President Donald Trump‘s legal efforts aimed at overturning the results of the 2020 election may be fast-approaching something of a natural, albeit painful, denouement in the coming days and weeks, according to internal campaign deliberations and legal experts.
“Most states will certify their election results by Dec. 8, which is their safe harbor deadline under the Electoral Count Act of 1887,” Eugene Mazo, the Visiting Associate Professor at the Louis D. Brandeis School of Law, told Law&Crime in an email. “They have a lot of incentive to do this because under the law, at that point Congress can’t review their results. All of the members of the Electoral College will formally be casting their votes in their respective state capitals next Monday, on Dec. 14.”
“At that point, there will be nothing more for President Trump to litigate,” Mazo added.
Some signs indicate that Trump is slowly acquiescing to the reality here.
A Monday afternoon story by CNN outlines the Trumpworld braintrust’s apparent understanding of their fraud-alleging and fundraising-focused legal strategy as it stands at present.
Citing “multiple sources” within the campaign, Kaitlan Collins reports that attorney Rudy Giuliani’s recent coronavirus (COVID-19) diagnosis has only hastened speculation among staffers “that it’s a matter of time before their legal efforts come to a halt completely.”
Collins tweeted out a summary of that thesis Monday afternoon:
Between rapidly approaching deadlines, Giuliani being hospitalized and a string of court losses, there is a sense developing internally that the Trump legal team’s efforts are coming to a close, according to multiple people. Fewer calls, meetings happening, etc.
— Kaitlan Collins (@kaitlancollins) December 7, 2020
“Between rapidly approaching deadlines, Giuliani being hospitalized and a string of court losses, there is a sense developing internally that the Trump legal team’s efforts are coming to a close, according to multiple people,” she wrote. “Fewer calls, meetings happening, etc.”
Commentators responded by pointing out the obvious.
“Yes, losing every case at the preliminary stage in increasingly embarrassing ways does tend to have that effect,” observed appellate attorney Raffi Melkonian via Twitter.
Still, the far-right and other voices of conservative reaction to Trump’s decisive November loss insist on pushing the 45th president to continue fighting for loyal slates of MAGA electors to usurp the will of the voters in several key states.
Radio host Mark Levin was largely responsible for spreading the original misinformation about replacement electors in the first place. In recent days he used his perch at Fox News to cast doubt on Trump’s loss and boosted the going-nowhere controversy that right-wing U.S. Supreme Court Justice Samuel Alito has fanned over Rep. Mike Kelly‘s (R-Pa.) efforts to overturn the Keystone State’s results.
Many other conservatives, Levin among them, have also taken to sharing a debunked video purporting to show widespread voter fraud in Georgia–all to no effect on the outcome whatsoever. But the strident tone of the lame-duck president’s fervent defenders and acolytes suggests they still haven’t begun coping with the clear implications of the campaign’s non-stop string of losses. (Or, perhaps more realistically, that they are still cashing in on the outrage their lopsided and false presentation of the election results and ensuing litigation has produced in terms of advertising revenue.)
But for all intents and purposes, the days and weeks ahead offer little more than a road to nowhere pockmarked with easily-avoidable legal potholes the campaign seems intent on driving right into at a high rate of speed.
“Trump will have to decide when it’s a good time to stop losing,” Tulane Law Professor Ross Garber told Law&Crime. “So far his fans have supported his embarrassingly fruitless legal efforts, including financially. But they may not be impressed by smackdowns delivered by Supreme Court justices he appointed or members of Congress who had previously been stalwart allies.”
Election law expert Rick Hasen pointed out that, despite the barrage of media declarations about the allegedly stolen vote and the strength of the Trump campaign’s legal challenges, some of those efforts have actually petered out due to waning interest from those making the claims.
“The Trump campaign itself has only a few remaining lawsuits in the hopper,” the University of California, Irvine law professor told Law&Crime. “They never appealed their Third Circuit loss out of Pennsylvania, despite the promise to do so. Others who are allied with the campaign will likely continue the litigation.”
“But whether the litigation continues or not, it has been clear for weeks that there is no realistic path for Trump to litigate his way from loss to victory,” Hasen added. “He’s extremely unlikely to overturn a single result, much less the minimum of three states he would need to flip. It’s not happening.”
University of Southern California Gould School of Law Professor Franita Tolson predicted a definite finale to the misleading bluster and legal challenges, but nothing near swift, and with a lingering death rattle.
“The lawsuits have been a losing effort for a few weeks now (and that timeline is overly generous),” she said in an email. “Nevertheless, I think we will still see the Trump campaign try to pressure Republican legislatures in key states to either send a competing slate of electors or replace the Biden electors outright.
“Despite the chance of any Republican legislature doing so being virtually nonexistent, I don’t think the Trump campaign’s ill-advised and democracy undermining actions will come to a conclusive end until Congress votes on January 6th,” Tolson added.
So, where does that leave the extended Trump family’s still-loud caterwauling and complaining?
It’s almost certain to continue to spread across the ether, though probably not the court system.
“Trump can continue to curse the election system as rigged and the results as fraudulent but acknowledge that Biden will be president,” Garber noted. “Especially since the captain of his elite strike force is now in the hospital with a virus Trump blames on China, now might be an opportune time for him to acknowledge the electoral reality, while also vowing to continue the fight from outside the White House.”
[image via Doug Mills/Pool/Getty Images]
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