IS IT REALLY OVER?

 Is it really over?

The answer is yes. You can take it to the bank.

The pathetic bleating of Republican stalwarts, in the Senate and elsewhere, is meaningless drivel. It represents the fear that someday between now and 2024, Trump is going to arise from the grave, yank the wooden stake out of his heart, and re- energize his base.

 I agree he might do just that, but the possibility certainly does not justify, morally or legally, Republican politicians’ shameful adherence to and support of Trumpian conduct that risks the health and security of the nation by the president’s denial of reality.

The proponents of Trump's refusal to concede are of two stripes: on the right extreme, you have i) people whose last name is Trump, or are currently sleeping with people whose last name is Trump, and ii) the professional whackos like Hannity, Carlson, Gingrich, Pompeo, et al. They intentionally conflate counting with voting and make irresponsible and vague claims about "irregularity," fraud," etc. All totally unsupported bullshit.

The second group, almost as bad, are the Republican politicians. Many mouth the same irresponsible accusations. The two Republican candidates for the Senate in Georgia have gone so far as to demand the resignation of the Republican Secretary of State of GA because GA voters preferred Biden. (He responded to the effect that GA's election was perfect and he ain't goin' nowhere.)

The disgraceful Republican campaign to overturn the voter's will is not only illogical, but factually challenged on its face.

For openers, no recount could possibly produce more than a couple of hundred votes for Trump. That's meaningless because Biden is now ahead by almost 100,000 votes in the battleground states and he is now leading Trump by margins greater than the margins that Trump had in his victory over Clinton.  

Second, the notion that the election was "irregular" and/or inherently "fraudulent" is absurd, given that, for the most part, the Republicans won the election. They gained seats in the House, maintained their Senate majority, and defeated Democrat efforts to win statehouses. The only part of the ticket that lost was the head of the Trump/Pence column! Given that result, the only logical conclusion to be drawn is that the Republicans voted a straight Republican ticket, except for the Trump/Pence spot.

So how do the Republicans justify their leader's petulant refusal to accept the fact that he lost? They do it by resort to the flawed argument that Trump is, after all, just being reasonable. If you listen to the news, you will hear that over and over again. Mitch McConnell, who was silent for a few days, succumbed: "The President is 100% within his rights to go to court to challenge the result.'' That is the Republican party line.

False!

Aside from the immorality and anti-democracy aspects of the Trump’s challenge to what is now a clear Biden victory, the notion the Trump is "100% within his rights" to challenge these election results in court is a classic Trumpian falsity. No litigant has an absolute right to make any and all claims in court. Only good faith claims are allowed. Making frivolous claims in court can lead to sanctions being imposed on both client and lawyer! 

Rule 11 of the Federal Rules of Civil Procedure provides that when a lawyer lodges a claim or defense in court, that is a certification that) i)"it is not being presented for any improper purpose" — such as, e.g., delay), ii) the claim is “warranted by existing law, or by a non-frivolous argument" to extend existing law, and iii) all ''factual contentions have evidentiary support.''

A determination that a lawyer has violated that rule may result in sanctions being imposed upon "any attorney, law firm, or party."

While the above is the rule in federal court, most state courts have similar provisions.

So the notion that Trump, or Trump's attorneys, have a "100% right to throw stuff at the wall and see if anything sticks" is dead wrong. Vacuous, evidence-free claims of general "fraud" or "irregularity" are sanctionable offenses. Making a claim that an election should be set aside because a candidate who lost by 45,000 votes asserts he has a witness who claims he saw a handful of ballots being improperly discarded is beyond frivolous and is sanctionable.

The closest the Republicans had to a genuinely litigable claim was prior to Election Day. The Pennsylvania Supreme Court had ruled that qualified ballots arriving within three days after November 3 could be counted. The Republicans contended this was a violation of state law. Whether right or wrong, it was a non-frivolous claim.

Pennsylvania election officials pledged they would segregate post-election-day ballots from ballots arriving on or before November 3, but the Republicans nevertheless appealed the PA Supreme Court decision. The U.S. Supreme Court affirmed the PA court determination by a vote of 4-4. All this occurred before November 3,  and dissenting Justices noted the Court might well revisit the question after the election. 

When the post-election day count of the pre-election day ballots favored Biden by more than 40,000 votes, the question of the legality of those segregated post-election-day ballots would appear to have become moot, because election officials estimated their number did not exceed two or three thousand. Nevertheless, the Republicans then went back to the Supremes and sought an injunction preventing the counting of the segregated ballots!  

Really? How absurd was that?  Arguing that throwing out the segregated ballots should result in a reversal of the Biden victory, but at the same time arguing that those ballots should not be tallied, is a classroom example of bad faith litigation designed for no purpose other than delay.

Justice Alito agreed the ballots should remain segregated but permitted them to be counted. He did not impose sanctions on the Republican Party lawyers (or their client!) for making such an absurd request, but he should have. 

This is not a good time for Trump's lawyers. Aside from their lack of success, they cover themselves with shame by making patently frivolous arguments that delay the inevitable. And while they disgrace their profession, they enable their unhinged client to do severe internal and external damage to the nation.

The voters have decreed Trump’s Judgment Day. Now the courts should do likewise for his lawyers.

A bientot.

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Trump is an old hand at frivolous litigation. When launched against impecunious or unconfident adversaries, it is often successful. Against others, not so much. For the details of my litigation success against a frivolous Trump claim, see my memoir "The Client Decides,” available on Amazon and

 Kindle.