Trump’s Legal Team Fails

13 mins read

First, before we get to the Trump legal team’s epic fail, a few of you asked about ways to control the spread of disinformation. Here are two examples from my inbox: 

“It would seem we are greatly lacking laws to protect democracy in the area of disinformation (if Fox is an example of this problem). A large portion of our country wants capitalism to be the answer (they can spend their money whichever way they want), but that seems like we have quite the hole to climb out from (also related to the income inequality issue). Thoughts?”


“In a recent post, you said “the rise of disinformation is the biggest threat to American democracy.” I have 2 questions about this:

1. What can we do as individuals to combat this threat?

2. What do you recommend the Biden administration do to combat this threat?”

I’ll tackle #1: What can the Biden administration do. 

One thing on the “to do” list is to clarify section 230. This is something Sen. Elizabeth Warren has talked a lot about in the wake of the disinformation spreading so easily on Facebook.

Section 230 of the Communications Decency Act of 1996 states that a social media platform cannot be sued if a user posts untrue material. The purpose was to protect owners of a social media platforms from having to monitor all content posted by users for accuracy. 

Facebook has interpreted this law to mean that they don’t have to fact check ads.

Trump thinks that we should abolish 230 altogether so that he can sue social media platforms that publish stuff he doesn’t like. 

People like Elizabeth Warren (and me!) think Section 230 needs to be clarified so that social media sites understand that, whereas they don’t have to monitor user content, they have responsibility to monitor:

  • ads for which they accept money, and
  • content that they solicit.

In other words, they don’t have to monitor what users post, but they can’t solicit false material and they can’t accept money for ads that contain lies.

Those opposed to this sort of clarification (like Facebook) argue that this idea will (1) “kill the Internet” by putting unreasonable requirements on the owners of social media sites or (2) trample individual rights (where the idea is that Facebook should be able to publish whatever they want.)

Those objections are nonsense, of course. Clarifying Section 230 stops people from making millions of dollars from disseminating lies.

The idea is that with freedom and liberty come responsibility. Liberty requires an intact public sphere. Social media platforms should not be able to collect millions of dollars to run ads that they know contain lies. 

Clarifying 230, though, requires a Democratic Senate, House, and White House, so if the Democrats don’t win the Senate after the Georgia runoffs, it has to wait until 2022. 

The good news: The map in 2022 is excellent for the Democrats to pick up more Senate seats. Lots more vulnerable Republicans are up for reelection.


So remember the Trump-Giuliani-Pennsylvana case I talked about here? (If not, don’t worry. I’ll do a quick review.)

This case was the one in which Team Trump filed a complaint in federal district court arguing that the state should throw out tens of thousands of ballots.

The problem is that Team Trump didn’t allege fraud. Giuliani made the unhinged argument in that some counties in Pennsylvania (like Philadelphia) allowed voters to fix errors, and others (that had more Republican voters) didnt, therefore throw out all the ballots. They also argued that GOP observers were not permitted to watch the tallying of votes because they had to stand too far back. 

They made these particular arguments because they thought they could shoehorn these arguments into a 14th amendment equal protection violation because they had the idea that if they challenged the election and made a constitutional argument, the Supreme Court would take the case. 

Team Trump (not understanding Bush v. Gore and how their arguments are entirely different) thought that raising an equal protection claim would get them a fast pass to the Supreme Court, where they assumed Trump loyalists would hand Trump the election. 

Their constitutional argument was silly and defective. (Giuliani didn’t understand the levels of scrutiny in equal protection cases.) But their arrogant conceit was that this wouldn’t matter. They could throw anything together, call it a constitutional argument, and sail into the Supreme Court where (they believed) the justices would hand the victory to Trump.

After Team Trump filed its lawsuit (complaint) in the district court, the Democrats filed what’s called a motion to dismiss for failure to state a claim. This is one way to get rid of frivolous lawsuits before the court wastes too much time. 

It’s usually really hard for defendants to get a case dismissed this way because courts liberally construe pleadings. All plaintiffs have to do is allege one valid cause of action and explain what evidence they have, and they get in the door.

The lower court granted the motion to dismiss. The case was literally thrown out because it was so defective. ( Burn!)

That’s not all! The court dismissed with prejudice, which is rare: Dismissing without prejudice means the plaintiffs can refile the case and fix whatever defects they made. 

But in Trump’s case, the court dismissed with prejudice, which means that the plaintiffs cannot refile. In other words, the court said the case was so defective that it can’t be fixed so go away and don’t come back. ( Double Burn!)

So when Team Trump appealed, they appealed a decision to dismiss with prejudice. They were basically asking the appellate court to force the trial court to let them refile their new improved lawsuit. The day after they filed their appeal, they realized they forgot to ask for an order preventing Pennsylvania from certifying the election, so they also filed a TRO (temporary restraining order) to prevent Pennsylvania from certifying, even though TROs are brought in trial courts, not appellate courts.

They also filed an injunction to prevent verification until the completion of the lawsuit even though there was no lawsuit (it had been thrown out on a motion to dismiss.)

So in this appeal, Team Trump asked the appellate court to overturn the lower courts refusal to give them “leave to amend” their complaint. Basically they just want to refile their lawsuit so they can get started. The appellate court said no:

Not only that, the court won’t even let them present oral arguments. But the appellate court refrained from sarcasm, and simply denied the injunction for a bunch of reasons. 

Why a bunch of reasons? Because if Team Trump appeals to the Supreme Court, and the Supreme Court agrees to hear their case, this makes their lives harder because they will have to argue against each of these reasons. If just one reason is held valid, they lose. 

Now, here’s what really hurts: The justice who wrote the opinion was the one that Trump appointed to this circuit court. The panel of justices who issued the decision unanimously were all appointed by Republican presidents.

I thought the court might allow oral argumentsnot because the case was worthy, but because you know, they might want to give deference to the US President.but noooooo. Burn!! 

“Now what?” you ask. Can they take this to the Supreme Court? 

I have literally never heard of the Supreme Court evaluating whether a lower court abused its discretion in throwing out a case and not allowing leave to amend.

Suppose Trump does appeal. And suppose the Supreme Court agrees to hear the appeal. The issue is narrow: Should Trump be allowed to refile a second amended complaint in the district court? If the Supreme Court takes the case and says yes, all it means is Team Trump gets to refile their lawsuit.

The Supreme Court can’t decide on the merits because there hasn’t even been a trial. If the Supreme Court takes the case, and if they reverse the appellate court’s ruling (which they won’t because that would be stupid), Trump files another lawsuit.

And then the Democrats will file a motion to dismiss, which probably won’t get dismissed, but the Democrats will file what’s called a motion for summary judgment, which the lower court will grant, and then Team Trump will appeal, and then the loop will start all over.

By the time they get a trial, even if things are expedited, would be sometime in February, at which time the case will be moot.

(Maybe this section should be called “Fun with Appellate Procedure.”)

Yes, actually, I do. I think he really believed that if he raised a “constitutional” issue and claimed fraud, “his” judges would install him as president. A lot of Twitter also believed it because, well, the whole thing was (to say the least) unnerving.

Is Team Trump giving up? No. Because the point is to spread the lie that Biden won because he cheated. 

Here is a sampling of the stuff put out on Twitter today by Trump and Team:

And my favorite, in which Trump spectacularly misunderstands (among other things) burden of proof and, having failed to prove fraud, thinks that Biden has to prove there was no fraud :

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