Trump’s Election Night Speech Was a Legal Disaster

President Trump leaves after speaking in the East Room of the White House in Washington, D.C., November 4, 2020. (Carlos Barria/Reuters)

I have a new column up on the homepage, which is a primer on the Pennsylvania election-law case. Toward the end, I addressed President Trump’s ill-advised remarks last night, in which he appeared to declare victory prematurely (“Frankly, we did win this election”), and to claim that the election was a “fraud on the American public,” over which he’d be sending his lawyers to the Supreme Court in order to stop any more “voting.”

As I explain in the column, additional voting is not being permitted, at least officially. The main issue is counting — i.e., for how many additional days late-arriving ballots may be tabulated? Still, Trump legitimately fears that the procedures put in place by Pennsylvania’s supreme court will, as a practical matter, enable illegitimate voting. I assume that’s what he meant by asking the Supreme Court to stop the “voting”; I think what he meant was to stop the post-Election Day counting, which was not permitted under state law before the Court ordered it, and which, as authorized by the court, invites fraudulent voting (because non-postmarked or illegibly postmarked ballots are supposed to be treated as if they were submitted on or before November 3, even if, in reality, they were not).

I am excerpting below what I wrote at the end of the column, which deals with why Trump’s comments were self-defeating from a legal standpoint:

[A] fundamental point needs to be made. . . . [T]he Supreme Court is different from other courts in that it does not have to take cases. For the most part, it is the master of its own docket. The history of the Pennsylvania election-law case elucidates that a faction of the Court, led by the chief justice, does not want anything to do with this case because it would unavoidably thrust the Court into our very divisive electoral politics. I have argued that it would have been much better for the Court to have taken the case weeks ago, when it would properly have been understood as clarifying the election rules, rather than risk having to make a ruling post-election, when many would portray [the Court] — unfairly but inevitably — as deciding the winner of the presidency. Nevertheless, several of the justices would clearly prefer to avoid election-law cases if at all possible.

I mention this because President Trump did himself no favors with his rash 2:30 a.m. statement that he believes he has won the election and that, if it is denied him, there must have been fraud. I won’t belabor the points ably made by others that these remarks were irresponsible and undermine a process the president should be trying to legitimize, for the country’s sake and his own. My narrower point is that, from a legal standpoint, the statement was a blunder.

Again, in the weeks before yesterday, the Court had made it abundantly clear that it wants no part of this case. Now, Trump has made matters thermonuclear by alleging fraud, even though none has been proved (for now, we just have an increased possibility of fraud). Since the Supreme Court does not have to take the case, the president’s remarks have strengthened the hand of Roberts and other justices who appear to be arguing that the Court should let things play out for a few weeks more and maybe the election will resolve itself without the Court’s intervention.

As noted above, if the Court does not agree to expedited consideration of the Pennsylvania case, the Democrats’ response to the Republican petition for certiorari review would not be due until November 25. That gives Chief Justice Roberts an opening to say that, for now, the Court need be in no hurry. The justices could wait and see how the Pennsylvania ballot count goes. If the state authorities announce a result, and it appears that the late-arriving ballots would not change the result, the Court could just decline to hear the case.

In any event, the political part of the election is at an end. The president can do no more at this point to persuade voters. If we are headed into a litigation phase, he should leave public statements to his very capable lawyers. This is not a situation where he or the country will be well served by his penchant to wing it in an incendiary way.

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