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Steven P. Grossman is the Dean Julius Isaacson Professor at the University of Baltimore School of Law.
How appropriate that the words best symbolizing the four years of Donald Trump and Trumpism came from a judge appointed by President Donald Trump. In yet another rejection of the lawsuits challenging the recent election filed by the president’s legal team, and others of his supporters, Judge Stephanos Bibas of the United States Court of Appeals wrote that, “calling an election unfair does not make it so.”
What better way to sum up not just such lawsuits but the relationship to facts Trump has displayed over the last four years?
Claiming that Barack Obama was born outside the United States does not make it so. Claiming that thousands of Muslims in New Jersey celebrated the collapse of the World Trade Center on 9/11 does not make it so. Claiming that thousands of people were bused to New Hampshire and elsewhere to vote for Hillary Clinton in 2016 does not make it so. Claiming that the sound of windmills causes cancer does not make it so. Saying that we are rounding the corner on the coronavirus pandemic certainly did not make it so.
Now there certainly is nothing unusual about politicians twisting facts. What makes the many things Trump has claimed before and during his presidency different is that he creates facts or entirely disregards them. As Judge Bibas wrote in affirming the decision of a federal district court that rejected Trump’s attempt to challenge the election results in Pennsylvania: “Charges require specific allegations and then proof. We have neither here.” Tweets, of course, require neither specific allegations, proof, nor even facts. It is no wonder that Twitter was the president’s preferred choice of communication.
The final hopes of some of the president’s supporters rest with courts and the many judges he has appointed both on the Supreme Court and to lower federal courts. Hence the plethora of lawsuits, many of which are entirely frivolous and swiftly dismissed or withdrawn.
One lawsuit in Pennsylvania has some legal basis to it, because it deals with a debatable principle that involves the legality of counting absentee ballots that arrived after Election Day. Trump’s lawyers have challenged those ballots because they know most of them will favor President-elect Joe Biden. But since Biden won Pennsylvania by more than 80,000 votes without those ballots being counted, this lawsuit can have no bearing on the Pennsylvania result.
Because judges, no matter their party affiliation, have to honor the basic judicial principle of requiring facts to support any legal argument, the hopes of this latest Lost Cause will prove to be fruitless. So, the next step in the Trumpism playbook is to attack those who make the decisions. In reacting to the opinion written by Judge Bibas, Jenna Ellis, senior adviser to the president’s legal team, charged that “the activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud.”
Apparently, Ellis thinks that non-activist judges would throw out millions of votes cast in a democratic election in Pennsylvania — an interesting take on judicial activism. The other participants in this “massive fraud” cover up are, presumably, the other two judges who decided the case with Judge Bibas, both appointees of President George W. Bush, and the federal district court judge who initially dismissed the lawsuit. That judge, Matthew Brann, although an Obama appointee, is a member of the conservative Federalist Society and was described by Pennsylvania Republican Sen. Pat Toomey as a “longtime conservative Republican jurist who I know to be fair and unbiased.”
Now in this season of giving thanks, we can all be thankful that in Judge Bibas’ words, “voters, not lawyers, choose the president.” We can be even more thankful that 232 electoral votes combined with a volume of tweets, even those in capital letters, does not win an American presidential election.