Practice Pointers From The Trump Legal Team: Just Make Up Caselaw Until It Suits You
Who needs Westlaw anyway?
The only limit on legal research is your imagination! And maybe Rule 11.
As the Elite Strike Force recovers from the COVID they gave themselves to own the libs, Team Kraken is busy filing lawsuits in battleground states alleging foreign interference, or nefarious tabulators, or broken voting machines, or whatever on behalf of people who aren’t their clients on the basis of doctored documents.
In yesterday’s order dismissing her star-crossed Wisconsin suit on behalf of Bill Feehan, Chief Judge Pamela Pepper had to insert a passage that she surely never expected she’d need to write — at least not outside the context of a pro se matter:
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Be the precedent you want to see in the world, I guess.
The imagined quote, “even though the election has passed, the meeting of electors obviously has not, so plaintiff’s claim here is hardly moot” is wild since it takes a case that has nothing to do with challenging election results, let alone any connection to presidential elections or electors. In the case, a guy challenged the constitutionality of a campaign finance rule that required him to file a registration statement when he took contributions for his campaign against a ballot measure to allow liquor sales. As a law that he could break in the future the challenge was not moot simply because the specific election where he broke it had passed.
Electronic research platforms are important, y’all.
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Here’s Judge Pepper’s take:
The plaintiff also asserts that the “cutoff for election-related challenges, at least in the Seventh Circuit, appears to be the date that the electors meet, rather than the date of certification.” He cites Swaffer v. Deininger, No. 08-CV-208, 2008 WL 5246167 (E.D. Wis. Dec. 17, 2008). Swaffer is not a Seventh Circuit case, and the court is not aware of a Seventh Circuit case that establishes a “cutoff for election-related challenges.” And the plaintiff seems to have made up the “quote” in his brief that purports to be from Swaffer. The plaintiff asserts that these words appear on page 4 of the Swaffer decision: “even though the election has passed, the meeting of electors obviously has not, so plaintiff’s claim here is hardly moot.” The court has read page 4 of Swaffer—a decision by this court’s colleague, Judge J.P. Stadtmueller—three times and cannot find these words. In fact, Swaffer did not involve a challenge to a presidential election and it did not involve electors. Mr. Swaffer sought to challenge a Wisconsin statute requiring individuals or groups promoting or opposing a referendum to file a registration statement and take other actions. The defendants argued that the election (in which the plaintiff had taken steps to oppose a referendum on whether to allow liquor sales in the Town of Whitewater) was over and that Swaffer’s claims thus were moot. Judge Stadtmueller disagreed, finding that because Swaffer alleged that he intended to violate the statutes at issue in the future, a credible threat of prosecution remained.
(Internal citations omitted… which is very much the opposite of citations invented.)
As I’ve said, these lawsuits are reaching the stage where disciplinary action needs to be taken. I understand that no one ever likes to go down that road and the high-profile nature of these matters invites extra scrutiny, but the cumulative conduct would earn swift review in any other context. Whether a judge pulls the trigger and issues sanctions or a disciplinary committee initiates an investigation, something should be done because this isn’t making the profession look great.
As for Swaffer, my first impulse upon reading this opinion was the Kirshner negotiation from Intolerable Cruelty.
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As with all of these suits, I suspect that the dismissal will be applauded by Trump’s folks as “winning an invitation to appeal.” Then Team Kraken can ask the Seventh Circuit, “Have you forgotten Swaffer?”
Earlier: Sidney Powell’s Latest Lawsuit Has Been A Journey… Where The Car Flips Five Times And Explodes
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
