29th November 2020
Since the presidential election earlier this month the losing candidate, the outgoing President Donald Trump, has repeatedly and loudly alleged fraud.
…AND I WON THE ELECTION. VOTER FRAUD ALL OVER THE COUNTRY! https://t.co/9coP3R44UQ— Donald J. Trump (@realDonaldTrump) November 18, 2020
There is tremendous evidence of wide spread voter fraud in that there is irrefutable proof that our Republican poll watchers and observers were not allowed to be present in poll counting rooms. Michigan, Pennsylvania, Georgia and others. Unconstitutional!— Donald J. Trump (@realDonaldTrump) November 14, 2020
He has asserted that the lawyers of his campaign can or will show this fraud.
The number of ballots that our Campaign is challenging in the Pennsylvania case is FAR LARGER than the 81,000 vote margin. It’s not even close. Fraud and illegality ARE a big part of the case. Documents being completed. We will appeal!— Donald J. Trump (@realDonaldTrump) November 28, 2020
In Trump’s own words: “fraud and illegality ARE a big part of the case”.
But inside the court rooms, the lawyers for his campaign have not been alleging fraud.
Indeed, his attorneys have expressly said before judges that they are not alleging fraud.
This was noted by the federal appeals court in its judgment last week:
‘The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign “doesn’t plead fraud. . . . [T]his is not a fraud case.”’
(My post on that judgment is here.)
There is therefore a mismatch – the ‘client’ is saying that fraud is “a big part of the case” and the attorneys are explicitly saying in court that fraud is not part of the case at all.
What can explain this contradiction?
There are two explanations, closely connected.
The first explanation, which is not sufficient by itself, should be the more important one.
This explanation is that there is no actual evidence of fraud – or no evidence that there is more than a trivial number of cases that would not be enough to ‘tip’ any of the results in any of the States.
You would think that the lack of actual evidence would be all that should be required to prevent a lawyer pleading fraud on their client’s behalf.
You would be wrong.
The lack of evidence would explain why any legal claim requiring that evidence would ultimately fail.
And the lack of evidence should mean that a lawyer would not make a claim based on no evidence.
But the lack of evidence does not, by itself, explain what it has not been alleged.
Given their client’s raging belief there was fraud, something else – other than the lack of actual evidence – is needed to explain why the Trump campaign’s lawyers did not allege fraud in the courtroom.
And so we come to the second explanation.
In the United States – as in England – it is a strict rule of court that a lawyer cannot allege fraud in a civil matter without particular evidence.
For confirmation of this I can thank two American lawyers on Twitter.
Federal Rule of Civil Procedure 9(b). Fraud must be pled with “particularity,” which courts have interpreted as identifying the specific “who, what, when, where, and how” of the false representation.— Andrew J Trask (@ClassStrategist) November 28, 2020
I think that’s probably right. And maybe Rudy still knows where the line where he actually gets sanctioned is.— Raffi Melkonian (@RMFifthCircuit) November 28, 2020
Even Rudolph Giuliani – the former New York mayor who reportedly told Trump that the legal cases would succeed – would not break this rule.
Breaking such a rule would have severe if not career-ending consequences for any attorney, and although attorneys may do anything for Trump, they would not do this.
The refusal to break this rule also seems to me to be the best explanation for why some of Trump’s attorneys quit on the eve of a hearing – my reasoning on this is set out at this thread.
Why are Trump's lawyers suddenly quitting?— davidallengreen (@davidallengreen) November 17, 2020
– some thoughts from an English lawyer's perspective
(There is a detailed account of the extraordinary last few days of the Trump campaign’s legal and litigation mayhem at the Washington Post.)
Lawyers – often fairly – are the subject of public criticism and media hostility.
Many people will freely deride and insult lawyers (though they also usually ask you for legal advice when they themselves have a problem).
Yet for this negative public image, even lawyers have their limits.
But for the rules of court, it may well be that Trump’s lawyers would have alleged fraud in court, even without adequate evidence, and have just left it to the court to sort out.
That would have been unfortunate, but that did not happen.
And this was because the rules of court turned out to be stronger even than the emphatic instructions of a sitting president.
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