Are Trump’s lawyers big enough to back their claims up?

21 November 2020

12:15 AM

21 November 2020

12:15 AM

Before the showdown in old Western movies, one character would issue a barbed challenge and his rival would confidently reply, ‘Them’s mighty big words. Are you big enough to back ’em up?’

That’s the question facing President Trump’s lawyers. Rudy Giuliani, Sidney Powell and Jenna Ellis threw down the challenge at an incendiary press conference on Thursday. Now, they have to back up ‘them big words,’ and do it fast. The stakes couldn’t be higher. It goes beyond who sits in the Oval Office next January 20. It goes to three processes that lie at the heart of constitutional democracy:

  1. free and fair elections;
  2. the peaceful transfer of power; and
  3. acceptance by all citizens, including those who voted for the loser, that the winner holds office legitimately

Ensuring our elections meet those standards is why we have to take allegations of cheating seriously. Ensuring the public trusts the outcomes, if the elections were indeed fair, is why unsupported charges are so dangerous. Hyperbolic claims of cheating and fraud don’t just undermine the next president. They undermine the basic institutions we rely on to select lawmakers and executives at all levels, now and in the future.

What Giuliani, Powell and the rest of Trump’s legal team allege is the most brazen assault on our constitution imaginable. They are not just saying that some corrupt politicians in one or two big cities changed the vote — a tactic political machines have used forever. They are not just saying that stolen votes changed the outcome in one or two swing states, terrible as that would be. They are alleging ‘a conspiracy so immense and an infamy so black as to dwarf any previous ventures,’ to use the words of Joe McCarthy.

Outlining that conspiracy in the Thursday press conference was what Jenna Ellis termed their ‘opening argument’. It’s a helluva an opening. They are alleging a coordinated national effort to rig the 2020 presidential election, to change votes simultaneously in multiple states, not only with rigged software but with falsified absentee ballots, multiple counting of the same ballots, exclusion of poll watchers and more. Mighty serious charges.

The problem is that they haven’t backed them up. At least not yet, and the clock is ticking. They haven’t presented, even informally, any evidence to support such extremely damning claims. They undoubtedly have dozens, perhaps hundreds, of affidavits that cite specific instances of fraud, errors, or negligence, witnessed and sworn to under oath. They say they have evidence that widely-used voting software has the ability to change vote counts and that this feature was actually used in Venezuela, Argentina and perhaps elsewhere. If so, such software should have never been used in the American election. (Canada apparently knew that and refused to use that software.) But the fact that election software has that vote-switching capability does not mean it was actually used in the 2020 election. At the press conference, Trump’s lawyers not only implied the software was used to change votes, they implied it was used on a wide scale and coordinated across multiple jurisdictions. Mighty big words. Mighty little concrete evidence, so far.

If Trump’s lawyers do have convincing evidence of a large-scale, coordinated effort to steal the presidential election, they have uncovered one of the greatest political crimes in our country’s history.

If not, they are doing the country great harm by tossing out grave, unsupported accusations. They need to present compelling evidence to the courts and do it quickly. They need to show that the errors are so widespread that they undermine the election results and require drastic remedies. The public needs to see that evidence, too, since this issue doesn’t just involve judges. It involves all of us.

We’ve heard enough rumors and conspiracy theories. We’ve heard enough opening arguments. Now’s the time, as they said in those Westerns, to back ’em up or shut ’em up’.

Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago.

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