Cleta Mitchell (image via Foley & Lardner)
Joe Biden will be the 46th president of the United States. That is a fact, not liberal wishcasting. But in our post-fake news era, even the seemingly obvious needs to be said, out loud, again and again (as I was reminded after spending a chunk of yesterday in a social media argument with a childhood friend who now seems to embrace his status as a low-information voter).
Not helping the quest for truth and facts are GOP operatives that insist on parading on cable news spreading specious rumors about voter fraud in the 2020 election. And Biglaw’s own was one of the culprits.
Foley & Lardner partner Cleta Mitchell (who you may remember for her charming anti-gay rights crusade, or from not wearing a mask at the Amy Covid Barrett nomination celebration, or from working to keep the Steve Bannon PAC donor rolls secret) appeared on cable news — Fox, natch — to repeat the line the Trump campaign has been peddling about so-called widespread voter fraud, as reported by Law.com:
Foley & Lardner partner Cleta Mitchell, who appeared Saturday on the Fox News Channel, said the president’s team has been evaluating voting records, and have uncovered widespread irregularities.
“We’re already doublechecking and finding dead people having voted, or maybe people have voted across state lines—voted in two states—illegal voting, voting by non-citizens and that sort of thing,” Mitchell said. “We are building that case. We think that there will be evidence that we will have. We already know that there is evidence of that sort of thing, and there are malfunctions in the equipment, improper denial of Republican poll-watchers in certain … counties.”
Of course, there are legitimate reasons for many of these things Mitchell claims are fraud, such as someone casting an early or mail-in ballot before dying or moving. And it turns out, these plausible explanations have been true. Like when the Trump campaign’s key example of voter fraud turned out to be military members and their families who voted after being transferred:
Indeed, it should be noted that none of the legion of lawsuits filed thus far by the Trump campaign have alleged widespread voter fraud, as opposed to small and discrete issues that would not be enough to turn the election. Now, is that gap between what Trump lawyers are saying in court versus what they’re saying on TV because members of the bar have to hit a higher standard of evidence and proof before appearing in front of a judge in a court of law as opposed to the sinking standard of merely being able to keep a straight face in front of a camera in the court of public opinion? Well, yes. And where little evidence of fraud exists, those cases are being thrown out of court. (Legal nerds rejoiced at a Michigan judge blasting “inadmissible hearsay within hearsay, and plaintiffs have provided no hearsay exception for either level of hearsay that would warrant consideration of the evidence.”)
All this might be exactly why Mitchell pivoted to a canned line about “illegal votes” when host John Roberts asked if the goal of these litigation challenges was merely to cast doubt on a rightfully elected president:
“Are we trying to cast just skepticism on the entire process, Cleta?” he asked Mitchell. “What’s the goal?”
“The goal is exactly what the president said: We want every legal vote counted,” Mitchell responded. “We want all those illegal votes thrown out.”
It’s also worth repeating — one more time for the folks in the back — that the legal challenges the Trump campaign has filed (about small, discrete issues) have not been successful. And besides, the allegations in those cases are not widespread enough to change the outcome of the election.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).