S1: This ad free podcast is part of your Slate plus membership.
S2: It really doesn’t seem that there is a viable legal strategy to get a case to the courts that could plausibly serve as like a version of 20/20 version of the 2000 Bush versus Gore case.
S3: You may have lawyers who are willing to take the case. I mean, Trump throughout his career found lawyers who were willing to take these cases. He found Michael Cohen, who was willing to threaten people with lawsuits or bring lawsuits in order to shut them up. And that’s the way he always operated.
S4: Hi, and welcome to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court. And I think at least for the last nine or so months, it’s been about voting and elections law kind of relentlessly. I’m Dahlia Lithwick. I cover those things for Slate. As of this taping on Friday, the twenty twenty election is just creeping up to the brink of being called for. Joe Biden has not yet happened.
S1: Numbers coming in from the remaining states that are in play are, I think, going to serve to establish with certainty that he has won the election, although to be sure, Donald Trump is continuing to say that he has prevailed in this contest. Later on in this show, we’re going to talk to James Zerrin, his book, Plaintiff in Chief A Portrait of Donald Trump in 3500 Lawsuits, sort of set forth the playbook that you’re seeing in Donald Trump and his campaign’s litigation efforts all this week. Slate plus members are also going to get to hear from the wonderful Mark Joseph Stern about a vitally important case argued at the Supreme Court this week, pitting the rights of LGBTQ foster parents in Philadelphia against the religious liberties of foster agencies. Thank you so much, members, for your support this week. In Always. We could not do this without you. So we wanted to start this week with our friend Rick Hasen. He teaches election law at UC Irvine. His book, Election Meltdown, became our playbook on this show as we crafted the series last winter election meltdown, trying to probe well in advance what could go wrong in a 20-20 contest with fake news, mistrust in systems and institutions, dangerous escalating nihilist rhetoric and voter suppression, among other things that Rick had warned us about in his book. I think it’s fair to say that Rick laid the table in advance for us at Amicus and our listeners and also later for much of the country on how to think about election reform going forward and also how to worry about the election that is just come. And so it seems that there’s nobody we would rather usher in the end, hopefully, of this election season than our dear friend and contributor, Rick Hasen. So, Rick, I know you are crazy tired. Welcome back to the podcast.
S5: Great to be back with you.
S1: You are very tired. I know. And I think probably America is very, very tired. As of this taping Friday morning, it looks as though Biden has locked up the votes. It has not been called yet. Are there any pathways left that you can see for Trump to take the Electoral College?
S6: Well, I’m not someone who counts votes, so I’m going to have to rely on others who will say, you know, when it’s safe to call Pennsylvania, probably by the time listeners hear this, it will happen called. But to the extent Trump is looking for a litigation path to try to reverse the outcome of the election, it’s extremely unlikely. And I think that’s true for three reasons. First, if it doesn’t come down to a single state, even if there were a problem in the state, say Georgia goes to a recount, since that looks very close as of now, that wouldn’t be decisive for the outcome. It’s not a one state margin. The second is even within a state, if it came down to a particular state, you’d have to have some theory as to why the election might be overturned. So if, for example, in Pennsylvania, it’s eighty thousand votes, even if there is a dispute about the late arriving ballots, which was an issue that went to the Supreme Court a couple of times before the election, those ballots, if they’re not decisive, that’s not going to change the election outcome. Which brings me to the third point, which is that Trump so far his legal team has come up with basically nothing of substance. Most of the cases are about we want observers a little closer in the rooms where they’re counting the votes or we think that some illegal votes were counted. And we’ve got a bunch of cases of fraud so far in those cases, they’ve produced no evidence of that. There was a case in Georgia where the judge rejected it as a case now filed in Nevada, where the complaint provided no evidence. It really doesn’t seem that there is a viable legal strategy to get a case to the courts that could plausibly service like Bush versus Gore in Florida, where it was so close that there was the potential for the election results to flip.
S1: Can you just unpack briefly the recounts? Because it’s some of these states have margins within which a recount is mandatory. I gather the Trump campaign has asked for a recount already in Wisconsin. All of that is, in one sense, perfectly normal. This is the system working. Is there anything to watch for in the states that are going to start to engage in recounts?
S6: I don’t think they’ve actually asked for the recounts in Wisconsin formally because you can’t request it until the votes are certified, which hasn’t happened yet. There’s about a 20 thousand vote margin right now in Wisconsin, and we’ve never seen a statewide recount that’s flipped anywhere near that number of votes. Statewide recounts generally fail the average number of votes. The change in a statewide recount is two hundred and eighty two, according to a study. Looking at this over, I think, a couple of decades by fair vote, you’re not going to change an election outcome. That’s twenty thousand votes apart. Absent finding some massive problem, how the election was conducted and there’s been no evidence of any problem in how Wisconsin or any of the states have run their elections. You know, you’ll find a small problem here or there, but to overturn an election, you’d have to have some kind of massive failure. And fortunately, we didn’t have that. Some of the nightmare scenarios that we talked about, like a cyberattack that knocks out the power in a city, in a swing state, it didn’t happen. And so, fortunately, the election went off much better than it could have in a pandemic. And so trying to use a recount or something to attack a clean election is unlikely to succeed unless we have a situation like Georgia where as of the time that we’re taping, the candidates were separated by fewer than two thousand votes. There is at least the potential that something could change.
S1: But Georgia won’t matter if Pennsylvania is cold. So even that goes back into your world of it will make a difference in that one state.
S6: That’s right. If the votes hold, as they might, we’d have Biden, I think, three hundred and six Electoral College votes. And that gives him some cushion because he needs only 270.
S1: Rick, you talk to at the very top about these lawsuits that are being filed seemingly kind of willy nilly. There is a way in which I guess in Michigan, they actually filed in the wrong court in one of the Pennsylvania suits this week. The judge wasn’t even clear what the relief was that they were seeking. I mean, this just is not the ateam, right? This is not James Baker and Ben Ginsberg and serious election lawyers going in. This feels like it’s, as you noted, I think on Twitter, some some of the rehashed vote fraud squad lawyers we haven’t seen since Bush v. Gore and some people who don’t seem to know what they’re doing. And it all seems to be masterminded by what Pam Bondi and Rudy Giuliani. I think when you and I have been talking the last few weeks about the possibility that this ends in the courts and this ends at the Supreme Court, we anticipated that this would be done if it were to be done by serious lawyers bringing serious claims. What does it signal that the conservative legal establishment has just utterly washed their hands of this enterprise?
S5: Well, I think it’s worth contrasting what is happening with the suit that went to the Supreme Court twice already on the late arriving ballots with all of these other lawsuits in Pennsylvania.
S6: Yes. So there was an effort before the election to try to roll back a change at the Pennsylvania Supreme Court ordered, which extended the deadline for the receipt of ballots by mail in Pennsylvania from Election Day at eight p.m. to 5:00 p.m. on November 6th, a three day extension. And there was an argument. We could talk about the details of it, but it was an argument about this potentially being the state Supreme Court, taking power away from the state legislature to set the deadlines. And that case was seriously litigated. Supreme Court weighed in on the twice. You had serious lawyers on both sides. And if, in fact, Pennsylvania came down to those votes, I think we could imagine a world in which the 18 would come out and would litigate. That stuff, but. All of the other lawsuits that we’ve seen so far, you don’t have the Paul claimants coming out, you don’t have the Ted Olson, the top drawer former solicitors general who bring these suits and bring a kind of gravitas. Instead, you have these small suits. And the reason I think that these lawyers are not getting involved is because these are not cases that could potentially lead to a difference in the outcome. Some of these cases are premised on faulty factual assertions. So, for example, there was a case in Georgia the other day where the claim was that some votes that arrived after Election Day were being counted. And it was based on the affidavit of a single election observer who didn’t really observe anything. And the judge just threw it out. There was another case brought in federal court in Pennsylvania involving how many observers could be back in the rooms where they’re counting the ballots. And the federal judge was exasperated because he said, you know, you’re making it sound like there are no people in there. Are there any people? And the Trump lawyer said there’s a non-zero number of observers. And I mean, it was just litigated so poorly. You’re right. It wasn’t clear what the relief was. This seemed to be really about one or two things. One possibility, this is an attempt to delay the certification of the votes in states so that Trump could continue to search for a path to overturn the election. That is, there’s nothing plausible yet, but maybe something will turn up. The other possibility is that this is an attempt to humor the boss. Dan Drezner has this book, Toddler in Chief. And this seems like maybe you’re trying to please Trump by giving him what he wants. And he said he wants to litigate the hell out of this and already before the election said we’re bringing in the lawyers. And so they brought in the lawyers. They just brought on lawyers to file. I don’t want to call them frivolous suits, but really small bore lawsuits that are not going to really make a difference in election outcomes.
S1: And maybe that leads inevitably to the question. That’s been on my mind all week, which is where is Bill bore you and I think within twenty four hours of each other, wrote pieces this summer sounding the alarm about Bill Barr, echoing this rhetoric about, you know, mail in ballots in foreign countries, stealing ballots and, you know, tampering with the votes. And Bill Barr went to the mat on these claims about the inherent fraud of mailing in ballots. He has been silent, if I’m not mistaken, other than one little throat clearing this week about allowing folks into polling places. But does it signal something that listeners don’t understand, that Barr has gone utterly, utterly silent as Trump rages about the things that Barr seemingly agreed with last summer?
S5: Think it shows that there’s a bottom even for Bill Barr, which is nice to see if we’re not in full banana republic mode, where you have the government making completely unsupported factual claims about an election being stolen. I was very concerned and seeing the report that DOJ had changed its rules so that it could send armed officers to seize ballots in the case of a potential election investigation.
S6: But none of that has materialized. The DOJ silence, I’m sure, is something that is really bothering the president. He’s called on the Department of Justice to get involved. But if you’re thinking about this as Bill Barr and you’re imagining a post Trump world, if you’re trying to salvage any semblance of your credibility, you’re not going to do something that’s going to further undermine that credibility to no political end, because these things are not going to lead to a difference, because at the end of the day, the norms that we have that have been so pressured seem to be holding at the moment that we need them to. I mean, we’re recording this again Friday morning. We don’t know exactly what things are going to look like, but I come in optimistic that we’re going to make it through this moment.
S1: And that raises the one big existential question I wanted to ask you, Rick, which is you and I spent a lot of months worrying about institutions and systems not holding and, you know, decentralized, rickety way that ballots are counted and just the possibilities. I mean, I was thinking through all the conversations we had about what could go wrong polling place. Violence didn’t happen. As you said, massive hack into the power grid in Detroit didn’t happen. Deep makes that change. Voter behavior didn’t happen. Do you walk away from this election assuming, as you say, it’s over and maybe it’s not sanguine that, like, how the system works, the system really worked? Or do you feel, holy cow, we clawed back catastrophe, but that doesn’t mean the system works. In other words, maybe it’s too soon to ask that question. But given how panicky both you and I were about whether institutions would hold, do you feel that maybe the framers got it more right than wrong here?
S5: So I think that this election does not show that we are in a healthy democracy. It shows that we were able to survive because we got a little bit lucky if the election had been just a little bit closer.
S6: I think the kinds of throwing this to the courts and potential violence and protests and counterprotests, all of that really could have come to fruition. I mean, think of what Trump is building right now here. And he’s getting some echoes from people like Lindsey Graham and Ted Cruz. And Josh Hawley is saying that the election was stolen. The Biden presidency is going to start out with a fairly significant portion of Trump’s base believing that massive Democratic voter fraud stole this election from Donald Trump, a claim that is utterly belied by the evidence. So all of the pathologies that I described, an election meltdown just seem to be still right there. And we got lucky. We didn’t get smart. Now, election administrators worked really hard and they made this election not be a failure in terms of enfranchisement. And despite the fact that Republicans I think I counted at least 17 different ways. I mean, that literally at least 70 different ways to try to make it harder for people to vote in the middle of a pandemic. We still had record turnout. All of that is great. But if you go back to the election meltdown and you look at the four reasons, I say that Americans trust in the legitimacy of elections is declining, you see that those are the same things that played out here. It was voter suppression, pockets of election, Mistretta incompetence that are turned around and portrayed as fraud by members of the fraudulent fraud squad. Dirty tricks and elections, including this harebrained scheme now where Wisconsin Republicans are trying to get Pennsylvania Republicans to send in late ballots illegally to try and show that the election was rife with fraud and incendiary rhetoric about rigged or stolen elections. The two speeches that Trump gave this week where he claimed election fraud were among the lowest moments in American democracy. And so those four problems only got worse. This time we dodged a bullet. We’re in deep trouble. And with a Democratic president and a Republican Senate, I don’t see that we’re going to get the kind of fundamental election reform that we need to avoid these problems. And so we’re going to be doing this podcast again in early twenty, twenty four. Hopefully by then I won’t have to wear a mask when I see you, but I am not at all confident that we are somehow out of the woods when it comes to running our elections in a way that people will accept as legitimate.
S1: And I think you’ve just answered it. But I. I have been thinking a lot about this problem of Donald Trump going from this super powerful, unbeatable, nothing touches him, a force of nature to kind of crazy uncle MSNBC. Cutting away the speeches are nuts, everybody laughing into their sleeves. And I think we toggle back and forth, even in the media between those two realities that he is all powerful and that he is absurd. But I think you’re saying something really important. And I just feel that it’s worth emphasizing those two speeches. He’s given the statement that the White House put out on Friday morning about stolen elections, about how this is entire thing is a sham. That’s profoundly dangerous. It’s easy to say. It’s also Saturday Night Live for tonight, but it’s also deeply destabilizing for a lot of people, millions of people who take him at his word. And so I think there’s a way in which some of the giddiness of watching this King Lear performance elides this much, much, much more, I think, in some way terrifying problem of what it is that he is going to do on the way out.
S5: Well, there is, but what does he do between now and January 20th, which is concerning because he still has the power of the presidency, still has a lot of levers that he could use. But I’m even more worried about the post presidency because whether he sets up his perch at Trump TV or he announces that he’s running for president in twenty, twenty four and starts his rallies back up and his super spreading events and all of that, he’s going to be someone who is just going to continue to egg on millions of followers who believe whatever he says, even when it is completely unsupported by the evidence, even when Fox News comes out and says the president has not put forward evidence to support his claims.
S6: And so, yeah, I mean, we can celebrate that were. It is going to have a relatively peaceful transition of power, but that doesn’t mean that we’re out of the woods in the short to medium term in terms of the American civil life and what it means to be a gracious loser. What defines a democracy is that you hold a free and fair election and that the losers, although quite disappointed, accept the election results as legitimate and agree to fight another day under the rules that we have. The best case scenario is that Trump leaves office grumbling about voter fraud and we don’t hear a lot more about it, but I don’t think that’s the way things are going to go.
S1: Rick, I want to ask you one last slightly wonky question that I think belongs at the center of this conversation, which is you’ve already said it’s unlikely we’re going to see serious bipartisan election reform, the kinds of things you’ve been advocating for as long as I’ve known you going into the next couple of years. But I think there’s another problem, which is we’re going to see redistricting. We’re going to see this census being deployed. We’re going to see more gerrymandering. In other words, I don’t think this is a net neutral coming out of this election. And I think we are going to see in some sense, a lot of structural changes that are going to mean even less democracy next time you and I do this show in four years. Can you talk a little bit about what that looks like? Because I think, as I said, it’s not getting enough attention this week.
S5: I mentioned earlier this lawsuit that Trump brought about the. Postal ballots that are coming in late in Pennsylvania, and although I don’t think that’s going to end up leading to anything here, what the pre-election fight over that case and related cases revealed is a Supreme Court that is curious about the idea that only state legislatures have the power to set election rules and that state courts and state agencies don’t have the power to do so.
S6: This could set up a scenario where the Supreme Court reverses a 20 15 case, the Arizona Independent Redistricting Commission versus Arizona legislature, and in that case, on a five to four vote. The Supreme Court said essentially that you can have redistricting reform done by voter initiative without violating the rights of state legislatures to set the rules for elections is a five to four decision. It was the four liberals on the court then with Justice Kennedy. Chief Justice Roberts wrote a really impassioned dissent. If we’re outside the realm of deciding a presidential election and these issues come back, it’s quite possible that we’re going to see the Supreme Court say that in federal elections, voters can’t pass initiatives to make voting reforms, that state courts can’t rely on state constitutions to protect voting rights, that this would be profoundly terrible changes and it would make the Supreme Court really the biggest impediment to election reform. Forget the fact that Mitch McConnell is not going to pass a Biden bill to establish election standards across the country or something like that. You can imagine a situation where, for example, the North Carolina General Assembly, their legislature passes a gerrymandering plan. They’re a bunch of Republicans there and they’ve been engaged in some very tough gerrymandering in the past and say the state Supreme Court, which is Democratic dominated, strikes it down, is violating the state constitution. The Supreme Court could come in in that case and say, you know what, state Supreme Court can’t do that. State legislature is supreme gerrymandering back on the boards or you think about all the election reforms in the Western states, especially, that have been passed by voters through voter initiatives, establishing redistricting commissions, establishing open primaries, requiring that there be automatic voter registration, all kinds of things passed by initiative. All of those are potentially under threat over the next few years if the Supreme Court comes in and adopts this very muscular, independent state legislature doctrine. So I’m worried about the courts and that’s what I’m worried about. The courts also in terms of allowing more voter suppression and eviscerating the remaining parts of the Voting Rights Act with a six to three Supreme Court. And now two weeks ago, the conversation was about court packing. Now the conversation is about whether Justice Thomas or Alito will retire during the lame duck so that that could be a 40 year old Trumpy judge put on the Supreme Court. Things can go very bad on a six to three Supreme Court when it comes to voting rights. There’s a voting rights case out of Arizona. The Supreme Court’s going to hear later this term. And the case we talked about on one of the earlier episodes of election involving Kansas, the fish versus Copac case, this was the case about show me your papers before you can register to vote. Show me a birth certificate or naturalization certificate. That case, the petition has been filed. That case is going up to the Supreme Court and they’re going to decide probably early twenty, twenty one whether or not they’re going to hear that case. I’m really worried about what’s going to happen with voting rights and election reform over the next few years.
S1: Have I cheered you up yet? Oh, everybody is going to get into their beds and put their pillows over their heads. I want to end on one happy note. I don’t disagree with anything you’re saying. And I think that. Donald Trump’s judiciary didn’t have a chance in this election to really flex its muscle, but it’s it’s going to and I think we forget that at our peril. I want to end with one slightly optimistic note, which is in some sense, despite everything, people vote. People voted despite covid, they organized, people knocked on doors. They I mean, Stacey Abrams changes the shape of the race in Georgia. I wonder if part of the problem on this show is that we talk about systems, we talk about courts, we talk about what’s going to happen in the house, what’s going to happen in the Senate. But despite everything, despite the rug of despair that has rolled us all the way from our election meltdown finale till today. Somehow people voted and over mastered all of it, and I wonder if maybe you could suggest for folks who were counting on court reform, who were counting on massive, massive H.R. one style voting reforms. What’s the work? What’s the work for people who’ve been organized and activated and want to claw back for democracy in the coming years?
S5: A lot of that work is going to be on the state and local level, and we see that Georgia is a great example, that grassroots organizing and political activism can make a difference. Voter turnout was way up in some places that benefited by it, in some places that benefited the trumpet for our democracy. The more people were voting and who are participating, the better. We’re going to be getting state legislatures to make changes like automatic voter registration, which turn out to be so important in Georgia. Georgia’s a Republican state, and they made it easier for people to register to vote. They’ve done other things that are terrible. We’ve talked about it on the show, but they did make it easier for people to register to vote. There are lots of things that can be done. I just posted on my blog the fact that according to a study by the Civic Center, there will be twenty three thousand more young people who will be able to vote in the Georgia runoffs than there were for the election in November. That is there. Twenty three thousand more Georgians who will be 18 by the time we get to the next election, these runoffs that will happen and those people can be mobilized and those people will become registered because of Georgia’s system. So these things can make a difference.
S1: Rick Hasen teaches election law at UC Irvine. His book, Election Meltdown. Not Just was our playbook on this show in on our series of the same name, but I think has really become the blueprint for what needs to happen going forward. Captain, my captain, there’s no one. I wanted to talk to you more than you today. Thank you. I know it’s been a long, long week, but we so, so, so, so grateful to have you on the show this week.
S5: I really appreciated your support for delving deep down into voting rights and election law because this is so important for our democracy. People have to understand the rules and they have to know that we don’t have to take the rules as given. And we can fight for rules that make it easier and fairer for everyone to participate.
S1: So over the past few weeks, one person has been in my mind almost every day, and that is Jim Zeren, he was a guest on this show last year and he described for us Donald Trump and the thousands of lawsuits in which he was either a plaintiff or a defendant when he was a plaintiff. These were frivolous suits. When he was a defendant, he just ran out the club. But in the aggregate, these lawsuits tell a story of how Donald Trump managed to delay, harass, bankrupt, distract anybody who tried to use the courts to bring him to justice. Now, this week, I have to tell you, we saw that exact pattern playing out. Trump campaign filing, really preposterously silly suits, trying literally to stop counting ballots that had been cast well in advance of the election, calling press conferences to announce that victory had happened in the court’s other press conferences to announce that the election had been stolen. I guess I figured I wanted to end the Trump presidency on this note. Sometimes you just cannot sue your way to victory, not in a democracy. So I’m delighted to welcome back James Zyra, and he is a former assistant U.S. attorney for the Southern District of New York, where he served in the criminal division under the legendary Robert Morgenthau. Jim’s writing has appeared in major periodicals from Forbes, the L.A. Times to the London Times, The Nation, The Hill Time Dotcom and The New York Law Journal. He’s also a member of the Council on Foreign Relations and his book, Plaintiff in Chief. A Portrait of Donald Trump in 3500 Lawsuits really did help me understand this entire year, including the impeachment through the lens of Donald Trump and how he uses the law. So. Jim, welcome back to the show. I know it’s been a long week for you, too, and we are delighted to have you back.
S7: Well, I’m delighted to be here.
S1: And I wonder if you can talk about just through that lens of your book and these thousands of lawsuits that you looked at over Donald Trump’s career, starting from the very early days in real estate land to really up to this minute when we look at suits involving Eugene, Carol, what the pattern is and how that pattern has played out this past week in Michigan, in Pennsylvania, in Georgia, what are we seeing and why is it so resonant? For those of us who remember, you warned us of this less than a year ago.
S7: First, it starts with the father. Most things start with the father and his father said to him, there are only two types of people, there are killers and there are losers. You’ve got to decide what you want to be. And the one thing that psychologically he can’t bear to be is a loser. And then you move on in his career and he meets the legendary or I should say the infamous Roy Cohn in a bar. And Roy Cohn was a lawyer who had contempt for the law. Eventually, he was disbarred. He used to say to his colleagues all the time, f the law, who’s the judge? And the idea was that there is no rule of law. The idea is that it’s just another political process to be maneuvered. And Roy Cohn had a number of precepts which appeared to endear him to Donald Trump. The first was that he beat the system. Roy Cohn was someone who had beaten the system. He was indicted three times. He was acquitted three times, and his adversary was none other than the man whom you called the legendary Robert Morgenthau, who was my boss. The second thing is, whenever you’re attacked, counterattack. And that played itself out in the first lawsuit where Kahn represented him, where the government sued Trump and his father for discrimination in housing in 1973. And they immediately Cohn was a lawyer and Cohn and Trump launched a counterclaim against the government, the United States of America, for one hundred million dollars and called a press conference to announce it. Well, that was dismissed about two weeks later as being frivolous. But the whole idea was to set the government back on its heels, to make the Nixon’s Department of Justice, as it was at the time, have second thoughts about whether they should have brought the suit in the first place. Of course, the suit was ultimately settled. The next precept is lie. So he did that in a discrimination case. He said we weren’t discriminating against blacks. We were discriminating only against welfare recipients because if they moved in, that the other tenants would be dissatisfied and they’d want to move out. Well, the fact of the matter is the FBI sent testers to Trump properties, both blacks and whites. And the black testers were told there were no apartments available. White testers were told that there were apartments available. The next principle is that no matter what happens, you claim victory and go home. So we see that playing out in the election. So he’s done all of these things. He’s he I mean, what seemed to be particularly frivolous is that he’s been claiming this election was a fraud since July. Now, why didn’t he bring lawsuits then? Why didn’t he point to instances where the election was a fraud or states where the election was a fraud? He kind of zeroed in as time went on on bailin voting, which is a time honored practice in many states. Some states only have mail in voting. If there was fraud, you’d expect that he’d come up with evidence. Now, I’m sure there are isolated instances of fraud. They’re not widespread instances that anyone’s been able to point to the dead. People voted on Election Day. They certainly didn’t go to the polls and vote if dead people received ballots and somebody got the ballots, signed the name of the dead person and sent it in those instances are few and far between. And they don’t meet the test, which is applied by every court that’s considered election cases, which is why wouldn’t there be a substantial likelihood of its changing the outcome?
S1: You said the secret sauce all those years ago was his Roy Cohn, and we have seen throughout four years of this administration someone or other, whether it was Rudy Giuliani or Mark Kassovitz or. Don McGann or Bill Barr willing to be his Roy Cohn, and I can’t help but wonder how central is the fact that his Roy cones are just gone? There is nobody filing these very small ball suits in Michigan, in Pennsylvania, in Georgia. These suits are not being brought by powerhouse lawyers of whom the courts are terrified. There kind of seem to be brought by whatever the bad news bears equivalent of the American legal bar is, is that what’s fallen out at center is he just doesn’t have the legal infrastructure he’s had for decades to kind of wreak terror.
S3: Most reputable lawyers understand that they have to represent to the court that they think this is good ground for a lawsuit. And with all the charges of fraud, so easy to holler fraud, but with all the charges of fraud, I haven’t seen any specific allegations of fraud which have proven which would have changed the outcome of the election. And most election lawyers, most litigators would insist that there be such evidence before they’d go to court, otherwise the judge would cut them off at the knees. So you may have lawyers who are willing to take the case. I mean, Trump throughout his career found lawyers who were willing to take these cases. He found Michael Cohen, who was willing to threaten people with lawsuits or bring lawsuits in order to shut them up. And he and that’s the way he always operated. I’m not surprised that you haven’t had Ted Olson’s bringing lawsuits on behalf of Trump anywhere in the country of had lawyers whose names would not be familiar either to you or to me.
S1: And in addition to that, I think we have judges who at least in these, again, small ball lawsuits we’ve seen all week, not having a lot of time or patience for the idea that we’ll use this lawsuit to run out the clock or to distract any of the other tricks that you described up top. We have judges just summarily saying that’s hearsay, go away. You have no evidence, go away. I don’t even understand what relief you’re seeking. Go away. So in some sense, there feels like if you don’t have a judge who is willing to let this pattern that’s been playing out, as you say, for thousands of lawsuits, judges who are just not willing to let their courtrooms be repurposed as Trump machines, that, too, is a piece of what’s changed in the last week.
S3: Yes. And I think judges, most judges want to apply the law. They don’t want to politicize the judicial process. And if you go to court without evidence, you’re going to be thrown out on your ear. Number one. Number two, what is basic to our democracy is that the people get a chance to choose. They have a chance to express what we call the will of the people. The Constitution starts out, we the people. And you are saying democracy at work and this election is a close election. No question about it. And in a close election, there will always be claims that there was some kind of dark practice going on.
S8: But if you can’t back that up with proof that that would have changed the outcome of the election, you’re going to be thrown out of court.
S1: I want you to talk for a minute about Rudy Giuliani, if you would, because in some sense, legendary prosecutor, legendary mayor, legendary in good and bad ways, and suddenly a little bit this week, feels like he’s in this clown car with Pam Bondi and Corey Lewandowski and Eric Trump and Jared Kushner driving around to make. Really bogus claims, as you said, of fraud to make grandiose claims of victory in very trivial lawsuits. What I don’t even know quite what my question is, Jim, but. It’s clear now, particularly in the wake of the really fanciful attempts to use Hunter Biden’s laptop to create another iteration of but her emails, Rudy Giuliani is just clearly not Donald Trump’s.
S3: No, I don’t think he is. And I’ve known him for many years. He is certainly a moderate Republican. When he was mayor of New York City, he was tough. He was great at 9/11 and he was known as after that as the people’s mayor. I think he was sold a bill of goods on Ukraine. And his dealings with Ukraine are the subject of investigation and will be the subject of further inquiry. So I don’t know where he went off the rails or why he went off the rails. He’s been a vocal advocate for Trump, but he’s been a prosecutor who doesn’t have the goods and he really has failed to come up with evidence in the rant he gave. Well, first of all, say he appeared on Russian television, which was amazing, in which he talked about the election and the rant he gave about Hunter Biden and all the evidence against Hunter Biden. He was talking so fast, no one can even follow what he was talking about. So I don’t know where he went off the rails. But somehow or other along the line, he did.
S1: Last time you and I spoke, you had just published this book, gone through, as we said, these thousands of lawsuits that Trump, when he was on the receiving end, certainly, as you say, there could be real consequences. But so much of his lawsuits were these transactional efforts to terrorize, you know, people into silence, to draw out and chill litigation, to essentially use either money or the power of the courts to beat away, beat away, beat away at the justice system until frequently people on the other side were either bankrupt or exhausted or terrified and failing. All that, as you said, then just declare victory. As you look at that through the rearview mirror this week and the attempts to fight the election on those terms and the ways in which I think it’s fair to say there is this kind of funny, said King Lear quality. None of these systems are supporting him. There is no lawyer, serious, consequential lawyer supporting him. Bill Barr has disappeared from the scene. Is there a way in which you can make any sort of big claim about how Donald Trump, at the end of the day, couldn’t just sue his way out of Denmark?
S3: Well, I think he would like to. He feels this result was terribly unfair to him. He feels the media have been terribly unfair to him. He feels that the facts are irrelevant. He called the the press the enemy of the people we’ve been living in for years of truth. Dick, I don’t quite know what the total is of lies. He’s told in office the lies he told in his speech from the east wing of the White House considered the most dishonest address he gave during his presidency. But, you know, he’s angry. It’s true. He doesn’t like to lose. No one likes to lose. People are angry when they lose. He likes to hold grudges and he likes to make allegations. And that’s the way he has thrived in business and that’s the way he thrived as president. He terrified all of his Republican enablers that they would have to suffer the consequences if they crossed him.
S9: Indeed, he was able to keep them in line. Interestingly, not that many Republicans have stood by him in all of this. But you do have Ted Cruz. Lindsey Graham first stood by him and then seemed to dial back from it. But that’s what Lindsey Graham likes to do. McConnell hasn’t said very much, except that every legal vote must be counted. I mean, all these people are in the same business as Joe Biden. And they got there by counting votes and by taking their case to the voters. And then somebody counted the votes. And to try to undermine that system is undermining the means whereby they got into office and they’re not about to do that.
S1: Jim, what about the fact that Donald Trump is still even if he leaves the Oval Office in January, as we think he will, he’s still the named defendant in a lawsuit from Eugene Carol. He’s still on the hook for his financial documents. Those suits are not going away. There’s lots of talk right now about a raft of pardons that are going to explode out of this administration in the coming weeks. But do you have some sense of given that I think we could stipulate Donald Trump is in a lot of legal peril and a lot of different contexts if he’s going to be able to run the old playbook that you described to escape any kind of liability once he’s out of office?
S9: Well, the first question is one of criminal liability. Now, most constitutional law experts, including some whom you’ve had on your program, do not believe he can pardon himself. It is possible that he’ll resign. He’ll just say the hell with you. And Mike Pence will become the president. And Mike Pence, you’ll pardon him. He may pardon members of his family. Who knows who else he might pardon. He might pardon some of the witnesses against him. But of course, his pardon power only extends to federal crimes, does not extend to crimes he may have committed under the laws of New York State, which are being elaborated now by Cy Vance. And I think after the election results, you might see some action from Cy Vance. You have these civil suits like Egin Carol where the Justice Department tried to intervene in his behalf. Extraordinary argument that when Trump libeled Eugene, Carol, and you had to assume that he did for the purpose of the discussion that was in the course of his duties as president, the United States. And when he said she’s not my type and I never met her and she claims all that was false and defamatory, if that suit continues, there’s a question of whether she might be able to establish damages that she may be able to establish through DNA evidence that her story of rape in the dressing room of Bergdorf Goodman really happened. So that suit is a dangerous suit for him. And there’s so many other suits. I mean, The New York Times indicated that he owes about four hundred million dollars that he can’t pay, which is due. And this is personal debt, which is due within the next six months. How does he hope to confront that? He may be left without much. The way of resources by the time is creditors and various plaintiffs that have brought actions against them are finished.
S1: James D. Aaron is a former assistant U.S. attorney for the Southern District of New York. His writing has appeared in major periodicals from Forbes, the L.A. Times, The London Times, The Washington Times, The Nation, The New York Law Journal. He’s a member of the Council on Foreign Relations and his book, Plaintiff in Chief Portrait of Donald Trump in thirty five hundred Lawsuits is without a doubt, I think, the single most clarifying document of the past year in terms of understanding what it is that Donald Trump did in the courts throughout his career. And certainly what we’re seeing this week in the courts. Jim, thank you very, very much for your time this week.
S9: Thank you very much. It’s always a pleasure to talk with you.
S1: So we now come to many, many, many, many people’s favorite part of the week, which is our visit with Mark Joseph Stern, who covers the courts and the law for us here at Slate. And this is our slate. Plus a behind the velvet rope. Check in with Mark about what it is that we missed on the regular show, which is a lot this week. I should note that while those of us who were glued to the big map show all week may have missed it, the court really did convene with a new justice, Amy Connie Barrett on the bench and hearing Fulton vs. City of Philadelphia, a really consequential case in this progression. We’ve described on the show for a long time about civil rights, on the one hand, versus religious rights and freedoms on the other. So, Mark, it is great to have you back. I know you are as wiped out as any journalist in the business. Thank you for making time to be with us.
S10: Hi, homestretch. I’m here. We’re here. We’re doing this pretty brutal, but we’re just waiting. And the country is hanging together. Maybe better. Better than I expected. Here in D.C., Sweet Green and CVS boarded up their windows. All of downtown looks like a ghost town. And it is ridiculous because there is no violence and there was never going to be. There is no rioting. There is no civil unrest. People are just moderately happy and going about their business. So it is not the end times that we were led to believe might come no matter what by the many corporations that saw fit to shut themselves down this week.
S1: So the vile antifa yet again fails to materialize. So let’s talk briefly if we can, firstly, plus listeners about that tiny little thing we call the U.S. Supreme Court, which I know sigh. Turns out we did not vote on this week, but we are, as a Rick Hasen said earlier in the show, destined to live with for a very long time. Amy Barrett hears her first cases this week, a huge case that I want to talk about. But before we get to either of those things, what what’s it like listening to the court that’s going to be the court for the foreseeable future, knowing that, OK, Joe Biden might be president and I guess we’re all going to live to fight another day. But the courts, pretty much you and I wrote this piece, the court’s going to court for a really long time.
S10: Right? We are stuck with it. Yeah, it felt a little surreal on Monday because this was the first time Amy Barrett has participated in arguments and she was not a particularly noticeable feature of the arguments at any point. I think perhaps that’s because they’re done by telephone still. Right. So she comes at the end of the line of questioning, by which point I think a lot of people have sort of checked out all of the really good questions have generally been asked. She did not show her cards for the most part. She didn’t reflect on being new. She didn’t pause and say, wow, so great to be here for the first time. You know, it felt like business as usual from the moment that she opened her mouth. And the question she asked, look, I think she’s going to rule the wrong way. And all of these major cases, the questions that she asked were not particularly illuminating. They tended to sort of zero in on one specific, maybe technical aspect of the case, which is a tried and true method of keeping your questions out of the newspapers. As Stephen Breyer puts it, Brett Kavanaugh was pretty good at that, too. You don’t hear him asking any particularly explosive or revealing questions.
S11: So, again, aside from how weird it was to skip from Justice Breyer to Justice Alito, right. With no Justice Ginsburg in between, it felt like business as usual.
S1: I guess that brings us, Mark, to Fulton vs. City of Philadelphia. In some ways, I guess the first big ticket case of the twenty twenty term. Can you walk us through while the rest of us had our eyes glued on the map show what was happening at the Supreme Court? What’s the issue in Fulton and how did it play out?
S10: Yeah, so Fulton involves this Catholic Social Services Agency in Philadelphia that works with the city to provide foster care services. And one of the services it provides is screening and certifying potential foster parents. So if you think you might want to foster kids, you go to one of these agencies, they check you out, they interview you, they scrutinize you, whatever you do, the training courses, you eventually get certified and then the city matches you with a kid from the entire foster pool. OK, so this one social services agency decided that it was not going to work with same sex couples. They said, look, we are Catholic. We are not going to screen or work with same sex couples in any capacity. We think they’re sinful. We don’t recognize their marriages. We just will not deal with them at all. And so the city of Philadelphia said, OK, well, we regret that you’re doing that. We will continue to work with you in other capacities. So, for instance, this agency still provides what’s called Kongregate Care, a house full of foster kids that they look after. Right. Very much still on the scene. But Philadelphia said we are not going to renew your contract to screen and certify potential parents because you have told us that there is a a segment of parents who you will not work with, and that is going to shrink the pool of overall foster parents who we can place kids with. And so we’re going to let that contract expire because we only want to work with agencies that accept all comers that accept everybody. Seems like a pretty reasonable position to me. But the Catholic Social Services Agency turned around and sued the pants off. Philadelphia, claimed that Philadelphia was discriminating against it, that it had exhibited anti Catholic bigotry, that it was out to get the Catholics of Philadelphia, and that all of this was a kind of manufactured controversy just to stick it to this one Catholic organization. It has now reached the Supreme Court after all of the lower court, said Lowell. No, this is fine. There’s nothing wrong with this. And it looks pretty likely that the Supreme Court is going to side with the Catholic agency and force Philadelphia to renew its contract to let that agency keep screening parents.
S1: And it’s fairly clear, at least from oral argument, that the conservative majority was very, very receptive to these argu. It’s about the ways in which the faith of the religious adherents would be burdened, affirmatively burdened by being asked to be complicit in placing kids in LGBTQ families, I wonder, although, although I just want to push back on that.
S10: So this is something that a lot of people are saying about the case, which isn’t even actually a feature in the case. The agency is not being asked to place kids with LGBTQ families. Right. That’s not even the burden here.
S11: They are only being asked to screen potential parents and give them a report card and give an up or down vote because it’s the city that places the kids with the parents. It’s not even the agency placing these children in same sex homes. It’s not even that burden. It’s like the flimsiest slightest burden you could imagine.
S1: So that’s really important because, A, that’s obviously not how it’s been characterized in the press. This is reminiscent of the Little Sisters a little bit ragazzo we talked about last year where there’s a story that’s being told in the press that distorts what the burden would be. I guess I’m curious how it is that the liberal wing of the court, the shrinking liberal wing of the court, responded to these arguments that this is, you know, in the long line of the cake, Baker and the Little Sisters, just a catastrophic religious burden.
S11: Yeah, so the conservatives on the court made it very clear, like I said, that they think this is just sheer anti Catholic bigotry. And Brett Kavanaugh, who is now the median justice, right. He is the swing vote, the fifth least conservative justice, suggested that Philadelphia had gone out of its way to persecute Catholics in this case, that Philadelphia was looking for a fight, which is just objectively false. But whatever it’s Brett Kavanaugh, we’re used to it. I heard the liberals trying to push back against that. I heard the liberal justices trying to push back against this narrative that it was a city that’s just out of control with militant secularists who have their knives out for Catholics and really try to zero in on the facts and say, look, like we’re really just talking about a pretty small ask here. The city is just asking this, this agency to comply with the rules that everybody else has to comply with. And one of the agency’s arguments is that actually the city makes exceptions to its rules all the time and that it wouldn’t make an exception for this one agency. And that’s proof of bigotry. And I heard the liberal justices trying to sort of correct that narrative and say, actually, you know, if you look here, the exceptions that you’re talking about include things like saying that it’s better to put disabled children in families that have experience with disability. Right. That is not the kind of discrimination because the agency said, oh, that’s that’s disability discrimination. Just like this is anti Catholic discrimination. The liberal justices were saying, look, it sounds like Philadelphia is just trying to run a smooth machine that places children in the right homes. It did not go after you because you’re Catholic and went after you because you wouldn’t follow the rules.
S1: And can you talk for a little bit about I know you said that Justice Barrett was not trying to make headlines, but she certainly, it seems, did ask a provocative question of Neal Katyal when she asked if what the state could take over hospitals and forced doctors to perform abortions. That doesn’t sound like it’s exactly not trying to make headlines.
S11: Right. So that the other frame that the conservative justices put on this case is that for many years, Philadelphia had private foster care agencies that did their job commendably. And then the city came in and said, we’re taking all of this over and we’re going to push out all of the religious agencies so that we can be, you know, militant, godless, dogmatic secularists or whatever. Right. That’s really not true. But Barrett seemed to buy that theory because she asked that question as if to say, well, look here, Philadelphia took over all the foster care agencies and now they’re trying to force them to serve same sex couples. What if Philadelphia took over every hospital and tried to force it to provide abortions? And maybe that would be a good hypothetical if it were based on a truthful premise. But it’s not. And so it suggests to me that Barrett like, say, Sam Alito is good at kind of warping the facts in a way that lets her say some kind of outrageous things or pose some hypotheticals that lead to weird places. Right. And that makes headlines. And people think, well, I don’t want hospitals to be forced to provide abortions. So maybe she’s rights, but she’s really not talking about anything that’s remotely connected to this case.
S1: Yeah. So this goes back to the Little Sisters where we’re having a conversation in the press that is utterly separate from, in some sense, what is briefed and what the actual issue is. I wonder last just substantive question on this, but it seems useful is that there was at least some reason to believe that this case might spell the death knell of Employment Division V. Smith, the 1990 precedent that still lingers on. Is there any reason maybe talk about what Employment Division V. Smith is, why it’s implicated in a case, and whether you saw some death now about to happen?
S11: Yeah. So Employment Division V. Smith is a Supreme Court decision from the early 90s that was written by Scalia and joined by the conservative justices. It was considered a conservative decision that said there’s no constitutional right to get exemptions from most laws most neutral, generally applicable laws. You know, if you say my faith requires me to do peyote and your state says actually peyote is illegal, you don’t get to come in and say, well, I’m doing peyote anyway, because that’s what my faith requires under the First Amendment right. The reason that was. A conservative decision, and I think the reason Scalia wrote it is because at that time there are people asking for religious exemptions were generally religious minorities, Native Americans, often Muslims in prison, people who, frankly, the conservative justices don’t like or care about that much. Over the last two decades, this has totally flipped to the point that the people who are now requesting or demanding religious exemptions are almost always ultra conservative Christians that don’t want to, say, allow their employees to access contraception through their own health care plans. Right. That that was the Hobby Lobby case. And here the the conservative legal movement tried to tee up this case as a way to overrule Smith, to convince the conservatives that basically Christians need these protections and that a Christian foster care agency needs a First Amendment right to discriminate against gay people. And I don’t think this will be the case to. And Smith. I think it had the potential, but the conservative justices have so so bot’s and sunk their teeth into this theory that the agency was actively and intentionally discriminated against Catholics, that they don’t need to overturn Smith. Right. They don’t need to say, oh, this was a neutral law. But these Christians deserve an exemption anyway because they’re going to say this wasn’t a neutral law. This was anti Catholic discrimination. And intentional religious discrimination is always unconstitutional.
S1: Before I let you go back to, as Homer Simpson would say, and now we play the waiting game, I want to I can’t believe we’re really we’re at the Homer Simpson part of the show. I want to just ask you this one question which has threaded through so many of our discussions about the Supreme Court in the last year, Mark, which is holy hell, the court has dodged a bullet. Right, in terms of it does not look like there’s going to be a Bush v. Gore, even if this ridiculous Pennsylvania segregated ballots extension, counting deadline, whatever were to have any merit, it would not decide the election. The court. Right. Has plausible deniability to say you’re on your own, Mr. Trump. Best of luck. That’s a good thing, right? I mean, we can just say that’s objectively a good outcome, that the court does not get drug into this crazy right now.
S11: So I think it’s a good thing for everybody, which means it’s also a good thing for the court’s conservatives who now get to save up their political capital that they might have otherwise had to spend on saving Trump. I mean, as we discussed in the weeks before the election, you had four conservative justices, Thomas, Alito, Gorsuch and Cavnar lay their cards on the table and say, this is how we’re going to steal the election for Trump if it’s really close in one state. Right. We knew exactly how they were going to do it because they told us. But it now looks very obvious that it’s not going to come down to a few hundred ballots in one state, which means the Supreme Court won’t get a chance to steal it, a good thing for the country. But also, I think, like I said, a good thing for the court, because now, you know, even if one of these really frivolous cases reaches the Supreme Court, they’re not going to take it. They’re not going to accept Trump’s crazy arguments about Sharpie gate in Arizona or whatever conspiracy theories they’re cooking up. And then conservatives will say, look at our justices. Justice Barrett is so neutral. She’s so impartial. She didn’t throw this election to Trump. And that will give her 10 years of political capital to resolve every single other case in favor of Republicans. So it’s you know, I think the court dodged a bullet. But in some ways, whether the conservative justices know it now or not, they are going to benefit from not having to issue a Bush v. Gore 2.0, especially since it appears Democrats aren’t going to take the Senate. They’re going to be the ones ruling this country for the next few years or decades. And they managed to get there without having to steal an election for anybody.
S1: Well, that is what passes for good news these days, my friend. And I’m just yes, that’s what passes for good news. Mark Joseph Stern covers the courts, the law, the Supreme Court, election law, voting, LGBTQ issues and so very, very much more. And he has been just, oh, a steadfast comrade and ally in the crazy making months that have come before this election. And hopefully, if it’s not crazy, if it’s not crazy, Mark and I are going to sleep some mark. I hope you sleep some. Thank you for being here.
S11: I hope. It’s always a pleasure. Thank you.
S4: And that is a wrap for this 2020 presidential election episode of Amicus. Thank you so, so much for listening in. Thank you for your letters and your questions and your feedback. We really appreciate hearing from you. Now, more than ever, you can always keep in touch at Amicus, at Slate, dot com, or you can find us at Facebook dot com slash amicus podcast. Our show today was produced by Sara Birmingham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. We’re going to be back with you with another episode of Amicus in wait for it two short weeks. Thank you for listening and take good care of yourself and your loved ones. Thank you for.