Friday, November 27, 2020

The Crime Report: A Victory for Independent Courts

Matthew T. Mangino
The Crime Report
November 27, 2020

In the end justice prevailed.

America’s independent courts were the final line of defense against a want-to-be autocrat who intimidated, threatened and cajoled public officials in his ill-fated effort to hold onto power.

There have been at least 36 lawsuits filed by, or on behalf of, President Donald Trump’s campaign. Nearly every legal action was dismissed, withdrawn or settled. Judges of all political persuasions have ruled against the Trump campaign.

Thankfully, in this country it is not enough to run into court with bluster and bravado and intimidate a judge.

Thankfully, in this country judges don’t cave under political pressure.

Thankfully, judges in this country still demand that litigants present evidence to support their claims and make arguments that are supported by law and precedent.

While the leadership of the Republican Party in the House of Representatives and Senate sat silent, influential Republicans like the Secretary of State said a week after the election, “There will be a smooth transition to a second Trump administration.”

When the Attorney General authorized U.S. Attorneys to investigate election irregularities, judges in courts around the country stood tall.

U.S. District Judge Matthew Brann described a Pennsylvania case seeking to prevent state officials from certifying the results of the election as “strained legal arguments without merit and speculative accusations.”

Judge Brann said that he “has no authority to take away the right to vote of even a single person, let alone millions of citizens.”

“This claim, like Frankenstein’s Monster, has been haphazardly stitched together,” wrote Brann in his order dismissing the claim.

Three of Trump’s attorneys withdrew from the Pennsylvania case on the eve of the argument before Judge Brann. Attorneys Linda A. Kerns, John Scott and Douglas Bryan Hughes left the president’s legal team.

Kerns, Scott and Hughes were not the only attorneys involved in election suits to realize representing a client with neither the facts nor the law on their side can be risky business.

While much is made of Rudy Giuliani’s less-than-stellar performance and willingness to play hard and fast with the law and facts, lawyers are required to follow a strict code of professional responsibility established by state bars.

In Pennsylvania, where three of Trump’s lawyers jumped ship and Giuliani took the helm, the state follows the American Bar Association Model Rules of Professional Conduct. Pennsylvania Rule of Professional Responsibility 3.3 prohibits a lawyer from making “a false statement of fact or law to a tribunal.”

Lawyers are obligated to be truthful in everything they say to a court.

The president can tweet about all sorts of conspiracies, and his attorneys can promise all kinds of evidence outside the court; but once inside, the courtroom judges demand facts, they want law, and it doesn’t matter who the attorneys represent. That’s why Kerns, Scott and Hughes withdrew.

To make it clear, in another Pennsylvania suit where the Trump campaign was complaining that their poll watchers were being excluded from observing the ballot count, U.S. District Judge Paul Diamond—a conservative George W. Bush appointee—asked Trump’s lawyer if campaign observers were in fact present.

“There’s a nonzero number of people in the room,” the lawyer responded.

Judge Diamond, said he was “asking you [the lawyer] as a member of the bar of this court.” Uh-oh, that question has serious implications for that lawyer to whom it was posed. The lawyer quickly affirmed that Trump poll watchers were in the room.

Many have labeled the actions of Trump and his campaign as a “slow” coup d’état. We have heard time and time again that “President Trump is a threat to constitutional democracy.”

That threat has subsided for now. Inauguration day is about two months away.

U.S. General Services Administration chief Emily Murphy informed President-elect Joe Biden that her agency has formally ascertained him as the apparent winner of the 2020 election and will move ahead with transition proceedings.

The Constitution prevailed, due in no small part to an independent judiciary which expects, and demands, that lawyers act ethically and with candor in America’s courtrooms.

The court of public opinion is no court at all. Our government of checks and balances has guided us through the dark days of a would-be despot.

Matthew T. Mangino, a former district attorney of Lawrence County in Pennsylvania, is of counsel with Luxenberg, Garbett, Kelly & George P.C. He is the author of The Executioner’s Toll, 2010. His weekly syndicated column is distributed by GateHouse Media. You can reach him at and follow him on Twitter @MatthewTMangino

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