2020 Election: Predictions, Results and Reactions

[Voronwë the Faithful]

Meanwhile, an active duty Chicago Police Officer was arrested this morning and charged with participating the 1/6 insurrection.

https://www.cnn.com/2021/06/11/politics ... index.html

[River]

Didn't realize the theory of relativity was politically unpalatable to the Right. It does get taught in schools, but never draws any ire the way evolution does.

Weird how they're all up in arms about that but so thoroughly accepting of quantum theory they're wiling to do all kinds of gymnastics to reconcile it with the Bible. Are you sure this isn't parody?

[N.E. Brigand]

The Biden administration is being scrupulously fair. I hope it doesn't come back to bite them. Gen. Charles Flynn may very well be a stand-up fellow. However, U.S. military statements were initially evasive about whether he'd even been involved in the response to the insurrection. And that set off alarm bells for me.

In this as in a number of other situations about which I've made a stink here lately, I see the risk of bad actors gaming a system that was never designed to accommodate their behavior. (This one less than the others: I'm not sure Charles Flynn, even if the suspicion that he shares his brother's dangerous views has any basis in fact, can cause a whole lot of trouble overseeing this Pacific command. In fact, I would entertain the notion that he was deliberately promoted to this position so as to get him into a role where he cannot affect domestic affairs.) For five years, we have been repeatedly told that our system is robust and can withstand attacks, and it may very well be that we'd be in an even worse place if good people decided that the dangers were so great that it was necessary to break the rules. But looking ahead, here's where I fear we are headed: in November 2024, Joe Biden wins the popular vote and enough states by a margin similar to his victory in 2020. But this time, Congress is in Republican hands, as are state legislatures in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. Those states award their electors to the Republican candidate, based on phony claims of fraud. And then Congress certifies those phony slates on Jan. 6, 2025, even though Joe Biden was the real winner.

I don't know what needs to be done to avoid that fate, and I worry that the steps necessary to prevent it could have even worse ramifications.

Meanwhile, Michael Flynn's other brother, Jack Flynn, sued CNN a while ago for $75 million on the grounds that the network falsely implied that he's a QAnon follower when, in a story about Michael Flynn, CNN aired a short showed video of Jack Flynn and others (all unnamed in the video) reciting the QAnon oath along with Michael Flynn. In a motion to dismiss filed today, CNN not only argues that's not defamatory, they pointed out that Jack Flynn has repeatedly praised QAnon on social media, and so they ask that the court to dismiss the suit and to make Jack Flynn pay CNN's legal costs.

[Voronwë the Faithful]

I think the motion has merit. Whether it will be granted is another matter, particularly since it is being heard by a magistrate judge. I initially was surprised to see it was being heard because in the Northern District of California where I do almost all federal case work (which I avoid whenever possible!) the parties need to explicitly consent to proceed before a magistrate judge. I would guess that the rules in the Southern District of New York are different because I do not see any Consent to Proceed Before Magistrate Judge filings in the docket report.

One interesting thing that I did see in the docket report was an opposition by CNN to the motion to appear pro hoc vice by the attorney for the Flynn's (Leslie Flynn, the other plaintiff, is Jack Flynn's wife). A motion to appear pro hoc vice is usually a pro forma process when an attorney who is not a member of the bar of the court in which the case is filed represents a party and asks for permission to appear in that case. CNN objected based on the argument that:

because he has history of making bad faith allegations against defendants in defamation actions, including his conduct towards CNN. Just a few days ago, the United States District Court for the
District of Maryland sanctioned Mr. Biss in the amount $21,437.50 in attorneys' fees and $52.26 in expenses because he "engaged in bad faith conduct in filing the last-minute Amended Complaint" against CNN. Harvey v. CNN, Case 1 :20-cv-03068-RDB. (ECF No. 60). In particular, the Court concluded that Mr. Biss' filing of an amended complaint that did not address the deficiencies that led to the dismissal of the original complaint was ""the sort of bad faith courts have repeatedly found to merit sanctions under 28 U.S.C. § 1927 and the courts' inherent power to sanction." Harvey v. Cable News Network, Inc., No. CV RDB-20-3068, 2021 WL 1215083, at *5 (D. Md. Mar. 31, 2021), reconsideration denied, No. CV RDB-20-3068, 2021 WL 1516009 (D. Md. Apr. 16, 2021)

As the Harvey court noted, its sanctions decision joined a "chorus" of courts reprimanding Mr. Biss for his litigation conduct- including his conduct towards CNN. In particular, the United States Court of Appeals for the Fourth Circuit in Lokhova v. Halper, 995 F.3d 134 (4th Cir. 2021), decided just last month, commented on Mr. Biss' conduct, stating:
Of note, this is not the first time attorney Biss's litigation conduct has earned reprimand. His history of unprofessional conduct is long. See, e.g., Nunes v. Cable News Network, Inc. , No. 3:19-cv-889, 2020 WL 2616704, at *2 (E.D. Va. May 22, 2020) ("It is with chagrin that the Court must begin to address this motion by observing that Plaintiff engages in ad hominin attacks against CNN and others in the Amended Compliant which the Court cannot tolerate." (alterations and internal quotation marks omitted) (quoting Steele v. Goodman, No. 3:17-cv-601, 2019 WL 3367983, at *3 (E.D. Va. July 25, 2019))); see also Nunes v. Lizza, 486 F. Supp. 3d 1267, 1299-1300 (N.D. Iowa 2020) (requiring Biss to file "a second amended complaint ... stripped of all such spurious allegations" and directing Biss "not to file any further public pleadings referencing such matters without first obtaining leave of the Court and showing that there is a good faith factual basis for the allegations and that they are relevant and material to some matter at issue in this litigation"). In fact, attorney Biss had his license suspended in 2009 for unprofessional conduct including breaching fiduciary duties and violating federal securities law. See Va. State Bar v. Biss, No. CL07-1846 (Va. Cir. Ct. Nov. 26, 2008). And, even during his suspension period, attorney Biss failed to be forthright about his suspension status with an opposing party when engaging in negotiations on behalf of a client, resulting in an additional 30 day suspension of his license. See In re Steven Scott Biss, No. 09-032-078962 (Va. State Bar Disciplinary Bd. Nov. 3, 2009). Id. at 149. Similarly, in Steele v. Goodman, 2019 WL 3367983 (E.D.Va. July 25, 2019), the Court reprimanded Biss for falling "well below the standards of practice this Court excepts" and engaging in "unprofessional theatrics" and "juvenile bullying". In short, Mr. Biss has a history of bad faith litigation conduct, including against CNN, and should not be admitted to this Court.

The opposition goes on to say that CNN's attorneys believe that Mr. Biss was engaging in similar conduct in the Flynn case because they sent him a Rule 11 letter requesting that he amend or dismiss the complaint because the claims were clearly frivolous and not supported by fact or law.

The magistrate judge nonetheless granted the motion to appear pro hac vice.

(It should be noted that two of the case referenced above involve Devin Nunes, the California GOP congressman who is the king of frivolous defamation lawsuits.)

[N.E. Brigand]

Ugh. Republican "poll watchers" have stormed the counting center in Detroit even though they already have the maximum number allowed by law inside. The police have had to escort them away. Trump has sued to stop counting, and it has stopped. But it's stopped with Biden in the lead, so I don't know what he thinks he's accomplishing.

Today a Republican-controlled committee of the Michigan state senate released a report that debunked all the conspiracy theories that some Republicans, including Donald Trump himself, had been pushing about supposed voter fraud in Michigan. The committee found there was no fraud and that the state's 2020 election was run fairly. The committee even called for Michigan's attorney general to investigate and possibly to prosecute people who were pushing voter fraud stories.

And the committee --again, it's controlled by Republicans-- also specifically referred to this incident in Detroit and blamed Republicans for having interfered with the counting.

https://www.freep.com/story/news/politi ... 035244001/

[Dave_LF]

And then the Trumpists all apologized and nothing was ever said on the matter again

[Voronwë the Faithful]

Rudy Giuliani has been suspended from practicing law in New York, based on his pushing of the Big Lie.

The risk that respondent will continue to engage in future misconduct while this disciplinary proceeding is pending is further borne out by his past, persistent and pervasive dissemination of these false statements in the media. This is not a situation where the uncontroverted misconduct consisted of only a few isolated incidents. Rather, each of the false statements identified and analyzed herein were made multiple times on multiple platforms, reaching countless members of the public. They continued after this motion was brought, and despite respondent facing imminent suspension from the practice of law. The seriousness of respondent’s uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden.13 The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information (Matter of Nearing, 16 AD2d at 516). It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice (Ohralik v Ohio State Bar Assn, 436 US at 447). Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol. Respondent’s response is that no causal nexus can be shown between his conduct and those events. We need not decide any issue of “causal nexus” to understand that the falsehoods themselves cause harm.14 This event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in our most important democratic institutions.

Before Judge Brann in the Boockvar case, respondent himself stated: “I don’t know what’s more serious than being denied your right to vote in a democracy.” We agree. It is the very reason why espousing false factual information to large segments of the public as a means of discrediting the rights of legitimate voters is so immediately harmful to it and warrants interim suspension from the practice of law.

Accordingly, the AGC’s motion should be granted and respondent is suspended from the practice of law in the State of New York, effective immediately, and until further order of this Court. All concur.

[N.E. Brigand]

And then the Trumpists all apologized and nothing was ever said on the matter again

That would be wonderful, but you probably won't be surprised to learn that a few hours after you wrote that, Donald Trump issued this statement:

"Michigan State Senators Mike Shirkey and Ed McBroom are doing everything possible to stop Voter Audits in order to hide the truth about November 3rd. The Senate 'investigation' of the election is a cover up, and a method of getting out of a Forensic Audit for the examination of the Presidential contest."

Shirkey and McBroom are Republicans.

[N.E. Brigand]

Rudy Giuliani has been suspended from practicing law in New York, based on his pushing of the Big Lie.

Apparently this suspension happened 35 years to the day after one of Donald Trump's previous lawyers, Roy Cohn, was disbarred.

Cohn died several weeks later at the age of 59. I trust that Rudy Giuliani will still be with us after August.

It's just wild looking at the Wikipedia entry on Cohn and seeing a familiar face in a familiar situation:

Cohn aided Roger Stone in Ronald Reagan's presidential campaign in 1979–1980, helping Stone arrange for John B. Anderson to get the nomination of the Liberal Party of New York, a move that would help split the opposition to Reagan in the state. Stone said Cohn gave him a suitcase that Stone avoided opening and, as instructed by Cohn, dropped it off at the office of a lawyer influential in Liberal Party circles. Reagan carried the state with 46 percent of the vote. Speaking after the statute of limitations for bribery had expired, Stone said, "I paid his law firm. Legal fees. I don't know what he did for the money, but whatever it was, the Liberal Party reached its right conclusion out of a matter of principle."

That's not what Cohn was disbarred for.

[N.E. Brigand]

The first person to be sentenced for the Jan. 6 attack, Anna Morgan-Lloyd, apologized profusely in court and was sentenced to probation and community service.

The next day, she went on Laura Ingraham's Fox News show, and when Ingraham asked her if Jan. 6 was an insurrection, Morgan-Lloyd said that based on what she saw that day, "I don't believe it."

[N.E. Brigand]

These two cartoons are both by the same artist who is quite popular with some Republicans.

This one was published shortly after January 6:



This one was published in the past week:



So six months ago, the insurrection was good. Now it was a trap supposedly set by infiltrators working for the government.

But speaking of infiltrators:

They Seemed Like Democratic Activists. They Were Secretly Conservative Spies (New York Times).

[N.E. Brigand]

Speaking tonight in Wellington, Ohio, about 45 miles from here, former president Donald Trump said there are reasons to doubt the 2020 election results in Montana.

That's a state Trump won by 16 points.

[N.E. Brigand]

In The Atlantic, reporter Jonathan Karl has a new story based on interviews with former Attorney General William Barr and other Department of Justice officials about how how Barr finally broke with his boss, President Trump, over election fraud.

The piece is surely intended by Barr to paint himself as making heroic choices in a tough situation, and Karl at times seems to be helping Barr in that aim ("when the big moment came after the election, he defied the president who expected him to do his bidding"), but to me what it really shows is how Barr and other long-established and well-credentialed Republicans acted as Trump flunkies until the very last minute, when it was too late to prevent the worst from happening but not too late for them to be able to claim that they had tried to do the right thing. But if not for their bad choices, there likely wouldn't have been an insurrection on Jan. 6.

Karl writes that "Barr told me that Republican Senate leader Mitch McConnell had been urging him to speak out since mid-November." McConnell hadn't criticized Trump publically because he felt he needed Trump's help to win in Georgia and keep Republican control over the Senate. Barr's deputies at the Dept. of Justice were also uring Barr to speak out. Barr told McConnell he'd speak up at the appropriate time. Yet immediately following the election, as Karl's article notes, Barr authorized DOJ investigations into voter fraud:

The move overturned long-standing policy that the Justice Department does not investigate voter fraud until after an election is certified. The theory behind the policy is that the department’s responsibility is to prosecute crimes, not to get involved in election disputes. Barr’s reversal of the policy was interpreted by some as a sign that he might use the department to help Trump overturn the election.

Barr tells Karl that the reason he did that was not that he believed Trump had won (Barr says he had long expected Trump would lose and that he thought that allegations of fraud were "bullshit"), but that he knew Trump would ask him about the allegations and he wanted to be able to tell the president that they had been investigated. And while the Justice Department never did open an official investigation into the claims that Trump and others made, Barr did ask the U.S. Attorney in Michigan to look into allegations of ballot dumping in Detroit.

It wasn't until December 1st, when Barr spoke with a reporter at the AP, that Barr's opinion that there was no widespread election fraud was pulbished. Barr was then confronted by Trump in a meeting with multiple witnesses. Trump has Barr how he could make such a statement. Barr said it was true. Trump said, "You must hate Trump. You must hate Trump." (Richard Nixon also reportedly talked about himself in the third person.) Trump demanded an explanation about Detroit. Because of his conversations with Michigan's U.S. Attorney, Barr was able to explain it, and he went on to tell Trump that "your people keep on shoveling this shit out ... you have a clown show ... It’s just a joke. That’s why you are where you are."

Which is satisfying to read, until you remember that Barr could have said publicly prior to the election (when Trump was saying the only way he could lose would be if Democrats cheated) that voter fraud was rare, and that he spent three weeks after the election saying nothing and allowing Trump's lies about election fraud to spread. I think we all know people who believed some of what we now know that Barr privately believed was "bullshit." There was even a long-time contributor to this very forum posting about how suspicious it was that the vote count in swing states went from Trump leading to Biden leading overnight following the election. Imagine how those people would have responded had there been an honest message from Trump's attorney general the whole time.

What's more, even in that exchange, Barr was still mollifying the president a little bit, because he said that if instead of Trump's "clown show" of a legal team, he's had a "crackerjack team with a really coherent and disciplined strategy," then maybe he could have prevailed in court. (Even though Trump obviously lost.)

(Edited to add: Also, as others are noting, Barr had long carried the water for the "clown show," which included Sidney Powell and Rudy Giuliani. With Barr's approval, the Dept. of Justice had used Sidney Powell's crazed conspiracy theories to justify letting Michael Flynn off the hook for the crimes to which he had pleaded guilty. And with Barr's approval, the DOJ set up a special channel for Giuliani to deliver equally crazed conspiracy theories about Hunter Biden.)

And then Barr let himself be talked out of resigning by Trump's chief of staff for two more weeks during which the poison festered, and when he finally did give Trump a resignation letter, it was full of praise and claimed that Trump had been mistreated by Democrats.

(Also of interest in that article: in the tense meeting on Dec. 1, Trump also complained that Barr had never prosecuted former FBI director James Comey or Joe Biden's son Hunter, and Trump said of Hunter, "If that had been one of my kids, they would have been all over him!" Thus far there is nothing to suggest that Hunter Biden did anything that the DOJ would prosecute, whereas Donald Trump Jr. infamously avoided prosecution only because Robert Mueller's team determined that Don Jr. was too ignorant to realize he was breaking the law when, as a representative of the Trump 2016 campaign, he accepted something of value from someone he believed to be a representative of the Russian government.)

[N.E. Brigand]

(And meanwhile, the White House chief of staff, Mark Meadows, and four other Trump aides have tested positive for coronavirus, and they've known for a couple days, but they were keeping it secret. On Oct. 27 Pres. Trump tweeted the following: "All the fake news media wants to talk about is Covid, Covid, Covid. On November 4th, you won't be hearing much about it anymore." Except he did it in all caps. I heard that same message from other conservatives as far back as July. But besides Meadows and four others testing positive, Nov. 4th was the first time the daily number of cases nationwide surpassed 100,000, only for the next day to have 120,000 and the day after that to have 128,000. All of it reported in the press. And Joe Biden tonight said if we do nothing, we'll reach 200,000 cases per day.)

Biden said that on the evening of November 6, three days after the election and about 15 hours before major news outlets declared he had won the presidency.

Biden was right, but he didn't go far enough. The 7-day rolling average of reported cases in the U.S. peaked at 252,165 on Jan. 10, and the highest single-day report of new cases was 311,663 on Jan. 8.

[River]

I read the Atlantic piece. It's a little weird that it took Barr up until then to notice Trump's destructive tendencies...or maybe that was just the point where he finally disagreed with those tendencies. Either way, he doesn't exactly come out smelling like a rose. Privately telling Trump "No" was never going to be sufficient, not when he had a screaming mob on his side. He needed to be discredited completely and publicly right then and there by the same people who were telling him "No"...and none of these people had the courage to take that step.

[N.E. Brigand]

Meanwhile, Michael Flynn's other brother, Jack Flynn, sued CNN a while ago for $75 million on the grounds that the network falsely implied that he's a QAnon follower when, in a story about Michael Flynn, CNN aired a short showed video of Jack Flynn and others (all unnamed in the video) reciting the QAnon oath along with Michael Flynn. In a motion to dismiss filed today, CNN not only argues that's not defamatory, they pointed out that Jack Flynn has repeatedly praised QAnon on social media, and so they ask that the court to dismiss the suit and to make Jack Flynn pay CNN's legal costs.

Whether or not former General Michael Flynn's other brother Jack is seriously involved in QAnon may be up for debate, but according to this lengthy investigative report in The Intercept, their other other brother Joseph, along with Michael Flynn himself, has at least been very busy using QAnon as a way to raise money -- and Michael Flynn himself set the stage for that as far back as November 2016, when he claimed that Donald Trump had won the presidency thanks to an "army of digital soldiers." Michael Flynn would later trademark the word "digital soldiers," a term which became regularly used by QAnon types.

[N.E. Brigand]

I read the Atlantic piece. It's a little weird that it took Barr up until then to notice Trump's destructive tendencies...or maybe that was just the point where he finally disagreed with those tendencies. Either way, he doesn't exactly come out smelling like a rose. Privately telling Trump "No" was never going to be sufficient, not when he had a screaming mob on his side. He needed to be discredited completely and publicly right then and there by the same people who were telling him "No"...and none of these people had the courage to take that step.

Two further points I've seen made today about this article:

(1) It describes how Mitch McConnell, the Senate Majority Leader, asked the Attorney General to make an official statement for the purpose of affecting the outcome of an election.

(2) It shows how President Donald Trump was told on December 1, 2020 by his Attorney General that there was no significant fraud in the 2020 election results and that Trump's efforts to prove otherwise were just "a clown show" and "a joke." And yet Trump later in Decemer and in early January was on the phone to Georgia officials, attempting to get them to overturn the results that showed Biden won. Trump is under investigation by Georgia's law enforcement for possibly having illegally interfered in an official proceeding with these actions. The news about Barr's conversation with Trump may strengthen that case.

[Voronwë the Faithful]

The news about Barr's conversation with Trump may strengthen that case.

Honestly, I doubt that it will have any effect on the Georgia case (such as it is) at all.

[N.E. Brigand]

A recent Politico article suggests that the office of Vice President Kamala Harris is in disarray for a variety of reasons, but I'm not sure that this part about Harris's chief of staff Tina Flournoy actually describes a problem.

In interviews with POLITICO, some aides and allies are concerned Harris is being ill-served by stepping too far back and letting her political apparatus atrophy. Flournoy has summarily rejected the idea of Harris spending more time tending to her past relationships or capitalizing on her new post to create new ones, a move that people in the VP’s orbit view as short-sighted.

Recently, a Harris friend personally reached out to Flournoy on behalf of one of the party’s top donors to try to arrange a brief meeting. They were ignored. The friend said it wasn’t clear whether Flournoy knew who they were. The donor also contacted Harris’ office personally to connect, and didn’t hear back for weeks. They eventually were told the VP was too busy to schedule some time.

“This is someone who has raised hundreds of thousands of dollars—millions, even—for your boss and you’re just blowing them off?” the Harris friend asked. “Next time Kamala wants [them] for something, it’s like, ‘Hey, I couldn’t even get a call-back from your chief of staff!’”

Oh, the inhumanity.

[Túrin Turambar]

I thought this NYT video on the Jan 6 riots was excellent.