At last Tuesday’s Presidential Debate, one of ABC News moderator David Muir’s questions to Donald Trump referenced a recent apparent admission by the former President that he’d actually lost the 2020 Presidential election “by a whisker”. Trump went on to claim that those televised remarks were meant as sarcasm.
That produced the following colloquy…
TRUMP: No judge looked at it…
MUIR: …and said there was no widespread fraud.
TRUMP: They said we didn’t have standing…a technicality.
This was a classic case of Trump doubling down on the Big Lie that led to the Jan. 6, 2021 insurrection. In more than 60 cases, state and federal courts — at the trial and appellate levels — rejected legal challenges filed by Trump and his allies. In many instances, the cases were lost, not because Trump or his allies lacked legal standing to bring the case, as Trump claimed, but because they failed to produce evidence to support their claims of fraud. Indeed, on some occasions, Trump’s attorneys even admitted they couldn’t establish fraud.
Consider, for example, our coverage of a Nov. 21, 2020 Decision [PDF] by U.S. District Court Judge Matthew Brann in Donald J. Trump for President v. Boockvar, a case in which then Trump attorney Rudy Giuliani admitted, in open court, that he had no evidence of voter fraud to present to the court…
In the wake of that admission, Judge Brann — an Obama appointee, who is also a member of the ultra-conservative Federalist Society — dismissed Trump’s unprecedented legal effort to prevent Pennsylvania from certifying the results of an election where Joe Biden was ultimately certified to have defeated Trump by more than 80,000 votes.
In the “Introduction” to his denial of Trump’s request for a temporary restraining order, Judge Brann wrote:
That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by the evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws and institutions demand more.
As noted in our Nov. 27, 2020 update, Judge Brann’s ruling was later upheld by the U.S. 3rd Circuit Court of Appeal. “Free, fair elections, are the lifeblood of democracy,” Judge Stephanos Bibas, a Trump appointee, wrote on behalf of a unanimous three-judge appellate panel. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
As observed by Michael Waldman at the Brennan Center for Justice:
Some courts said the claimants had no standing to sue — but 30 of them looked at the evidence and said that Trump and his allies had no basis for their false claims.
As reflected by an update to our coverage of the fact that many Trump attorneys faced sanctions, including potential disbarment, for deceptive and frivolous filings. The fact that courts dismissed cases for lack of standing does not mean, as Trump suggested at the debate, that he lost on a “technicality”. Lack of standing is more than a “technicality”. Dismissal is mandated because the Constitution only permits federal courts to decide actual cases or controversies.
Dismissal based on lack of standing does not suggest that any particular case was based upon a valid legal effort to contest the results of the 2020 presidential election.
For example, in Gohmert v Pence, former Rep. Louie Gohmert (R-TX), along with a group of electors for the losing candidate, sought to prevent Vice President Mike Pence from carrying out his duty to tally electoral votes on January 6, 2021. The case was based not upon fraud, but, instead, upon a constitutional theory that many legal experts described as “bonkers”, “breathtaking” and “preposterous”. It was dismissed by U.S. District Court Judge Jeremy D. Kernodle, a Trump appointee, for lack of subject matter jurisdiction because “neither Congressman Gohmert nor the Nominee Electors have standing.” On Jan. 2, 2021, one day after Gohmert filed a reply to the government’s answer to his appellate brief, a unanimous 3-judge panel from the ultra-conservative U.S. 5th Circuit Court of Appeal summarily dismissed Gohmert’s appeal.
Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on Twitter: @cann4ing
