If you are a Trump supporter, you know that the President won re-election in a landslide, and that it is only massive voter fraud that keeps him from being declared the winner. What may not be so clear is why his lawsuits challenging the election results keep getting dismissed, and why his lawyers allege fraud when they hold a press conference at a mini-mall, but do not allege fraud in court. This compels the question – what is wrong with the President’s lawyers, who keep losing lawsuits despite so much evidence of fraud?
To understand the disconnect, you have to understand the different rules that apply in the media and in court. On Twitter, or in making statements to the LSM, you are free to say things like “There is no evidence of collusion” or “There is no evidence of obstruction” even though both statements are demonstrably false. Not only will there likely be no adverse consequence, but if you make the statements often enough, and with an air of assurance or indignation, some people will actually believe you.
For a lawyer speaking in court, there is a very different set of rules. The rules of ethical conduct in most states prohibit lawyers from making false statements of fact or law to the judge. See Rule of Professional Conduct 3.3, requiring Candor Toward the Tribunal. This rule is taken very seriously: lawyers who violate it lose their license to practice law. In addition, in federal court, and in some state courts, Rule 11 requires lawyers to certify that there is evidentiary support for every statement they make in a pleading. The court can impose sanctions, including fines and payment of the other side’s legal fees, on a lawyer who violates the rule. Finally, Rule 9(b) of the federal rules requires that allegations of fraud be stated “with particularity”, specifying in detail the facts that would constitute fraud. For example, a complaint alleging fraud might read:
- On November 26, 2020, I heard President Donald J. Trump (hereafter “Trump”) state in a news conference that he had won the 2020 presidential election in a landslide, and that states were only failing to certify his victory because of massive voter fraud.
- That same day, I went to the website operated by the Trump campaign, donaldjtrump.com (hereafter “the Trump website”) and contributed $100 by checking the Election Defense Team box.
- I made that contribution in reliance on the statement by Trump that he had won the election, and that there was widespread voter fraud, as well as the statement on the Trump website that my contribution would be used to prove that voter fraud.
- The statements made by Trump and the Trump website were false.
- I later learned that the president’s lawyer Rudy Giuliani admitted on November 18, 2020 before Judge Matthew Brann of the U.S. District Court for the Middle District of Pennsylvania that the lawsuits did not involve fraud.
- In addition, I later learned that my contribution was used not to prosecute fraud claims, but to reduce the President’s campaign debt, and to support other Republican candidates.
- The false statements made by Trump and the Trump website were made with knowledge that they were false, or were made with reckless disregard of their falsity, or were made negligently.
You can see that given the need to plead fraud specifically, and the serious consequences of misstating the evidence in support of those allegations, that the President’s lawyers were not so much incompetent (well, maybe that too) as they were caught up in a scheme to induce people to make additional campaign contributions to a campaign that had already lost the election. Unfortunately for them, and for the President, they had to prove that scheme in a system designed to flush out lies and nonsense.
So, to answer your question, there is a disconnect between the President’s and his lawyers’ statements at press conferences and on Twitter and their statements in court, because reporters do not have the same power as judges to compel people to answer questions clearly, and to punish them for lying. Maybe they should. Until then, if you want to know the truth, pay attention to what the President says in court, and not so much to what he says on Twitter.
