lawsuits are different than politicians and pundits. As officers of the court, they swear oaths to present only cases that have a “basis in law and fact.”
If the Trump campaign continues to file cases claiming fraud that lack any actual evidence of fraud or malfeasance, its lawyers should be fined, suspended or even disbarred. But don’t take my word for it—take the word of the late conservative hero Justice Antonin Scalia.
Scalia weighed in on this issue in 1993. That year, the Supreme Court adopted amendments to the federal rules of civil procedure, which are the boring, complicated compendium of legal rules that apply in every federal court in the country. Under those rules, a lawyer may not sign a paper that is “being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” The rules also state that “the factual contentions” in a legal pleading must either “have evidentiary support” or “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”
In sum, it’s against federal law for a lawyer to do what Trump is openly asking his legal team to do: make stuff up about fraud solely to delay, confuse and harass. Courts are broadly authorized to impose sanctions on lawyers for violating these rules, including by issuing fines and suspensions.
So how harsh should judges be in applying these rules? In a 1993 opinion regarding changes to this rule, Scalia wrote that judges should come down hard on lawyers abusing the system in this way. In his view, lawyers who go to court without evidence for their cases should be sanctioned with mandatory fines, and they should not be given any opportunity to correct their errors by withdrawing frivolous filings. “In my view,” he wrote in an opinion expressing little sympathy for lawyers who engaged in what he termed “litigation abuse,” “those who file frivolous suits and pleadings should have no ‘safe harbor.'” Scalia thought that courts must punish this conduct to deter bad behavior and free up the use of the courts’ time to hear legitimate disputes.
It’s particularly important that the courts take Scalia’s advice and deny any “safe harbor” to lawyers who file cases without evidence just to delay or harass, for two main reasons. First, judges cannot allow the president to use the courts to give these baseless claims an aura of legitimacy. Republican House Minority Whip Steve Scalise, for instance, has tweeted that the “election is not final” until the legal “process is resolved.” But if the Trump campaign is just going to file meritless cases every day for the next two months, then, by this standard, the election will never be final. This is nonsense. Judges should not allow the Trump campaign to point to pending lawsuits to let people think that the election is not final, and lawyers who would be a party to this abuse must be sanctioned.
Second, letting lawyers skate by for filing baseless lawsuits is particularly perverse in the middle of the pandemic. Courts are invaluable public resources, and court proceedings have been delayed substantially this year. Trump’s lawyers should not be allowed to clog the already over-taxed state and federal courts with a blitz of baseless litigation that wastes the time of judges and court staff, and costs the taxpayers money. To deter this behavior, the lawyers who dare file cases without evidence must be punished.
To be sure, everyone with a good faith legal claim deserves a day in court. And there are surely a few claims that even Trump can bring in good faith; for instance, if Trump is within the margin of a recount in a particular state, there’s no reason he can’t file suit asking for one—as long as he’s willing to foot the bill if the recount doesn’t change the outcome. But most cases won’t have a prayer, because they are not even supposed to be based in reality. Members of the American Bar Association must be very wary of taking the president up on this campaign of frivolous lawsuits. Judges following in Scalia’s footsteps can, and should, punish the lawyers severely.
This summer may provide a grim preview of what the post-election period will be like.
LATROBE, Pennsylvania—President Donald Trump has long signaled that if he loses reelection, it would surely be illegitimate. With his base primed to believe that victory is the only acceptable outcome, the post-election period could be the most combustible in memory. This wrenching summer—and the Trump rally I attended here yesterday—provides a grim preview of what the weeks after the November 3 vote could look like, with a subset of Trump’s supporters already showing that they’re prepared to advance his interests in the streets.
When I asked Leo Walker, a 68-year-old retiree at the rally, whether the president’s backers would publicly protest a Biden victory, he said, “They’ll do more than that. They will take the country back.” By force? “They will take the country back. There’s no doubt in my mind.” Trump, Walker said, “can do no wrong.”
The weeks after the election could be “a very dangerous period” for the country, says Miles Taylor, a former senior official in the Homeland Security Department, whose agents were deployed to quell recent police-violence protests in Portland, Oregon, against the wishes of the state’s leadership. Taylor left the agency last year and has since emerged as an outspoken critic of the president. “I talk to law-enforcement officials all the time who I used to serve with, and they’re nervous about November and December,” he continued. “We’re seeing an historic spike in gun sales. There’s some of the worst polarization in United States history. This is beyond a powder keg. This is the Titanic with powder kegs filled all the way to the hull.”
Faced with civil unrest, a president’s job at the most basic level is to calm things down. That’s not Trump’s style. He’s called the Black Lives Matter movement a “Marxist group,” ignoring its role in fighting racism. He defended 17-year-old Kyle Rittenhouse after he was charged with killing two people during demonstrations in Kenosha, Wisconsin, last week. On the opening night of their presidential-nominating convention, Republicans gave a speaking role to Patricia and Mark McCloskey, the wealthy white homeowners who pointed guns at Black Lives Matter protesters who marched past their St. Louis property. On Twitter, Trump cheered the arrival of his supporters who showed up in Portland to counter prolonged protests there.
The president has also stoked confrontation beyond the demonstrations over police violence and systemic racism. In the spring, he tweeted a demand to “liberate” Michigan, Virginia, and Minnesota, three states with Democratic governors who’d imposed measures aimed at curbing the spread of the coronavirus. Armed protesters showed up at Michigan’s state capitol in May objecting to Governor Gretchen Whitmer’s stay-at-home orders. They’ve alsoturned up in Texas to defend businesses that have opened in spite of the orders.
“It’s absolutely terrifying,” says Rosa Brooks, a former Pentagon official in the Obama administration who’s been running war-games-style exercises about the election outcome. “People who study political violence have been warning for a long time that conditions that we’re seeing in the United States resemble those that you see in countries that slide all the way down into civil conflict. We’re only going further down that chute.”
Should the election drag on or should their candidate lose, Trump’s most aggressive supporters might consider it a patriotic act to publicly contest what they see as a fraudulent election. That’s one scenario Brooks has been weighing through her work with the Transition Integrity Project, which includes dozens of former government officials and political strategists from both parties. After holding exercises to game out a potential post-election crisis, one conclusion the group reached was that “President Trump and his more fervent supporters have every incentive to try to turn peaceful pro-Biden (or anti-Trump) protests violent in order to generate evidence that a Democratic victory is tantamount to ‘mob rule,’” as was described in a recent report. (Atlantic staff writer David Frum is a participant in the project.)
In interviews at the rally here yesterday afternoon, Trump supporters told me a Biden victory is so implausible that it could come about only through corrupt means. Latrobe sits in a county where Trump defeated Hillary Clinton four years ago by a 2–1 margin, and no one I spoke with thought Trump was in any real danger of losing this race either.
Walker spoke of a potential “revolution” were that to happen. “He ain’t got a prayer,” Walker said of Biden. “He can only win with fraud.
“That’s the only prayer, and that will cause the third and final revolution in this country,” he added, citing the Revolutionary War and the Civil War.
Before I entered the airplane hangar where the rally was held, I spoke with John and Michele Urban, a couple from Latrobe, as they waited in line to get inside. “Either way, there’s going to be turmoil,” Michele Urban said. “A revolution. I’d never thought I’d live to see it. I’m 66 years old.” Her husband, 68, told me: “Democrats have sealed their own fate. They’ve proven they’re not true Americans. They’re not for this country, and they’re not for our freedom. We’re just not going to take it any more. Trump is a godsend.”