Group Statement on the 2020 Election

A statement signed by multiple VC contributors calling on Donald Trump and the Republican Party to accept the election result and stop promoting unsubstantiated accusations of fraud.

On behalf of myself and several other Volokh Conspiracy contributors, I would like to post the following statement on President Trump's refusal to recognize the result of the presidential election.

I should also take this opportunity to note that readers should be cautious in drawing conclusions about the views of those VC bloggers who did not sign the letter. Some might have chosen not to sign because of a general opposition to signing group statements, because they believe they don't know enough about the factual disputes behind the various claims of fraud,  or for other reasons unrelated to views on the substance of the issues covered.

Here is the statement:

We write as a group of conservative and libertarian legal scholars specializing in constitutional law and related fields. We voted for different candidates in the recent election, and a number of us voted for Republican candidates for Congress and other offices.

We call on President Donald Trump and the Republican Party to recognize that he has lost the 2020 election and to stop promoting unsubstantiated conspiracy theories about alleged voter fraud. The President's lawsuits seeking to overturn election results have been repeatedly rejected by state and federal courts, and  there is no basis for believing that fraud occurred on anything like the massive scale necessary to call the results into question.

Our constitutional system relies on American citizens and their representatives being honest with themselves and with each other. The President's account of the election is false, and those who continue to promote it are undermining constitutional democracy and sowing the seeds of needless future distrust and conflict. Those elected officials who privately reject the president's account, but have kept quiet so far, should say so, rather than promoting further uncertainty among their constituents by their silence.

Michael Abramowicz
Oppenheim Professor of Law
George Washington University

Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Case Western Reserve University School of Law

David E. Bernstein
University Professor
Antonin Scalia Law School
George Mason University

Dale Carpenter
Judge William Hawley Atwell Chair of Constitutional Law and Professor of Law
SMU Dedman School of Law

Irina D. Manta
Professor of Law and Founding Director of the Center for Intellectual Property Law (CIPL)
Maurice A. Deane School of Law at Hofstra University

Orin S. Kerr
Professor of Law
University of California, Berkeley School of Law

David G.Post
Professor of Law (ret.)
Temple University Law School

Stephen E. Sachs
Colin W. Brown Professor
Duke University School of Law

Ilya Somin
Professor of Law
Antonin Scalia Law School
George Mason University

Alexander "Sasha" Volokh
Associate Professor of Law
Emory Law School

Titles and institutional affiliations listed for identification purposes only.

UPDATE: We have added additional signers since this statement was first posted.

Comments

[KevinP]

Did any of these Conspirators call upon Hillary Clinton and the Democratic Party to repudiate three years of Russia Collusion conspiracy theory?

[LawTalkingGuy]

It’s a “conspiracy theory” that Tom Cotton found compelling enough to endorse by signing on to the Senate Intelligence Committee report about it.

[KevinP]

The Senate Intelligence Committee found that Trump colluded with Russia to win the election?

Do you even keep your conspiracy theories straight?

[LawTalkingGuy]

No. But when you say it’s a “conspiracy theory” or a “hoax,” it’s hard to determine what exactly you are complaining about. Some people still try to deny the existence of any Russian attempts to influence the election or disseminate materials that Russian intelligence hacked. Using the term “conspiracy theory” makes it easy to wave away what Mueller and the Committee found.

So no they didn’t find that there was express “collusion” (whatever that means) but they did find that 1) Russian intelligence took steps to influence US politics in favor of Trump including by releasing material they hacked and 2) members of the Trump team did have contact with individuals associated with Russian intelligence.

[Sebastian Cremmington]

The Hillary campaign also had contacts with individuals associated with Russian intelligence through Steele.

[captcrisis]

Odd that Hillary never used the Steele material in her campaign. We didn’t hear about it until after the election. Are you accusing Hillary of being an ethical politician?

[Sebastian Cremmington]

Hillary threw the Steele Dossier in the trash because that is where it belonged…but she still paid a foreigner to get information from people Russian intelligence operatives.

[David Nieporent]

Sigh. No. She paid Fusion GPS, an American company run by Americans.

[Sebastian Cremmington]

Sigh, they hired a Russia expert to do oppo research.

[captcrisis]

Sigh . . . but she didn’t use it.

[Brett Bellmore]

Do you not know how Fusion GPS operates?

You don’t buy smears from them to spread around yourself. You buy them, then GPS shops them around to the media for you.

The problem with the Steele dossier is that it stunk so badly that the media weren’t biting until they had that “Trump has been briefed on it!” hook to go with. And that was the only reason he was briefed on it, to give them that hook.

She could have called GPS’ attack off after she lost, but she didn’t.

[Jason Cavanaugh]

Now you claim to have special knowledge of how a company with whom you have no relationship operates?

You’re turning into a mini-Trump with your deliberate lies.

[De Oppresso Liber]

(U) While the GRU and WikiLeaks were releasing hacked documents, the Trump Campaign sought to maximize the impact of those materials to aid Trump’s electoral prospects. To do so, the Trump Campaign took actions to obtain advance notice about WikiLeaks releases of Clinton emails; took steps to obtain inside information about the content of releases once WikiLeaks began to publish stolen information; created messaging strategies to promote and share the materials in anticipation of and following their release; and encouraged further theft of information and continued leaks.

(U) Trump and senior Campaign officials sought to obtain advance information about WikiLeaks through Roger Stone. In spring 2016, prior to Assange’s public announcements, Stone advised the Campaign that WikiLeaks would be releasing materials harmful to Clinton. Following the July 22 DNC release, Trump and the Campaign believed that Roger Stone had known of the release and had inside access to WikiLeaks, and repeatedly communicated with Stone about WikiLeaks throughout the summer and fall of 2016. Trump and other senior Campaign officials specifically directed Stone to obtain information about upcoming document releases relating to Clinton and report back. At their direction, Stone took action to gain inside knowledge for the Campaign and shared his purported knowledge directly with Trump and senior Campaign officials on multiple occasions. Trump and the Campaign believed that Stone had inside information and expressed satisfaction that Stone’s information suggested more releases would be forthcoming.

SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE ON RUSSIAN ACTIVE MEASURES CAMPAIGNS AND INTERFERENCE IN THE 2016 U.S. ELECTION VOLUME 5: COUNTERINTELLIGENCE THREATS AND VULNERABILITIES, p. 172

[Kazinski]

The Trump campaign was trying to get information from Wikileaks, which is run by an Australian, not the Russians. And the evidence showed that Roger Stone didn’t even have any contacts with Wikileaks, let alone the Russians.

[Brett Bellmore]

And the claim that he got it ahead of everybody else fell apart almost instantly: The person making the claim had misread the date on an email.

[Sarcastr0]

This is basically all lies, Kaz.
Stone testified he worked with wikileaks through an intermediary. So while you’re technically correct, you’re also being deceitful as hell.

Plus there are screenshots of twitter messages between the two from October 2016 that look like wikileaks is referring to past correspondence so Stone was probably lying about even that.

And Stone was *convicted* of lying to Congress about his contacts with Russia.

[AmosArch]

Nobody denies that Russia meddles in elections just like Nobody can deny there has been election fraud in every presidential election. The question is do you have proof or at least a systematic preponderance of evidence that it changed the election outcome? Go ahead and show it here. Otherwise quit whining when trump does the same thing or less that you’ve done over 4 years.

[NOVA Lawyer]

Nobody held up the transition in 2016, the concession speech came within days, and President Obama didn’t tweet outlandish conspiracy theories or that “HILLARY WON THE ELECTION!!” or some such. It’s just stupid to pretend the two situations are the same.

That you are apparently embarrassed that Trump tried to work with Russia in 2016, then tried to cover up that fact (and commuted Stone’s sentence as apparent reward for helping with the Wikileaks releases or covering up the attempts at working with Russia or both), is no reason to abase yourself by pretending what Trump & Company are doing now is at all the same as what happened in 2016.

[LawTalkingGuy]

Democrats (and Republicans eventually) Russia used hacking and agitprop to influence absurdly credulous people into voting for Trump or third parties. The Democrats then at most said that team Trump coordinated with Russian intelligence on this. There were in fact several contacts between officials and the campaign.

This is different than saying that :
1 thousands of people engaged in a conspiracy theory to change millions of votes;
2 all forms of absentee voting are actually now illegal;
3 only majority black cities have voting fraud so they don’t need to count;
4 the President can pressure canvas board members and state legislators to simply ignore the results of the election;
5 Trump actually won in a landslide.

[De Oppresso Liber]

I notice you are replying to other comments, but not to mine where I cite the bipartisan senate intel report.

Maybe you should acknowledge that the official position of the legislative branch and the various intel agencies sounds a lot like “collusion”.

[BillyG]

How would we get such preponderance evidence without actually being able to look for it?

[Sebastian Cremmington]

Actually Hillary was ecstatic when the orchestrator of the Russia collusion hoax was FIRED!! Get your facts straight—the people that orchestrated the Russia collusion hoax are fairly typical incompetent Bush era Republicans.

[Jason Cavanaugh]

Magatards: only the finest in whataboutsim.

Remind me again when Hillary was President? Are you genuinely dumb enough to think that the President’s behavior is appropriate, or are you selfish enough to just not care?

It can only be one, or the other, or both.

[NOVA Lawyer]

This a thousand times.

[Ben_]

Most of them probably still believe the Russia hoax, in whole or in part.

[LawTalkingGuy]

Which part is the hoax? The influence campaign? The hacking? Or just the existence of coordination?

[Ben_]

How should I know? Depends on how deranged they are. Post is pretty far gone down that rabbit hole.

Some of the others seem to be guided more by personal vanity, so maybe it’s a different answer depending on who they’re trying to impress. What’s the fashionable thing to pretend to believe these days?

[NOVA Lawyer]

The part about Russia hacking DNC servers? Yes.

The part about Trump having business in Russia during the campaign but lying to the American people about it? Yes.

The part about Don Jr. saying in response to a Russian agent’s promise of help: “if it’s what you say, I love it”? Yes.

The part about the hacked emails being released hours after the Access Hollywood tape dropped and Roger Stone apparently knowing about Wikileaks drops ahead of time? Yes.

Those facts alone, which are not the only bad facts, are a really ugly look for Trump. Don’t pretend otherwise.

(But you hide behind the amorphous and ubiquitous “hoax” in yet another semantic game.)

[jslinner]

Hillary conceded to Trump right after the election was called despite getting millions more votes than Trump.

[Dr. Ed 2]

Exactly. And I call these folks treasonous.

Aren’t lawyers supposed to wait until the facts are in?

[Ghost on the Highway]

Trump was accused in various forms and fashions of interfering and obstruction of the Russian investigation. The Steele dossier (in late 2016) was classified as highly sensitive and central to the FBI investigation. To the extent that Obama/Biden and company directed Comey not to share with the president elect that there was an ongoing investigation. Rather that Comey was to brief Trump in person only one of the allegations from the dossier without revealing the existence of the dossier. That part was prostitutes peeing in the bed.

The basis for revealing one part of the dossier is that Comey feared the media was about to release information about the dossier. Indeed the first thing was leaked was a story about Comey briefing Trump. Of course many in the media knew the dossier existed because Steele was shopping it around DC. The “leaked” news of Comey’s briefing was enough to give the media a justification to also publically pursue the story.

In late December 2016 John McCain (for the good of the nation) sent his aide to Buzzfeed and let them copy the full dossier. Buzzfeed decided to publish the dossier on the internet (well at least Trump got a copy along with the rest world). Talk about interfering with a major FBI investigation – Buzzfeed’s publication of a super sensitive document certainly did that. I guess it’s freedom of the press for the media to publish internal FBI investigative material if someone gives it to them.

[Brett Bellmore]

Comey memos.

““I said I wasn’t saying this was true, only that I wanted him to know both that it had been reported and that the reports were in many hands. I said media like CNN had them and were looking for a news hook. ”

The news hook they were waiting on was Comey having briefed the President on it, as it happens. The briefing was held to provide it.

[SykesFive]

Since when are commenters “cautious in drawing conclusions”?

[Jon S]

Right. I knew Orin Kerr was a supporter of Trump’s efforts to steal the election!

[wnoise]

Fraud!

[Sebastian Cremmington]

I agree Trump’s legal strategy is irresponsible but because we have the asinine Electoral College Trump’s attempts to influence the EC are perfectly legitimate. So in 2016 there were 7 faithless electors, so why can’t there be faithless electors in 2020?? Furthermore anyone who legitimized the EC in 2016 is furthering the argument that democracy has negative aspects that the EC was crafted to mitigate…so logic dictates that even an EC victory on Election Day might be illegitimate because democracy has inherent flaws and so attempting to switch EC votes based on democratic results is perfectly legitimate.

[JJJSSS]

Though Chiafalo v. Washington, decided this year, lets states at the very least penalize faithless electors.

[y81]

Though several of the Conspirators argued for the opposite position, as I recall.

[WuzYoungOnceToo]

anyone who legitimized the EC in 2016

The EC was legitimized in 1788, and has remained so ever since.

[Sebastian Cremmington]

Buh 12A and Hunter Biden

[Artifex]

Our constitutional system relies on American citizens and their representatives being honest with themselves and with each other.

That ship has sailed. Sounds like you are claiming a constitutional government containing Progressives is untenable ? Get back to me when they produce the whistleblower who wasn’t Eric Ciamarella or the trove of documents proving Russian collusion that weren’t the Steele report.

[DaivdBehar]

You lawyers did not understand the reason for the election of Trump.

You did not circulate your letter to the Democrats who threw a fit of lawfare for 4 years. This unAmerican response to the Trump election includes the hyping of a cold virus to shut down the economy and to destroy stock gains, the achievements of President Trump. The shutdown, not the virus, took out $4 trillion from the world GDP. It will result in the starvation deaths of 130 million in the shortest recorded time. This was the biggest mistake in human history. Except that the tech billionaires who own the media and the Democrat Party received a $trillion in unjust enrichment.

You Deep State lawyers are dismissed.

[De Oppresso Liber]

Democrats made politicians in far flung corners of the world enact shut downs? Amazing.

[Sebastian Cremmington]

The key to understanding the election of Trump is understanding how he won the Republican primary. Trump won the Republican primary running as a Jim Webb Democrat and the GOPe was unable to stop Trump because W Bush essentially bankrupted the Republican Party. So once Trump won the nomination the general election is simply a binary choice between two unpopular candidates with Trump getting lucky that the “events” harmed Hillary’s campaign in the final two weeks enough for Trump to eke out an EC victory.

[Dr. Ed 2]

70+% of America voted for Trump.

Failing to respect that begets anarchy.

Maybe Shakespeare was right about the lawyers….

[Poor Yorick]

Failing to respect your completely false delusions about how many people voted for Trump, however, begets a teeny, tiny step toward reality.

[LawTalkingGuy]

70% of America voted for Trump? Why on earth would you think that? Like that’s just not a remotely plausible delusion at all.

[VinniUSMC]

“70+% of America voted for Trump. ”

Say whaaaaaaat?

[bernard11]

Somebody needs to get Ed a nice warm bowl of soup, sit him down in front of the TV (no news programs) and keep an eye on him so he doesn’t wander out into traffic.

[Armchair Lawyer]

In response….

I fully support President Trump in his ability to take the legal action that is his legal right, in the wake of several pieces of evidence that are suggestive that there may have been issues with the election. These pieces of evidence and issues include.

1. A City of Detroit worker swears she witnessed thousands of ballots being falsified, in an affidavit

2. Nearly three quarters of Detroit’s precincts had mismatched voting totals

3. At least nine observers who watched an audit last week in Georgia’s razor-thin election have signed affidavits swearing they saw suspicious mail-in ballots, almost uniformly cast for Biden. The ballots were in pristine condition and had no creases on them, meaning the ballots had not been mailed in envelopes as required, according to the affidavits.

4. Thousands of ballots went uncounted initially in Georgia, belatedly discovered during audit

5. Large numbers of Pennsylvania voters say their absentee votes weren’t counted or someone else requested their mail-in ballot

6. Various “computer issues” which seemed to reverse the number of votes or report them incorrectly.

7. Numerous Republicans poll observers in multiple states say they were improperly ejected.

https://justthenews.com/politics-policy/elections/dozen-compelling-pieces-evidence-voting-irregularities-2020-election

I am disappointed that lawyers who support free and open elections would elect to utilize “social pressure” to encourage someone to drop lawsuits that they have the legal right to bring. I would ask how these lawyers would feel if other officials “pressured” them to drop lawsuits that they had the legal right to bring….

[bernard11]

A City of Detroit worker swears she witnessed thousands of ballots being falsified, in an affidavit

Is this the woman who claims that she saw people get out of a Biden/Harris van, and, in broad daylight, next to where votes were being counted, unload a box of blank ballots, and start filling them in on the sidewalk? Yeah. That’s credible.

Various “computer issues” which seemed to reverse the number of votes or report them incorrectly.

The Chavez virus strikes again.

Thousands of ballots went uncounted initially in Georgia, belatedly discovered during audit

Mostly in red counties. When they were included in the count they helped Trump. Is the claim that Democrats snuck in and hid the ballots, but the clever local officials found the hiding place? Of course, if they helped Biden you’d be saying they were smuggled in after the election, because there just has to be fraud, right?

Maybe you should take on Trump’s case, pro bono, and bring all this “evidence” from some RWNJ website into court.

Apparently, none of his other lawyers seem to be able to do so, at least successfully.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Whatever the merits of

Various “computer issues” which seemed to reverse the number of votes or report them incorrectly.

your rebuttal

The Chavez virus strikes again.

is even more devoid of content.

[bernard11]

You’re right. Because it’s not a serious claim. It is itself devoid of content, and deserves mockery, not a thoughtful response.

Even Trump seems to realize it’s a joke, as he has fired the lawyer – previously part of his “elite strike team” – who was propounding it. Nor has it been put forth in any of the 30+ lawsuits Trump has filed.

So why should I take it seriously?

[Armchair Lawyer]

“It’s not a serious claim”

In Antrim county in Michigan a “software error” somehow caused a erronious 6000 vote swing towards Biden, before being caught.

That same software is used in more than 1/2 the counties in Michigan.

In the wake of such errors, shouldn’t the other counties which use the software re-count their votes?

[NOVA Lawyer]

In Antrim county in Michigan a “software error” somehow caused ..

No, human error caused. It was investigated, it was human error affecting that county.

https://www.wcnc.com/article/news/verify/michigan-software-glitch-didnt-switch-votes/507-d8caddb3-71da-4125-85be-9c8c124f66b7

Stop spreading falsehoods. It undermines freedom. Thank you.

[Armchair Lawyer]

Ah. Shouldn’t the other counties be examined for this type of human error as well?

[BillyG]

Thank you for confirming the existence of a Pro-Biden error. Do you believe we shouldn’t look for other errors?

[bernard11]

Do you believe we shouldn’t look for other errors?

Well, since this error was discovered in the normal course of events I presume that if it had occurred elsewhere it would similarly have been discovered. How do you know that, once this was found, other election officials didn’t double-check?

Anyway, has Trump even asked for this?

[Sarcastr0]

Your ‘issues with the election’ nonsense implies a widespread scheme of fraud, and this does not. Stick to your goalposts.

There will always be a background of minor errors in any large endeavor like this.
As we have seen in detail, each state has existing error correction protocols to minimize this background.

You know this is the case. Your demands are not founded on a reasonable footing. You’re just justifying disbelief in an election result you don’t like. It’s pretty pathetic.

[De Oppresso Liber]

“That which can be asserted without evidence can be dismissed without evidence.”

[Armchair Lawyer]

I understand you disagree Bernard, it’s OK.

What I don’t understand is the “pressure” to drop the cases, despite it being Trump’s legal right.

If Trump takes the cases to court and loses, that’s one thing. But “pressure” to drop the cases before they even get to court? That’s not quite right, in my book.

[Rev. Arthur L. Kirkland]

What Pres. Trump is doing is spreading delusional allegations of fraud for gullible audiences, which assertions his lawyers meticulously abandon when the audience consists of judges, in courts that rely on evidence and professional standards, rather than disaffected clingers, in shambling backwaters.

If there is evidence, it should be investigated. But fraud is to be pled with particularity, and until that threshold is reached it is irresponsible to claim fraud — let alone widespread, systematic, longstanding fraud — and belligerently ignorant to swallow the accusations.

[Dr. Ed 2]

Kirkland, whatever….

[bernard11]

IANAL, but my understanding is that it is unethical/improper to bring baseless claims into court. How long do you think the BS should continue? I mean, there’s no end of imbeciles who will sign some sort of affidavit saying they saw a suspicious-looking woman dressed in red walk down the street near a polling place, carrying a briefcase. You need more.

I further think that the more Trump rants and raves, and gets support from others, the more he harms US democracy. Look, over 3/4 of Republicans think Biden’s win was fraudulent and Trump, for all his antics, has produced no evidence of that. But his cultists believe him, and that does damage.

He needs to concede, STFU, and let an orderly transition begin.

[Armchair Lawyer]

It’s my understanding if you have direct affidavits from multiple people alleging they directly witnessed fraud during the election process, then the claims are not “baseless”.

[Dr. Ed 2]

Particularly when they have photographic evidence of things like cardboard on windows…

[bernard11]

What are we up to now, A.L.? 30 lawsuits, or is it 35. You’d think if there was such convincing evidence Trump would have won a few of those.

As I said before, there’s no shortage of people willing to sign foolish affidavits. When they stand up in court I’ll listen to you.

[Armchair Lawyer]

You do understand that an affidavit is a written statement, confirmed by oath, for use in a court, right?

[Rev. Arthur L. Kirkland]

The Trump lawyers have refrained from providing many of the ‘stacks of affidavits’ on which their half-witted pleadings and press statements rely, but some have been reviewed by Democratic lawyers — and they are pathetic.

An affidavit that claims ‘I thought it was suspicious that so many military ballots were for Trump’ or ‘I was not permitted to examine each particular ballot although I felt I was entitled to do just that’ or ‘I have not been able to confirm to my satisfaction that my vote was counted’ or ‘it was so noisy I couldn’t really concentrate under the pressure’ are worth either scorn or perhaps a laugh.

An affidavit that claims ‘I believe that any legitimate investigation would confirm that tens of thousands of illegal ballots were brought in overnight to steal the election’ is worth a sanctions hearing or a psychiatric examination.

Until an affidavit is submitted to a court, it is entitled to no deference in these circumstances. That Trump’s lawyers are withholding the affidavits — rather than rushing to get them before judges — tells a sentient observer everything needed to evaluate those affidavits. .

Please continue to rant about the ‘stacks of affidavits,’ though, Trump fans. It identifies you as inconsequential clowns.

[NOVA Lawyer]

This, this, and this again.

[LawTalkingGuy]

Yes, they’re attached to motions for summary judgment all the time. And here’s something interesting about them: they’re not subject to cross-examination. They are often contradicted by deposition testimony or on the stand at trial. They can be stricken for not-conforming to the rules of evidence. Courts recognize parties opposing summary judgment can’t suddenly create genuine issues of material fact simply by submitting a self-serving affidavit in opposition to a motion for summary judgment.

They have their uses, but courts and lawyers recognize they have severe limitations.

[SykesFive]

Pennsylvania courts follow the “Nanty-Glo rule” which goes even farther: a motion for summary judgment cannot be supported merely by testimonial affidavits from the moving party or its witnesses, even if they are not contradicted. The reasoning for this is that the affidavits are filling in for testimony, and at trial the finder of fact is free to believe testimony or not, even if there is no evidence contradicting the testimony. Thus, it would be improper for a court to base summary judgment on self-serving affidavits.

[Dr. Ed 2]

“He needs to concede, STFU, and let an orderly transition begin.”

Does that include the inevitable nationwide trucker’s strike?

Truck drivers may not have law degrees but they are not stupid and they know the extent to which this election is being stolen — and when they just simply refuse to drive, Joe Bite Me is going to have a real fun transition….

You’d think that law professors would understand that the public court system exists, in part, to convey legitimacy to things….

[StellaLink]

“Truck drivers may not have law degrees but they are not stupid and they know the extent to which this election is being stolen”

Whenever I have a question about election law, the first thing I do is run out and find a truck driver for an opinion.

[Bob from Ohio]

“let an orderly transition begin”

good news, he is letting GSA give them office space to network in!

Let the briefing books flow.

Psst, you realize he is never going to really “concede”.

[Rev. Arthur L. Kirkland]

Not even at a sentencing hearing, when he is flailing?

[bernard11]

you realize he is never going to really “concede”.

Actually, I do realize that.

I imagine he’ll keep up the nonsense until Jan. 19 or so. I wouldn’t be surprised if he had to be forcefully evicted from the WH.

[LawTalkingGuy]

Trump is a physical coward. He’ll conveniently be at the golf course on January 20.

[StellaLink]

Don’t need to force him out, just prevent deliveries from KFC and McDonalds; he won’t last long.

[Dr. Ed 2]

Exactly. It is wrong to “pressure” people to waive civil rights.

At least in the America that I used to know…

[LawTalkingGuy]

“A City of Detroit worker swears she witnessed thousands of ballots being falsified, in an affidavit.”

I would stake a lot of money on you believing and announcing that Christine Blasey Ford’s testimony under oath and subject to cross examination was actually “not evidence.”

[abhudd47]

It was evidence but it was not evidence beyond a reasonable doubt, which is the legal standard. It warranted investigation. As do these affidavits. If there is no more evidence found after thorough investigation, then the claims are not upheld to the legal standard, but an investigation is warranted based upon the evidence of the sworn statements in both cases.

[LawTalkingGuy]

BARD is not the legal standard for confirming justices…

[abhudd47]

No, the standard there is just “did it convince a majority of the Senate?” and it clearly didn’t meet that standard either. But good job at missing the point. A single piece of evidence is not enough to uphold a case, but it is enough to warrant investigation. Sworn testimony is a piece of evidence that warrants farther investigation. Your claim that somebody who supported the confirmation of Justice Kavanaugh wouldn’t acknowledge Dr. Blasey Ford’s testimony as evidence is not accurate. Nor does it really matter what an individual would “consider” evidence. Legally, sworn affidavits ARE evidence, and they warrant investigation.

[Armchair Lawyer]

Bingo.

[bernard11]

they warrant investigation

Investigation by who?

If you want something to be investigated take it to the police, or go to court, don’t wave it around on TV and rant about millions of votes. You have evidence of vote fraud? Talk to the US Attorney, or the DA or someone. You want votes disqualified? Go to court and bring your effing affidavits, and the people who signed them and see what happens. So far what’s happened is mostly laughter.

You seem to think Trump should just be allowed to present endless idiotic affidavits. He shouldn’t be. You are imagining that he has a case. He doesn’t.

Oh. Wait. He’s going to file a massive new lawsuit soon – any day now. Just as soon as he publishes his tax returns and announces his health plan.

Why do you believe this crap?

[abhudd47]

First, this statement is pressuring Trump to stop his legal challenges, not just stop speaking to the press, and the responses here are about Trump’s right to seek legal remedy.
Second, as I have said elsewhere in this conversation, I don’t necessarily believe the President’s conspiracy theories, in fact I very much doubt them. What I believe is that he has the right to present them. He has the right to pursue legal remedy. And the citizens who swore those affidavits have the right to see them investigated. The reason that Trump is being forced to take his case to the press is because the attorneys general and police who have the power and legal mandate to investigate these things are refusing to do so, and he is trying to pressure them to do their jobs and investigate.
Above all, I believe in freedom. The freedom of the president to express his concerns about the way the election was handled, the freedom of Mr. Somin and his co-signers to petition him to stop, and the freedom of everybody on this forum to express their own opinions on the issue. While I support Mr. Somin and his co-signers’ right to do what they have done, I am disappointed that these constitutional scholars are engaging in a course of action that undermines freedom and the system of legal checks-and-balances through which these concerns need to be handled.

[Armchair Lawyer]

You’d lose a lot of money.

It’s evidence. It’s sworn testimony. And it would be sufficient to prompt an investigation.

Now, we need to balance ALL of the evidence, facts, and issues around a case before making a judgement. There may be pieces of evidence that counter the sworn testimony. But that doesn’t mean sworn testimony isn’t evidence.

[Sarcastr0]

Who is we? Many, many courts have done so and found that this evidence you hold up doesn’t amount to much.

[abhudd47]

“We” is everybody within the realm of Trump’s legal avenues for presenting the evidence. Trump has not exhausted his legal avenues, and should not be pressured to stop until he has. This is as bad as the DOJ’s piling on of charges and ridiculous sentencing recommendations to pressure/force defendants into taking plea deals rather than exercising their right to a trial. We have a system designed to protect liberty and the integrity of our elections. Ugly as this is, it is a part of that system, and to put an end to it is to undermine the entire system. And, for the record, I am not a “clinger.” I think Trump and Biden are two sides of the same coin. I don’t know if Trump’s claims of voter fraud are true or not (frankly, I doubt them), but I do feel that we never will know if those with the power and the responsibility to investigate refuse to do so. And that it is wrong to attempt to rob anybody of their right to seek legal remedy for their grievances.

[Ben_]

Nah.

[santamonica811]

In a world almost completely devoid of public Republicans with the integrity, character, and honor to take a public stand against Trump’s attempted coup, even minimal things like issuance of a public letter should be applauded. Period. Full stop.

Fortunately for about 45 Republican senators; integrity and a moral backbone are not requirements for their elections/re-elections.

[Union of Concerned Socks]

Tell more of how all Republicans are eeevil and all Democrats are virtuous. Wait, never mind, I don’t care.

[santamonica811]

Well, I’m a Republican, so I’m missing your point. And I voted for Trump in 2016, so missing your point again. And contributed money to Trump in 2016, so . . .

But other than that; good response to my post.

[WuzYoungOnceToo]

Trump’s attempted coup

Your Newspeak is doubleplusgood.

[Bob from Ohio]

All coups are mainly made by filing lawsuits, this is known.

[santamonica811]

Bob, I’ve not uttered one word about Trump’s lawsuits in this context. (I think some could have some merit; some a silly; and some are batshit crazy, but the merits are different than criticism of someone going to the courts to argue violations).

It’s trying to persuade electors to ignore the legit votes of millions of state voters that is horrific. That threatens our democracy, not the filing of even dumb lawsuits.

I certainly see a difference between these two types of actions. I hope you see that difference as well.

[Bob from Ohio]

Neither are a coup.

Coup leaders use soldiers in uniform and often bullets, not lawsuits or persuasion.

[Leo Marvin]

Funny I don’t recall you correcting the people who called the FBI’s Russia/Trump campaign counter-intel investigation a coup.

You’re right. This isn’t a coup. It’s an anti-American, democracy undermining attempt to steal a presidential election.

[bernard11]

I applaud the Conspirators who signed this statement.

I am disappointed that EV chose not to, and unsurprised that Blackman made the same choice.

[Ben_]

Vanity appreciates applause and seeks it out.

[NOVA Lawyer]

Trolls don’t, but they are still attention seeking.

[SykesFive]

Surely if we were to rank the conspirators by vanity, Professor Blackman would write several posts about how the song is about him.

[AmosArch]

The Dems never accepted Trumps victory over 4 years and I dont recall somin ever having much of a problem with it. Why should we expect any different from trumps side?

[Sebastian Cremmington]

Once again—Comey, McCabe, Rosenstein, McGahn, and Mueller are all Republicans.

[Dr. Ed 2]

Lee Harvey Oswald was a United States Marine.

Your point is????

[Sebastian Cremmington]

Omg, do you think Hugo Chavez and Castro got to Comey?? How deep does this conspiracy go?!? I’m scared.

[Sarcastr0]

Whatever the Dems in your head did, it wasn’t at the level Trump has already done.

[Cal Cetín]

“We voted for different candidates in the recent election, and a number of us voted for Republican candidates for Congress and other offices.”

But did any of you vote for Trump?

“I should also take this opportunity to note that readers should be cautious in drawing conclusions about the views of those VC bloggers who did not sign the letter.”

OK, I won’t jump to conclusions about

David Hyman
David Kopel
Eugene Kontorovich
Eugene Volokh
Gail Heriot
Jim Lindgren
John Elwood
Jonathan H. Adler
Josh Blackman
Keith Whittington
Ken Anderson
Mark Movsesian
Nick Rosenkranz
Nita Farahany
Orin Kerr
Paul Cassell
Randy Barnett
Sam Bray
Stewart Baker
Stuart Benjamin
Todd Zywicki

and

Will Baude.

[Cal Cetín]

Oops, drop Kerr from the list, he signed.

[WuzYoungOnceToo]

“We voted for different candidates in the recent election, and a number of us voted for Republican candidates for Congress and other offices.”

I’ll bet he has a black friend or two as well.

[Leo Marvin]

Feel free to jump to conclusion about Kontorovich.

[Leo Marvin]

(The Russia-speak was a lucky typo.)

[Bob from Ohio]

So brave!

Trump is no doubt shaking in his boots.

[Rev. Arthur L. Kirkland]

A rattled Trump, worried about legal exposure, might be the best explanation of his erratic behavior.

[Sarcastr0]

By my count it took Trump about 3 hours to crumble after this letter was published.

Or, maybe, the message wasn’t for Trump.

[Armchair Lawyer]

Civil Liberties:
“I may disagree with what you say, but I’ll fight for your right to say it”

Neo-Civil Liberties.
“I disagree with what you say, and you should just shut up, sit down, and give up any legal right to defend yourself”

[NOVA Lawyer]

You put your finger on it! The President and his attorneys should never be criticized for just throwing any batshit crazy theory out there because freedom.

How dare anyone suggest that the holder of the highest office in the land refrain from making outlandish accusations that undermine Americans’ confidence in the election unless and until there is actual evidence of those accusations?

How dare anyone suggest that the President, having failed to produce any such evidence, try instead to pressure canvassing Boards to shirk their duty and for state legislators to usurp their constituents’ votes?

Freedom!

[Armchair Lawyer]

There is actual evidence. Next.

[NOVA Lawyer]

There is not actual evidence of the claims Trump is making.

Trump saying it isn’t evidence. Guiliani saying it isn’t evidence. A notebook full of paper purporting to be affidavits is not evidence of anything until they are actually submitted to a court. The ones that have been submitted are not evidence of the fraud Trump claims. If they have the evidence, submit it to a court. That they don’t should tell you something.

[Sarcastr0]

Telling someone they should shut up is actually not infringing on their rights, AL.

[Armchair Lawyer]

No it doesn’t infringe on their rights. You don’t HAVE to defend civil liberties. You can denounce them, and that is your right.

The classic example here are Neo-Nazis and the old ACLU. The ACLU strongly disagreed with the Neo-Nazi speech, but strongly defended their right to have that speech. Other people strongly disagreed. Those people who disagreed didn’t infringe upon the rights. But they surely didn’t support the freedom of speech.

Likewise, we have a group of people here who do not appear to support the civil rights and freedoms of Donald Trump. They disagree with what he says, and they don’t think he should have the right to support his views….

[Jason Cavanaugh]

I support a President’s behavior when it isn’t so blatantly based on narcissism, a fragile ego, and lies which damage the country.

Maybe I’m just weird in thinking that the President should actually behave like a leader, and not like a crying toddler.

If the day ever comes where Trump manages to rise above the unwashed masses of kindergarten students, I’ll support his right to espouse his opinions. Until then, while he’s President, he should STFU.

[Sarcastr0]

There is no state action here, AL.

This election has truly broken you.

[Jett's Pop]

“Titles and institutional affiliations listed for identification purposes only.”

Just out of curiosity, are titles really needed for identification? Are there two Dale Carpenters at SMU Dedman Law School that blog at the Volokh Conspiracy, so that we really need to know that the one signing on here is the Judge William Hawley Atwell Chair of Constitutional Law? To distinguish him from the other Dale Carpenter at SMU Law School who blogs at the Volokh Conspiracy?

[captcrisis]

This post, more than most, demonstrates the gap between the VC and its commenters. They live in different worlds.

[Rev. Arthur L. Kirkland]

. . . between some of the Volokh Conspirators and their commenters, sure. But not all.

[captcrisis]

Ok. “The Few . . . the Proud . . . “

[VinniUSMC]

Of the signers of this letter, at least 6 were guaranteed to sign it. Just because orangemanbad.

The number of conspirators who didn’t sign it, while not dispositive, seems to counter the point you intended to make.

[VinniUSMC]

Also, which ones are supposedly conservative, or even libertarian? Open borders uber alles Ilya?

[Rev. Arthur L. Kirkland]

Prof. Volokh and the majority of his co-Conspirators still have the support of their VinniUSMCs, which seems to be most of what they want.

[VinniUSMC]

I support VC in the same way you do, by reading and commenting. Sometimes agreeing, sometimes disagreeing. Always amazed that you continue to frequent the place that you seem to hate so much. And where your opinions are worth just barely more than Hihn’s. Not an accomplishment that you should be proud of, but I’d assume it’s your only accomplishment.

[Cal Cetín]

See above for the dog(s) that didn’t bark.

[Cal Cetín]

Response to Captain Crisis

[captcrisis]

I feel certain that the VC’ers who didn’t sign would disagree with the many critical comments made here.

[Cal Cetín]

Your feelings are duly noted, but your claim was “*This post,* more than most, demonstrates the gap” etc. (emphasis added)

[Rev. Arthur L. Kirkland]

Perhaps some Conspirators have influence in important channels — shortly after this was posted, we received word that the Trump administration had provided and received authorization to conduct the transition (although the precise effect on litigation is not yet known).

[abhudd47]

I voted for Dr. Jorgensen, so I have no “skin in this game” so to speak. I have a great deal of respect for Ilya Somin, he has written many great analyses and is generally a wonderful legal mind who has upholds impeccable libertarian values. However, throughout the 2020 election he has allowed his hatred of Donald Trump and his fear of Trump’s heavy-handed authoritarianism to blind him and cause him to undermine the values that he has so long upheld and defended. Trump is bad. But to advocate voting for Biden/Harris as though they are somehow more libertarian and less authoritarian than Trump is ridiculous. To attempt to deny the President and his fellow party-members their rights to a) freely express their political opinions about the election and b) to pursue legal remedy and investigation when there are dozens of sworn affidavits by election officials alleging voter fraud is the antithesis of libertarian and constitutional values. Mr. Somin and his listed colleagues certainly have the same right to speak their views and petition for what they want to accomplish, and I am not trying to take that away from them. I am simply pointing out that this petition is either hypocritical or evidence that these individuals are not as dedicated to true libertarian and constitutional ideals as they have led their followers to believe.

[Sarcastr0]

I would not have take AL as the bitterist clinger in this whole fracas.

Ed’s increasingly unhinged scenarios of strikes and whatnot I did expect.

[LawTalkingGuy]

70% of Americans support Trump, and specifically all of the truckers support him and they’re just all going to go on strike one day.

This is a thing people believe.

[Jimmy the Dane]

The left believed that if Trump won the unions were going to stage a national strike that was going to bring the country to its knees. Fanciful thinking knows no party.

[Sarcastr0]

That’s some impressive nutpicking. I read plenty on the left and a general strike is not something anyone was saying, except for the group for whom a general strike is the solution to all problems.

[Rev. Arthur L. Kirkland]

“I would not have take AL as the bitterist clinger in this whole fracas.”

Armchair Lawyer is merely the most belligerent in this particular thread.

Most of the Volokh Conspiracy’s foremost fans are bitterist clingers. That is a carefully cultivated circumstance.

I am not surprised that the lone libertarian among the Conspirators appears to have been the ringleader with respect to this letter. Or by the roster of Conspirators on either side of this line.

[VinniUSMC]

He may have been the most belligerent in this thread, but we can always count on you Artie, to raise the bar in the wrong direction.

[Rev. Arthur L. Kirkland]

I sense I may never have Volokh-level support among America’s delusional, disaffected, right-wing bigots.

Winning the culture war is a consolation.

I am content.

[VinniUSMC]

They say ignorance is bliss. I guess you’re proof.

[Aktenberg78]

Bernstein is the only one on that list with any principles.

[Jimmy the Dane]

Now we have a convenient list of Useful Idiots.

[arpiniant1]

Not even 70 percent of residents of Montana support trump

He is a moron
a narcissist

and, very soon an ex president

and he will not be invited to any of their photo ops

[Brett Bellmore]

I call upon Trump to end his legal battle as soon as he has exhausted all his legal options. Ending it any time before that point is entirely up to him.

What is it about a group of legal scholars who never liked Trump in the first place, demanding that he not exercise his legal rights, that we should be impressed? It’s an easy decision, isn’t it? Not the least bit courageous.

What would impress me is if you showed any awareness that there are real reasons for being concerned about the conduct of this election, even if it seems unlikely that Trump can prove that they actually changed the outcome. If you showed any awareness that we can’t allow an election to be held in this manner again.

[bernard11]

What would impress me is if you showed any awareness that there are real reasons for being concerned about the conduct of this election,

What would impress me is if you showed any awareness that

1. An awful lot of Trump’s claims are utterly bogus, backed by ridiculous affidavits.

2. There is a big difference between a lawsuit and trying to pressure state officials to overturn the results in their states.

3. You actually do need to provide evidence to support your claims. Just not liking the way things were done is not enough.

4. You are not the World’s Greatest Expert on election law.

[Brett Bellmore]

1. Granted, at least in part.

2. Depends on the basis for the request, but also granted in part.

4. Certainly true.

3. What I’m objecting to here are last minute changes to election rules. Courts ordering that election laws be violated. Ballot security measures being waived. Use of ballot harvesting being expanded. Election observers being excluded from observing. (Whether or not this was arguably legal, it’s still a really, REALLY bad thing!) Ballots being sent indiscriminately to people who haven’t requested them, on voter rolls known to be out of date.

This election was a dumpster fire, and you know it. We need to get to work on making sure we don’t have another dumpster fire election 2 years from now.

Unless maybe you’re happy with half the country thinking the election was stolen?

[bernard11]

Unless maybe you’re happy with half the country thinking the election was stolen?

I’m not happy with it at all. But I attribute it more to Trump/Giuliani/Powell/Limbaugh/whoever lunacy than to the actual facts of what happened. You yourself concede that there were a lot of bogus claims made by Trump and his gang.

Another source was the action of Republican state legislatures in refusing to allow the processing of mailed ballots to begin until election day. This set up the lengthy delay in the count and the completely predictable swing to Biden over the following days. But of course this delay was then adduced as evidence of fraud.

As to your “dumpster fire:”

You insist on calling court rulings orders that “election law be waived.” They’re not. Again, you are not the ultimate authority on the law. The PA supreme court knows a thing or two. Given the mess, intentional or not, at the USPS and the flood of mail-in ballots extending the time limit by a few days to satisfy state constitutional requirements looks perfectly sensible and legally sound. You disagree. OK. Disagree. But see again Point 4.

Similar arguments can be raised with regard to your other (highly non-specific)points. And was it ballots or applications for ballot that were sent out widely?

Do you honestly believe the election was stolen? That there was an undetected fraud scheme perpetrated by the Democrats that changed enough votes to swing two or three states? Why would you believe that? It’s bonkers.

[bernard11]

Let me address another question.

You profess to be worried about the legitimacy of the election. But there is another aspect to legitimacy – making sure eligible voters don’t find it too difficult to vote. Does that matter to you at all?

It does to me, and it’s a bigger issue than fraud, in my book, because it’s a heck of a lot easier to suppress thousands of votes than it is to manufacture them. And there are a lot of ways to do it, from nitpicking requirements on absentee ballots – “You didn’t put down your address, even though it’s printed on the ballot;” restricting counties to one dropbox a la Texas; barring counties from allowing curbside voting even though state law expressly authorizes it a la Alabama; not having enough polling place in urban areas, so voters face hours-long waits; screwing up USPS delivery schedules; etc.

So I’m not too concerned about the issues you raise, because I doubt they had any big effect, while I do think voter suppression does, and is a far greater threat to the legitimacy of elections.

[VinniUSMC]

Unlike the conspirators above, I am not narcissistic enough to think that I am important enough to call upon Trump to do anything. Especially since I’ve never voted for him…

But, yay for your virtue signalling.

[Sarcastr0]

Surly you realize this wasn’t for Trump.

And for someone who didn’t vote for Trump, you sure can be counted on around here to defend his every action.
So your own virtue signaling is not very impressive.

[VinniUSMC]

Of course it wasn’t for Trump, that’s why the opening line says “We call on President Donald Trump…” As I wrote, it is virtue signalling. How will the woke know who is woke, if they don’t make sure to constantly tell everyone how woke they are?

Defending Trump? Your reading skills sure have devolved in the past few years. Biden, is that you?

For someone who claims to have a background in science/physics, and constantly attempts to point out people’s fallacies, you sure are full of… it.

[Sarcastr0]

It’s dumb to the point of bad faith to seriously think any of the signatories thought this was going to effect Trump’s actions, or even that he was going to read it.

Not all setting forth of your opinions on a subject is virtue signaling.

Pretty sure most of these signatories aren’t what many would call ‘woke.’

I call them as I see them, and you defend Trump regularly around here. This thread being yet another example.
I may well be wrong. Feel free to link counterexamples.

[VinniUSMC]

Most of the signatories are the opposite of Blackman. I’d call that woke.

Your track record of seeing them like you call them is abysmally low. This thread being yet another example.

Writing, and publishing, a letter to Trump, but that you do not expect Trump to see, read or act upon, for the sole reason of signalling to the readers that you are totes anti-Trump is, literally, the definition of virtue signalling.

You’ve lost your edge Sarcastr0. You should probably return to trolling posts with your signature “sarcasm unless otherwise specified” style. That was entertaining.

[Sarcastr0]

The opposite of Blackman is woke.

That alone shows you’re not serious.

[VinniUSMC]

“That alone shows you’re not serious.”

Says “Sarcastr0”, the guy whose repertoire includes comments like this zinger.

In case it wasn’t clear, that was a joke playing on the stance of many commenters who think that Blackman is a Trump stooge vying for a clerkship with Justice Barrett and Ilya is the beacon of libertarianism. That was not a compliment to Blackman.

It seems like you just keep digging in to your schtick more and more. Do you misread and misinterpret on purpose? Or was I right about the dementia setting in?

[VinniUSMC]

Wait, are you reverse, double blind, sarcasm, but not really, but really sarcasm… like breaking the 4th wall, meta-shit or something? That would be truly incredible.

[newshutz]

And in the end:

61% of democrats think the Russians hacked the 2016 election.

30% of democrats think there was widespread fraud in the 2020 election.

I think the ship “Faith in Elections” has sailed.

[Brett Bellmore]

We could call that ship back in time for 2022, but only if we can get both sides to admit THIS election was a mess. Since both party’s establishments seem to have gotten what they really want out of this, (Trump gone.) and the Democrats seem to have settled on, “Nothing to see here, move along!) I don’t hold out much hope of that.

Look for 2022 to be even uglier in the states where Democrats control or at least have a veto over election processes. I suspect some of the close states Republicans control are going to be making some changes to keep this from happening again.

Maybe PA can amend their election laws to preface them with, “Simon says,”; That might cause the PA supreme court to care what they say…

[bernard11]

Look for 2022 to be even uglier in the states where Democrats control or at least have a veto over election processes. I suspect some of the close states Republicans control are going to be making some changes to keep this from happening again.

As someone once said, “There you go again.”

Are you seriously of the opinion that Republicans are the soul of integrity when it comes to the conduct of elections, while Democrats are all villains?

[BillyG]

We call on President Donald Trump and the Republican Party to recognize that he has lost the 2020 election and to stop promoting unsubstantiated conspiracy theories about alleged voter fraud.

What would you require for substantiation? What evidence would you require to look into the accusation?