Pres. Trump brought some unusual experience to the office of the President of the United States. He filed over 3,500 lawsuits during his career in business. That is an astounding number. Periodically, I look for prior lawsuits regarding different organizations. I am sure I have never seen more than ten lawsuits for any one organization, whether that organization was a government agency or a business. James D. Zinn’s has written a book about Pres. Trump and his lawsuits, titled Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits.

As the author explains in his book, Donald Trump sued for myriad reasons. He filed suits for business advantage, for sport, to achieve control, at the drop of a hat, and to destroy or silence his opponents.  Pres. Trump displayed little respect for the law in his lawsuits, says the author. He scorned the law and the legal process.

James Zinn knew Roy Cohn, a mentor to Donald Trump. Mr. Zinn characterizes Mr. Cohn as an unscrupulous lawyer. Cohn was disbarred in 1986. Mr. Cohn taught Trump how to weaponize the law.

Mr. Zinn discussed one example of Trump’s litigation tactics. In 1983, he was sued because he hired undocumented Polish workers for Trump Tower. Mr. Trump did not contribute to the union pension fund for the Polish workers, as he was required to do. The case eventually settled for 100 cents on the dollar after protracted litigation and after a trial in which the judge said Mr. Trump’s testimony was completely lacking in credibility. The settlement was sealed, another common Trump tactic. Twenty years later, the settlement was unsealed. See ABA Bar Journal report here.

It is quite rare to seal a settlement. It is just as rare for a judge to comment publicly on the credibility of a witness. And, have to add, I am sure that as a lawyer in my third decade of practicing law, I have not participated in 3,500 lawsuits, or 2,500.

Be Safe.

Wow, I am speechless. In a 2013 interview, Donald Trump, Jr. said women who cannot handle life in a big corporation should go teach kindergarten. He was speaking about sexual harassment in the workforce. According to the Huffingtonpost report. First, as the proud parent of two sons, I have spent my share of time with kindergarteners. That is no easy task. But, really, women should be able to “handle” sexual harassment? That is wrong on so many levels. How does a woman “handle” it when she is held to higher standards and only finds out about those higher sales goals when she is being escorted out the door? How does a woman “handle” it when she is fired while out on pregnancy leave? How does anyone “handle” it when upper management engages in biased evaluations of your work?

What to think about a young man who has those views at such an early age? We are accustomed to older men holding onto out-dated views. Perhaps, those views are not as out-dated as we would wish.

Donald Trump makes racist comments about Hispanics and seems to suffer no repercussions. He is set to host Saturday Night Live on Nov. 7. The Congressional Hispanic Caucus has asked NBC to rescind the invitation to Mr. Trump to host SNL. See CBS news report. If this were a lawsuit, his remarks about Hispanics immigrants bringing disease would be very good evidence of racial bias. Yet, here he is hosting one of the most popular shows in the country. You gotta love this election season. And, you know, I bet I find myself watching the train wreck myself….

Donald Trump, who apparently has a reputation for saying strange things, has said Sen. McCain was not a war hero because he was captured. Later, he qualified his comments, saying the senator was a hero but suggesting that being captured diminished his service. His comments are beyond silly. Donald Trump never served. He is far from an expert on military service. According to one report, Donald Trump received five deferments during the Viet Nam War. See ABC news report regarding some of his deferments.

And, I have to say, anyone who did time in a Vietnamese POW camp or in a Japanese POW camp served far above the normal requirements of military service. See CBS news report. And, as most folks probably know, John McCain performed better than most in those camps. He could have left the camp much sooner than he did. He chose to remain imprisoned because he refused preferential treatment based on his father being an Admiral at the time.

To use Sen. McCain’s words regarding Ted Cruz a couple of years ago, Donald Trump is a wacko bird.

These lawsuits filed by the Trump campaign are remarkably weak and lacking in evidence. I previously wrote about one such lawsuit in Pennsylvania here. Rudy Giuliani himself appeared in the Pennsylvania lawsuit last week. He literally parachuted into the suit, submitting his motion pro hac vice the day of his appearance. Judge Brann, an Obama appointee, but life-long Republican presided. During the hearing on Nov 17, he pressed Mr. Giuliani for answers and appeared unhappy with the answers he received. The Judge asked him during the hearing which standard of review should apply and why. The former U.S. Attorney gave an answer more like Animal House than Lincoln Lawyer. He replied, “the normal one.” … Yes, he really said that.

Standard of review refers to the standard the court should use to review a particular statute. Should the judge look at it with “strict scrutiny” or some lesser standard. With his answer, former Mayor Giuliani betrayed his ignorance. As young lawyers, we quickly learn to tell a judge forthrightly if we do not know the answer to a question. Judges do not have time for evasive answers. Whatever credibility Mr. Giuliani had was quickly lost with that sophomoric response.

Now, Judge Brann has dismissed the lawsuit. The judge found many problems with the lawsuit. He noted that based on allegations of two errant votes, the Trump campaign sought to dis-enfranchise 6.8 million votes. In his final order, the Judge expressed deep annoyance with the lawsuit:

“One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption,” Brann wrote, so much that the court would have no option but to stop the certification even though it would impact so many people. “That has not happened.”

He added that the Trump campaign presented “strained legal arguments without merit and speculative accusations … unsupported by evidence.” When a judge says the plaintiff has filed a monumental lawsuit, but failed to follow through with evidence commensurate with the cause, the plaintiff is really screwed.

Elsewhere, Judge Brann described the plaintiff’s equal protection claim as “Frankenstein’s Monster,” which has been “haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent.”  That is as clear a slam on the lawsuit’s basis as there is. The judge is saying the plaintiffs lied about their case, so as to present a dubious claim. The court nots that the plaintiffs ask the court to invalidate votes only regarding the Presidential election. The court rightly notes the plaintiffs are essentially asserting the voting procedures were constitutional regarding the other races, but not regarding the Presidential race. Yet, the same voting procedures were used for all races, not just the Presidential race. The court concludes with some annoyance that it is not possible to both hold Pennsylvania’s electoral system constitutional and unconstitutional at the same time.

During the Nov. 17 hearing, after all the lawyers had spoken once, the Judge directed the key question to the plaintiffs: you are alleging two votes were improper, but you are seeking to invalidate 6.8 million Presidential votes, “thereby disenfranchising every single voter in the Commonwealth [of Pennsylvania], can you tell me how this result can possibly be justified.” Two lawyers for the Trump campaign were present, but Mr. Giuliani responded. Mr. Giuliani apparently stumped by the direct question, paused. Then he simply engaged in a lengthy rant about various speculative theories for about ten minutes. The judge asked no follow-up questions, apparently taking Giuliani’s response as a non-answer. See C-Span recording here.

In his decision, the judge essentially accused the plaintiffs of filing a frivolous lawsuit. If I or any lawyer I know had filed such a weak lawsuit, we would expect to be sanctioned by the court. See AP news report here. That is the language used to describe frivolous lawsuits. See the decision here.

Pres. Trump has already appealed this ruling to the Third Circuit Court of Appeals. But, no appeal can improve this evidence.

 

As lawsuits go, these are pretty bizarre. The Trump campaign has filed at least a dozen lawsuits in several states seeking to overturn the election results. One lawyer, Mark “Thor” Hearne, from St. Louis, filed a lawsuit in the Federal Court of Claims, apparently intending to file in the Michigan Court of Claims. He blamed the error on PACER, the online filing platform. But, he did not explain how PACER was able to cover the cost of a filing fee in a second, wrong court. For those of you who do not file suits on PACER, the PACER system takes you to a second web page to pay the filing fee. For PACER to “accidentally” file your lawsuit in a second court, it would also have to somehow pay for the second lawsuit in the wrong court.

Wrong Court

Too, at least one of the lawsuits filed in the federal court of claims was styled, “Donald J. Trump v USA.” As Ben Ginsberg asks, why would anyone style their lawsuit that way? Typically, you style the lawsuit against the entity you are suing. Was Donald Trump suing the entire USA? Too, when you fie a lawsuit, you want to name the actual opposing party. You are asking the judge to take action against a specific person pr entity. If you sue the USA, who are you asking the judge to issue orders to? But, the title of the lawsuit likely appealed to the real client, Donald J. Trump.

Michigan Court of Claims

“Thor” Hearne then appeared in front of the Michigan Court of Claims, First District, on Nov. 5, 2020. Mr. Hearne explained that a poll watcher said he was told by a poll worker who was told by a second poll worker that he had been told to back-date a ballot. The judge asked how that was not hearsay. Mr. Hearne struggled in trying to explain to the Judge how third-hand testimony was not hearsay. Thor Hearne insisted that for the person who signed the affidavit, he did actually hear it. As if, hearsay testimony might be admissible if the final listener did “actually” hear the third-hand information. But, Mr. Hearne’s lawsuit had so many other defects. The judge listed the many defects in the pleadings at the outset of thee hearing. Among those defects was that the motion for injunction had not been filed. The judge did not have a copy of the motion. Although the lawyer for the Secretary of State did have a copy of the motion in question.

The campaign sued the Michigan Secretary of State. The Trump campaign insisted their poll watcher be allowed to view the recorded videos of each drop box. But, as the opposing lawyer explained, the Secretary of State cannot compel action by the various County boards across the state. The Trump campaign would have to sue each individual county to obtain an order against those entities. Too, there is no right in statute or elsewhere that mandates a voter be allowed to view any videos of persons dropping their ballots in a drop box. The Trump campaign was asking for a remedy that did not exist in the law anywhere.

The Trump campaign also alleged a poll watcher was excluded from watching the vote counting. But, the affidavit did not specify when, where or by whom he was excluded. Thor Hearne was not able to explain anymore than what was in the affidavit.

And, in the end, the lawsuit would have made no difference to the outcome of the election results. Only one ballot was in question. Viewing the videos of the drop boxes may or may not result in any discrepancies. So, the Trump lawsuit was largely symbolic.

Judge Stephens

At the close of the hearing, the judge rejected the motion for injunction. The judge noted the Secretary of State does not conduct local elections. That responsibility lies with the individual counties. The judge noted a prior lawsuit in which the role of the Secretary of State was made clear. So, why, Judge Stephens asked, did Mr. Hearne sue the Secretary of State, again? Thor Hearne said the Secretary of State should issue a directive to the counties to make videos available, if they have such videos. But, as the judge noted, once the ballots are collected from the drop boxes, the ballots are not segregated. Even if the videos showed some malfeasance, no one would know where that ballot was. In the end, the Judge simply noted the Secretary of State had already issued guidance to the counties regarding access to the vote counting. Regarding local county officials, the court has no jurisdiction over those entities. Even if court had jurisdiction, the vote counting was essentially completed by the time of the hearing. So no relief was available. And, there is no legal duty on the part of any official regarding any videos of the drop boxes. The lawsuit was largely symbolic.

See C-Span recording of the Nov.5 hearing here.

Other Lawsuits

In other lawsuits, one lawyer for Pres. Trump, Kory Langhofer, admitted in Arizona that many of the affidavits acquired for these lawsuits were gathered online. The process for gathering those affidavits resulted in some “spam.” Mr. Lahnghofer called his business partner as a witness and called other witnesses, who could not say they were deprived of any votes. Mr. Langhofer said this was not a fraud case. It is not a “vote-stealing” case, the Trump lawyer added.

In another lawsuit in Pennsylvania, Bob Goldstein said in court he was not alleging fraud. Accusing people of fraud was a “pretty big step,” he said. The next day, his law firm withdrew from its lawsuit. In Montana, federal judge Dana Christensen labeled the allegations of voter fraud “fiction.” See Politico news report here. It is very unusual for a firm to withdraw within days of filing the lawsuit. The suit was filed in U.S. district court. That means the lawyers must first obtain approval form the judge. The judge has yet to rule on the law firm’s motion to withdraw.

And, I am just surprised no one has been sanctioned, yet.

 

We are seeing in real time what happens when an employee blows the whistle on his/her employer or when s/he complains about discrimination. Pres. Donald Trump has reportedly discussed firing the White House employees who have testified against him. He has discussed returning LTC Vindman to the Pentagon and firing Ambassador Bill Taylor after they testified against him. See CNN news report here. For a military officer, sending LTC Alexander Vindman back to the Army would amount to being relieved.

The President has also considered firing state department employees, George Kent and Marie Yovanavitch.

All employers consider responding to complaints in this way, to some degree. The difference between other government employers or many corporate employers is that Pres. Trump has likely received no training in values. Most government employers and many corporations utilize some form of training on values. One of those values is that persons who complain about discrimination or about violations of the law are protected. Even if you do not agree with their complaints, most managers agree their right to complain should be protected.

The President is famously resistant to legal advice. He will be even more resistant when he feels in real time the press of persons submitting public complaints about him. There is a reason why the better run organizations provide that training before the crisis, not during the crisis.

Of course, the larger issue for Pres. Trump is that one of those employees. Marie Yovanavitch has accused him os smearing her. If he actually fires her and others who support her, such an action would only corroborate the charges against him. That presents a different topic: clients who do not listen to advice from their lawyers.

Once again, I nominate Pres. Trump for the award as the worst client in America. His administration has pursued a weak, almost frivolous appeal regarding the citizenship question on the 2020 census. Finally, just last week, the U.S. Supreme Court said the reason advanced by the Administration for the citizenship question was “contrived.” That is a big deal, since the entire challenge to the citizenship question turns on whether the administration followed required procedures in adding the citizenship question. The entire lawsuit turns on how the Commerce department arrived at that citizenship question. So, when the U.S. Supreme Court finds the question to have been “contrived,” then your credibility, as a party to the lawsuit, is shot. You as a party litigant party have been found to have lied.

Earlier this week the parties to the lawsuit had a conference with the judge. The Department of Justice told the judge that DOJ was done with what was a weak lawsuit. Doubtless all the attorneys and the judge knew it was a weak lawsuit. But, being professionals, they probably said nothing about the quality of the Administration’s defense.

Then, at this meeting on Tuesday, July 2, the parties were likely wrapping things up. DOJ said it was done. The Judge accepted the DOJ assurance at face value, thinking the lawyer was speaking for his client.

So, we can imagine the judge’s surprise the next day when Pres. Trump tweets that DOJ is not done. He will direct DOJ to find a way to get the citizenship question on the 2020 census.

What had happened was that conservative radio host Hugh Hewitt had tweeted that if DOJ was folding its tent on the issue, then that was the worst defeat the Trump Administration had sustained. Soon after Hewitt’s tweet, Pres. Trump tweeted his assurance that DOJ was not done.

Well, Judge George Hazel, the Maryland judge who was overseeing the lawsuit, tweets. He follows the President’s twitter account. He saw the tweet just one day after being assured DOJ was done with its opposition. He immediately called the DOJ lawyer, Joshua Gardner, away on vacation, and insisted he participate in a telephone hearing that day regarding what the Administration is doing. See CNN news report.

The judge held a telephone hearing on July 3 regarding the President’s tweet. The plaintiffs want the parties and the judge to enter an order which states specifically the government will not include a citizenship question on the 2020 census. The judge did not accuse the DOJ lawyers of mis-leading him, but that was the under-current. See transcript here of the telephone hearing.

As Mr. Gardner, the DOJ attorney, explained, this is a very “fluid” situation – meaning he does not know what the President is saying or why he is saying it. Judge Hazel ordered a hearing on July 5, at which time the government must either agree to an order saying it would not include a citizenship question, or re-start the lawsuit to see to what extent the plaintiffs have been harmed by the government’s actions. This being the July 4 weekend, the DOJ lawyers asked if they could hold the hearing on Monday. The judge responded, “no.” The time was slipping away, already, he noted.

In an ordinary lawsuit, the judge would insist the client attend the next hearing, so the judge can be sure the lawyer is speaking for his client. In this case, the two DOJ lawyers were able to assure the judge they were as surmised as Judge Hazel was by Pres. Trump’s tweet. Otherwise, in an ordinary case, most judges would insist the client attend the next hearing.

And, as the hearing closed on July 3, one of the plaintiff lawyers pointed out to the judge that the Administration had been saying for months that June 30, 2019 was a hard and fast deadline. Given the President’s tweet, that appears to not be true. Of course, the judge could not disagree. He could only acknowledge the obvious.

So, yes, a President who cannot harness his team to pull in the same direction and cannot restrain his tweets long enough for his lawyer to enjoy a day off is a poor client indeed.

Once again, the President has attacked a federal judge, claiming the judge is based. Judge Amit Mehta found that it was “simply unfathomable” that a Congress that is constitutionally authorized to remove the president cannot investigate that that same president. The judge was denying a request from the White House to stop a subpoena to Pres. Trump’s accounting firm for his financial records. It ought to be self-evident that a body that can remove a president from office can also investigate that president. See CNN news report. But, Pres. Trump is one of the most litigious presidents we have ever had. He has often pursued frivolous legal theories.

And, as he has been doing since 2016, he again attacks Judge Mehta saying he is biased because he was appointed by Pres. Obama. After 20 plus years dealing with that same judiciary, I can say with some authority that yes, who appoints a particular judge does give some clues to how that judge may rule. But, that possible political leaning never works 100% or even 90% of the time.

More importantly, a person of reponsibility like the president should never engage in acts which undermine the judiciary. These attacks on the judiciary have become a running theme in the ABA Bar Journal. That concern reflects the concern for all judges that their authority is often tenuous. In the courtroom, there can be 30 criminal defendants and just one or two bailiffs. What keeps folks in line is often the perception of authority. If we lose that perception, then the safety of many judges is placed at risk. Responsible persons do not talk that way about judges.

In another case about immigrants, Pres. Trump’s racist remarks about immigrants were used as evidence against him. This judge, Edward Chen in San Fransisco, ruled in favor of the immigrants partly based on the President’s comments about Mexican immigrants, about Muslims and about immigrants from some African countries. Judge Chen ruled that to the extent the President had influence on the head of Homeland Security Department may have implemented certain restrictions due to the President’s wishes.

The lawsuit seeks to stop Homeland Security from ending provisions allowing immigrations from from El Salvador, Sudan, Nicaragua, and Haiti. Judge Chen found there was evidence that Pres. Trump harbors animus against non-white, non-European immigrants.  See CBS news report here.

I previously wrote about Pres. Trump’s racist comments here. It is exceedingly unwise to make comments like that. Some court decisions have chosen to overlook his comments, finding most of them were made during the campaign. But, in every lawsuit about immigration, those comments become key issues.

Those racist comments may help his election chances, but they undermine his immigration policies. But, I suppose he knows all this and has chosen to emphasize election viability.