January 20th, 2021

The Constitutional Crisis That Wasn’t

Over the four years of the chaotic Trump presidency we have seen the words “constitutional crises” bandied about quite often. But never here.

Though personal injury law is the primary focus of this blog — hence the blog name — you have seen me delve into politics every so often, though I try hard to make it relevant to my overall theme.

Nevertheless, I do deviate, and certainly a constitutional crises, if I thought it existed, would make me put up the rare “me to” posting. I resisted.

I’ve always had faith in our electoral system. Regardless of whether Trump was trying to get the Russians, or Chinese, or Ukrainians, or anyone else to do his dirty work for him by involving them in our affairs, I always thought that those that stood by his side would pay a price.

I even thought this during Impeachment 1.0. The almost unanimous support of the GOP to block the investigation into abuse of power, and turn a blind eye to obstruction, and to block witnesses, and to block legislative oversite of the executive branch would one day come at a cost.

I continued to hold that thought when Trump launched dozens of frivolous lawsuits trying to contest the election. Contrary to others, I thought it was good to see. Let the lawsuits get smacked down. Again and again. Hard. That the lawsuits were so awful, and would be rejected universally by judges regardless of who appointed them, was a good thing.

I held that thought even through this year’s January 6th insurrection. A few thousand seditionists trying to block democracy wasn’t going to happen. Even if they blew up the Capitol. This was not, after all, millions of people marching in the streets as we saw during the early days of the Trump administration.

And now, finally, those chickens have come home to roost. In four years the GOP lost the White House, the House of Representatives and the Senate. That is an impressive feat. There may have been a number of different crises, but they weren’t constitutional in nature.

What’s more, the carnage to the GOP due to Trumpism is not complete. We will see investigations, records of Trumpets misconduct will finally be disgorged from the executive branch, people will speak now without fear of the mean tweet, or fear of being fired, books will be written, and supporters of Trumpism will again have their feet held to the fire in two years.

Perhaps it is an undeserving faith in the constitution that I have, but I have it. I still do. The rule of law must hold, for the alternative is anarchy.


January 7th, 2021

Trump’s Frivolous Lawsuits Were a Good Thing

January 6, 2020. U.S. Capitol Building. Reuters/Mike Theiler

Some thoughts on yesterday’s attempted insurrection at the Capitol, where people tried to stop the process of peacefully transferring power after a lawful election:

Over the course of the last two months, there have been dozens of lawsuits by Trump and Trump supporters trying, in one fashion or another, to reverse the course of the election.

From the outset, many people mocked and ridiculed those suits, principally for the reasons that they were barren of actual facts of widespread fraud, and also because of the people that were sued.

One of the suits was even against Vice President Mike Pence, claiming he had the power to disenfranchise tens of millions of voters and decide the election himself. As if.

Another suit was not against a person, but the Electoral College. Which of course, is not an entity that can be sued any more than you can sue the Fifth Amendment or any other part of the Constitution.

Now normally you might hear me screaming about frivolous suits (and frivolous defenses). Such things make it more difficult for legitimate litigants trying to find redress from wrongs that have caused harm.

When Trump’s frivolous suits started there was an effort by the Lincoln Project to attack the lawyers bringing the suits, in order to shut the lawsuits down:

The Lincoln Project is set to launch a multiplatform campaign hammering Jones Day and other firms for their role in facilitating Trump’s efforts, I’m told. It includes TV and digital ads and social media highlighting the damage that enabling Trump threatens to our democracy and to the success of the presidential transition.

I said back then, on November 11th, that this was a bad idea. Let the suits be brought. Let them be lost. Let Trumpers see every conspiracy theory shot down as meritless after evidence was looked at.

And state after state that was under siege from Trumpers did everything they could to make sure every legal ballot was counted. Just like Trumpers claimed they wanted. Until they decided that wasn’t what they wanted.

Yes, I can hear some of you say, but Trumpers aren’t thinking with their brains but simply screaming from their hearts in cultist fashion. They can never be persuaded. Facts don’t matter.

While that is true for some, it won’t be for all. Over the course of the last two months we’ve seen Trump’s own Department of Homeland Security debunk the idea of mass fraud, as well as his own Department of Justice. There are some people who previously supported him that are now running for the life boats, if they can find any left.

Those lawsuits were a good thing. That they were laughed out of court is a good thing when found to be meritless, and judge after judge said just that. Some lawyers may, perhaps, even be sanctioned. Again, that would be a good thing if they acted in bad faith in bringing the suits when they surely knew better.

The winner in this election was the evidence. It was run through the legal system and the evidence prevailed. And it wouldn’t have happened that way without the lawsuits.


November 11th, 2020

Blaming the Lawyers – Election Edition

It comes as news to no objective person that Joe Biden won a sweeping victory in the election — both in the popular vote and most likely in the electoral college when the counting is done — and that Donald Trump has lost.

But Trump, being Trump. won’t accept that people have done the rare thing of voting an incumbent out of office. They usually win.

So he’s going to court screaming fraud, or something, and trying to do this in multiple states. Some places he wanted them to keep counting votes and others to stop counting. None of this is in the least bit surprising, because Trump.

But a deeply troubling thing has happened. The Lincoln Project, a group of #NeverTrump conservatives who knew that Trump was neither Republican nor conservative but only out for himself, has decided to attack the lawyers bringing the suits:

The Lincoln Project is set to launch a multiplatform campaign hammering Jones Day and other firms for their role in facilitating Trump’s efforts, I’m told. It includes TV and digital ads and social media highlighting the damage that enabling Trump threatens to our democracy and to the success of the presidential transition.

This is a very bad move.

If lawyers come into court with frivolous suits, then courts can do two things: The first is to dump the suits.

The second is, potentially, to sanction the lawyers if the suits were without basis in law and fact. Courts, after all, have an inherent power to control the conduct of those that come before them and sanction those who use it for an improper purpose. (Chambers. v. Nasco)

So let the lawyers make their arguments. If they go too far in representing their client and overstep their legal and ethical bounds, the courts can take care of that issue

And these would be good things. Let the Trumpers see that the claims of fraud were meritless, and to the extent they existed, they were isolated circumstances where the votes could be counted on fingers and toes. And from both sides.

Sunlight, Justice Brandeis once wrote, is the best disinfectant. Let the world see a lack of merit. Let the world see Trump lose. Over and over and over again.

The one thing we should not want is for anyone to say that he was denied his fair access to the courts and a fair count. Trying to intimidate lawyers away from representation could do that.

Let the courts prove the election and count were fair. Let the courts shove the fairness down Trump’s throat.

Attacking the lawyers for having a reprehensible client is the wrong move. For even sociopaths have a right to due process, and have a right to have their claims heard. And rejected.

Indeed, having the courts reject bad claims is the best possible outcome at this point.


November 5th, 2008

President-Elect Obama – Change Has Officially Arrived

With the stunning election of Barack Hussein Obama to the presidency, change has officially arrived. Even if he is a complete failure as a president, or if tragedy strikes.

Change is here because even more important than the policy differences with Sen. John McCain is the fact that Americans actually elected him to begin with. Martin Luther King famously had a dream that his children would one day live in a nation “where they will not be judged by the color of their skin but by the content of their character.”

That dream is now reality because Obama was judged on his policies and character. And he didn’t get there simply because blacks voted for him. It took tens of millions of white and Latino voters also. That change can be nothing less than a shock to every poltical system we have.

The change is such that you can almost hear the jaws hitting the floor in nations around the world, from places where the U.S. is often reviled. Can you imagine the response in the Arab world? Americans elected a guy with the name Hussein?

The biggest losers in this election are those seek to sow hatred because of the conduct of the Bush administration. That hatred reflected on us all. But now what? How do hate-mongers and terrorists engage in recruitment for their wars if Americans have rejected the policy of arrogance and belligerence and shown an open mind to a new era? The invasion of Iraq was a boon to Al-Qaeda, which thrives on war and anarchy. The election of Obama will, I think, be one of the worst things to happen to it when it comes to creating more terrorists. It is now more difficult to demonize America.

The election was met with happiness in both Israel and the Arab world. Think about that, and the doors it could open and the opportunities that could be realized. (Addendum: See hundreds of newspaper front pages here, and click on pictures to enlarge.)

We need not wait for a new dawn of change on January 20th. It arrived last night when the polls closed and Americans made their voices known.
Photo credit: Julie Turkewitz

Prior election coverage:


November 4th, 2008

SUNY Albany Students Turned Away At the Polls

According to Capitol Confidential, students at SUNY Albany, my undergraduate alma mater, are being turned away at the polls and not being given affidavit / paper ballots.

There is, of course, no excuse for not using a provisional ballot if there is a problem. So I have to assume that someone up there doesn’t like the way the students tend to vote.

Update: Given the latest poll, however, it might not matter: