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”.
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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?
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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
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(There is a detailed account of the extraordinary last few days of the Trump campaign’s legal and litigation mayhem at the Washington Post.)
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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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Thank-you for these daily blogs, they are very useful at helping to understand some of current issues across UK/US/Brexit and not forgetting, Magna Carta.
Fraud doesn’t commit itself. People commit frauds and fraud is a serious crime.
So for the lawyers to pursue a fraud argument as alleged by Trump, they would have to be in possession of evidence of fraud which in turn obliges them to either file a criminal complaint or face criminal charges themselves for failing to do so.
Finally, to over turn the result, perhaps as many as 10 million individual Americans would have to face criminal charges of electoral fraud.
… which all leads back to, what is Trump doing? Is he a “stable genius” with a brilliant strategy, or is it the last days of his downfall? Will people just move on, or will they cling to a victim narrative?
I believe it’s all about denial, deflection and disruption. Trump cannot cope with the idea that he lost. He simply does not comprehend that as a possibility. He therefore probably believes on some level that something went wrong with the system.
Associated with this is his view that by fighting on he can at least dupe his supporters into believing he didn’t lose, which helps him to save face, and solidifies their loyalty which may be required should he decide to run in four years time. (Although I have doubts that he will win the Republican nomination).
Finally, he is a narcissist and an ungracious boor who has little regard for any institution let alone those he cannot bend to his will.
He knows he cannot win these frivolous claims but by making them he keeps himself in the limelight and removes attention from Bidon, which, I imagine, Bidon probably doesn’t mind that much, now that it seems his team has access to the levers of power so that they can get on with effecting the transition.
It seems that the ”rules” of law may in this case complement and support the rule of law. All of which is good.
Thank you for your efforts to explain what we see happening around us. Greatly appreciated and enjoyed.
David, you both encourage and deject me with your ever clear reason! But I do so much prefer clarity and logic that I look forward to more.
As an aside: how does the past tense of plead (pleaded in UK English) mutate to ‘pled’ in US English?
And through you, DAG, can I put in a plea for ‘pleading’, please. Lord Woolf intended, I think, to bowdlerise it from English/Welsh civil proceedings when the civil proceedings rules came in in 2000. It seems to me it is still a useful definition of setting out a litigant’s case, and of defending that pleaded case. A well pleaded case should define the issues the parties intend to argue about in court.
Am just glad I understand as much American English as I do…
“Pleaded” as in beaded, kneaded and seeded? Or “pled” as in led, bled and fed? Or indeed perhaps either, depending on context and scansion and mood.
The recent “non-precedential” opinion of the US Court of Appeals for the Third Circuit uses both “largely repleaded many claims” and (in a quotation) “could have been pled much earlier”.
See https://www.dailywritingtips.com/pleaded-vs-pled/
But compare https://www.writerscentre.com.au/blog/qa-pleaded-or-pled/
I enjoyed reading your commentary. Now I really need to go watch my all time favorite movie about you profession and the English judicial system “Oh Lucky Man”, If you’ve seen it then sing along ”
🎶 We all want justice but you’ve got to have the money to buy it! 🎶