To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Thursday, November 26, 2020

New Observercast

Trump’s Last Chance

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In my work as a lawyer, I often find myself sitting with CEOs waiting for a verdict. So, I write statements for everybody to use if we lose. Someone once noticed that I never draft victory statements. Winning is easy: The system worked, and you smile for the camera.

It’s losing that requires hard work. Losing with dignity is like aging with dignity, which is very nearly impossible. It’s personal.

I can understand why Donald Trump is having a difficult time accepting defeat. I got rejected at all but one of the colleges I applied to, which I tell high school seniors every year, even though it was a very long time ago. I tell them because learning to accept loss and rejection is the key to ever finding happiness again.

What I can’t understand is why the folks around Trump aren’t engaging him to discuss something way more important than all his losing lawsuits – what he hopes to do in his last two months in office, how he wants people to remember his final days.

This is one disappointment that simply cannot be fixed. There is no deal to be made. His lawyers are skirting around Rule 11, which provides sanctions for sham lawsuits, by making claims with absolutely no evidence to support them. None of these lawsuits would change the results of the election – even taken together. And to date, the only suit they’ve won is one about where poll watchers will stand in the next election in Pennsylvania.

In Pennsylvania, Republicans have been trying for months to convince courts that ballots postmarked on Election Day but received within three days after should not be counted. A number of states have similar rules, but Trump must have done better there. Pennsylvania has kept these ballots separate, and apparently, there were fewer than 10,000. It doesn’t matter: Joe Biden is leading in Pennsylvania by 45,000 votes.

In Arizona, the Trumpers have a poll worker who says he saw other poll workers helping voters press the button to submit their ballots, and another who claims that he saw 80 instances of poll workers giving confusing instructions, and two voters who claim they weren’t told they had a chance to fix their ballots. No one claimed that a poll worker pressed the button without the voters’ consent. All told, the two lawsuits might affect somewhere between 82 and 122 votes, which hardly amounts to systemic fraud. One of the poll workers has since recanted. Biden is leading Trump by 17,000 votes.

In Michigan, which Biden won by 147,000 votes, two Republican efforts to halt vote counting because Republicans were supposedly excluded from the process were rejected by two different judges, both of whom pointed to the fact that the Trump team failed to give any details of who was excluded and where, and had “no evidence to support accusations of voter fraud.”

In Nevada, the Trumpers tried and failed to block the state’s most Democratic-leaning county from using a machine to automatically verify signatures. As proof, they offered up a 79-year-old legally blind woman who claimed her ballot was stolen – except it wasn’t. Election officials had spoken with her at the polls and personally verified her signature. The Trumpers also announced they would be sending a list of thousands of people who voted in Nevada but live out of state. There is nothing illegal about that: The Wall Street Journal pointed out that a number of the addresses are connected to the military. In Nevada, Biden leads by nearly 37,000.

In Georgia, the Trump campaign lost a lawsuit that sought to disqualify 53 mail-in ballots because they supposedly arrived after Election Day. After a hearing, the judge threw the case out, finding no evidence that the ballots arrived late. Georgia’s two Republican senators, neither of whom received a majority necessary to avoid a runoff, called on the Republican secretary of state so they could resign but didn’t include even a single example of what they claimed were “too many failures in Georgia elections this year.” Biden leads by 12,000 votes, and no one expects that a recount, provided by state law, will change the results significantly.

By the time you read this, the Trumpers will almost certainly have failed to block states from following state law in certifying their results and choosing electors. Presumably, any elections in those states that Republicans won would remain valid.

Trump cannot sue his way back to the presidency. At some point, he will run out of lawyers willing to make fools of themselves, or worse, with no prospect of payment.

What he can do is make his last two months in office count, not by bringing more lawsuits, not by purging his enemies, but by focusing every day on making the economy stronger. It’s the theme he wanted to run on, and it’s the only song that should be playing now. Create jobs. Win the trade war. Tell your friends on Wall Street to keep the faith. Infections are up nearly 70%, according to The New York Times 14-day infection average. No one knows who will get the vaccine, or how, or whether it is even safe.

Susan Estrich
Susan Estrich
Estrich served as a law clerk for Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia and Justice John Paul Stevens of the U.S. Supreme Court. In 1988, she was the campaign manager for Michael Dukakis' 1988 presidential run, even though she had never before managed a political campaign. She was the first female campaign manager of a major presidential campaign, and the first female campaign manager of the modern era. [5] [6] Estrich appears frequently on Fox News as a legal and political analyst, and has also substituted for Alan Colmes on the debate show Hannity & Colmes. She writes regular articles for the conservative website NewsMax, for which she is a pundit.[7] She is also on the Board of Editorial Contributors for USA Today.[8] She is currently a law professor at the University of Southern California Law School and a political science professor at its affiliated undergraduate school. Before joining the USC faculty in 1989, she was Professor of Law at Harvard University, where she was the youngest woman to receive tenure.[9] On January 10, 2008, Estrich joined Quinn Emanuel Urquhart & Sullivan, LLP, a law firm based in Los Angeles, where she chairs their Public Strategy in High Profile Litigation: Media Relations practice area. [10][11] She writes a nationally syndicated print column distributed through Creators Syndicate.