WASHINGTON — President Donald Trump and his conservative allies are facing the prospect of very real legal consequences after weeks of pushing false claims of widespread voter fraud.
On Tuesday, a voting rights group filed a lawsuit that accuses Trump and the Republican National Committee of conspiring to violate the rights of Black voters. The lawsuit doesn’t just ask the judge to stop Trump and the GOP from taking any more steps to overturn or undermine the election results this year; the challengers are also asking for an order that could force the president and the RNC to get court approval before demanding recounts or participating in other “post-election activities” in the future.
The new court action comes just a few years after a federal judge in New Jersey in January 2018 lifted a decades old court-monitored settlement that barred the RNC from engaging in “ballot security” activities based on the “racial or ethnic composition” of a particular community. The RNC signed the agreement in 1982 to settle claims that it had tried to intimidate, threaten, and disenfranchise voters through voter roll purges and by paying police officers to patrol polling sites in predominantly Black and Latino areas under the guise of preventing election fraud.
The new lawsuit — which is an expanded version of a case that the NAACP Legal Defense and Educational Fund (LDF) filed last month in federal court in Washington, DC, against Trump and his campaign alone — accused the president and Republican Party officials of deliberately focusing their postelection challenges on cities with large Black populations, such as Detroit, Milwaukee, Philadelphia, and Atlanta. The latest iteration of the lawsuit brings claims under the federal Voting Rights Act and the Ku Klux Klan Act.
“It is quite disturbing that just a couple of years after that order expired, there is this troubling evidence emerging about how the Trump campaign, which worked throughout this process very hand in hand with the RNC, was engaging in similar improper conduct that was based on this false premise that votes cast predominantly in communities of color were somehow invalid or fraudulent,” said Sam Spital, director of litigation for the NAACP LDF.
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Trump’s campaign isn’t backing down so far, at least not in public, despite losing cases at every level of the US legal system. Trump has continued to push lies about the election, tweeting in all caps on Tuesday that Democrats had “dumped” ballots in swing states and that the election was “rigged.” In response to the NAACP LDF’s expanded lawsuit, campaign senior legal adviser Jenna Ellis said in a statement that the challengers were “baselessly attacking the Trump Campaign’s efforts to protect the integrity of the ballot for every American.”
Behind the scenes, though, there are signs that the campaign and conservative media outlets, which have provided a platform for Trump and his supporters to promote conspiracies of fraud, are starting to reckon with their long-term legal exposure.
The main risk that Trump, his supporters, and media outlets face for spreading false information is a defamation lawsuit. Dominion Voting Systems and Smartmatic, two companies that make electronic voting equipment used in US elections, sent letters this month to Trump-allied attorney Sidney Powell — who has been driving the narrative of fraud in and out of court — and conservative media outlets. Lawyers for the companies, threatening defamation claims, demanded retractions of baseless claims that they were involved in efforts to rig the election.
“Fox News allowed its reporters, anchors, and on-air guests to make these false and defamatory statements time and time again. This pattern of behavior qualifies as either knowingly publishing factually inaccurate information or a reckless disregard for the truth,” Smartmatic’s lawyer wrote in a Dec. 10 letter to the conservative news network. The company sent similar letters to Newsmax and One America News Network.
The letters prompted quick responses and 180-degree turns. The following weekend, programs on Fox News, Fox Business Network, and Newsmax ran fact-checking segments walking back allegations against Smartmatic that they’d given oxygen to for weeks.
“Newsmax would like to clarify its news coverage and note it has not reported as true certain claims made about these companies,” the media outlet said in a statement posted on its website on Sunday. “No evidence has been offered that Dominion or Smartmatic used software or reprogrammed software that manipulated votes in the 2020 election.”
Dominion sent a retraction demand to Powell on Dec. 16 and mentioned that the Trump campaign could face legal fallout, too. CNN reported that the Trump campaign had notified staffers to preserve documents in case it got hit with a lawsuit.
Dominion is represented by Tom Clare, a prominent lawyer in the defamation arena whose clients have included the University of Virginia associate dean who sued Rolling Stone magazine over a now-retracted article about an alleged gang rape on campus; Rolling Stone settled the case after Clare won a million-dollar jury verdict. In a statement, Clare said that Dominion’s lawyers were focused on Powell for now but they would “certainly be taking a close look at others who have participated directly in the defamatory campaign — as well as those who have recklessly provided a platform for these discredited allegations.”
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Powell, Trump campaign lawyer Rudy Giuliani, and other lawyers involved in Republicans’ postelection legal fights are facing personal exposure too. Michigan Attorney General Dana Nessel announced on Tuesday that her office planned to file bar complaints against Powell and other lawyers involved in unsuccessful lawsuits against state and local election officials and would seek sanctions in court, according to Bridge Michigan. Rep. Bill Pascrell, a New Jersey Democrat, announced last month that he’d filed bar complaints against Giuliani and other lawyers representing Trump and Republicans.
In federal courts, where Powell filed her four failed election challenges to date in Michigan, Georgia, Wisconsin, and Arizona, judges can sanction lawyers who file cases “for any improper purpose, such as to harass” or who press “frivolous” claims. Judges have repeatedly called out Powell for failing to follow court rules and have rejected her efforts to invalidate Biden’s wins in those states. Over the years, courts have grappled with where to draw the line between sanctionable conduct and aggressive advocacy on behalf of a client.
Attorneys’ ethics rules include similar language prohibiting lawyers from abusing the legal system and bringing frivolous claims. State bar investigations generally don’t become public unless they actually lead to disciplinary action against a lawyer, however, so there’s no way to immediately know how the complaints against Giuliani and other lawyers are playing out.