As Biden administration ramps up, Trump legal effort drags on

Electoral College meetings will convene next month in state capitals to formalize President elect-Joe Biden’s win. But the fast-approaching Dec. 14 date has done little to deter the Trump campaign from continuing a protracted election-related legal effort that an increasing number of Republicans have grown weary of.

With the transition to the incoming Biden administration now underway, a growing number of GOP members see President Trump’s legal challenges and unsubstantiated claims of widespread voter fraud as a futile attempt to throw sand in the gears of the nation’s transfer of power.

The shifting attitude among some Republicans comes after judges have rebuffed numerous lawsuits brought by the campaign and its allies, at times using blistering language to dismiss the litigation.

Experts say the languishing legal campaign — which is no longer actively pushing to overturn the results in three or more states, as it would need to do to surpass Biden’s electoral votes — is less about flipping the election than about fueling a fundraising effort for Trump’s coffers and soothing his battered ego.

According to election law expert Rick Pildes, it was clear within a few days of the Nov. 3 election that the Trump campaign lacked the kind of claims and evidence needed for a court to overturn the result — and the effort has only spiraled downward from there, he said.

“Since then, all that has happened is that the claims have gotten more outlandish, the better lawyers have fled the campaign, and judges of all stripes — federal and state, whether appointed by Democrats or Republicans, including Trump appointees — have administered the formal death rites to this attempt,” said Pildes, a law professor at New York University.

The Trump campaign remains engaged in three lawsuits based in Pennsylvania, including cases pending in the U.S. Court of Appeals for the 3rd Circuit and the U.S. Supreme Court, where the campaign says it hopes to direct even more lawsuits before its effort is through. Allies of Trump are pressing additional lawsuits in other battleground states.

Like with its legal pursuit, the Trump campaign has shown little restraint in its inflammatory rhetoric, which is increasingly at odds with reality. Trump lawyer Rudy Giuliani on Wednesday told an audience in Gettysburg, Pa., which included state GOP lawmakers, that Trump had actually won Virginia — when in fact the state certified Biden’s win a week ago by more than 450,000 votes.  

Although the campaign has little success to show in the courts, the flood of post-election litigation is likely a major contributor to the perception among Trump’s supporters that the vote was tainted by widespread fraud. Almost no Trump voters consider Biden the legitimate victor of the presidential election, while 73 percent of his supporters think the incumbent won, according to a CNBC-Change Research poll released this week.

A number of top Republicans have marched in lockstep with Trump, perhaps partly to avoid alienating the president or his base ahead of the critical Senate races in Georgia that will decide which party controls the upper chamber of Congress.

But cracks have begun to emerge. While many top Republicans continue to use clinical language about Trump being within his right to exhaust his legal remedies, there are emerging signs that their patience is wearing thin.

Several Senate Republicans not known as Trump critics — including Lamar Alexander (Tenn.), Bill Cassidy (La.) and Shelley Moore Capito (W.Va.) — have recently urged Trump and his supporters to begin to accept Biden’s win and facilitate an orderly transition.

“While some irregularities and fraud have been found and should be punished, there is no indication that these are widespread enough to call into question the outcome of the election,” Capito said this week.

“I have been clear that President Trump — like any candidate for office — has the right to request recounts and to raise legal claims before our courts,” she added. “However, at some point, the 2020 election must end.”

Some Republicans have tied their remarks to the state certification of its election results, part of the process of formalizing Biden’s win ahead of next month’s Electoral College meeting.

In recent days, the key battleground states of Georgia, Michigan, Pennsylvania, Nevada and Minnesota have all certified Biden’s win, effectively dashing any lingering hopes the Trump campaign had to overturn the results there.

“Certification significantly shifts the burden of proof,” said Ned Foley, an election law expert and law professor at Ohio State University. “Post-certification, asking a court to undo the result is a very heavy lift.”

The political ground has shifted under the Trump campaign lawsuits in other ways too, as all but Trump’s most steadfast supporters make clear it is time to move on.

The transition to the incoming Biden administration began Nov. 23 when General Services Administration Administrator Emily Murphy, after a delay, issued a letter to Biden that formally set the process in motion.

Trump has consented to the process despite his refusal to concede to Biden and ongoing baseless claims that the election was “rigged.”

Justin Levitt, an election law expert and professor at Loyola Law School, said that even though legal effort to overturn the election result is meritless, it is likely to continue for the foreseeable future.

“It was dead a few days after the election. It’s been undead since. And it’s remarkably hard to kill the undead for good,” he said of the campaign’s legal effort. “There will probably be some continued action in the courts either until [Senate Majority Leader] Mitch McConnell puts his foot down or until the fundraising dries up.”