The basic structure of our litigation system and the misbehavior of Biden supporters may be depriving the president of a remedy, and leading to a miscarriage of justice.By Jay Whig
November 22, 2020
On Thursday, President Trump’s legal team held a press conference.
At the presser, Rudy Giuliani claimed, extravagantly, that there had been widespread, coordinated ballot-box stuffing, carried out via mail-in ballots and the obstruction of observers. Giuliani maintained that rejection of these ballots, which were either defective or whose integrity could not be verified, would be sufficient to overcome large deficits in battleground states.
Giuliani also claimed his litigation team would be able to prove these complicated schemes in court.
Most television media did not show the press conference.
CNN’s infotainment impresario Brianna Keilar refused to air the press event on the grounds that “it is so bananas that we can’t even bring it to you.” Keiler, of course, meant “will not” rather than “can’t.” Keiler doesn’t seem to grasp that if the Trump team’s claims were really “bananas,” the most persuasive thing a respectable cable news channel could do to demonstrate that fact would be to show it. The media is running the show!
But the media are only running the sale of eyeballs to advertisers.
In truth, the bench and the bar are running the show.
In the case of a presidential election, litigation is uniquely complicated by two things. One, the presidency is the only office elected by the entire nation. Two, the presidency is also the only office in the country too powerful to sit vacant, even for a moment. The disruption of the transfer of the office from one holder to another is a great danger.
The scale and timing of presidential elections mean Trump’s litigation team has very little time to uncover and prove a very complex scheme. Ordinarily such litigation would take years. Let’s understand why.
In 1938, the promulgation of new Federal Rules Civil Procedure changed the conduct of litigation in the United States (the states later copying the federal rules). Prior to 1938, pre-trial discovery did not exist. Plaintiffs brought a case with the information they had and facts emerged in real time in the courtroom. Litigation was full of surprises, but was relatively efficient. It was an imprecise vehicle to resolve disputes, not a precise instrument.
The new rules created a comprehensive system of pretrial document production and depositions. This was known as “pretrial discovery” for the obvious reason that the litigants “discovered” the facts prior to trial. The idea was that pretrial discovery produced better, more precise justice. Noteisthstanding, litigation is still a blunt instrument.
The reform did, however, make litigation manpower-intensive, expensive, and time-consuming. Today, as a result, litigation is largely a luxury of large corporate interests and wealthy individuals.
The discovery system for civil trials, like all persistent systems, creates expectations and habits. The judiciary is now, by habit, uncomfortable with partial evidence and surprises. Burdens of production burden the burden of proof.
Additionally, the American system of justice is an adversary system and depends on the clash of advocates. An effort has been afoot since Election Day to deprive the president of access to experienced counsel. Lawyers representing Trump have been threatened and harassed, leading to counsel withdrawing from this unusual case as a result of intimidation.
In the American judicial system, if there are not sufficient advocates on both sides of a case, there is no justice.
So Trump’s remaining (and shrinking!) litigation team is prosecuting a litigation strategy at odds with the design of the civil justice system while being deprived of adequate assistance from the bar. A tragedy is unfolding in front of the American people, and the media—which is by and large is an extension of the Biden campaign—cheers it on.
The media bleats that Trump’s litigation team has no evidence, which is not true. They are developing evidence as time allows. The media—and Biden supporters—also bleat that the mere questioning of the integrity of elections is unpatriotic. They argue, circularly, that election integrity is proven by the unquestionability of election integrity.
The facts tell a different story. The American election system is a mess, and never more so than in this year in which mail-in ballots, severely restricted elsewhere due to their vulnerability to fraud, were pushed on the American people on the false premise that in person elections could not be safely conducted (although trips to Home Depot, Walmart, and Costco could). The mail-in ballot scheme reminds one of the Seinfeld episode where Jerry, in order to get the bad smell out of his car, parks it in a bad neighborhood with the keys ostentatiously left inside.
This presidential election is littered with anomalies, including the reverse coattails, misalignment of historical bellweathers, violations of Benford’s Law, suspension of counting, and compromised observation in key canvasses. The basic structure of our litigation system and the misbehavior of Biden supporters may be depriving the American people of a remedy, and leading to a miscarriage of justice.