A number of people have asked me to comment on the legal strategy President Donald Trump is using in his attempt to overturn the results of the Nov. 3 general election.
I won’t opine on the merits of the various cases that assert that voting in a number of states was tainted by fraud and a variety of other irregularities, except to note that as a member of the Mahoning County Board of Elections for the past 10 years, I’ve seen exactly one case of intentional voter fraud.
That being said, I do want to explain why the Trump legal team is saying one thing on TV and Twitter and something completely different in state and federal courtrooms.
It’s all about the ethical rules that govern my profession which prohibit attorneys from knowingly perpetrating a fraud upon or lying to a court. Those who break these cardinal rules may have their licenses suspended or revoked. As proceedings in many of the lawsuits brought by the president have clearly demonstrated, lawyers are loath to put their ability to practice at risk for any client.
Trump’s allegations regarding misconduct in Pennsylvania perfectly illustrate my point. Shortly after the election the president tweeted:
"Nobody wants to report that Pennsylvania and Michigan didn't allow our Poll Watchers and/or Vote Observers to Watch or Observe. This is responsible for hundreds of thousands of votes that should not be allowed to count. Therefore, I easily win both states. Report the News!"
Trump’s lawyers then filed suit in federal court based on the alleged lack of observers in Pennsylvania. A hearing on the case before Federal District Court Judge Paul Diamond — who was appointed to the bench by President George Bush — did not go well.
Attorney Jerome Marcus asked Judge Diamond to issue an emergency order to stop election officials from tallying votes because Trump observers were barred from the counting room. Pressed by the judge, Marcus uttered a statement that will live in legal infamy for decades. He said there were “a nonzero number of people in the room.”
Unamused when it turned out that “nonzero” meant plenty, Judge Diamond reminded Marcus that he had "jurisdiction to police the conduct of parties and counsel before me." I can tell you that’s not the kind of warning a lawyer wants to receive from a judge.
In a Montgomery County, Pa. case involving what the Trump campaign claimed was rampant voter fraud, the presiding judge asked the lawyer representing the president if he was claiming fraud was connected to the 592 ballots in dispute.
The attorney, clearly afraid to put his license at risk, answered “No.”
The same thing has been happening in case, after case, after case in courts around the country as spectacular allegations of wrongdoing involving the election turn to dust when lawyers have to provide evidence supporting the allegations.
And the president is losing more than the cases. Numerous law firms, including two of the largest in the country Jones Day and Porter Wright, have decided to stop representing the president rather than put their reputations and their licenses at risk.
From my vantage point, that’s the judicious thing to do.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to email@example.com.