The District of Columbia bar is a thoroughly leftist, pro-Democrat outfit. I feel uneasy being associated with it, even as an inactive member.
In this Washington Post op-ed, 25 former D.C. Bar presidents attack the lawyers who are presenting claims that voter fraud deprived Donald Trump of a substantial number of votes in key states. They contend that these lawyers are undermining democracy.
The claim would be laughable if it did not reveal that so many high-profile lawyers have a distorted view of democracy.
The lawyers pressing claims of election fraud are serving the interests of democracy. President Trump complains that the election was stolen from him. Millions of his supporters apparently believe this to be the case.
Faith in democracy is served if these claims are litigated, rather than simply put out there. Whatever happens in the litigation, Trump isn’t likely to stop claiming that he was robbed. Similarly, many of his hardcore supporters aren’t likely to stop believing him. Nor, if the litigation succeeds in demonstrating widespread voter fraud, will the mainstream media stop claiming that such fraud is a myth.
For many people, however, litigation will help clarify what happened (or didn’t happen), either by virtue of the outcomes or by virtue of the evidence presented. In any case, democracy isn’t served by the refusal to litigate concerns over how well it is functioning.
It’s true, of course, that lawyers shouldn’t raise frivolous claims. And the 25 D.C. bar grandees assert that the claims of fraud being raised are “unfounded.” But nothing in their op-ed supports this broad characterization.
Instead, they point to one case in which a court found a lack proof of the claim asserted. This doesn’t mean that other suits lack proof or, for that matter, merit.
Here, it is important to distinguish between proof of significant amounts of fraud and proof of fraud sufficient to have tipped the election from Trump to Biden (as well as between claims that don’t succeed and claims that are frivolous). I agree with Attorney General Barr (and with Andy McCarthy) that Trump’s lawyers are extremely unlikely to make a convincing case of fraud that altered the outcome of the election. (In Michigan, for example, Trump fell around 150,000 votes in the tabulation. In Pennsylvania, he came up around 80,000 votes short.)
But this doesn’t mean they won’t be able to present substantial evidence of an alarming amount of fraud, or even fraud that altered the outcome in a particular state.
If they think they can, they should. Voter fraud is anti-democratic whether it determines outcomes or not.
Everyone who voted in this election is entitled both to have his/her vote correctly tabulated and to have it undiluted by fictitious votes or the votes of those who shouldn’t have been allowed to participate. And if certain types of fraud are demonstrated, it will be easier to guard against them in future elections.
If lawyers present frivolous claims, there are remedies. The lawyers can be sanctioned by the courts. Bar complaints can be filed, although this is a path fraught with the danger of abuse, especially in a jurisdiction like Washington, D.C.
There is no need for a whiny Washington Post op-ed that asserts without evidence that all voter fraud claims being pursued are frivolous. That’s for the courts to say, not a collection of liberal, anti-Trump ex-bar presidents.
Courts can’t decide if no claims are brought. And, if democracy really is one’s main concern, it’s better that the claims are litigated, rather than merely asserted on television and social media.