By MATTHEW MOSK, OLIVIA RUBIN and ALEX HOSENBALL, ABC News
(WASHINGTON) — The recent scene in Clark County, Nevada, has become increasingly common in courthouses around the country as President Donald Trump continues to push thinly supported allegations of election misconduct and fraud.
When Republican lawyers in Nevada complained their observers were not close enough if they could not hear everything poll workers were saying, U.S. District Judge Andrew Gordon pushed back.
“At what point does this get ridiculous?” the exasperated judge, an appointee of President Barack Obama, asked before ruling against the Republicans.
In court hearings and opinions around the country, judges are voicing similar frustrations with the Trump campaign’s legal filings to a degree rarely seen in venues where political rhetoric is generally unwelcome, experts and courthouse veterans said.
“Judge after judge after judge has asked, in essence, ‘Where is the beef?’” said Karl Racine, the attorney general for the District of Columbia and a frequent Trump critic, in a call with reporters Friday.
“We have seen numerous instances where affidavits have been filed … only to be immediately pulled back once tested in state and federal court,” said Racine, whose own lawsuit against Trump in connection with the president’s Washington, D.C., hotel is on hold pending appeal. “I would not be surprised that if these baseless allegations continue, judges will begin to threaten and indeed issue sanctions.”
The Trump campaign and its supporters have filed at least 18 cases in battleground states, targeted because the president trailed Democrat Joe Biden by a comparatively narrow margin. With rare exception, the Trump campaign has been losing in court — regardless of whether the judges were appointed by Democratic or Republican presidents. The filings have only garnered two favorable rulings to date, and numerous denials and dismissals.
Trump campaign communications director Tim Murtaugh told ABC News that “the President owes it to the 73 million people who voted for him to ensure that the election was fair and secure, and he also owes it to everyone who voted for Joe Biden. Every American deserves the peace of mind that our elections are sound.”
Nevertheless, several of those defeats have been punctuated by sharply worded rebukes by judges from both political parties.
Even before the election, judges were voicing skepticism about Trump’s claims that the election would be undermined by fraud — something the president asserted frequently on social media and at political rallies, but rarely actually documented.
“Central to some of the plaintiffs’ claims is the contention that the upcoming election, both nationally and in Montana, will fall prey to widespread voter fraud,” U.S. District Judge Dana L. Christensen in Helena, Montana, a Barack Obama appointee, said in late September ruling against a Trump campaign filing to halt mail-in voting in the state. “The evidence suggests, however, that this allegation, specifically in Montana, is a fiction.”
‘Then what’s your problem?’
As the legal effort grew following the election, judges appeared to grow increasingly agitated by the claims. In Michigan, Judge Cynthia Stephens questioned attorneys about a sworn affidavit that Republican attorneys had gathered in which a witness said they were told about mishandling of ballots.
“What I have, at best, is a hearsay affidavit,” said Stephens, who was appointed by then-Gov. Jennifer Granholm, a Democrat. “If there is something in that affidavit that would indicate that the [witness] observed activity that would be a depravation of the rights of poll watchers, I want you to please focus my attention on that. … ‘I heard somebody else say something.’ Tell me why that’s not hearsay. Come on now.”
In Pennsylvania, Trump’s lawyers had suggested their poll observers had been shut out of the locations where ballots were being counted. So when the lawyers acknowledged that the observers had, in fact, been permitted within 15 feet of the poll workers, U.S. District Judge Paul Diamond, appointed by then-President George W. Bush, appeared baffled.
“I’m sorry, then what’s your problem?” Diamond chirped.
In a federal case meant to disqualify cured ballots, Judge Timothy Savage, another Bush appointee, questioned the very premise of the Republican attorney’s arguments.
“I don’t understand how the integrity of the election was affected,” Savage said during a Nov. 4 hearing.
One lawyer representing Republican poll challengers in Michigan argued that coronavirus restrictions meant they were positioned as far as 20 feet back “to the point where you can’t see anything.”
Judge Timothy M. Kenny took umbrage: “Where’s the facts about that?”
On Friday, Kenny, who has served on the state court for more than 24 years, rejected the request to block the certification of results and order an independent audit. He did not mince words, describing the GOP poll watchers’ “interpretation” of events inside the Detroit counting facility at the TFC Center as “incorrect and not credible.”
“Plaintiffs rely on numerous affidavits from election challengers who paint a picture of sinister fraudulent activities occurring both openly in the TCF Center and under the cloak of darkness,” Kenny wrote, noting that those claims were “decidedly contradicted” by an election expert put forth by the defense.
David Kallman, the attorney for the poll challengers, told ABC News he would be appealing the ruling Monday.
“We disagree totally with what [the judge] said,” Kallman said.
When Montgomery County, Pennsylvania, Judge Richard P. Haaz grilled Trump campaign lawyer Jonathan Goldstein at a court hearing last week, he wanted to know the basis for the Trump claims of fraud.
“I am asking you a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 disputed ballots?” said Haaz, a Democrat.
“To my knowledge at present, no,” Goldstein replied.
Expert: Trump lawyers aren’t ‘meeting the bar’
Wendy Weiser, director of the bipartisan law and public policy institute at the Brennan Center for Justice, has been tracking the judges’ comments and rulings, which she said were unusual for their pointed tone.
“It is unusual for judges to be chastising litigants,” Weiser said. “But the lack of evidence in these cases is unusual. For the judges to be speaking this way, the gaps need to be fairly significant.”
On Friday, after one of the leading firms handling the Trump campaign’s legal effort in Pennsylvania filed papers to withdraw from the case, the president’s longtime personal lawyer Rudy Giuliani said he would be taking the lead in the fight. A few days earlier, Giuliani had made it clear he had no intention of backing down.
“I think we have enough to change Pennsylvania. The Pennsylvania election was a disaster,” Giuliani said on Fox News. “We have people that observed people being pushed out of the polling place. We have people who were suggested to vote the other way and shown how to do it. I’m giving you the big picture.”
Weiser said those types of claims remain unsupported. And if Trump lawyers continue to try and bring them into court cases, she expects to see more of the pointed rulings.
“You are required to have some basis for believing your claims to be true. It has to be some basis in fact, not just wild speculation,” Weiser said. “And the bar isn’t even that high. To not meet it is very unusual and inappropriate.”
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