This year, as President Trump’s campaign mounts a multistate effort to challenge the counting of ballots around the country, many of the GOP’s preeminent election-law litigators remain on the sidelines.
Instead, the legal team driving the efforts under the leadership of deputy campaign manager Justin Clark includes longtime Trump loyalists and the president’s personal attorneys. Among them: Jay Sekulow, the conservative lawyer who defended the president during the special counsel probe and the impeachment process, and William Consovoy, an experienced Supreme Court litigator who has led the efforts in New York courts to withhold the president’s tax returns from investigators.
In public, the legal maneuvers are being touted by some of the president’s most combative and unpredictable allies, including former New York mayor Rudolph W. Giuliani, former campaign manager Corey Lewandowski and Richard Grenell, Trump’s former acting director of national intelligence, as well as by Trump’s son Eric, an executive at his father’s development company, and former Florida attorney general Pam Bondi.
Their aggressive strategy, in which the campaign has sought to question the ballot count in five battleground states, has confronted some early setbacks, including the rejection by judges Thursday of its lawsuits in Michigan and Georgia.
As former vice president Joe Biden has gained votes in key states, Trump has sent off a stream of tweets — many in all caps — making blanket and unsubstantiated claims about fraud and illegal votes.
“IF YOU COUNT THE LEGAL VOTES, I EASILY WIN THE ELECTION!” the president posted Thursday on Twitter.
But his lawyers have produced no evidence of fraud in their spate of lawsuits around the country, and they notably did not sue to stop counting in Arizona, where Trump was narrowing Biden’s lead Thursday.
The president himself tweeted “STOP THE COUNT” on Thursday morning — at a time when, had the count been stopped, he would have been behind Biden in electoral votes.
“I have a real difficulty discerning what the legal strategy is,” said Benjamin L. Ginsberg, a longtime Republican lawyer who helped lead the GOP’s 2000 recount effort and has been critical of Trump’s attempts to undermine confidence in the election. “The most plausible one is that they’re responding to the president’s order, ‘Do something, do something, do something.’ These suits, taken in and of themselves, are not going to come close to changing the results of the election in any state. They’re small ball.”
So far, several courts have agreed. A judge in Georgia on Thursday denied a Trump effort to discard ballots that a Republican poll watcher had alleged — without evidence — may have arrived after the 7 p.m. Tuesday deadline.
Meanwhile, a judge in Michigan denied the campaign’s request for an emergency halt to the counting of votes. Judge Cynthia Stephens complained in a hearing to the campaign lawyers about what she said were flaws in their filing.
The Trump legal team had filed an affidavit late and evidence they provided was hearsay, she said. In addition, she said, the issues they cited related to ballot security and access to the count was a matter for local election officials, not the named defendant, the Michigan secretary of state.
“The relief requested is completely unavailable,” Stephens said, adding that the request to stop counting votes made little sense, given that all the ballots in Michigan were effectively counted.
In Pennsylvania, U.S. District Court Judge Paul S. Diamond on Thursday denied the Trump campaign’s request to halt the count in Philadelphia, after a deal was struck to have 60 observers from each party observe the process.
Diamond sighed several times during the hearing and appeared exasperated when the Trump campaign, which claimed all Republican observers were being barred from the count, conceded that they had “a nonzero number of people in the room” where votes were being processed.
Undaunted, the Trump campaign has said it would continue to pursue legal challenges and is expected to make a sustained public effort to allege voter fraud in the coming days, according to two people involved in the campaign, who spoke, like others interviewed for this report, on the condition of anonymity to discuss internal strategy.
“The campaign is looking for examples, no matter how small, to highlight,” said one Republican involved in the efforts.
On Thursday, the campaign signaled its intent to file a federal lawsuit in Nevada to stop the counting of what they called “improper votes” after losing a series of legal challenges in the state about the voting process. The Trump campaign and the Republican National Committee are also intervening in a lawsuit claiming that the use of Sharpie pens was disqualifying GOP votes in Arizona, something election officials have emphatically denied.
The campaign has argued in several suits that its staffers were denied sufficient access to observe the processing and counting of mail ballots. Those actions sought to halt counting until greater access was granted in places such as Philadelphia. Other suits claimed election officials made small missteps that should invalidate a limited number of ballots cast in good faith. The campaign has also said it will request a recount in Wisconsin, where Biden has been projected to win but holds a narrow 20,500-vote lead.
Some legal experts, including Republican lawyers involved in past election contests, said the suits did not so far appear to be aimed at invalidating sufficient numbers of ballots to affect the outcome of the election.
“When an election is this close and involves so many issues, the legal teams are throwing the legal spaghetti against the wall to see what sticks and see whether it makes a difference in the future,” said Jan Witold Baran, the former general counsel for the Republican National Committee. “It’s not improper to say, ‘Whoa, was this all done correctly?’ But the burden rests with those who suggest it was not done correctly to come forth with specific, credible evidence explaining what was illegal or irregular.”
A senior Trump campaign official said legal efforts and challenges are now focused on four states: Pennsylvania, Wisconsin, Michigan and Nevada. But they are particularly focused on the Keystone State, where the campaign has filed a half-dozen lawsuits, including an effort to intervene in a case seeking to get the U.S. Supreme Court to overturn a state Supreme Court decision allowing the counting of ballots that arrive three days after the election.
The official said the campaign has been calling donors to raise money to support the litigation and that Trump is being briefed regularly on the effort.
The campaign has so far amassed a team of at least 26 lawyers at a dozen firms to work on election cases in Pennsylvania, Georgia and Nevada, according to court filings.
One of the major players has been Consovoy, a former law clerk for high court Justice Clarence Thomas who has litigated voting cases for at least a decade, representing Shelby County, Ala., in the seminal 2013 Supreme Court case overturning portions of the Voting Rights Act.
His Virginia-based law firm played a leading role before the election in challenging efforts to loosen voting rules because of the pandemic, representing the Republican National Committee and the Trump campaign. Those two committees paid his firm nearly $2.5 million in 2019 and 2020, campaign finance records show.
Consovoy did not respond to a request for comment. Sekulow, when reached by phone, said he was working on Supreme Court litigation for the campaign, declining to comment further.
Many of the lawyers tapped to help the Trump campaign work for legal groups or firms with ties to Trump or are affiliated with the Federalist Society, a conservative legal group.
The team includes a wide range of players, including family law specialist Linda A. Kerns, who joined with lawyers from the Pittsburgh office of Porter Wright Morris & Arthur in the effort to seek greater access for Trump campaign observers in Philadelphia, according to court filings.
Another member of that team is Ronald L. Hicks Jr., a Porter Wright partner who co-chairs its election law practice while handling a variety of business and civil disputes, according to his firm biography.
Hicks’s profile with the Republican National Lawyers Association says he was lead counsel in a 2003 lawsuit that resulted in 56 absentee ballots being invalidated, leading to a victory for a Republican superior court candidate who defeated her Democratic opponent “by 28 votes out of more than 2.25 million cast.”
One of the attorneys working for the Trump campaign in Nevada is Jesse R. Binnall, who along with attorney Sidney Powell represented former national security adviser Michael Flynn, who was prosecuted by special counsel Robert S. Mueller III.
Campaign officials said figures such as Giuliani and Bondi are more the public faces of the effort, not the legal workhorses. They and other Trump allies have held news conferences around the country in recent days, echoing Trump’s claims that the vote-counting process is tainted.
“If there’s one illegal vote that is cast, it takes way from the great men and women of Pennsylvania who came out to issue a legal vote,” Bondi said Thursday morning in Philadelphia as Trump supporters and counterprotesters chanted in the background.
About an hour later, Trump allies in Las Vegas claimed without evidence that ballots belonging to dead people had been counted in Nevada and that “thousands” of people who left Clark County during the pandemic had voted. Grenell said mail voting had led to widespread fraud, adding: “That is unacceptable and it’s giving legal people a sense that the system is corrupt.”
On Wednesday in Philadelphia, Eric Trump accused Democrats of trying to “cheat” before introducing Giuliani, who he said was leading his father’s legal efforts.
Giuliani then declared without evidence that Trump’s eroding lead in Pennsylvania was a sign of malfeasance. “Do you think we’re stupid? Do you think we’re fools?” he asked.
Veterans of the 2000 recount said such spectacles might not ultimately be helpful to the Trump campaign in court.
“Going back to 2000, there was a studied effort to make sure that the lawyers’ public statements had the utmost credibility,” said Republican attorney George Terwilliger, who helped lead the Bush recount legal strategy.
He noted that Trump’s team might have some valid arguments to make.
“It is important that all votes be counted,” Terwilliger said. “But it is equally important to recognize that not all ballots submitted are valid votes. It is just as critical to exclude invalid ballots as it is to include and count ballots validly cast.”
Another veteran of that effort, lawyer Timothy E. Flanigan, said Trump’s lawyers need to carefully analyze where their efforts might have an impact.
“I remember every other day we thought we’d lost and it was over,” Flanigan said. “I’ve heard people say on television that the most important thing for Trump and Giuliani to know is when it’s over, and I agree with that. But it’s also important for them to know when it’s not over — when there’s a fight still to be waged.”
What the team appears to lack is a figure at its helm with the experience and credibility of Baker, said Ginsberg.
He said Baker’s importance came not just in his own skills but in the way he was able to draw high-caliber legal talent to the effort. Three members of the Bush recount team now serve as justices on the Supreme Court: Chief Justice John G. Roberts Jr., Brett M. Kavanaugh and Amy Coney Barrett.
“He gave the clear signal: You get the best and brightest down here,” Ginsberg said.
Emma Brown in Washington, Jon Swaine in New York, Hannah Knowles in Phoenix, Tom Hamburger in Detroit and Robert Klemko in Philadephia contributed to this report.